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[2017] VSC 452
Supreme Court of Victoria
2017-08-10
RIORDAN J
Original judgment source is linked above.
ADMINISTRATIVE LAW - Judicial review - Accident Compensation Act 1985 - Workplace Injury Rehabilitation and Compensation Act 2013 - Whether worker's assertions to the Medical Panel that a work history was a 'total fabrication' constituted a denial of natural justice, a failure to accord procedural fairness or a failure to take into account relevant considerations - Whether Medical Panel failed to give adequate reasons for not accepting the accuracy of another version of the worker's work history.
1 By originating motion filed 24 November 2016, the plaintiff ('the employer') seeks an order in the nature of certiorari quashing the certified opinion of the second to eighth defendants ('the Panel') dated 25 September 2016 and consequential orders for the redetermination of the questions referred to the Panel.
2 The claim of the first defendant ('the worker') for compensation was under s 82 of the Accident Compensation Act 1985. The worker's entitlement to weekly payments was a consequence of his incapacity for work that resulted from, or was materially contributed to by, the work related injury,[1] which occurred on 18 July 2008. However, the worker's entitlement to weekly payments ceased upon the expiry of 'the second entitlement' (in this case 130 weeks) unless (among other things) the worker had no current work capacity and was likely to continue indefinitely to have no current work capacity.[2]
3 The parties agreed that the following definitions of the Accident Compensation Act 1985 applied with respect to the worker's claim:
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.
...
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited -
(a) having regard to -
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker's pre-injury employment; and
(iii) the worker's age, education, skills and work experience; and
(iv) the worker's place of residence; and
(v) any plan or document prepared as part of the return to work planning process; and
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether -
(i) the work or employment is available; and
(ii) the work or the employment is of a type or nature that is generally available in the employment market.
4 The compensation provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 do not apply to the worker's claim because the injury occurred prior to 1 July 2014.[3] However, the dispute resolution provisions in pt 6 of the Workplace Injury Rehabilitation and Compensation Act 2013 do apply to disputes and claims under the Accident Compensation Act 1985 whether made before or after 1 July 2014.[4]
5 Pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013, the Magistrates' Court may refer a medical question to a medical panel for an opinion under pt 6 div 3 of that Act.
6 Under pt 6 div 3, the function of a medical panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment.[5] A medical panel is not bound by rules or practices as to evidence, but may inform itself of any matter relating to a reference in any manner it thinks fit; and must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.[6] The medical panel is entitled to require any worker to submit for examination by the medical panel.[7] The medical panel must give a certificate as to its opinion and a written statement of reasons for that opinion.[8] The opinion of a medical panel must be accepted as final and conclusive.[9]
7 The worker was born on 31 March 1955 in England. He came to Australia at the age of 16 years and married at the age of 21 years.
8 On 18 September 2007, the worker commenced employment with the employer as an interstate truck driver driving B-doubles between Melbourne and Brisbane.
9 On 18 July 2008, the worker was driving a semi-trailer when it was involved in an accident. As a result, the worker suffered the following injuries:
(a) Lumbar and thoracic spine, including compression fractures at T12 and L4;
(b) lnjury to lumbar intervertebral discs, particularly at the L4/5 level requiring spinal fusion;
(g) Chronic Adjustment Disorder, depression and anxiety.
10 On 30 July 2008, the worker lodged a claim for compensation in respect of bilateral rib fractures, fractures of T12 and L4, multiple abrasions and lung collapse, which was accepted.
11 On 15 October 2008, the worker returned to alternative duties; and by August 2009 he was working 32 hours per week.
12 By a 130 week Vocational Assessment Report of 29 March 2010 ('the Vocational Assessment Report'), the worker's education history was noted as year 9 equivalent in the UK and further courses as IT Certificate IV at 'Swinbourne University [sic]'. His employment history ('the Vocational Assessment History') was noted as follows:
13 Accordingly, the Rehabilitation Consultant concluded:
Thus, based on Mr Carroll's age, work history, educational background, transferable skills, current work capacity and suitable employment options it can be concluded that Mr Carroll has the capacity to seek employment in the following options:
• Finance Managers ...
• Clerical and Administrative Workers ...
• Credit or Loans Officers ...
• Sales Assistant ...
• Customer Service Managers ...
• Receiving and Despatching Clerk ...
14 On 6 July 2010, the employer gave notice that the worker's entitlement to weekly payments and medical and like expenses would cease on 4 February 2011 on the grounds that:
(a) weekly payments had been paid for a total of 130 weeks and the worker had a current work capacity; or alternatively
(b) if the worker had no current work capacity, it was not likely to continue indefinitely.
