Plaintiff v Defendants

Supreme Court of Victoria|2018-08-01|Before: Daly AsJ

JUDICIAL REVIEW - Application by worker for judicial review of a medical panel's opinion in respect of questions concerning her capacity for work - Plaintiff lodged successful WorkCover claim in respect to psychological injury caused by workplace bullying - Plaintiff's weekly payment entitlement subsequently terminated on basis that she was not incapacitated for work - Plaintiff selfrepresented in examination before Panel and in present proceeding - Whether Panel failed to take into account relevant considerations - Finding that Panel took into account all relevant considerations that had been drawn to its attention - Panel not obliged to account for aspects of plaintiff's history and condition not drawn to its attention - Whether Panel took account of irrelevant considerations - Finding that plaintiff's job search activities were not an irrelevant consideration - Whether Panel denied procedural fairness - No denial of procedural fairness - Panel not obliged to take an active investigative role - Reasons adequate - Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, referred to - Whether a medical panel's notes are to be preferred over a plaintiff's evidence as evidence of what occurred during an examination - , applied - Whether any gaps or errors in Panel's notes go to a matter fundamental to the Panel's determination - Finding that any discrepancies between Panel's notes and plaintiff's evidence were largely minor and trivial - No error of law established - Proceeding dismissed

1 The plaintiff commenced employment in the accounts department of the third defendant, Doward International Pty Ltd ('Doward') on 24 August 2015. The plaintiff alleges she suffered bullying by two other staff members in the course of her employment with Doward, and had reported it to the General Manager of Doward, but nothing was done to remedy the situation.

2 On 2 November 2016, the plaintiff lodged a WorkCover claim for 'depression exacerbated by workplace issues'. The plaintiff's position with Doward was made redundant effective 25 November 2016, for reasons unrelated to her medical condition. The plaintiff's claim was accepted on 8 December 2016. However, on 9 December 2016, the plaintiff's weekly payments were terminated with effect from 19 December 2016, on the basis that the plaintiff was not incapacitated for work.

3 The matter was referred to conciliation with the WorkCover Conciliation Office, which referred two medical questions to a medical panel ('Panel') under s 284 of the Workplace Injury Rehabilitation and Compensation Act 2013 ( 'WIRC Act').

4 The Panel examined the plaintiff on 4 April 2017, and was asked to answer two medical questions. The questions and answers are reproduced below:

1. What is the nature of the [plaintiff's] medical condition (including any sequelae) relevant to the claimed injury?

In the Panel's opinion, the [plaintiff] is suffering from an adjustment disorder with depression and anxious mood, which is partially resolved.

2. Did or does the [plaintiff] have an incapacity for work? If so, what is the extent to which the [plaintiff's] incapacity for work:

(a) resulted from or was materially contributed to by;

(b) results from or is materially contributed to by any, and if so which, of the claimed injuries?

In the Panel's opinion, the [plaintiff] was incapacitated for work from 2 November 2016 to 9 November 2016 which resulted from the claimed injury, however thereafter the [plaintiff] did not and does not have an incapacity for work that resulted from or was materially contributed to by the claimed injury.

5 The background to the plaintiff's claim is reviewed in some detail in the Panel's reasons dated 2 May 2017 ('Reasons'), as summarised below.

6 The plaintiff was at the time of the Panel's examination in April 2017 fifty years old. She was employed as a fulltime accountant with Doward, her employment having commenced on 24 August 2015. She led a small team of accounts staff, managed monthly accounts, and processed payroll, BAS, WorkCover, superannuation and fleet management leasing. She had a heavy workload, and some difficulties within her team. The plaintiff reported bullying and harassment on the part of two staff members who she claimed were resistant to change and innovation. She submitted a formal complaint in September 2016, which failed to resolve the matter. The plaintiff described the bullying as constituting rudeness, eavesdropping, criticism and humiliating statements on the part of the other workers. By early 2016,[1] the plaintiff was feeling very tense, and tired owing to restless and interrupted sleep.

7 The plaintiff first sought treatment from her general practitioner ('GP') in November 2015, and was prescribed antidepressant medication. She was referred to a psychologist in August 2016, for what was described by the Panel as 'generic supportive counselling'. As noted above, her position with Doward was made redundant in November 2016. She sought alternative employment as an accountant, but was not successful in securing employment until March 2017.

8 The plaintiff reported her personal circumstances to the Panel. She is the sole parent of a university student. She reported not having resumed leisure activities she enjoyed prior to her being affected by workplace related stress. She had experienced workplace related stress in the past, but had not received treatment or made any WorkCover claim. She still took medication, and struggled with managing work, parenting, and domestic functions. There had been a gradual improvement in her mood, selfesteem and confidence, but some of her dealings with the WorkCover insurer and her former employer had caused her stress. She still had difficulties getting to sleep at night, often having to nap during the day.

9 The plaintiff is selfrepresented. However, notwithstanding her lack of legal qualifications, and the psychological issues the plaintiff has had to deal with, she has demonstrated an excellent grasp of the legal and procedural issues associated with proceedings of this nature, and her evidence and submissions were in good order and well expressed, albeit very heavy on detail and on occasions repetitive.

10 The plaintiff's originating motion is also quite detailed, and as such, will not be reproduced here in full. The plaintiff contends that the Panel in forming its opinion concerning her work capacity:

(a) failed to take into account relevant considerations, including, among other things:

(i) the agreed fact that the plaintiff took sick leave and arrived late for work from mid2016;

(ii) the Panel's own opinion that the plaintiff was suffering from an adjustment disorder with depression and anxious mood, which had partially resolved;

(iii) the opinion of the plaintiff's treating GP as stated in certificates of capacity issued on 2 November 2016 and 13 December 2016;

(iv) the opinion of the plaintiff's GP dated 20 January 2017 to the effect that the plaintiff was not fit to return to preinjury duties; and

(v) that the plaintiff had attempted to obtain part-time work without success;

(b) took account of irrelevant considerations by assessing the plaintiff's work capacity based upon her job search activities, and on the basis that she had obtained a fulltime accounting position commencing the day after her examination by the Panel. The plaintiff contends that it was unreasonable and illogical for the Panel to conclude that the plaintiff was not incapacitated for her preinjury duties based upon the fact that she had looked for similar work and obtained a fulltime job in April 2017, without taking into account the matters referred to under the first ground of review;

(c) denied the plaintiff procedural fairness by failing to provide her the opportunity to make submissions relating to her job search activities;

(d) failed to provide reasons or an adequate path of reasons sufficient to comply with s 313(2) of the WIRC Act, in:

(i) failing to provide adequate reasons or an adequate path of reasoning in concluding that the plaintiff was not incapacitated for work after 9 November 2016; and

(ii) failing to provide adequate reasons or an adequate path of reasoning as to how it reached a different conclusion to the plaintiff's GP and psychologist.

(a) an order for certiorari quashing the Panel's opinion;

(b) an order for mandamus remitting the medical questions to a differently constituted medical panel;

(c) an order that the defendants pay the plaintiff's costs; and

(d) such further or other orders as the Court thinks fit.

12 The plaintiff filed and served an affidavit on 30 June 2017 in support of the originating motion. Given the manner in which the plaintiff put her case, it is necessary to canvass the contents of this affidavit in some detail.

13 In her affidavit, in addition to exhibiting the documents provided to the Panel and other relevant material, the plaintiff deposed as to the following matters:

(a) her bullying by a coworker and the onset of depression in June 2016;

(b) her taking of sick leave and working flexible hours after midJune 2016;

(c) the failure of her boss to respond to her complaints about bullying;

(d) her distress upon being made redundant;

(e) that she made a WorkCover claim after she exhausted her sick leave, and she worked three to four days per week after taking sick leave and prior to her redundancy;

(f) the errors made by the independent medical examiner engaged by CGU ('WorkCover insurer') to assess her WorkCover claim;

(g) the inclusion of the following agreed facts in the referral to the Panel:

Leading up to her redundancy, Ms Chang took time off on sick leave and attended work late from approximately mid-2016.

(h) that she was upset by the WorkCover insurer's refusal to fund the gastro-intestinal medications she was taking; and

(i) in relation to the examination by the Panel on 4 April 2017 and her job search activities, the plaintiff deposed as follows:

On 4 April 2017, I was examined by the Medical Panel comprised of Dr Diane Neill (First defendant) and Dr Steven Adlard (Second defendant).

