Plaintiff v Defendants

WORDS AND PHRASES - 'no current work capacity'; 'current work capacity'; 'suitable employment'.

1 The plaintiff, Ms Najia Popal, immigrated to Australia from Afghanistan in 1988 and lives with her husband and three daughters in Dandenong. She commenced full-time work with Panda Care Pty Ltd in 2013 as a childcare worker, caring for children less than four years of age. She would play, feed and clean up after the children.

2 On 7 December 2015, while Ms Popal was on duty watching children in a playground, she twisted her left ankle inwards on the edge of a concrete area. She immediately experienced pain in her left ankle. She attended her local medical practitioner, who recorded:

walking at home, missed a step and had a fall, twisted left foot inwards. X-rays requested.

3 She said that she described the incident as occurring at home as she did not want to lose her job.

4 Her left ankle became swollen and bruised. But she returned to her normal fulltime pre-injury duties as a child care worker despite persisting pain. She took Panadol Osteo and Nurofen which she obtained over the counter at the chemist.

5 She received treatments for her left ankle including physiotherapy, hydrotherapy, massage and an injection, but they did not help. She saw a specialist and was treated with a cast, which she wore for three months, but her left ankle pain persisted. She told the Panel that prior to the incident she had not suffered any left foot or ankle restriction of movement or pain.

6 She continued working for six months after the incident until the end of June 2016, when she ceased because of pain and depression. She says that since then she has not been able to work because of her pain.

7 On 2 May 2017, Ms Popal lodged a Worker's Injury Claim recording 'left ankle injury, depression and anxiety' as her injury. She stated that her left ankle injury prevented her from returning to work. The insurer approved weekly payments to her commencing on 1 June 2016.

8 On 1 October 2018, the insurer informed Ms Popal that her weekly payments would end on 4 January 2019. It explained that she had been paid for 130 weeks; she had a current work capacity or no current work capacity but it was not likely to continue indefinitely; a 'Capacity Support Services Report' considered there were suitable alternative employment options for her; employment opportunities were available; she was enrolled in a job seeking service; and independent medical opinions determined she had a current work capacity with certain restrictions.

9 Ms Popal commenced proceedings in the Magistrates' Court of Victoria to have her weekly payments reinstated from 4 January 2019. The Magistrate referred six questions to the Medical Panel.

The medical questions referred to the Medical Panel and its answers

10 The Medical Panel consisted of the third defendant, Dr Peter Jasek, a General Practitioner; the fourth defendant, Dr Rani Axtens, a rheumatologist; the fifth defendant, Mr Robert Carey, an orthopaedic surgeon; and, the sixth defendant, Dr John G King, a psychiatrist.

11 The Panel provided its answers to the questions referred as follows:

Question 1 As at the date of the Medical Panel Examination, what is the nature of the plaintiff's:

a. Left foot/ankle condition?

b. psychiatric condition (including stress and anxiety)?

Answer: The Panel is of the opinion the plaintiff is suffering from:

1. persisting symptoms following a soft tissue injury to the left ankle; and

   1. a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and a Persistent Somatic Symptom Disorder.

Question 2 Does any and if so what medical condition enquired of in question 1, result from or is it materially contributed to by the alleged injuries?

Answer: The Panel is of the opinion that (a) the persisting symptoms following a soft tissue injury to the left ankle physical condition and (b) a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and a Persistent Somatic Symptom Disorder psychiatric condition result from or are materially contributed to by the alleged injuries.

Question 3 In the period 1 October 2018 to the date of the Medical Panel's examination, did the plaintiff have:

a. a current work capacity;

b. "no current work capacity?"

Answer: a. Yes

b. No

Question 4 If "Yes" to question 3(b),

1. was the plaintiff likely to continue indefinitely to have "no current work capacity"

2. did that incapacity result from or was it materially contributed to by any and if so which of the alleged injuries:

Answer: Not applicable.

Question 5 As at the date of the Medical Panel's examination does the plaintiff have:

a. a current work capacity;

b. "no current work capacity"?