15 On 23 July 2010, the NES Re-Education Assessment Report recorded that:
(a) 'he has been applying for administration positions but does not have the qualifications'; and
(b) 'he would benefit from a Computer Course in order to increase his confidence and skills to gain employment in the Administration field'.
For reasons that will become apparent, it is important to note that neither this document, nor the NES Vocational Expert Report dated 23 July 2010 were provided to the Medical Panel.
16 On 16 October 2010, Remenyi & Associates Pty Ltd, Occupational and Rehabilitation Psychology Associates, noted the following:
2. He can't drive trucks owing to back injury.
3. What to do now?
17 On 28 July 2015, the worker applied for reinstatement of weekly payments and his application was rejected by notice dated 21 August 2015.
18 On 29 October 2015, the worker commenced proceedings in the Magistrates' Court claiming that he was entitled to weekly payments of compensation from 4 February 2011 to date.
19 By claim for compensation dated 9 December 2015, the worker made a further claim for compensation in respect of the following injuries, which he alleged he suffered on 18 July 2008:
20 By further notice dated 7 January 2016, the employer rejected the claim on the grounds that the worker had not sustained any new injury arising out of or in the course of his employment.
21 By Amended Statement of Claim dated 19 January 2016, the worker sought orders that the employer's decisions communicated in the notices of 6 July 2010, 21 August 2015 and 7 January 2016 be set aside and an order that the plaintiff is entitled to weekly payments of compensation from 4 February 2011 to date.
22 On 1 June 2016, on the application of the employer, Magistrate Ginnane referred the questions, as set out in the Notice of Referral dated 3 May 2016, for opinion, pursuant to s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013.
23 The joint statement pursuant to s 304(a) dated 3 May 2016 noted that the 'facts relevant to the medical question as disputed' as follows:
• Whether [the worker] has a current work capacity.
• Whether [the worker] has no current work capacity.
24 Members of the medical panel examined the worker on 10 August 2016 and 2 September 2016.
25 The questions referred to the Panel, and the Panel's opinion, as contained in the certificate dated 25 September 2016, were as follows:
Question 1: What is the nature of [the worker's] medical condition relevant to the following claimed injuries:
iii. Brain injury;
iv. Left shoulder injury;
v. Scarring;
vi. Fractured ribs; and
vii. Chronic Adjustment Disorder, depression and anxiety?
Answer: In the Panel's opinion [the worker] is currently suffering from a persisting dysfunction of the thoracolumbar spine following compression fractures at T12 and L4, a surgically treated soft tissue injury at L4/5, an incompletely resolved, mild closed head injury, asymptomatic scarring of the scalp, both knees and lumbar spine region and from an adjustment disorder with anxious mood and mild features of traumatisation, attributable to the claimed injuries.
The Panel is also of the opinion that the bilateral multiple fractures of the ribs have resolved and [the worker] is not currently suffering from any intrinsic physical condition of the left shoulder.
Question 2: Was [the worker's] employment with [the employer] a significant factor to the following alleged injuries:
i. Brain injury;
ii. Left shoulder injury?
Answer: i. Yes.
ii. No.
Question 3: What is the extent to which any medical condition resulted from or was materially contributed to by the claimed injuries?
Answer: The Panel is of the opinion that [the worker's] current physical and psychiatric medical conditions of a persisting dysfunction of the thoracolumbar spine following compression fractures at T12 and L4, a surgically treated soft tissue injury at L4/5, an incompletely resolved mild closed head injury, asymptomatic scarring of the scalp, both knees and lumbar spine region and adjustment disorder with anxious mood and mild features of traumatisation resulted from and were materially contributed to by the claimed injuries.
Question 4: During the period from 4 February 2011 to the date of the Medical Panel examination did [the worker] have:
i. a current work capacity; or
ii. no current work capacity?
Answer: The Panel is of the opinion that during the period from 4 February 2011 to the date of the Medical Panel's examination [the worker] had no current work capacity.
Question 5: As of the date of the Medical Panel examination, does the Plaintiff have:
i. a current work capacity; or
ii. no current work capacity?
If [the worker] has no current work capacity, is that likely to continue indefinitely?
Answer: The Panel is of the opinion that as of the date of the Medical Panel's examination [the worker] had no current work capacity and this situation is likely to continue indefinitely.