I remember at the beginning of the meeting, Dr Neill asked me how is work which I replied, 'I am going to start a fulltime job tomorrow. I don't know if I can cope. The new job has a clearer reporting structure, etc'. In the later part of the meeting, Dr Neill asked me when I started looking for another job which I replied 'December 2016'. Dr Neill then moved on to other questions. After the meeting was concluded and I was about to leave the meeting room, Dr Adlard asked me what is the new job which I replied 'It is very similar to my previous job. It is also for an importer and wholesaler but for different products'. Dr Adlard then asked me about the size of the company and the salary which I replied, 'It has around 50 staff. My salary is very similar to my previous job.' Then Dr Adlard said, 'Good Luck'. I said 'Thank you' and then Dr Neill led me out of the meeting room.

This is all I have been asked by the Medical Panel about my job search activities and my new job. I wold like to point out that the Medical Panel has not asked me about what type of job I have applied for after I have been made redundant by Doward International.

In hindsight, I should have elaborated on my job search activities if I knew that the Medical Panel would form its opinion based on that. I would have outlined the details to the Medical Panel if I knew that they were going to conclude that I did not and does not have an incapacity for work after 9 November 2016 because I have told them that I am going to start a fulltime accounting position on 5 April 2017; the day following the meeting with the Medical Panel. I do not agree that the action of applying for fulltime accounting positions represents I have the capacity to work fulltime.

14 The plaintiff deposed further as to the following matters:

(a) after she was made redundant, she felt she was under pressure from the WorkCover insurer and her former employer to look for another job;

(b) she started her job search in December 2016 looking for parttime work, but received little response. She commenced looking for fulltime work in mid-January 2017 with the encouragement of her psychologist and her career consultant;

(c) after applying for a Newstart Allowance with Centrelink, she was required to search for work by contacting five employers per fortnight;

(d) it took her three months to get an interview with a potential employer;

(e) after receiving an offer of fulltime work, she consulted with her GP about her concerns about not being able to cope with fulltime work. Her GP encouraged her to try and work fulltime and take sick leave if necessary; and

(f) she deposed as follows:

I believe I had acted responsibly in applying for fulltime accounting positions in addition to parttime roles from midJanuary 2017 onwards after I had received no response at all for trying lower rank parttime roles for more than a month.

I believe I had acted responsibly in proactively seeking help in career counselling, getting my resume and cover letter ready to increase my chance of gaining alternate employment when I am ready to take it up.

I am annoyed and deeply disappointed by the fact that the Medical Panel has opined on my work capacity based on the fact that I had looked for fulltime accounting jobs and I had successfully obtained one to start with after the examination. I believe that it is unreasonable and illogical to conclude that an injured worker has full work capacity just because he/she has applied for fulltime jobs without take into consideration the circumstances surrounding the injured worker.

15 The remainder of the plaintiff's first affidavit concerned her dealings with the insurer, her ongoing treatment by her GP and psychologist, the certificates and reports provided by her to the Panel, and foreshadowed the matters raised in her written and oral submissions in support of her grounds of review.

16 In a further affidavit sworn on 24 July 2017, the plaintiff exhibited a number of certificates issued by her GP which were not provided by her to the Panel. She deposed as to lodging a complaint with WorkSafe concerning the bullying she had suffered, and the inconclusive outcome of this investigation.

17 An affidavit sworn by Mr Robert Shepherd, the solicitor for Doward, put into evidence further documents which were before the Panel and relevant to this proceeding.

18 The Panel provided reasons for its determination on 2 May 2017 ('Reasons'). The Reasons can be summarised as follows:

(a) the Panel noted that it formed its opinion based upon the documents produced by both parties and its examination of the plaintiff on 4 April 2017;

(b) the Panel reported in some detail upon the history given to them by the plaintiff concerning her work responsibilities, her personal background, her difficulties with her previous employer (prior to being employed by Doward), and her reported symptoms and treatment regime;

(c) the Panel stated as follows:

The Panel concluded that the worker is suffering from an adjustment disorder with depression and anxious mood, which is partially resolved.

Based on the worker's history of prior selfresolving stress/depression and the Panel assessment or [sic] premorbid personality, the Panel concluded that the worker has a pre-existing vulnerability to an anxiety/depressive reaction, but not a pre-existing psychiatric condition.

Based on the nature of the injury, the temporal onset of depressive and anxiety symptoms, persistence of psychological symptoms since the date of injury, requirement for psychopharmacological and psychological interventions, ongoing treatment and the Panel's findings on examination, the Panel concluded that the worker's current partially resolved adjustment disorder with depression and anxious mood results from and is still materially contributed to by the claimed/accepted injury.

(d) in relation to the plaintiff's capacity for work, the Panel stated as follows:

The Panel noted that the worker was continuing to work on [a] fulltime basis performing her usual duties up until her redundancy package at the end of November 2016, albeit with a week off on sick leave in early November 2016 and that she has sought and obtained fulltime employment with similar duties with another employer. The Panel further notes that after ceasing work with Doward International Pty Ltd the worker continued to apply for fulltime accounting positions until obtaining employment which she advises she commences on 5 April 2017.

The Panel concluded that notwithstanding some mild and intermittent depressive and anxiety symptoms, the worker was incapacitated for work from 2 November 2016 to 9 November 2016, however thereafter the worker did not and does not have an incapacity for work as a result of her accepted injury.

The Panel is of the opinion, based upon its interview with the worker that it was able to rely on the history provided by the worker in conjunction with the other material available and the examination findings in order to reach its conclusions. The Panel also considered the opinions of the worker's treating practitioners and doctors.

The Panel noted the concordant opinion of the treating psychologist Ms Kibel (13 January 2017[)] and the opinion of Dr Poon that the worker was suffering from an exacerbation of depression (2 November 2016).

The Panel noted that Ms Kibel expressed the opinion that the worker was 'not currently able to return to fulltime work due to the effects of depression'. For the reasons stated above, the Panel reached a different conclusion to that of Ms Kibel.

19 As noted above, the plaintiff's originating motion and written submissions demonstrated a comprehension of the grounds upon which the decision of a medical panel might be challenged. Her grounds of review, being a failure to take into account relevant considerations, taking into account (unreasonably or otherwise) irrelevant considerations, and failure to afford procedural fairness, are unremarkable. The legal principles regarding these grounds are, save in one respect (whether 'irrational' decision making gives rise to a separate ground of review), well settled, and do not need to be the subject of extensive discussion in these reasons. The written submissions filed on behalf of Doward conveniently and accurately summarise the circumstances in which a medical panel will and will not be found to have committed a jurisdictional error.

20 Paragraph 12 of Doward's submissions state as follows:

In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-41 the High Court set out the matters which must be established in a challenge to the decision of an administrative decision-maker in which it is asserted that the decision-maker has failed to take into account a relevant consideration:-

(a) The relevant consideration must be one 'which he is bound to take into account in making that decision'.

(b) The factors which must be taken into account can only be determined by reference to the relevant statute.

'If the relevant factors - and in this context I use this expression to refer to factors which the decision-maker is bound to consider - are not expressly stated they must be determined by implication from the subject matter, scope and purpose of the Act.'

(c) A failure to take into account a particular consideration will not necessarily result in a setting aside of the decision.

'A factor might be so insignificant that the failure to take it into account could not have materially affected the decision ... '

(d) The Court's role is to review the exercise of the discretion - if it is made appropriately within the discretion it cannot be assailed.

'The limited role of a court reviewing the exercise of an administrative function must constantly be borne in mind.'

21 The submissions filed on behalf of Doward also referred to the following pertinent matters:

(a) a decision maker is required to 'engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration';[2]

(b) the plaintiff has the burden of establishing there was a failure to consider relevant circumstances;

(c) the fact that a decision maker needs to refer to material circumstances or deal with competing arguments in their reasons does not automatically result in a conclusion that the decision maker has not had regard to a relevant consideration; and

(d) the reasons of a medical panel, being a nonlegal quasi-judicial body, are entitled to a beneficial construction.

22 As for the question of whether the Panel afforded the plaintiff procedural fairness, the relevant authority is the decision of Kioa v West,[3] where the High Court held that:

When an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.

23 In relation to the question of whether the Panel provided adequate reasons for its opinion, Doward's submissions referred to the following statement of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak ('Wingfoot'):[4]

The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact 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 see whether the opinion does or does not involve any error of law;

A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion that it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.