Answer: a. Yes

b. No

Question 6 If "Yes" to question 5 (b),

a. is the plaintiff likely to continue indefinitely to have "no current work capacity";

b. does that incapacity result from or is it materially contributed to by any and if so which of the alleged injuries:

12 The Panel's reasons first set out the history that Ms Popal provided at an examination on 28 January 2020.

13 Ms Popal said that she continued to experience a 'constant, aching, grabbing, uncomfortable pain on the lateral and medial sides of her left ankle'.[1] She could not walk for more than half an hour and would then need to sit down and elevate her foot. She found it hard to squat and kneel, she climbed the stairs one step at a time holding the rail, but she did not use a walking stick and no longer used a brace. Her left foot sometimes turned blue. She sweated when experiencing pain and her whole body ached, including her neck, back, shoulders, arms, and knees. She said that she had fibromyalgia and experienced a 'funny sensation' when her skin was touched. Her pain made sleeping difficult and she woke up six or seven times each night. She could not drive for more than 10 to 20 minutes or carry items weighing more than three kilograms. She could still shower and dress herself and do some household tasks such as vacuuming, mopping and sweeping. She said that unlike when she returned to work full-time following the work incident, by the time she ceased work, she was unable to perform any work at all. She felt pain throughout her body and was depressed.

14 The Panel noted that Ms Popal lived in Dandenong and has never used public transport as she normally drove a motor vehicle. She described her writing in English as bad and her computer skills as limited.

15 The Panel described Ms Popal's employment history and duties as a childcare worker. She holds a TAFE Certificate III in Children's Services and a Certificate III in Business. It referred to Nabenet's Vocational Assessment of Ms Popal, which is described below. Ms Popal said because of her left foot and general body pain, she could not do any of the jobs suggested. She said that she was unable to do any work at all, as she had pain in her whole body, had depression and was not sleeping.

16 The Panel was presented with, and referred to, medical reports about Ms Popal's medical conditions and capacity for work. The Panel noted the reports of the following medical practitioners:

(a) Dr Amina Bezhan, a general practitioner and Ms Popal's treating doctor,[2] considered that she was unfit for her pre-injury duties or alternative duties due to, among other matters, her 'chronic left ankle pain and inability to fully weight bear on her left foot [which has] affected her balance'.[3] She had suffered a left ankle multiple ligament injury, had a chronic regional complex pain syndrome, fibromyalgia and chronic depression/anxiety with recurrent panic attacks.

(b) Dr Eshan Rahimikia, Ms Popal's treating psychiatrist for a time, stated that he 'believe[d] Ms Popal has no capacity to work in her pre-injury job or any suitable employment due to her ongoing depressive and anxiety symptoms complicated by chronic pain, fatigue and insomnia'.[4] He diagnosed her as having a major depressive disorder which was moderate in severity and a panic disorder.

(c) Dr Timothy Entwisle, a consultant psychiatrist and independent medical examiner, diagnosed Ms Popal with chronic pain syndrome and adjustment disorder with depressed and anxious mood.[5] He concluded, that from a psychiatric perspective, Ms Popal did have a capacity for work and could perform alternative or modified duties and was fit to return to pre-injury duties and hours with her pre-injury employer. Dr Entwisle also stated that, from a psychiatric perspective, Ms Popal could work as an information officer, cashier, console operator, picker/packer, assembly worker, data entry officer or general clerk. Dr Entwisle also considered employment as a mystery shopper, out of school hours coordinator, out of school hours child care worker or respite carer as appropriate.

(d) Dr Alan Jager, a consultant forensic psychiatrist, assessed Ms Popal as having a major depressive disorder with anxiety and chronic pain disorder associated with both psychological and a general medical condition.[6] He assessed her as having a total whole person impairment of 16%.

(e) Dr Nitin Dharwadkar, an independent medical examiner and consultant psychiatrist, diagnosed Ms Popal as having a Persistent Somatic Symptom Disorder with Predominant Pain within DSM V 300.82 (F45.1). He considered that from a psychiatric perspective, Ms Popal had capacity to work, including performing her pre-injury duties. He considered that, from a psychiatric perspective, Ms Popal had capacity to work, including performing her pre-injury duties.