26 The reasons of the Panel include a detailed review of the medical reports, the worker's history, physical examination, psychiatric examination and imaging examinations. The Panel obtained from the worker the following occupational history:
[The worker] told Panel that in 1971, at the age of 16, he again lied about his age, forging papers which would enable him to immigrate, and he said that he came to Australia at that time. He told the Panel that over the subsequent years he had worked variously as a fruit picker, as a process worker in factories, as a laborer [sic] and as a forklift driver, and he said that he had "always done physical jobs". When asked whether he had run his own business at any time [the worker] initially completely denied this, but at a later time during the assessment he told the Panel that at some point he had managed a milk bar for two years, and concurrently had also a run golf driving range, and he said that after completing a Real Estate Certificate he had spent three months working in real estate. He told the Panel that he had also had other experience in the retail industry in the 1990s, at which time he said that he had been "selling photocopiers for a few months".
The Panel noted the information pertaining to [the worker's] occupational history contained in the "130 Week Vocational Assessment Report["] of WorkFocus, dated 29 March 2010, which was included with the Referral material. The Panel noted that [the worker] is said to have obtained an "IT Certificate IV at Swinbourne University"; that between 1990 and 1992 he is said to have been employed as a marketing and finance director with Parklake Pty Ltd; that between 1997 and 1999 he is said to have worked as a commercial business and finance manager for Stockdale & Leggo Real Estate; and that between 1996 and 2007 he is said to have been the owner and executive director of Exon Manor, where his duties were described as finance placement of mortgages, promotion and marketing, preparation of financials and executive summaries, business finance and procuring offshore venture capital.
The Panel asked [the worker] about this information, and [the worker] said that the document was a total fabrication. He told the Panel that he had never attended Swinbourne University, that he knew nothing about information technology, that he had "never heard of Parklake", and that although he had, at some stage, been employed by Stockdale & Leggo Real Estate, he had only worked there for three months. He told the Panel that he had owned a company named Exon Manor, but he said that this company had been established because he needed "to give someone something" and had never otherwise been active. He told the Panel that he had never worked in business finance, and when specifically asked about procuring offshore venture capital he said "what's that?"
He told the Panel that his computer skills are limited to "sending emails and googling stuff" on his mobile phone, and he said that he does not own a computer.
27 With respect to the injuries consequent upon the work accident, the Panel concluded in summary as follows:
(a) The worker had a psychiatric adjustment disorder with anxious mood and mild features of traumatisation.[10]
(b) The worker has a persisting dysfunction of the thoracolumbar spine, following compression fractures at T12 and L4 and a surgically treated soft tissue injury at L4/5 and an incompletely resolved mild closed head injury.[11]
28 As a result, the Panel concluded that the worker's current physical medical condition precluded him from performing his pre-accident duties as an interstate truck driver.
29 The Panel considered whether the worker had a work capacity and if not whether that incapacity was likely to continue indefinitely; and concluded both questions in the affirmative on the basis of the following analysis:
The Panel considered [the worker's] educational and occupational history, noting the discrepancies between the information provided by [the worker] and the information contained in the 130 Week Vocational Assessment Report, dated 29 March 2010. The Panel accepted [the worker's] history that he has no qualifications in information technology, no qualifications or experience in finance, and only three months' occupational experience in real estate. However the Panel also noted that [the worker] has extensive experience in retail, both when previously selling photocopiers in the 1990s and more recently when running a milk bar.
The Panel noted that [the worker] demonstrated a favourable personal presentation, with good English expression skills although he was quite vague at times, that he has adequate English literacy and numeracy skills but limited computer skills, that he holds a current driver's licence, and that his current work-related physical and psychiatric medical condition does not preclude him from driving, albeit he advised that he generally only drives locally and avoids driving on freeways, or from being able to use public transport.
The Panel also noted, and considered, the 130 Week Vocational Assessment Report, dated 29 March 2010, which was included with the Referral material and which identified the potential suitable employment options of a finance manager, a clerical and administrative worker, a credit or loans officer, a sales assistant, a customer service manager and a receiving/dispatching clerk for [the worker's] transferrable skills and physical and psychiatric medical condition.
The Panel asked [the worker] about his own perception of his capacity to work. [The worker] told the Panel that he considered that his lower back pain would probably preclude him from engaging in any employment duties, but he said that if he could secure a position where he was able to sit, stand and walk around at will, and for which he was qualified, he would be able to do the job.
The Panel specifically asked [the worker] about his perception of his ability to engage in the jobs identified by the occupational rehabilitation provider as being potentially suitable for him, and [the worker] said that whilst he had no qualifications in finance or management he could probably do administrative/clerical work if he could move around. He told the Panel that he also considered himself capable of the duties of a retail assistant, but he said that he "would detest" such a job.