24 The plaintiff submitted that the Panel had failed to take into account the following relevant considerations (which it was bound in law to consider), namely:

(a) the plaintiff did not return to work until 14 November 2016, and then only on reduced hours up until her redundancy on 25 November 2016;

(b) the certificates of capacity provided by the plaintiff's GP on 9 November 2016, 16 November 2016, and 23 November 2016[5] certified that the plaintiff had a work capacity of two to four days a week on special work hours arrangements;

(c) the certificate of capacity issued on 13 December 2016 and the medical report dated 20 January 2017. In the report dated 20 January 2017, the plaintiff's GP stated:

In my opinion, Ms Chang is not fit to return to full preinjury employment at full hours. I believe a graduated return to work to full preinjury duties over the same period she is receiving her further sessions of psychological therapy would be a better long term solution for Ms Chang and reduce the likelihood of relapse.

(d) the Panel failed in its duties under the WIRC Act in not requesting further information and 'wrongly assumed the plaintiff had returned to fulltime hours after 9 November 2016';

(e) the impact of the plaintiff's insomnia and the medication the plaintiff was using upon her capacity to return to fulltime work, and the fact that it would be unrealistic for a new employer to agree to the type of flexible work arrangement she had in place prior to her redundancy;

(f) the plaintiff had sustained injury as a result of harassment and bullying that was not acknowledged by her employer, which exacerbated her depression;

(g) the harassment continued up to the date of the plaintiff's redundancy, and after the redundancy, the plaintiff was not given an opportunity to rest and recover from her injury;

(h) the plaintiff was put under a lot of stress in going through the conciliation process and in her dealings with the WorkCover insurer; and

(i) in making the finding that 'after ceasing work with [Doward] the worker continued to apply for fulltime accounting positions until obtaining employment which she advises she commences on 5 April 2017' the Panel failed to take into account the following matters:

(i) the plaintiff had started to look for parttime work, but opportunities in her field were limited, particularly given her age and seniority; and

(ii) the plaintiff did not return to fulltime work straight away as she started her new job on Wednesday, 5 April 2017.[6]

25 The plaintiff submitted that the Panel fell into jurisdictional error by taking into account the following irrelevant considerations:

(a) the Panel based its assessment of the plaintiff's work capacity upon her job search activities and the fact that she had obtained a fulltime position with similar duties due to commence the day following its examination of the plaintiff;

(b) the Panel was in error by finding that the plaintiff had applied for fulltime accounting positions immediately after she was made redundant; and

(c) the plaintiff disputes the account of events recorded by the Panel in the Reasons, submitting as follows:

The plaintiff disputes the account of events by the Medical Panel. The plaintiff remembers that, about mid-way through the meeting, the first defendant asked her when she started looking for another job which she replied 'December 2016'. The first defendant the moved on to other questions.

The plaintiff does not remember being asked what kind of jobs she had applied for. She does not remember telling the Medical Panel that she had started looking for fulltime accounting job after ceased working for Doward International Pty Ltd.

The correct position is that the plaintiff had started her job search with lower rank senior bookkeeper and payroll officer parttime jobs only and had continued applying for parttime jobs and fulltime accounting jobs until she had obtained the fulltime accounting position.

26 In relation to the question of whether the Panel had accorded the plaintiff procedural fairness, the plaintiff submitted that when she told the Panel that she had successfully obtained another fulltime accounting job, after starting to look for another job in December 2016, she could not have reasonably expected that the Panel would assume that she had started to look for fulltime work after she ceased work at Doward, and form its opinion as to her capacity for work based upon that information. The Panel should have afforded her an opportunity to place further material before the Panel regarding her job seeking activities.

27 As for the question of the adequacy of the Reasons, the plaintiff identified three reasons for the Panel's opinion concerning her work capacity, as follows:

(a) 'the Panel noted that the worker was continuing to work on a fulltime basis performing her usual duties up until her redundancy package at the end of November 2016, albeit with a week off on sick leave in early November 2016';

(b) 'she has sought and obtained fulltime employment with similar duties with another employer'; and

(c) 'The Panel further notes that after ceasing work with [Doward] the worker continued to apply for fulltime accounting positions until obtaining employment which she advises she commences on 5 April 2017.'

28 The plaintiff submitted that each of these findings were based upon incorrect factual assumptions.

29 The plaintiff submitted further as follows (omitting references):

The Medical Panel did not give adequate reasons or articulate an adequate path of reasoning as to how it arrived at its own opinion that the plaintiff was not incapacitated for work after 9 November 2016.

The Medical Panel had no regard to the Medical Panel's own opinion that the plaintiff was suffering from an adjustment disorder with depression and anxious mood, which is [sic] partially resolved at the point the Medical Panel examined the plaintiff, and the fact that the Medical Panel did not examine the plaintiff until 4 April 2017 which was 5 months after 9 November 2016, the date which the Medical Panel opined that the plaintiff did not have an incapacity for work that resulted from or was materially contributed to by the claimed injury.

The Medical Panel did not give adequate reasons or articulate an adequate path of reasoning as to how it reached a different conclusion to that of the plaintiff's treating GP Dr Poon and her psychologist Dr Kibel whom have been treating her since midJune 2016 and August 2016 respectively.

The Medical Panel noted the agreed fact as stated in the letter of referral to the Medical Panel that

'Leading up to her redundancy, Ms Chang took time off on sick leave and attended work late from approximately mid-2016.'

However, it failed to provide adequate reasons or articulate an adequate path of reasoning as to how the plaintiff had gone from taking a lot of sick leave and attended [sic] work late due to her injury since midJune 2016 to 2 November 2016 (when the plaintiff lodged a WorkCover Claim), and then regained fulltime capacity after a week of sick leave on 2 November 2016 to 9 November 2016. In actual fact, the plaintiff was only able to return to work on reduced hours under a special work hours arrangement after 9 November 2017.

30 The plaintiff also relied upon a document titled 'Plaintiff's Oral Submissions'. This document provided further details regarding the basis of her claim for WorkCover payments, and her job search activities between December 2016 and March 2017. She referred to the decision of the Full Court of the Federal Court in Bat Advocacy NSW v Minister for Environment, Protection, Heritage and the Arts,[7] and submitted that:

There is nothing in the Medical Panel's Reasons for Opinion to show the Court that the Panel has engaged in an active intellectual process, in which the agreed fact and disputed facts stated above has [sic] received its genuine consideration as the Panel did not explain as to how it arrived at a conclusion contrary to the agreed fact and outside the period under dispute. The Medical Panel did not explain why it disagreed with all parties on the agreed fact that I did not have full work capacity from 9 November 2016 up to 25 November 2016 when my position was made redundant.

31 The plaintiff again submitted that she should have given her an opportunity to make further submissions to explain why she applied for fulltime jobs notwithstanding that she did not have the capacity to undertake fulltime work.

32 The remainder of this document concerned the alleged discrepancies between the matters recorded in the Panel members' notes ('Notes') and what was contained in the Reasons, which are the subject of a separate discussion in these reasons. In summary, the plaintiff submitted that the Reasons misrepresented the history provided by her to the Panel, and it appears that the Panel tried to downplay the seriousness of her psychiatric condition and portray her as a 'WorkCover cheat'.

33 The plaintiff submitted that the Panel should have found that she did not have capacity for fulltime work as at the date of her examination, because of her sleeping problems, as she was unable to rise at 7.00 am to go to work. She noted that Doward had never disputed that her absence from employment up to the date of her redundancy was caused by a work related injury, and the Panel has failed to explain how it reached a conclusion contrary to the agreed facts and outside the period under dispute.