(f) Dr Meena Mittal, a pain physician and specialist anaesthetist, concluded that Ms Popal's initial injury was a left chronic ankle/sprain injury resulting in partial tear of the ankle ligaments with some evidence of ongoing inflammation.[7] She had developed symptoms of a complex regional pain syndrome and developed a major depressive disorder, anxiety and panic attacks. She considered that Ms Popal did not have the capacity to perform her pre-injury duties. She also considered that Ms Popal did not have the capacity to engage in other jobs suggested involving the roles of: information officer in the Afghani community; cashier/console operator; picker/packer; light assembler; general clerk; mystery shopper; cashier; out of school hours care coordinator; out of school hours childcare worker and respite carer. She did not believe that Ms Popal had the capacity to engage in physical or non-physical work until her pain was better controlled and that her incapacity was permanent and likely to last for the foreseeable future.

(g) Mr Siva Chandrasekaran, an independent medical examiner and an orthopaedic surgeon, considered that Ms Popal did not have the capacity to perform her pre-injury duties.[8] Nor did she have the capacity to perform the duties of an information officer, cashier/console operator, picker/packer, assembly worker or general clerk.

(h) Dr James Rowe, an independent medical examiner and a specialist occupational physician, concluded that Ms Popal suffered from chronic, severe pain in her left foot and a complete lack of mobility in her foot and ankle. She also had chronic neck and back pain. He considered that Ms Popal was 'very restricted in what she can do' and was 'precluded from bending, lifting, prolonged sitting or standing, walking up and down inclines [and] declines, negotiating stairs or ladders'.[9]

(i) Professor Geoffrey Littlejohn, an independent medical examiner and a rheumatologist, considered that Ms Popal had persisting pain in the left ankle following a soft tissue ligamentous strain to the lateral ankle.[10] She fulfilled the criteria for complex regional pain syndrome affecting the left ankle/foot region with symptoms and signs in the mild to moderate level. She had developed a more widespread chronic pain syndrome and fulfilled the criteria for fibromyalgia. Her key problem was the complex regional pain syndrome. She had a combined whole person impairment of 8%.

(j) Dr Joseph Slesenger, an independent medical examiner and specialist occupational physician, concluded that Ms Popal had sustained a left ankle soft tissue injury, ligamental tear and chronic left ankle pain, which was now resolved. Based on her physical impairment alone, she 'could return to work performing pre-injury duties' working pre-injury hours.[11]

(k) Dr Graeme Doig, an independent medical examiner and a general orthopaedic and trauma physician, concluded that Ms Popal had sustained a soft tissue injury to her left ankle and developed a chronic pain condition with secondary psychological problems. He considered that she would find it difficult to perform the duties of childcare worker, respite carer and mystery shopper.[12] He also considered that, from a physical perspective, Ms Popal was only suited to sedentary, seated duties. She was unable to stand for long periods of time or walk any distance. She could only drive an automatic vehicle over short distances. He stated that the positions of out of school hours care co-ordinator and cashier would be more suitable due to their sedentary nature.[13]

(l) Dr Rene Dupuche, an independent medical examiner and consultant physician, diagnosed Ms Popal as having a left ankle musculoligamentous work-related injury; an adjustment disorder with mixed anxiety and depression and a chronic pain disorder.[14] He did not believe that Ms Popal was fit to perform her pre-injury duties, but considered that, from a physical perspective, she had capacity for suitable employment subject to limitations. She must avoid aggravating her back. He considered that suitable jobs included: an information officer, cashier console operator, picker/packer (light), light assembler and, subject to further training, a data entry officer or a general clerk.