The Panel considered all aspects of the definition of "suitable employment", "current work capacity" and "no current work capacity" as defined in the Victorian Workers Compensation Legislation. Specifically the Panel considered:
The Panel considered the functional and educational requirements of the vocational options of a finance manager, a clerical and administrative worker, a credit or loans officer, a sales assistant, a customer service manager and a receiving/dispatching clerk. The Panel noted that [the worker] lacks both qualifications and occupational experience which would enable him to engage in the duties of a finance manager or a credit or loans officer. The Panel also noted that the roles of a clerical and administrative worker and of a receiving/dispatching clerk would require computer skills which [the worker] does not currently possess, and the Panel further noted that the duties of a sales assistant and of a customer service manager could require heavy manual handling when handling/displaying stock and/or prolonged periods of weight-bearing activity when serving customers, which would be beyond [the worker's] physical ability. The Panel therefore concluded that the occupations of a finance manager, a clerical and administrative worker, a credit or loans officer, a sales assistant, a customer service manager and a receiving/dispatching clerk would not constitute suitable employment for [the worker].
The Panel considered that there is no work for which [the worker] is currently suited and which he could perform on a reliable and consistent basis, and the Panel also considered that this has been the case during the period from 4 February 2011 to the date of the Panel's assessment.
The Panel therefore concluded that [the worker] has no current work capacity, and the Panel also concluded that this has been the case during the period from 4 February 2011 to the date of the Panel's assessment.
The Panel noted that apart from a single Vocational Assessment in 2010 [the worker] has not been provided with any occupational rehabilitation services, that he has not participated in any form of occupational retraining, and that he has never received any formal psychiatric treatment.
The Panel considered that with the provision [of] appropriate psychiatric treatment and occupational rehabilitation services, including retraining, [the worker] could regain a current work capacity, but the Panel was unable to determine if or when this might occur. The Panel therefore concluded that [the worker] is likely to continue indefinitely to have no current work capacity.
Materials provided to the Panel with respect to the worker's employment history
30 The materials provided to the Panel included notes from examining doctors, which noted a variety of employment histories for the worker as follows:
(a) Dr Chris Baker, a specialist in occupational medicine, provided a medico-legal report on behalf of the employer dated 14 October 2008 as follows:
Mr Carroll was born in the United Kingdom and migrated to Australia in 1971. He commenced employment with APS Group Industrial Pty Ltd, a placement agency, on 18.9.01. He was placed with Specialised Container Transport and has been employed with the company since 18.9.01. He noted he was driving B-double semitrailers interstate between Melbourne and Brisbane. He had a good attendance at work and prior to his injury he was able to undertake the work without difficulty.
(b) Dr Richard Prytula, psychiatrist engaged on behalf of the employer, in his report of 22 March 2010 noted the following work history:
He did a number of courses since including IT and crisis management. He also has completed a real estate qualification.
In the 80's he bought milk bars which were run down and built them up and then sold them at a profit. He did this until 1992.
He then took six months off and travelled around the world with his partner.
In 1992 he became new business manager for Dollar Force Financial Services. He was also running other businesses of his own which included a golf course and a hotel.
He felt that there was too much pressure in the financial business so in 2005 he bought a truck and began driving it. He initially worked for Linfox as a subcontractor but found this too unrewarding eventually and in 2007 began working with [the employer].
(c) Dr Andrew Remenyi, treating clinical psychologist, provided a report dated 4 February 2010 and noted the work history as follows:
Mr Carroll left school at age 14; unbeknownst to his parents he lied and got a job. In 1994 he completed an IT diploma from Swinburne University (two years).
His first job was as a Salesperson in Carnaby Street and he had many sales jobs over fifteen years. He ran his first business, a Golf Driving Range and Hotel in Mornington. He said he fell into a $3.6M debt over a first home buyers development business in Queensland, but that he paid off all his creditors over time. He worked in a brokerage as a Mortgage Analyst until 2004. He said that he was unemployed for two years. He joined [the employer] as a Truck Driver in 2007 and is still there. Mr Carroll appears to have a very chequered work history and it is not clear why he shifted from financial management to truck driving.
(d) Dr Melissa Slayo, clinical neuropsychologist, provided a report dated 1 April 2011 noting 'Occupational Attainment' as follows:
He reported being employed as a finance manager, sales assistant, and a truck driver in the past. Mr Carroll was employed as a truck driver until his accident in July 2008.
(e) Dr David Elder, occupational physician, provided a medico-legal report dated 2 March 2012 on behalf of the employer and noted the occupational history as follows.
He worked at APS for 2 years as a truck driver. Prior to that, he worked for Linfox for about 2 years and the worker had difficulty remembering his previous occupational history.
I note however that he has been able to remember it in great detail in the times that he has seen Chris Baker.