34 In response to the contention that the Panel failed to take into account relevant considerations, Doward, in its written outline of submissions, submitted, in summary, as follows:

(a) in the Reasons, the Panel specifically referred to the agreed fact that the plaintiff took sick leave and arrived at work late from mid-2016;

(b) the Panel's finding that the plaintiff was suffering from an adjustment disorder with depression and anxious mood, partially resolved, does not compel it to find that the plaintiff was incapacitated for work;

(c) the significance of the five month gap between the lodgement of the plaintiff's WorkCover claim and the examination by the Panel is not apparent: in any event, it is clear that the Panel had taken a detailed history from the plaintiff;

(d) the Panel referred to the certificates of capacity issued by the plaintiff's GP, and agreed with the opinion expressed in the first certificate. Just because the Panel did not agree with the GP's opinion as expressed in her other certificates and her report dated 20 January 2017 does not mean that they were not taken into account. Other certificates referred to by the plaintiff in her submissions were not provided by her to the Panel;

(e) the plaintiff's history of insomnia is 'clearly and fulsomely recorded', and as such, there was no basis for the assertion that it was not taken into account. Further, it appears that the plaintiff did not tell the Panel that she took sleeping tablets;

(f) it is unlikely that much turns on the fact that initially the plaintiff was applying for parttime roles only, and only commenced applying for fulltime work from midJanuary 2017. It is not apparent from the plaintiff's affidavit that she told the Panel she initially applied for part-time roles;[8]

(g) again, it is not clear from the evidence that the plaintiff told the Panel that her job search activities were prompted by the encouragement of her psychologist and career consultant, by the requirements of Centrelink, and because it would take time to find a new job. It is disingenuous, given the plaintiff's sophistication and intelligence, for the plaintiff to suggest she did not know the Panel would base its opinion on such matters; and

(h) that the plaintiff's return to work in April would commence with shorter weeks owing to public holidays does not detract from the fact the new employment was fulltime employment.

35 In response to the contention that the Panel had taken into account irrelevant considerations, Doward, in its written outline of submissions, submitted that the plaintiff's ability to go through the job application process and successfully obtain a new position were clearly relevant to the Panel's assessment of her capacity for work: indeed it would have been 'irrational and illogical'[9] for the Panel not to take these matters into account.

36 As for the question of whether the Panel afforded the plaintiff procedural fairness, Doward rejected the plaintiff's contention that she had not been given an adequate opportunity to make submissions about her job searching activities. The plaintiff was asked open ended questions, and the plaintiff has not contended that she was prevented or discouraged from speaking. The plaintiff's suggestion that she was unaware that the Panel would take these matters into account lacks credibility, and the Panel could not have known the matters now referred to by the plaintiff in her affidavits and submissions without her telling them. She did in fact tell them that she was confident about her new job.

37 Finally, in response to the plaintiff's contention that the Reasons were inadequate, Doward submitted that the plaintiff's submissions in that regard are unclear and unparticularised. To the extent that the plaintiff complains that the Panel has not provided adequate reasons to explain why it reached a different conclusion than her GP and her psychologist, Doward submitted (referring to Wingfoot[10]) that

the Panel is under no obligation to reach the same view as other doctors, or to explain why their view differs to that of other doctors.

38 Finally, there is no evidence that the plaintiff told the Panel she was working parttime prior to her redundancy, and no reference was made to these arrangements in the certificates which predated her redundancy.

39 In his oral submissions during the course of the hearing, senior counsel for Doward submitted, in summary, as follows:

(a) the Panel's diagnosis of the plaintiff's condition is not in dispute: that her condition was found to be partially resolved is consistent with a finding of capacity;

(b) the five month gap between the plaintiff's claim and her examination before the Panel is unremarkable, and is not a matter which undermines the Panel's capacity to take a full history and retrospectively determine capacity;

(c) it is not the function of the Panel to adjudicate between different opinions, and it is not required to give reasons for forming a different view from other medical practitioners;

(d) he questioned the materiality of the brief period of time that the plaintiff was searching for part-time work. It is not apparent that she told the Panel that she had been working reduced hours, or was looking for part-time work;

(e) the plaintiff's ability to obtain and commence a new fulltime job was clearly a relevant consideration. In cases of psychological injury, the Panel is particularly reliant upon the plaintiff's own perception of what she could and could not do;

(f) the Reasons indicate that the Panel gave the plaintiff a very good opportunity to speak at large about her problems: that the plaintiff was told to be concise and to the point does not mean that she was cut off. It was disingenuous for the plaintiff to say that she thought that some of the questions were aimed at 'rapport building': she should have known the entirety of her presentation was relevant to the Panel's assessment of her capacity; and

(g) it could not possibly be suggested that no reasonable medical panel could form the view that the plaintiff was only incapacitated for a short period of time. In any event, Doward would not be seeking to recover payments made to the plaintiff prior to 19 December 2016.

40 The plaintiff filed and served quite extensive and detailed submissions in reply to Doward's written submissions. Under the heading 'Issues in dispute and reasons for referral', the plaintiff noted that it was an agreed fact that the plaintiff took time off on sick leave and attended work late from approximately mid-2016. The dispute related to whether she was incapacitated for work after 19 December 2016. Accordingly, the plaintiff did not provide the Panel with certificates which pre-dated 19 December 2016.

41 Under the heading 'Medical Panel examination on 4 April 2017' the plaintiff submitted as follows:

In failing to take into consideration that the Plaintiff was taking sleeping pills to assist sleep while she was working reduced hours till she was made redundant on 25 November 2016, the Medical Panel reached an unreasonable Opinion that the Plaintiff has [sic] full work capacity from 9 November 2016. The Panel's opinion is unreasonable as no Psychiatrist would recommend the Plaintiff to increase the usage of Temazepam to 5 consecutive nights to enable her to return to fulltime work of 5 days.

42 She rejected Doward's contention that she was 'sophisticated and intelligent', as she related to suffering from depression and anxiety at the time of the examination.

43 Under the heading 'Medical Panel fell into jurisdictional error by failing to take into account relevant considerations', the plaintiff submitted that the Panel was in error in opining that the plaintiff was not incapacitated for work from 10 November 2016 to 18 December 2016, when that period was not in dispute. She repeated her submissions that the Panel had failed to take into account her reduced hours prior to her redundancy.

44 Under the heading 'The Medical Panel has denied the plaintiff natural justice or procedure (sic) fairness', the plaintiff submitted, in summary, as follows:

(a) the Panel fell into error in revisiting the period from 10 November to 25 November 2016, and failed to seek any further information from the plaintiff about this period;

(b) the Panel failed to verify whether it was possible for her to return to fulltime work after 9 November 2016 given the evidence to the contrary;

(c) it was open to the Panel to seek the certificates issued prior to 13 December 2016;

(d) the plaintiff could not reasonably expect that the Panel might have formed the opinion that the plaintiff was fit for work prior to 19 December 2016, and the Panel failed to provide her with an opportunity to make further submissions concerning this issue;

(e) the Panel did not ask the plaintiff as to how she looked for work or what type of jobs she was looking for and applying for. If they had asked more specific questions about her job search activities she would have been able to provide more details; and

(f) the Panel failed to advise the plaintiff of its adverse conclusions and to provide her with an opportunity to make further submissions regarding its conclusions concerning her capacity.

45 Under the heading 'The Medical Panel fell into jurisdictional error by taking into account irrelevant considerations', the plaintiff submitted, in summary, as follows:

(a) she took issue with the Panel's finding that:

the fact that the plaintiff was able to successful [sic] get through a job application process, present well enough to new employers that they hired her, and considered herself well enough to at least try the new job, are all matters which are clearly relevant to the Panel's assessment of her capacity for work',

(b) she submitted: 'the fact that the plaintiff had sought and obtained fulltime employment with similar duties with another employer is irrelevant to the medical question.'

46 Under the heading 'Reply to other submission in response', the plaintiff responded to a number of specific submissions advanced by Doward in its written outline of submissions.

47 In response to Doward's contention that 'the significance of that [five] month gap is not apparent', she noted that her medical condition, including her use of sleeping tablets, varied significantly over that five month period.

48 In response to Doward's contention that 'the Panel has clearly taken a history from the Plaintiff of her functioning/activities over the preceding five months', the plaintiff repeated her earlier submissions that there was no discussion about her medical condition and work activities in November 2016. Rather, she was asked about her current activities and medical conditions as at 4 April 2017.

49 In response to Doward's observation that 'the plaintiff does not appear to have told the Panel that she takes sleeping tablets', the plaintiff submitted as follows:

After the plaintiff was injured at work in midJune 2016, she relied heavily on sleeping pills to provide her with some good sleeps [sic] for two to three nights per week so that she could continue working. As outlined in para 27 above, from February 2017 onwards, while the plaintiff was not working, she refrained from using sleeping pills to fight against the dependence. As outlined in para 28 above, the plaintiff had only been asked about her current usage of medication at the examination. Due to the fact that she was not taking sleeping pills on a regular basis at that point in time, sleeping pills were not on top of his [sic] head and she forgot to mention it. If the Medical Panel had asked the plaintiff about her usage of medication while when was working at Doward, the plaintiff would definitely have recalled the usage of sleeping pills and informed the Medical Panel about it.