17 The Panel did not have to accept any of these opinions or explain why it did not. Its duty was to form its own opinion.[15]

18 The Panel undertook a physical examination of Ms Popal on 28 January 2020 and noted the following matters:

The Panel noted the plaintiff walked with a slow gait with a delayed stance on her left leg. She was able to rise on her toes and heels, during which it was observed she was able to plantar flex and dorsiflex to 10° on both sides. She said she was unable to squat. She stood normally with a slight medial arch collapse on both sides, the left slightly greater than right. Her ankles were not swollen. Colour, sweating pattern, hair growth, nail growth of both lower extremities was normal. Temperature of her feet was normal. There was no oedema. Circumferential measurements of the ankles were bilaterally equivalent. Tenderness was reported on minimal palpation of the lateral calf, the whole left ankle and most of the left foot. The range of movement of the left ankle was measured at 60° plantar flexion. There was no power exerted on testing dorsiflexion, but as mentioned above, the dorsiflexion was observed to be approximately 10° when standing on her heels. Left hindfoot movements were normal at about 30° inversion and 20° eversion. The left ankle was stable. Sensation to light touch was increased over the left lateral calf and lateral ankle, and pinprick produced a report of numbness. The Panel considered the sensory testing was variable and not in a dermatomal or anatomical distribution. Circumferential measurements of the calves were bilaterally equivalent. The Panel found no objective evidence of an abnormality of the left foot or left ankle. The Panel found evidence of abnormal illness behaviour during the examination in that there was a difference in formal measurements of range of motion and the range of motion of the left ankle observed at other times, unexplainable tenderness on minimal palpation, report of abnormal sensory changes not explainable by physical means, no strength on formal testing of dorsiflexion yet able to walk on heels and no wasting of left lower limb musculature.[16]

19 The Panel was not provided with imaging investigations to review, but received five documents containing findings of an x-ray, a CT scan, two MRI scans and an ultrasound of Ms Popal's left ankle. The MRIs of her left ankle and foot showed a recent inversion injury with ligament damage.

20 The Panel was presented with a video containing covert surveillance of Ms Popal and described its observations as follows:

The Panel observed with the plaintiff video recordings dated 25 May 2018, 29 May 2018, 16 February 2018 and 17 February 2018. The plaintiff identified herself as the subject in the video. She said she did not realise she was being filmed. She was seen driving a car, getting in and out of a car, walking freely but with a slight limp on the left side, walking on uneven ground in a grassed area, bending over to cut some vegetation, squatting freely and fully and showing no outward sign of discomfort.

The Panel noted that on the surveillance video the plaintiff was able to squat, drive a car and walk freely on uneven ground in a field, though with a slight limp on walking, which was in sharp contrast to the observations during the physical examination including very slow left sided limp on walking and inability to squat. The plaintiff had no comment for the Panel.[17]

21 The Panel's conclusions about Ms Popal's physical injuries were:

The Panel took into consideration the plaintiff's provided history, all documentation, its own examination findings, the imaging investigation reports provided, and the video surveillance.

The Panel considered there is no evidence the plaintiff is suffering from CRPS (complex regional pain syndrome).

The Panel considered the plaintiff is suffering from a persisting symptoms following a soft tissue injury to the left ankle with no objective evidence of a left ankle or foot abnormality found on its own examination. [18]

22 The psychiatrist member of the Panel separately examined Ms Popal on 29 January 2020. The Panel's reasons record the following information that he gained from that examination. Ms Popal lived in a home with her husband with their three daughters aged 14, 16 and 20. She received a 'Carer Allowance' because she takes care of her husband, who received a disability pension after suffering a back injury and depression. After her work injury, her ankle was placed in a plaster cast for six weeks on two separate occasions, she received an injection and wore a moon boot and became progressively more anxious and depressed.

23 She saw her general practitioner every two to four weeks but no longer sees her psychiatrist. She takes the following medication: Panadol Osteo, analgesic, two tablets on average per day; Ibuprofen, anti-inflammatory, one to two tablets daily; Lyrica, neuropathic analgesic, 75mg in the morning and 25mg at night; Naprosyn 750mg, anti-inflammatory, one daily; Zopiclone 7.5mg at night to help sleep; Cymbalta 90mg daily; Mirtazapine 30mg at night and Nexium 20mg daily for heartburn.[19]

24 While Ms Popal said that she was happier on some days, she said that from an emotional perspective that '[she was] still not well', felt very hopeless and cried a lot. She has panic attacks and sometimes felt like 'cutting [her] neck'. She can take hours to fall asleep and wakes every two hours in pain. She said that she had gained weight and her relationship with her husband had been affected.