(f) Dr Paul Kornan, a psychiatrist, provided a medico-legal report on behalf of the employer dated 14 March 2012 and noted the following work history:
He worked in England in a menswear shop, and then a hairdressing shop, and came to Australia at sixteen and a half on his own. He travelled around Australia for two years, and drifted from job to job ... . He then went into forklift driving, and truck driving, going from job to job. He often stayed for four to five years with one company, and then changed. He had a job working in the plastic extrusion industry. That finished in the early nineties and then there were lots of jobs after that, but he could not seemingly, remember them. He felt that he was always working.
(g) Dr Matthew Tagkalidis, consultant psychiatrist, provided a medical report dated 30 July 2015 at the request of the worker and noted the relevant work history as follows:
He stated that he completed his year 9 equivalent and then migrated to Australia aged 17 and worked odd jobs, then started truck and forklift driving jobs which he did for over 20 years, then co-owned and ran a golf driving range for 2 years, then resumed driving type jobs. He said that he was unemployed for approximately 2 years in the period prior to starting with the relevant workplace company in or around 2008. He said that he had never been disciplined or sacked in any of his prior workplaces. He said that he had no current certificate qualifications.
He noted that these past skills and work experience were 'largely limited to truck driving and odd jobs'.
(h) Mr Geoffrey Klug, neurosurgeon, provided a medico-legal report dated 23 September 2015 on the request of the worker and noted his work history as follows:
As regards his background, he told me that he was born in the United Kingdom. He was educated to a fourth form level in that place. Before coming to Australia he undertook some work in an electronics firm, undertaking some simple repairs. He did have some training but did not gain any formal qualification in this field.
After arriving in Australia he undertook various types of employment. For a period of time he worked as a labourer and in a factory. He also spent some two years travelling around Australia, undertaking various forms of employment such as fruit picking.
For a period he worked as a fork-lift driver and gained appropriate qualifications. In 1976 he gained a truck driver's license. In general, since that time, he has undertaken that type of employment, although he did state that from time to time he did undertake some alternate activities.
He concluded that he did 'not believe [the worker] could return to his previous occupation as a truck driver. He does not have any specific background or training which would enable him to undertake physically non-demanding activities, such as office work'.
(i) Dr Joseph Slesenger, a specialist occupational physician, provided a medico-legal report dated 15 November 2015 at the request of the worker and noted the past occupational history and experience as follows:
Mr Carroll was born in the UK and came to Australia at the age of 16.5. He advised that he has had a number of employments including forklift driving, labouring, stores work, truck driving, sales and he has worked as a labourer in a factory. He advised that his longest period of employment was as a forklift driver at Nylex, where he worked as a trainer as well as a forklift driver.
31 The joint statement of 3 May 2016, filed pursuant to s 304(a) of the Workplace Injury and Rehabilitation Compensation Act 2013, made no reference to the worker's employment history but the employer's submissions of the same date submitted that the medical opinions relied upon by the worker to the effect that the worker had no current work capacity[12] were 'deficient as they fail[ed] to consider [the worker's] extensive experience in other occupations before he became a truck driver (as set out in the report of Dr Andrew Remenyi as well as the [Vocational Assessment Report])'. It was submitted that, on the basis of the Vocational Assessment Report, the worker could obtain employment as:
I will refer to these jobs together as 'the Administrative Position Options'.
32 By submissions filed 17 May 2016, it was submitted on behalf of the worker relevantly as follows:
(a) He had undertaken 'some work in an electronics firm undertaking simple repairs although he never gained any formal qualifications in the field'; and he had worked in various types of employment including as a labourer, in a factory, fruit picking and for a period as a forklift driver. However, 'from approximately 1996 onwards he worked as a truck driver'.
(b) With respect to the employer's submission that the worker could obtain suitable employment in any of the Administrative Position Options:
It is submitted on behalf of the plaintiff that he has no skills in any of the above jobs nor would he be fit due to his physical, psychological and cognitive difficulties to be re-trained for such work.
Indeed, it is submitted that the vocational assessment is borderline ludicrous with some of its suggestions on the basis that Work Focus notes that the job of finance manager, for example, requires a degree qualification; the job of customer service manager requires HSC/senior secondary education. The job of sales assistant requires packaging goods for customers and arranging delivery, pricing, stacking and displaying items for sale, participating in stock take and similar duties.
33 The history given by the worker to the Panel confirmed that he had immigrated to Australia at the age of 16 after being educated to the age of 14. With respect to his work history he told the Panel, in summary, as follows:
(a) He could not recall his first job but it was probably labouring.
(b) After immigrating to Australia 'he had worked variously as a fruit picker, as a process worker in factories, as a labourer and as a forklift driver', and he said that he had 'always done physical jobs'.
(c) After initially denying he had owned a business, he said that 'at some point he had managed a milk bar for two years, and concurrently had also run a golf driving range'.
(d) He said he completed a real estate certificate and had spent three months working in real estate.