50 In her oral submissions in reply, the plaintiff submitted that:

(a) she continued to apply for part-time jobs up until March 2017;

(b) she did not have to apply for fulltime work in order to comply with Centrelink's requirements: rather, her GP encouraged her to seek fulltime work; and

(c) she tried to cope with fulltime work for two and a half months after starting her new job, but she now suffers more severe symptoms.

51 As noted above, the plaintiff placed some degree of reliance upon the Notes, which were ultimately transcribed and provided to the parties for further comment and submissions. The plaintiff prepared a table which highlighted certain parts of the Notes, colour coded according to the following code:

(a) 'Medical Notes have been misrepresented or misinterpreted in the Medical Panel's opinion';

(b) 'Plaintiff disagrees with transcription/wish to provide clarification';

(c) 'Information Plaintiff had not told the panel but introduced or assumed incorrectly by the Panel to support its biased Opinion on the Work Capacity of the Plaintiff'; and

(d) 'Material/crucial facts omitted by the Medical Panel in the Opinion'.

52 The plaintiff's table runs for some thirteen landscape format pages, and includes commentary under the heading 'Plaintiff's Recollections as stated in her Affidavit/Contention in her Submissions/Remarks'. To the extent that this commentary seeks to advance evidence as to what was actually said during the course of the Panel's examination of the plaintiff, I have proceeded on the assumption that the plaintiff would be able to depose on oath as to these matters. Matters alleged by the plaintiff to have been recorded in the Notes but not referred to in the Reasons included the following:

(a) the plaintiff's usage of sleeping tablets;

(b) that the person who bullied her at Doward kept telling her what to do;

(c) that she was seeing her psychologist weekly when she was emotionally unstable between December 2016 and February 2017, not fortnightly; and

(d) that she would nap during the day if very tired.

53 The plaintiff contends that the following matters referred to in the Notes were misrepresented or misinterpreted in the Reasons:

(a) whether she would be able to cope in her new position;

(b) she did not recall telling the Panel her boss at Doward was scared to lead change himself, and was scared to deal with bullying himself;

(c) the Reasons referred to the plaintiff suffering stress from early 2016, not mid 2016;

(d) the Reasons refer to the plaintiff applying for fulltime work after leaving Doward, while the Notes only referred to her applying for jobs;

(e) the Reasons referred to her watching one television show, when she told the Panel there was a particular television program she loved to watch;

(f) the Reasons referred to her working with her previous employer (prior to being employed by Doward) for eight months, when she in fact worked there for three years;

(g) the Reasons referred to her only having taken medication 'since the stress at Dowards', while the Notes refer to her having taken medication on a previous occasion;

(h) the Reasons referred to the plaintiff telling the Panel that her main problem was that she is still very tired, while the plaintiff says her main problem is that she cannot fall asleep;

(i) the Reasons overstate the improvement of her mood compared with what is recorded in the Notes;

(j) the Reasons refer to fraught communications with the insurer over a period of months, not just unpleasant communications in March 2017; and

(k) the Reasons misrepresented her sleeping problems as recorded in the Notes.

54 The plaintiff referred to the following matters in the Reasons as being information she had not provided to the Panel, but had been incorrectly referred to or assumed in the Reasons:

(a) the Reasons referred to the Panel's wrong assumption that she worked fulltime throughout November 2016;

(b) the plaintiff had no recollection of telling the Panel that 'her job description did not give her the capacity to direct changes, while her predecessor's did';

(c) she does not recall telling the Panel that 'the lack of success in replacing her job made her feel more depressed, low in confidence, stressed and worried, especially about financial security'. This is not recorded in the Notes;

(d) she did not tell the Panel that she has close friends that she talks with and socialises with a lot, in fact, after she was injured, she lost interest in seeing her friends;

(e) she only struggled with managing fulltime work, parenting and domestic functions after she was injured;

(f) she did not tell the Panel she was annoyed with her former boss about his availability to provide telephone references; and

(g) she disagreed that she told the Panel that 'once asleep, she sleeps solidly', rather, she had only a few restful nights.

55 The plaintiff disagreed with the transcription of what she told the Panel in the Notes, or wished to provide further clarification in relation to certain matters. However, it was not always entirely clear from the table why the plaintiff disagreed with the transcription, or why it was necessary to provide further clarification. The main points of disagreement appear to be as follows:

The worker told the Panel that she does not know how she will go in this job, but she described herself being confident about being capable in the role itself ...

The plaintiff in her affidavit said she told the Panel 'I don't know if I can cope' with her new role.

(b) the plaintiff contended that in the Reasons, the Panel 'mixed up the facts' as to which worker engaged in which bullying conduct and what motivated them;

(c) the Notes refer to the plaintiff first seeking treatment in September 2015, while the Reasons incorrectly recorded the date as being November 2015; and

(d) in the Reasons, the Panel stated:

She does not have ruminative thoughts or worries which prevent her from getting to sleep, even when she is feeling bad.

The plaintiff in her commentary upon this matter stated:

I do not remember saying 'even when I was feeling bad'. Just to clarify, when bad things happened during the day, I could hardly sleep because I would be very bothered by it. The bad things will keep swirling in my head and stop me going into sleep. I would still be awake at 4 or 5 am.

56 In her written submissions accompanying the table referred to above, the plaintiff submitted, in summary, as follows:

(a) the Notes generally accurately reflect what she told the Panel, but their contents are not reflected in the Reasons or are misrepresented in the Reasons;

(b) these inaccuracies affected the logicality of the Reasons, and amounted to a breach of natural justice;

(c) the tendency of the Panel to play down the seriousness of the plaintiff's psychiatric condition suggests that the Panel's misrepresentations were deliberate, and the Panel was biased against her; and

(d) the Notes show that the plaintiff did tell the Panel that she took sleeping tablets, but the Panel has failed to take that into consideration when forming its opinion regarding her work capacity.

57 In its further written outline of submissions, Doward made the following general observations concerning the Notes:

(a) the plaintiff appears to accept that the Notes accord with her recollection of her interview with the Panel;

(b) the plaintiff's primary complaint seems to concern disconformities between the history provided by her and the Reasons;

(c) the plaintiff also complains that the Panel has 'made certain inferences which are inaccurate, in circumstances where the relevant facts were not put before the Panel';

(d) the plaintiff has failed to identify how the alleged errors support the grounds of review advanced by the plaintiff;

(e) it is difficult to see how the Panel failed to afford the plaintiff procedural fairness, when the plaintiff seems to accept that the Panel listened to her and took an accurate history;

(f) it could not be a breach of natural justice for the Panel to fail to give the plaintiff advance warning that it proposed to reach a conclusion adverse to her;

(g) there is no basis for finding that any misrepresentation on the part of the Panel was deliberate, or justified a finding that the Panel was biased;

(h) the requirement that the Panel explain its path of reasoning does not require it to set out every piece of information provided to it by the plaintiff;

(i) the Panel's finding as to the plaintiff's capacity for work is a finding of fact. 'Wednesbury unreasonableness' does not apply to factual findings, and, in any event, the Panel's opinion, even if infected by the errors contended for by the plaintiff in the table, could not amount to 'unreasonableness' or 'illogicality'; and

(j) any discrepancies between the Notes and the Reasons 'are so slight and peripheral that they would not causally make any difference to the outcome'.