25 Her family had no history of psychiatric illness or substance abuse. She had a normal and comfortable middle-class upbringing in Afghanistan. Prior to the workplace injury, she was a normal and happy person who enjoyed work. She described her concentration and memory as normal, but said that her energy levels were low.

26 Ms Popal said she had not suffered from major illness or had major surgery. Initially, she denied her past history of psychiatric or psychological problems, but then agreed she had seen a psychiatrist in about 2014 and was prescribed the antidepressant Lexapro, which she was taking at the time of her workplace injury.

27 The Panel's assessment of Ms Popal's mental state on examination was:

The plaintiff was a talkative, friendly, tidily dressed and overweight woman with adequate self-care who was happy to be seen without a professional Dari interpreter. She stood at times when she appeared to be in significant pain and for most of the interview elevated her left foot on a chair. On 4 occasions she asked that I observe her left ankle because it showed a blue discolouration, when the Panel thought the skin colour was normal. She was not agitated, distressed, tearful or psychomotor disturbed.

Her mental state examination was relatively normal; her affect was mildly sad but close to euthymic, reactive and appropriate; she was a good historian who was coherent, without thought disorder and who said that she feels hopeless. There were no psychotic symptoms or any current intent or plan to suicide. Cognition was not formally assessed but appeared to be normal. There was some impairment of both insight and judgement.[20]

28 The Panel's psychiatric diagnosis of Ms Popal was:

The Panel considered the plaintiff is suffering from chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and a Persistent Somatic Symptom Disorder with predominant pain as she has disproportionate and persistent concern about the seriousness of her left ankle pain.

The Panel noted the onset of the plaintiff's psychiatric condition and considered that despite appropriate psychological and psychiatric treatment, her psychiatric symptoms have not changed significantly since 1 October 2018.[21]

The Panel concluded the plaintiff is suffering from persisting symptoms following a soft tissue injury to the left ankle and a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and a Persistent Somatic Symptom Disorder.

The Panel noted and accepted the plaintiff's provided history that her symptoms have been present without resolution since the incident.

The Panel therefore concluded that the persisting symptoms following a soft tissue injury to the left ankle in the setting of a chronic pain syndrome and a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and a Persistent Somatic Symptom Disorder result from or are materially contributed to by the alleged injuries.[22]

30 In assessing Ms Popal's current work capacity, the Panel referred to two vocational reports: the Nabenet Vocational Assessment,[23] and the CoWork Vocational Assessment & Labour Market Analysis Report.[24]

31 Nabenet's report contained extracts from the opinions of Dr Dupuche, Dr Entwisle and Dr Bezhan.

32 The Nabenet report identified the following suitable employment options for Ms Popal: information officer (Afghani community), cashier/console operator (Afghani community), picker/packer (light) and light assembler.[25] Dr Dupuche from a physical perspective and Dr Entwisle from a psychiatric perspective agreed that these positions were appropriate for Ms Popal. Dr Dupuche and Dr Entwisle also identified the positions of data entry officer and general clerk as being appropriate positions for Ms Popal, although she would have to undergo additional training to perform them.

33 The CoWork report was a vocational assessment and labour market analysis report.[26] Ms J Bryant, the author of the report, stated that:

The medical opinions provided to me are divided as to whether Ms Popal has capacity for suitable alternative work. In considering her physical restrictions, along with my assessment findings and an analysis of Ms Popal's vocational profile, it is my view that she has capacity for suitable, alternative work. Therefore, I propose a number of occupations that are suitable for her subject to medical approval. A detailed discussion of these vocational suggestions is contained in this report.[27]

34 She concluded that Ms Popal had the capacity to work in sedentary or light occupations and that she would benefit physically, psychologically and psychosocially from a return to the workforce in an appropriate role. The report noted Ms Popal's transferable skills and referred to Nabenet's suggestion that she attend an English literacy course and computer training to increase her employment prospects. It mentioned that Ms Popal demonstrated functional English communication and that she had technical skills as a childcare worker, out of school hours care worker and accounts clerk. Although she did not have any management experience she had experience in dealing with customers. Ms Bryant identified five occupations that she felt would be suitable for Ms Popal: sales support assistant, such as a mystery shopper, cashier, out of school hours care coordinator, out of school hours child care worker, and support worker (respite). But Ms Bryant was not convinced that Ms Popal had any intention to return to employment.