(e) He said he had experience in the retail industry in the 1990s being 'selling photocopiers for a few months'.
I will refer to this work history as 'the revised history'. He also told the Panel that the Vocational Assessment History was a 'total fabrication'.
34 The employer submitted that the Vocational Assessment Report was commissioned for the purpose of assessing the worker's ongoing compensation entitlements. The information about the worker's educational and occupational history was critical to the decision to terminate the weekly payments of compensation on the basis that the worker did have a current work capacity.
(a) The allegation that the Vocational Assessment History had been fabricated and the revised history provided by the worker, and accepted by the Panel, had come 'out of the blue' and could not have been anticipated.
(b) The Panel should have advised the employer of the allegation and the content of the revised history on which the worker intended to rely.
(c) The worker should have put the employer on notice of the revised history, for which he would contend, and the fact that he alleged that the Vocational Assessment History was a 'total fabrication'.
(d) If the employer had been put on notice, it could have conducted further investigations, referred the Panel to other documents in existence which contained work histories consistent with the Vocational Assessment History including the NES Vocational Assessment Report dated 23 July 2010 and the progress notes of Dr Remenyi.[13]
(a) The fabrication allegation played no role in the Panel's reasoning. The Panel relied upon the revised history, as it was entitled to do.
(b) The history, as given to and accepted by the Panel, was consistent with the histories recorded by Dr Tagkalidis, Dr Kornan, Mr Klug and Dr Slesenger.
(c) The employer was on notice that the worker disputed the Vocational Assessment History because of the history he had given to the examining doctors; and the submissions to the Panel filed and served on behalf of the worker. The employer at no time took any step to further investigate or otherwise make further submissions to the Panel.
Application of the hearing rule to medical panels
37 In Weerappah v Nisselle,[14] Smith J confirmed that medical panels were obliged to accord procedural fairness and observed as follows:
The problem that has to be addressed is a real one and it arises because, in my view, a system that was set up ostensibly to enable a speedy resolution of "medical questions" and structured accordingly is required by the Act to determine questions of law and fact which include not only purely medical questions but also all questions arising in respect of a claim for compensation under the Act including questions of fact and the credibility of evidence. Because the Panels are required to provide natural justice, they must act appropriately according to the circumstances of each individual case and ensure that both parties are given a reasonable opportunity to be heard on the matters at issue in the reference to the Panels.[15]
38 The example Smith J gave of the circumstances giving rise to an obligation to accord natural justice was similar to the employer's submission in this case, where 'the worker may reveal information of which the insurer is unaware and which may, if accepted, entitle the worker to the compensation that it had been denied'.[16]
39 However, it should also be noted that Smith J stated:
It is important not to subvert Parliament's intention by encrusting what is intended to be a cheap, flexible and speedy system with unreasonable and impractical requirements.[17]
40 It is well established that a panel is required to observe principles of procedural fairness in forming its opinion, including allowing each party a reasonable opportunity to address critical facts and medical questions that may form the basis of its opinion.[18]
41 Because the issues before the Panel are not confined by pleadings, the question to be determined is whether a finding of the Panel, whether of fact or medical opinion, is outside the ambit of the issues, in respect of which the parties have had a fair opportunity to address the Panel. This will be a matter of 'fact and degree'.[19] But it has been held that a finding will be outside such ambit in the following circumstances:
(b) It is unexpected, 'could not have been reasonably anticipated, or would not obviously be open on the known material'.[21]
(c) It was reasonably perceived as not being 'in the ring'.[22]
42 In my opinion, objectively assessed, the finding by the Panel that 'the occupations of a finance manager, a clerical and administrative worker, a credit or loans officer, a sales assistant, a customer service manager and a receiving/dispatching clerk would not constitute suitable employment for [the worker]' was both open to the Panel and could have been reasonably anticipated for the following reasons:
(a) The occupational histories particularly as recorded by Dr Tagkalidis, Mr Klug and Dr Slesenger are obviously inconsistent with the Vocational Assessment History and the employer ought to have been aware that the Panel may well have regard to them.
(b) The worker's submissions to the Panel contend for an occupational history in labouring positions and expressly assert that the worker has 'no skills for employment as a finance manager, clerical and administrative worker, credit or loans officer, sales assistant, customer service manager or receiving/dispatching clerk.' It would have been apparent that, given the conflict of histories, the Panel may have considered that the Vocational Assessment History (particularly if interpreted as indicating high skill levels) was inconsistent with other histories which recorded the worker's limited education, lack of qualifications and pre-accident employment as an interstate truck driver.