58 Doward's submissions addressed the twenty issues identified by the plaintiff in the table, in summary, as follows:

(a) the Panel had no reason not to assume that the plaintiff had returned to fulltime work after her redundancy, and in any event, the Reasons showed that the Panel was aware that there was some variation to the plaintiff's work routine after the alleged bullying;

(b) it is not apparent from the Notes whether the plaintiff told the Panel she was taking Temazepam,[11] or if this information was derived from the documents provided to the Panel. Given what the plaintiff has said, the latter is more likely. In any event, the use of Temazepam would not necessarily affect a person's ability to return to fulltime work;

(c) in relation to the plaintiff's perceived ability to cope with her new job, the difference between what the plaintiff says she told the Panel and what is recorded in the notes is merely semantic;

(d) nothing turns on any misunderstanding of the Panel when attributing the motives of one alleged workplace bully to another;

(e) the discrepancy between the time at which the plaintiff sought treatment in the notes and in the Reasons (a few months in 2015) is quite minor in the scheme of things;

(f) the reference in the Reasons to the nature of the plaintiff's job description at Doward, while not recorded in the Notes, does not mean the plaintiff did not say this, and, in any event, this would have had little bearing on the Panel's opinion;

(g) if the Panel did misunderstand why her boss did not deal with one of the alleged bullies, this matter formed part of the general background narrative, and did not go to the substance of the alleged conduct and the plaintiff's reaction to it;

(h) the failure of the Panel to refer in the Reasons to the alleged bully instructing the plaintiff what to do is a minor omission that would fail to satisfy the Court that the Panel did not understand the material parts of the plaintiff's complaint and the alleged conduct;

(i) it is uncertain why the plaintiff found it necessary to clarify the timing of a particular workplace incident, and whether any error would have materially affected the Panel's opinion;

(j) the Reasons refer to the onset of certain symptoms taking place in early 2016 rather than mid2016. The alleged error, if any, would probably have assisted the plaintiff;

(k) while the Panel omitted to record in the Reasons that the plaintiff was seeing her psychologist weekly, not fortnightly, at the start of 2017, this was recorded in the Notes, so the Panel was aware of this;

(l) in relation to her job search activities, the plaintiff does not say that she initially only applied for part-time jobs, and as such, it was not unreasonable for the Panel to assume that the plaintiff had applied for fulltime work;

(m) the plaintiff's statement as to how she felt about her initial lack of success in finding work is quite different than what was recorded in the Reasons. In the absence of any record in the Notes, the Court should prefer what was said in the Reasons;

(n) the alleged error concerning the plaintiff's television watching habits is semantic only, and demonstrates the plaintiff's 'nit picking' approach to the Reasons;

(o) in relation to the question of whether the plaintiff has friends and socialises with her friends, the Notes shed no light on what the plaintiff told the Panel, and the plaintiff's version of events ought not be preferred over the Panel's version as recorded in the Reasons;

(p) the Panel's error concerning the length of her employment with her previous employer was not material. In making reference to her previous history of depression, any error concerning the prescribing of medication on a previous occasion probably worked in the plaintiff's favour;

(q) in relation to the alleged discrepancy between what the plaintiff contends she said about her 'main problem', being her inability to fall asleep, Doward submitted that the Panel's version of what was said ought to be preferred, but in any event, the Panel was well aware that both tiredness and inability to fall asleep were problematic for the plaintiff. Further, the reference in the Reasons to the plaintiff's struggling with domestic chores, read in context, suggest that the Panel was referring to the plaintiff's post-injury difficulties;

(r) in relation to the plaintiff's reporting of her mood, the version of events recorded in the Reasons accords with what was recorded in the Notes. The version of events contended for by the plaintiff is internally inconsistent. Further, the fact that the Panel reported that the plaintiff's difficulties in dealing with the insurers took place over a longer period of time than that contended for by the plaintiff is not particularly material to the Panel's opinion, and if it was, it would work in favour of the plaintiff;

(s) the plaintiff's annoyance concerning her former boss was not likely to have been material to the Panel's opinion, and, in any event, the difference between the plaintiff's version of events and the version recorded by the Panel is minor;

(t) while the plaintiff says that she did not tell the Panel that once she fell asleep, she slept 'solidly', it was open to the Panel to draw that inference based upon the information she did provide to them; and

(u) the plaintiff contends that she did not tell the Panel that her thoughts/worries did not prevent sleep even when she was feeling bad, however, that phrase is recorded in the Notes, and thus, it was likely to have been said.

59 The plaintiff's written submissions in reply with respect to the matters raised by the Notes largely focussed upon the Panel's lack of reference in the Reasons to the plaintiff's use of sleeping tablets, or, more specifically, Temazepam. She submitted, in summary, as follows:

(a) it is common knowledge that it is not advisable to take addictive sleeping tablets every night, and her GP had warned her to limit her usage to avoid addiction;

(b) psychiatrists would know the risk of frequent and regular usage of sleeping tablets. Dr Adlard's failure to record her use of Temazepam in his notes indicates that he failed to take into account a highly relevant fact, and indicated that Dr Adlard had failed to afford the plaintiff procedural fairness;

(c) no reasonable psychiatrist would recommend the use of addictive sleeping tablets on five consecutive nights to enable her to return to fulltime work;

(d) if the Panel had asked her about her use of medication while working at Doward, the plaintiff would have recalled her usage of sleeping pills and told the Panel about it; and

(e) the plaintiff submitted as follows:

The medical notes have revealed that the Panel has definitely been informed about the Plaintiff's usage of Temazepam, an addictive sleeping pill, to assist sleep as required at the time she was working reduced hours at Doward International but the Panel failed to take it into consideration. Given that there is no mention of the usage of sleeping pills at all in the Reasons for Opinion, it would be illogical to argue that the Panel had taken into consideration this highly relevant fact in forming its Opinion on the work capacity of the Plaintiff.

60 I will dismiss the proceeding. While I will discuss each of the plaintiff's grounds of review separately, I would make the following overarching observations regarding the plaintiff's claims in this proceeding. First, while the plaintiff does demonstrate some understanding of the grounds of review in proceedings of this nature, it appears that she has failed to appreciate the fundamental principle underlying proceedings by way of judicial review, that is, it is the role of the Court to review the legality of the Panel's decision, not the merits of the Panel's decision. It is not for this Court to reach a view that it might have formed a different view regarding the plaintiff's capacity for work: the plaintiff must identify a recognisable error of law which materially affected the Panel's opinion. It is apparent from the plaintiff's evidence, submissions, and her commentary upon the Notes that she has attempted to use this proceeding as a vehicle to relitigate the dispute before the Panel, with the benefit of hindsight as to what matters were significant factors in influencing the Panel in reaching its opinion, and seeking to remedy the perceived deficiencies in the information she provided to the Panel during the examination.

61 What the plaintiff is largely saying is that if she knew certain matters were going to be important, she would have given more details and a further explanation to the Panel regarding those matters to support her contention that she was incapacitated for work in the period leading up to and including the examination. She seeks to shift the responsibility for her failure to adequately present her case to the Panel to the Panel itself. This reflects a misunderstanding of the role of the Panel as an expert, non-judicial body: its role is to reach an opinion the medical questions referred to it based upon the material provided to it. It is not an investigative body.

62 Secondly, it seems to me that the plaintiff is of the view that, because her treating medical practitioners and the Panel have found that she has suffered a workplace related psychological injury, it necessarily follows that she must have been incapacitated for work during the entire period that she experienced symptoms connected with her injury. It is well established within the compensation jurisdiction that 'injury' and 'incapacity' are quite distinct concepts, and specialist bodies such as medical panels are well equipped in and experienced with distinguishing between these two concepts.

63 Thirdly, while this was not part of the plaintiff's original grounds of review or submissions, her later submissions suggest that she feels poorly treated by the Panel, suggesting that the Panel members deliberately underplayed her symptoms, that they were biased against her, and made her feel she was a 'WorkCover cheat'. While strictly speaking it is not necessary to deal with this issue, for completeness I should say that I do not accept these submissions. The comprehensive nature of the Reasons and the level of detail in the Notes demonstrates that the Panel undertook its task diligently and thoroughly. Some observations in the Reasons regarding the plaintiff's presentation indicate that the Panel members were quite well disposed towards the plaintiff. And finally, given the complexity of the interaction between injury (especially psychological injury) and capacity, the suggestion or conclusion that anyone who is unsuccessful in establishing an incapacity for work is a 'WorkCover cheat' is not maintainable. These are almost always matters upon which reasonable minds can differ.

64 In making these observations, I do have regard to the fact that the plaintiff was not represented by solicitors. No doubt if she had been represented, she may have been better prepared for the examination. However, the absence of legal representation is much less of a disadvantage than that laboured under by self-represented parties to a court proceeding. All persons examined by a medical panel attend without lawyers, and the examination procedure is flexible and directed by the medical panel itself, not prescribed by the rules and procedures applicable in a court or tribunal.