35 Ms Bryant did not consider that Ms Popal's age of 50 years was a barrier to her employment, but identified the following potential barriers. Ms Popal's physical restrictions limited her to sedentary, seated duties as she could not stand or walk for long periods or distances. Reports suggested that she had 'poor postural tolerances, decreased self-efficacy, limited manual handling, and limited capacity for self-management of persistent pain'. Ms Popal could only drive a motor vehicle for 20 minutes. She would benefit from English and computer training. Ms Popal may be the carer for her husband and if she was employed, some other care arrangements may be required. She might also lose her carer's allowance which may be a financial disincentive to her consideration of low paid or part-time employment. Ms Bryant noted that Ms Popal's treating doctor considered that she did not have work capacity and Ms Bryant stated that therefore she may not be receiving the support and encouragement required for her vocational recovery.[28]

The Panel's consideration of Ms Popal's work capacity

36 The Panel considered Ms Popal's work capacity and concluded:

The Panel considered the plaintiff continued to work her pre-injury duties as a child care worker for six months following the incident but ceased work then because of pain and depression.

The Panel noted that the plaintiff has not worked since June 2016, but there was no evidence of physical deconditioning and the Panel did not consider the plaintiff's injury and/or condition has deteriorated in that time.

The Panel considered the plaintiff continues to experience symptoms and on examination of the plaintiff on 28 January 2020 the Panel found evidence of abnormal illness behaviour in that there was an exaggeration of abnormal range of motion of the left ankle at formal test situations, report of inability to squat, report of sensory changes not explainable in a dermatomal or anatomical distribution and report of pain on minimal palpation, no strength on formal testing of ankle plantar dorsiflexion power yet able to dorsiflex normally when walking on heels but no objective evidence of left ankle pathology. The Panel noted the surveillance video dated 16 and 17 February 2018 and 29 May 2018 which showed the plaintiff in driving, walking on uneven ground, squatting and cutting greenery in a field all in no obvious pain although a slight left sided limp while walking.

The Panel considered the requirements of the plaintiff's pre-injury duties as a child care worker, which involves standing or walking for prolonged periods of time, as well as the mild nature and severity of the plaintiff's left ankle physical condition and the resultant physical restrictions including a slight limp on walking, and concluded the plaintiff would not be capable of performing her pre-injury duties.

The Panel concluded that, from a psychiatric perspective alone, the plaintiff has had a capacity to do pre-injury duties and hours in any workplace since 1 October 2018.

The Panel took into account all aspects of the definition of 'suitable employment' and 'current work capacity' and 'no current work capacity' in the Accident Compensation Act 1985 including, but in particular:

• The minor nature of the plaintiff's left ankle physical condition, including the minor restrictions imposed by the claimed injury on her capacity to cope with employment duties and attend a workplace on a consistent basis, as she is able to walk, sitting does not interfere with her ankle medical condition and there is absence of physical signs on the Panel's physical examination, which would not render her incapable of work;

• The nature of her chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and a Persistent Somatic Symptom Disorder, which is mild and does not affect her capacity for work;

• Her age of 51 years, which does not limit her employment options;

• Her residential address in combination with her current driving licence, and evidence on surveillance video that she is able to drive, which does not prohibit her to reach a place of employment;

• Her work experience as a clerk in Afghanistan and child care worker in Australia, her adequate English language speaking ability, which opens her to a number of employment options;

• The plaintiff has obtained higher education diplomas and certificates in Australia, which shows her English language ability, intelligence and ability to learn, which opens her to a number of employment options despite her limited computer skills;

• The Panel noted her current place residence and, notwithstanding the plaintiff's provided history of not driving a car longer than 10-20 minutes, the Panel did not consider the plaintiff's current condition would restrict her driving.

The Panel noted the reports of treating psychiatrist Dr Eshan Rahimikia dated 21 May 2018, 29 November 2018 and 21 August 2019 and the reports by independent medical examiners consultant psychiatrists Dr Timothy Entwisle dated 21 November 2017, 26 April 2018, 5 August 2019 and 19 August 2019, Dr Alan Jager dated 24 December 2018 and Dr Nitin Dharwadkar dated 24 May 2017.