43 Further, I consider that it could be reasonably anticipated that the Panel would find that the worker did not possess the computer skills required to undertake the roles of a clerical and administrative worker and of a receiving/dispatching clerk for the following reasons:
(a) Although the Vocational Assessment Report referred to the plaintiff completing an 'IT Certificate IV' at Swinbourne University [sic]', Dr Remenyi's report noted that the course was completed in 1994 and there was no information about whether the course related to repairing hardware on computers or developing operational skills. The former interpretation appears to be supported by:
(i) The reference in the Vocational Assessment Report to the worker stating that he 'loved technology and pulling computers apart' indicated that his interest may well have focussed more on the hardware than on the operation of computers.
(ii) The worker's submissions state that the worker undertook some work in an electronics firm undertaking simple repairs.
(b) Patently, even operational skills learnt in 1994 would be well out of date. I do not consider that the employer was reasonable if it believed that the worker had continued to upgrade his operational computer skills over the years. In particular, the employer had available to it the NES Re-Education Assessment Report[23] which recommended that the worker undertake a computer skills course for the purpose of developing his suitability for an administrative clerical position; and the notes of Dr Remenyi, which noted that it had been pointed out to the worker, in substance, that his finance experience counted for nothing and he had no qualifications other than as a truck driver.[24]
44 The employer submitted that it could not be reasonably anticipated that the worker would assert that the Vocational Assessment History was a fabrication. That may be so, but the Panel did not indicate that it formed any conclusion about whether it was the worker's or the assessor's fabrication; and it gave no indication that the allegation that the Vocational Assessment History was a fabrication (as opposed to simply inaccurate) in any way affected the Panel's opinion. There was no issue that it was open on the material before the Panel to accept the revised history provided by the worker, as supported by a number of the histories recorded in the medical reports, and reject the Vocational Assessment History.
45 I do not consider that the fact that the employer may consider that it could have taken forensic steps, consequent upon the assertion that the Vocational Assessment History was a fabrication, sufficient ground for concluding that the Panel by proceeding to its conclusion failed to accord the employer procedural fairness.
Taking into account relevant considerations and taking into account irrelevant considerations and failing to give adequate reasons
46 The employer accepted that the Panel was not required to accept the accuracy of the Vocational Assessment History; but contended that the Panel was required to give the document lawful and genuine consideration. It was submitted that consideration of a mandatory matter 'requires a decision-maker to engage in an active intellectual process, in which each relevant matter received his or her genuine consideration';[25] and that a failure to refer to a relevant consideration in reasons may, in context, give rise to an inference it was not taken into account.[26]
47 It was submitted that the Panel fell into error by:
(a) failing to reconcile the discrepancy between the worker's revised history and the Vocational Assessment History, which was also supported by the history recorded by some of the medical reports; and alterntivaly
(b) if the Court was unable to ascertain whether or not the Panel genuinely considered these issues, the Panel failed to provide adequate reasons.
48 The worker submitted that, although a panel must explain how it arrives at its opinion from findings of fact, it is not necessary for the Panel to explain the manner and the way in which it comes to each and every finding of fact.
49 Further, the reasons of the Panel are clear that the Panel did consider the discrepancy between the Vocational Assessment History and the revised history; and accepted the revised history - as it was entitled to do.
50 The Panel's reasons were detailed and clearly demonstrated the Panel's reasoning process.
51 With respect to the worker's capacity to be employed, the Panel's reasoning may be summarised as follows:
(a) The worker provided a history of always doing physical jobs but added that he had managed a milk bar, run a golf driving range, worked for three months in real estate after completing a real estate certificate and had experience selling photocopiers for a few months.
(b) The Panel specifically noted, as part of its examination, the Vocational Assessment History including the reference to the 'IT Certificate IV at Swinbourne University' [sic] and asked the worker about this information. The Panel also noted what the worker said about each of the specifics referred to in the Vocational Assessment History; and that the worker said that his 'computer skills were limited to "sending emails and googling stuff" on his mobile phone and that he did not own a computer.'[27]
(c) Subsequently, in its conclusion, the Panel specifically referred to the Vocational Assessment History and noted the discrepancies between that history and the revised history given to the Panel, but stated that it accepted the revised history.[28]
(d) The Panel set out a range of considerations for the purposes of determining the worker's current work capacity including his physical condition; psychiatric condition; age; place of residence; motor vehicle driving ability; transferrable skills (favourable personal presentation, good English literacy and numeracy skills, but limited computer skills and mild cognitive impairment together with his occupational experience as found); the lack of occupational rehabilitation services offered; and the opinions of the worker's treating General Practitioner, Dr Gomez-Paredes, and treating neurosurgeon, Professor Richard Bittar, that the worker had no current work capacity.