65 The plaintiff's main complaints concerning the Panel's opinion overlapped with a number of grounds of review. The following matters were the subject of particular complaint by the plaintiff:

(a) the Panel's allegedly inaccurate findings concerning her job search activities and the inferences it drew from those findings;

(b) The Panel's alleged failure to have regard to the sick leave taken and reduced hours worked by the plaintiff prior to her redundancy;

(c) the Panel's alleged failure to have proper regard to the plaintiff's sleeping difficulties, including her use of Temazepam;

(d) the Panel's finding being allegedly inconsistent with the agreed facts: in particular, the agreed fact that the plaintiff had taken sick leave and attended work late in late 2016; and

(e) the alleged inaccuracies in the Notes, and the discrepancies between the Notes and the Reasons.

66 In relation to the question of the plaintiff's job search activities, and the Panel's reliance upon her ability to apply for and obtain work involving similar duties to those performed by the plaintiff at Doward in support of its conclusion that she had capacity for work, the plaintiff says that:

(a) in the context of her reported symptoms, her inability to work fulltime prior to her redundancy, and the opinions of her treating doctors, her ability to seek and obtain work was an irrelevant consideration;

(b) the Panel was in error in finding that she had searched for fulltime jobs from December 2016, when in fact she initially commenced looking for parttime work only; and

(c) the Panel should have given her an opportunity to elaborate further upon her job search activities.

67 In relation to paragraph 66(a) above, while the plaintiff may object to the weight given by the Panel to her job search activities, it is taking it too far to suggest that her capacity to seek and obtain work is an irrelevant consideration. It is clearly a relevant consideration to be taken into account when assessing the plaintiff's capacity for work.

68 In relation to paragraph 66(b) above, it is common ground that the plaintiff did not tell the Panel that she had initially applied only for parttime jobs, and then applied for fulltime jobs on the encouragement of her GP, her psychologist, and representatives of the WorkCover insurer. As noted by senior counsel for Doward, in the absence of any information to the contrary being provided to the Panel, the Panel was entitled to infer that, as the plaintiff was due to commence a fulltime job on the day following the examination, she had been looking for fulltime work.

69 In relation to paragraph 66(c) above, as noted above, and as emphasised by Doward in its submissions, the Panel is not an investigative body. It appears there was no barrier to the plaintiff giving a detailed and fulsome account of her situation. As noted above, the plaintiff's submissions in relation to this matter seem to reflect her regret that she did not anticipate what might be of particular interest to the Panel and provide further details regarding the nature of and rationale behind her job search activities.

70 In relation to the Panel's alleged failure to have regard to the sick leave taken by the plaintiff and the fact that she worked reduced hours up until her redundancy, it does seem that while the Panel was aware that the plaintiff's work routine had been interrupted and/or altered by her psychological difficulties, it was not expressly drawn to the Panel's attention that she had been working reduced hours in the period after her return from sick leave and prior to her redundancy. There was no reference to her reduced working hours in the Notes or in the documents provided to the Panel. However, the responsibility for that omission does not lay with the Panel. Information which is not before the Panel cannot, in hindsight, rise to being a mandatory relevant consideration.

71 It may well be that had that information been before the Panel, the Panel might have taken a more generous view of the plaintiff's period of incapacity. However, I doubt that, having regard to other aspects of the Panel's reasoning, any such period would extend beyond 19 December 2016, noting that Doward has said in Court that it did not seek to recoup any payments made to the plaintiff referrable to the period prior to 19 December 2016. Accordingly, any error (if I were to accept there was any error on the part of the Panel) would have made no material difference to the compensation received by the plaintiff.

72 In relation to the Panel's alleged failure to have proper regard to the plaintiff's sleeping difficulties, it seems that, again, the plaintiff did not tell the Panel that she was using Temazepam to help her sleep, although Dr Neill's notes suggest that this information was in the documents provided to the Panel. The plaintiff says that she did not make reference to her use of Temazepam during the course of the examination because by the time of the examination she had reduced her use of Temazepam. In any event, as noted by senior counsel for Doward, it does not necessarily follow that a person using sleeping tablets to alleviate insomnia is incapacitated for work. However, the Reasons and the Notes demonstrate the Panel was given a quite fulsome explanation of the plaintiff's difficulties with insomnia. It is clear from the Reasons that this issue was taken into account by the Panel.

73 There may well have been an error on the part of the Panel where it stated in the Reasons that:

She said that she does not have ruminative thoughts or worries which prevent her from falling asleep, even when she is feeling bad.

74 The plaintiff only takes issue with the phrase 'even when she is feeling bad'. The Notes are inconclusive on the point, although they do suggest the Panel was told that the plaintiff continued to have difficulties falling asleep. However, even if the passage extracted above of itself misrepresents the true position, it needs to be read in the context of the previous paragraph of the Reasons, in which the Panel states:

She said that she feels that she is not able to sleep normally despite feeling continually tired. She said that she goes to bed at 11pm but sleep onset is delayed till (sic) sometimes 2.30am. She said once asleep, she sleeps solidly. She says that if she has to, she forces herself out of bed at 7am but otherwise she will sleep till 10am. She says she sometimes has a nap for 2-3 hours during the day.

75 It is apparent from the above extract of the Reasons that the Panel was fully cognisant of the plaintiff's sleeping difficulties.

76 As for the fact that the Panel formed the view that the plaintiff was incapacitated for a shorter period than that conceded by Doward[12] does not amount to an error of law. It is trite law that the Panel is empowered to form its own views on the medical questions referred to it, and is not bound to follow the views of the parties or other medical practitioners. While the period before 19 December 2016 was not 'in dispute', in that Doward accepted a liability to pay compensation up to that date, the Panel is not bound by, as a court might be, the way in which the parties advance their position. It is merely required to answer the questions asked of it. In any event, the agreed fact was not that the plaintiff was incapacitated for work until 19 December 2016, but rather that 'leading up to her redundancy, Ms Chang took time off on sick leave and attended work late from approximately mid 2016'. Being absent on sick leave and working hours outside normal business hours is an indicator of incapacity, but it is not determinative of incapacity. Indeed, the plaintiff's own evidence was that when she started coming into work late, she stayed later in the evening and came in on weekends to ensure she could complete her tasks. While that evidence was not before the Panel, it is difficult to see how information of that nature would have led to a material shift in the Panel's opinion concerning the plaintiff's capacity for work. The plaintiff's own evidence was that, at least prior to going on sick leave, she completed her normal duties, she just did not do so within normal business hours.

77 In relation to the alleged discrepancies between the Notes and the Reasons, I agree with the submission of Doward to the effect that the discrepancies (to the extent they have not been dealt with above) were largely trivial, and would have made no difference to the Panel's determination.

78 I accept that if a Panel had made a factual error, either through a mistranscription of the history provided by the plaintiff to the Panel which might be evident from the Notes, or a misinterpretation or mischaracterisation of the facts, which might be evident from the Reasons, the Panel may have fallen into jurisdictional error. In Karabinis v Bendrups and ors ('Karabinis'),[13] J Forrest J accepted that this proposition was consistent with the reasoning of the Court of Appeal in Ryan v The Grange at Wodonga Pty Ltd and ors.[14] His Honour stated:[15]

... a Medical Panel will fall into jurisdictional error if it makes a fundamental mistake of fact which goes to a central issue in determining the answer to a medical question. Minor, and perhaps moderate, errors of fact do not mean that a Panel has fallen into jurisdictional error. It is, therefore, a question of fact or degree in each case as to whether an established mistake or omission goes so far as to constitute jurisdictional error. This must be assessed in light of the ultimate decision and the basis for it, as articulated by the reasons.

79 His Honour rejected the contention that any material discrepancy in the Panel's history taking amounts to jurisdictional error. He stated that:[16]

The relevant error or fact must be fundamental and go to the issue that the Panel is bound to consider in order for it to give rise to jurisdictional error.

80 In Karabinis,[17] his Honour was confronted with the situation whereby the plaintiff deposed that she had given a history to the relevant medical panel which was diametrically opposed to the notes recorded by members of the medical panel concerning a fundamental issue before them. His Honour noted that 'the evidence that the Panel 'got it wrong' must be cogent.'[18] In that regard, he referred to the following statement of Scholl J in Thomson v Cross,[19] where his Honour said:

Notwithstanding the practice whereby the affidavit of the party supporting the decision of the Court below is frequently preferred in case of a conflict as to what occurred there, I have no hesitation in the present case in relying on the magistrate's note in relation to the evidence which it covers. ... I apprehend that where a judicial officer such as a stipendiary magistrate takes an actual note of evidence during a hearing before himself, and makes it available, this Court will in general, unless some clear reason appears for supposing that there is some error or omission in it, accept it and act upon it in preference to the account given on affidavit by an interested party.