The Panel also noted the reports of the following medical practitioners:

• Dr Amina Bezhan, general practitioner, dated 20 September 2019;

• Dr Meena Mittal, pain physician and specialist anaesthetist, dated 7 July 2019;

• Mr Siva Chandrasekaran, independent medical examiner, dated 19 June 2019;

• Dr James Rowe, independent medical examiner, dated 21 August 2019,

• Professor Geoffrey Littlejohn, independent medical examiner, dated 8 January 2019;

• Dr Joseph Slesenger, independent medical examiner, dated 8 August 2019 and another report dated 18 July 2019;

• Dr Graeme Doig, independent medical examiner, dated 15 August 2019 and 7 August 2019; and

• Dr Rene Dupuche, independent medical examiner, dated 17 September 2018.

The Panel noted the Vocational Assessment by Nabenet dated 3 October 2019, which provided possible vocations as information officer (Afghani community), cashier, picker/packer, light assembler, data entry officer and general clerk.

The Panel noted the vocations suggested by CoWork dated 26 July 2019, which proposed the vocational options of mystery shopper, cashier/console operator (Afghani community), out of school hours coordinator, out of school hours childcare plaintiff, respite carer and support plaintiff.

The Panel considered the functional requirements of these jobs in conjunction with the plaintiff's current condition and the suitable employment criteria set out above.

The Panel noted the plaintiff had only worked in one job since arriving in Australia, for the pre-injury employer.

The Panel also considered the roles of mystery shopper, picker/packer, light assembler, respite carer and support worker would exceed the plaintiff's functional capacity and may exacerbate or aggravate her current physical condition.

The Panel considered the roles of information officer (Afghani community), cashier/console operator (Afghani community), picker/packer, light assembler, data entry officer, general clerk, out of school hours coordinator or out of school hours childcare.

The Panel noted the plaintiff had experience working as a clerk, notwithstanding that it was in Afghanistan, and has Certificate in Business and the Panel considered the plaintiff had the necessary transferable skills to undertake this role, however, the Panel noted this role may need retraining.

The Panel noted the plaintiff has a Diploma in Children's Services as well as Certificate III in Children's Services and the Panel considered the plaintiff had the necessary transferable skills to undertake the roles of out of school hours coordinator or out of school hours childcare worker without the need for further retraining.

The Panel noted the plaintiff has the necessary transferable skills to work as an information officer (Afghani community), cashier/console operator (Afghani community), data entry officer.

The Panel also noted that these roles were described as being sedentary to having light physical demands. Based on the Panel's conclusions regarding the mild nature of the plaintiff's physical condition in conjunction with the plaintiff's psychiatric condition, which the Panel considered did not affect her work capacity, the Panel considered that these roles were within the plaintiff's current functional restrictions and the plaintiff could undertake these roles on a reliable and consistent basis as a settled or established member of the wage earning workforce without exacerbating or aggravating her current physical and psychological conditions.

Based on the Panel's examination of the plaintiff and its consideration of the material contained in the referral including the medical imaging reports the Panel concluded there is work for which the plaintiff is currently suited and which she could perform on a reliable and consistent basis.

The Panel considered the plaintiff's physical and psychiatric conditions have not changed since 1 October 2018 to and as at the date of the Panel's examination. The Panel therefore concluded the plaintiff did have a current work capacity in the period of 1 October 2018 to the date of the Panel's examination and does have a current work capacity as at the date of the Panel's examination.

37 Ms Popal's amended originating motion seeking judicial review of the Panel's certificate of opinion contains three grounds. They are:

Ground 1: Jurisdictional error - failing to apply the right test

In determining its opinion of referred questions 3 and 5, the Panel fell into jurisdictional error, alternatively error of law patent on the record, by misconstruing or misapplying the concepts of an 'incapacity for work' and/or 'preinjury employment'.