(e) The Panel specifically referred to the Administrative Position Options identified by the Vocational Assessment Report and excluded:
(i) the occupations of finance manager or a credit or loans officer on the basis of the lack of qualifications and occupational experience as found by the Panel; and
(ii) the roles of clerical and administrative worker and of receiving/dispatching clerk on the basis of the lack of computer skills as found by the Panel.
The Panel therefore concluded that the worker had no current work capacity and the incapacity was likely to continue indefinitely.[29]
52 The Panel commits jurisdictional error if, in making its decision, it fails to take into consideration a matter which it was bound to take into account; and the matter materially affects its decision.[30]
53 The Vocational Assessment Report may have been so fundamental that the failure to take it into account would have constituted a jurisdictional error.[31] However, in my opinion, the reasons of the Panel patently demonstrate that it took the Vocational Assessment Report into consideration.
54 The fact that the Panel preferred the revised history provided by the worker (as supported by some of the medical reports and the submissions made on behalf of the worker) does not constitute jurisdictional error. Even if this Court may have given different weight to the evidence before the Panel, or reached a different factual conclusion,[32] jurisdictional error by the panel would not be disclosed.[33] To find otherwise would, in my opinion, cross the line between judicial review and merit review and misconstrue dubious findings of fact or questionable weight being given to particular evidence as jurisdictional errors.[34]
55 The principles to be applied when assessing the reasons of a medical panel are well established.
(a) The statutory function of a medical panel is that it is to form its own opinion.
(b) The statement of reasons which a medical panel is obliged to provide under legislation must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion it formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to determine whether the opinion does or does not involve any error of law.
(c) It is not incumbent on a medical panel to provide a comprehensible explanation for rejecting any expert medical opinion nor to explain why it did not reach an opinion it did not form. The function of a medical panel is neither arbitral nor adjudicative.
(d) The reasons of a medical panel are entitled to a beneficial construction in the sense that they should not be scrutinised over-zealously.[35]
56 In my opinion, a fair reading of the reasons of the Panel in this case discloses a perfectly clear path to its conclusion. Its opinion was based on:
(a) Its findings as to the worker's occupational history based on the material before it, including the history provided by the worker and the Vocational Assessment Report.
(b) Consideration of the matters, which were specified in the Panel's Reasons, relevant to the worker's capacity to carry out the Administrative Position Options.
(c) An assessment of the plaintiff's capacity to carry out each of the Administrative Position Options.
57 In my opinion, the propositions noted by the Panel were opinions which the Panel was entitled to form and it would be impermissible for this Court, on judicial review, to reconsider the merits of the Panel's opinions.[36]
58 In the circumstances, I propose to dismiss the motion and will hear the parties on the question of costs.
[9] Ibid s 313(4)(b).
[10] Medical Panel, Reasons for Opinion (25 September 2016) 18.
[12] Reports of Mr John O'Brien (dated 25 August 2015) 5, Mr Geoffrey Klug (dated 23 September 2015) 8, Dr Slesenger (dated 15 November 2015) 9 and Dr Tagkalidis (dated 30 July 2015) 10.
[13] Referred to in [15] and [16] above.
[18] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 498 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ); Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248 [32]-[37] (Cavanough J); Toyota v Bendrups [2016] VSC 718 [26]-[32] (J Forrest J).
[19] North v Homolka [2014] VSC 478 [104] (Ashley JA).
[20] Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248 [48] (Cavanough J).
[21] North v Homolka [2014] VSC 478 [104] (Ashley JA).
[22] Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; (2001) 52 NSWLR 213, 220-1 [44] cited with approval in Kuek v Victorian Legal Aid [2015] VSC 48 (McDonald J) and Sargent v Disler [2016] VSC 292 [31] (McDonald J).
[26] Ibid [44], [46]; Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675, 680 (Barwick CJ).
[27] Medical Panel, Reasons for Opinion (25 September 2016) 15.
[31] For a discussion about when a failure to account a document provided to a medical panel will constitute a jurisdictional error, see Omerasevic v Kotzman [2016] VSC 383 [105] (Riordan J).
[32] Milwain v Sim [2009] VSC 75 [21] (Kyrou J).
[33] S v Crimes Compensation Tribunal [1998] 1 VR 83, 89-90 (J D Phillips JA).
[34] Milwain v Sim [2009] VSC 75 [22].
[36] Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17 [61] (Neave JA, with whom Santamaria JA and Ginnane AJA agreed).
APS Group (Industrial) Pty Ltd
Carroll [2017] VSC 452
(2013) 252 CLR 480
(2001) 52 NSWLR 213
(1979) 140 CLR 675
(1986) 162 CLR 24
(1995) 184 CLR 163
(2001) 206 CLR 323
(2012) 38 VR 45