81 While the statements above provide a guide, rather than an inflexible rule concerning the question of whether the notes of a medical panel are to be preferred over the evidence of a plaintiff as evidence of what occurred during the course of an examination, that guidance is useful in the current case, particularly where the plaintiff has not given emphatic evidence about what she did and did not tell the Panel. While there are some gaps in the Notes, and in one case, an apparent mistranslation from the Notes to the Reasons, the plaintiff's own evidence and submissions impliedly accept the accuracy of the greater part of the Notes. Further, the question remains as to whether any gaps or errors are so material that they go to a matter fundamental to the Panel's determination.

82 In my view, they do not. I agree with the submissions made on behalf of Doward to the effect that to the extent there are any discrepancies between the Notes and the Reasons, with one exception those discrepancies are minor and trivial. Further, where there may have been an error in recording the plaintiff's history in the Reasons (concerning the plaintiff's sleeping habits as discussed in paragraphs 73 to 75 above), any such error, read in the context of the rest of the Reasons, was not fundamental to the Panel's determination. It is clear from the Notes and the Reasons that the plaintiff gave the Panel a fulsome history with respect to her difficulties with insomnia, save with respect to her past use of Temazepam. It is also apparent from the Reasons that the Panel gave due consideration to the plaintiff's reports of insomnia.

83 Accordingly, I have found that there was no legal error on the part of the Panel in relation to the substantive issues raised by the plaintiff. However, for completeness, I will briefly address the specific grounds of review identified by the plaintiff.

84 In relation to whether the Panel had failed to take into account mandatory relevant considerations, I have concluded that the Panel had taken into account those relevant considerations that had been drawn to the Panel's attention, and was not obliged to take into account aspects of the plaintiff's history and condition that had not been drawn to its attention. Further, the Panel was not required to form an opinion consistent with the opinions held by the plaintiff's GP and psychologist. The Reasons expressly stated that the Panel had formed a different view from that of the plaintiff's psychologist concerning the plaintiff's capacity for work.

85 In relation to the question of whether the Panel took into account irrelevant considerations, being the fact that the plaintiff applied for and obtained fulltime employment with similar duties to those she was carrying out at Doward, I repeat my conclusion that the plaintiff's job search activities were a relevant consideration. Indeed, it would have been remiss of the Panel not to take those matters into account. Further, to the extent that any alleged errors in the Reasons and/or the Notes are said to have led the Panel to take into account irrelevant considerations, I have concluded that:

(a) where there is a conflict between the plaintiff's evidence and submissions and the contents of the Notes, I prefer the accuracy of the Notes;

(b) save in one respect, the Reasons reflect the contents of the Notes, and, to the extent that there seems to be an error in translating the Notes into the Reasons, the error does not go to a fundamental issue.

86 In relation to the question of whether the Panel afforded the plaintiff procedural fairness, a useful summary of the application of the principles in Kioa v West[20] is to be found in the following extract of the decision of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs,[21] which was referred to in the written submissions filed by Doward, as follows:[22]

Where the exercise of a statutory power attracts the requirement for procedural fairness, the person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decisionmaker. It also extends to require the decisionmaker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decisionmaker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

87 Applying these principles to the current case, there was no denial of any procedural fairness to the plaintiff by the Panel. I will not repeat what I have said earlier in these reasons on this matter, save to say that it is clear that the Panel provided the plaintiff with an ample opportunity to put forward the material she wanted to put before it, and did not exhibit any signs of bias towards her. It was not required to consider information which was not before it, or undertake an active investigative role. It was not required to warn the plaintiff in advance of the findings it proposed to make with respect to her capacity for work, save where any adverse conclusions have been arrived at which would not obviously be open to it on the known material. The material before the Panel was known to the plaintiff. The only adverse material before the Panel was the report of the independent medical examiner commissioned by the WorkCover insurer, which was in the possession of the plaintiff prior to the Panel's examination. The Panel's finding regarding the plaintiff's capacity for work, based upon the reports before it, and its examination of the plaintiff, may have come as a surprise to the plaintiff, but could not to the reasonable observer be considered to be unexpected or 'out of the blue', in the sense referred to in the authorities. Examples of cases where a medical panel has been found to have denied a party procedural fairness include where a medical panel has made a diagnosis not referred to by any of the medical reports,[23] or where the Panel had obtained material information during the course of an examination which was not disclosed to the other party.[24] Neither of those circumstances are applicable to the current case. The Panel's diagnosis of the plaintiff's condition was unremarkable, and consistent with the other medical material, and it must have been apparent from the questions of the Panel (as evidenced by the Notes) what issues were of particular interest to the Panel in determining the plaintiff's capacity for work.

88 Finally, the Reasons are perfectly adequate. It is clear that the Panel understood its task before it: to determine whether the plaintiff had suffered an injury, whether that injury had partially or fully resolved, whether it was a work related injury, and if so, the impact upon the plaintiff's work capacity and the duration of any incapacity. The Panel's path of reasoning in that regard is exposed, and sufficiently so as to enable the Court to determine whether the Panel properly considered any mandatory relevant considerations. In any event, the issues raised by the plaintiff regarding the Reasons really went to the issue of whether the Panel had taken into account mandatory relevant considerations, and have been considered in that context.

89 I will address briefly two particular issues raised by the plaintiff regarding the Reasons, the first, almost as an aside, that the Reasons read 'like a novel'. I take this to be a criticism of the Reasons. However, the style and format of the Reasons is unremarkable. The Panel is a nonjudicial body. Its members are doctors, not lawyers. It is required to explain how it reached its opinion on the medical questions before it. That requires it to explain the material features of the story provided to it by the plaintiff in a reasonably logical fashion. In this case, it has done so.

90 The second complaint is that the Panel failed to explain why it disagreed with the opinions of the plaintiff's GP and psychologist. In the Reasons, the Panel acknowledged that it had reached a different opinion, but did not explain why. However, the High Court in Wingfoot[25] made it clear that it was not required to do so. This was recognised by J Forrest J in Karabinis,[26] where his Honour stated (omitting citations):

Whilst it may have been preferable for the Panel to explain why it rejected Ms Karabinis' work as a contributing factor to the injury it was unnecessary for the purpose of complying with its obligations to provide adequate reasons. I accept that in the context of the review of a judicial decision, as opposed to that of an administrative decision maker, such an explanation, even if perfunctory, may have been necessary. But that would be to apply the wrong test, as Wingfoot makes clear. Simply put, it was not necessary for the Panel to go into any further detail as to why it did not accept that there was a compensable injury of the left shoulder. Indeed, the reasoning of the Panel in this case, when compared to that in Wingfoot, does not need resort to implication. The Panel made it abundantly clear that it considered the alternative diagnoses and rejected that of compensable injury.

91 Accordingly, as the plaintiff has failed to establish jurisdictional error on the part of the Panel, or any other legal error, I will dismiss the proceeding.

[1] According to the plaintiff, her symptoms commenced in mid-2016.

[2] Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFA 59 [44].

[4] [2013] HCA 43, [55]-[56].

[5] This certificate was not provided to the Panel.

[6] That is, she worked three short weeks after commencing employment, given the public holidays for Easter and Anzac Day.

[8] It seems to be conceded by the plaintiff that she had not done so.

[9] Doward's submissions canvass the question of whether 'irrationality and/or illogicality' is available as a separate ground of review. This proceeding does not seem to me to be the appropriate vehicle to consider this issue in any detail.

[11] Temazepam is described in Wikipedia as a 'hypnotic of the benzodiazepine class of psychoactive drugs'. Temazepam is approved in the United States for the short term treatment of insomnia.

[12] In that Doward's insurer accepted liability to make payments up to 19 December 2016.

[13] [2017] VSC 648. The decision of J Forrest J was upheld on appeal: see [2018] VSCA 124.

[23] See Barnett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248.

[24] See Moggill Cove Pty Ltd v Burton [2010] VSC 24.

Injury Rehabilitation and Compensation Act 2013

At a glance

Court

Decision date

Before

Source

Judgment (185 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)