Ground 2: Jurisdictional error - taking into account an irrelevant consideration/failing to take into account a relevant consideration

In determining its opinion on referred questions 3, 4, 5 and 6, the Panel took into account an irrelevant consideration, or alternatively failed to take into account a relevant consideration, in that it misunderstood, misconstrued or ignored:

(a) the effects of the plaintiff's pain as being an incapacity.

(b) the effects of the plaintiff's pain as forming part of the 'personal circumstances' of the plaintiff.

(c) the effects of the plaintiff's injury making the plaintiff an unattractive work prospect.

(d) whether the employment options identified were within a reasonable driving distance of the plaintiff's residence.

Ground 3: Jurisdictional error - failing to provide adequate reasons

In determining its response to referred questions 3 and 5, the Panel failed to an adequate statement of reasons sufficient to comply with section 313(2) of the Act, in particular adequate reasons as to why the nature of the plaintiff's psychiatric injury does not affect her capacity to work.

38 A primary feature of Ms Popal's case, as developed in submissions, was how the Panel had considered her pain and its effects.

39 The definitions of 'current work capacity', 'no current work capacity', and 'suitable employment' are as follows:

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 his or her pre-injury employment but is able to return to work in suitable employment.

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 -

(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;

(iii) the worker's age, education, skills and work experience;

(iv) the worker's place of residence.[29]

40 In view of the submissions made in this proceeding, it is important to restate the following legal principles.

41 Judicial review proceedings are not concerned with merits review. This Court cannot substitute its own opinion for that of the Medical Panel. The primary function of a Medical Panel is to form an opinion with respect to the medical questions referred to it. In the present case, its functions included forming a medical opinion as to the nature, extent and severity of Ms Popal's injuries, and assessing the consequence of her medical conditions for her ongoing capacity to work.

42 The Panel included specialist medical practitioners holding particular expertise with respect to the matters in issue. It was for the Panel to determine what information was sufficient to found an opinion with respect to the medical questions.

43 The Panel could draw inferences as to the nature, extent and severity of a medical condition. It did not commit a jurisdictional error by reaching a conclusion that the medical reports did not reach. It was required to give genuine consideration to matters which it is required by statute to consider and to fundamental issues raised by the facts of the case.[30]

Ground One - Whether the Panel misconstrued or misapplied the concepts of 'an incapacity for work' and /or 'pre-injury employment'

44 Ms Popal's case was that the Panel's answers to questions three and five involved jurisdictional errors because the Panel did not apply the proper test in deciding whether she had 'no current work capacity' and in applying the concept of 'suitable employment'. Despite the wording of ground one, Ms Popal's case was based on the meaning of the terms 'no current work capacity' and 'suitable employment'.

45 Ms Popal first argued that the Panel had erred by making the functional capacity of the worker the test of what was suitable employment. She argued that the test is not whether particular roles are within a worker's functional capacity, but whether the suggested employment was suitable employment for the worker. This required a holistic approach to the worker's circumstances and features in the determination of whether the employment was suitable. Suitable employment did not just refer to employment which the worker could perform, but to employment which was available to her taking into account the entirety of her circumstances.[31]

46 Ms Popal contended that her features and personal circumstances additional to the workplace injury resulted in her having no current work capacity. These features and circumstances included the pain she experienced as a psychogenic effect of her Persistent Somatic Symptom Disorder, her employability or attractiveness as a prospective worker, her age and her inability to travel distances to work. The Panel had not considered these facts and circumstances when assessing the employment opportunities available to her. It did accept that Ms Popal continued to suffer from symptoms after suffering the workplace injury.

47 The Panel erred by not considering Ms Popal's capacity to be accepted back into the workforce, and whether, when she presented as a potential candidate for employment, a prospective employer would employ her.[32] For instance it did not consider her abnormal illness behaviour and its likely effect on an employer's willingness to employ her, although it had noted that behaviour during the physical examination. A prospective employer would not consider the Panel's description of Ms Popal's pain as mild, but consider her as a person who exhibited mentally induced pain and abnormal illness behaviour. The Panel did not consider the question of her 'employability' in the sense discussed in Richter v Driscoll.[33]

48 Ms Popal also argued that in considering the phrase 'nature of the worker's incapacity' in the definition of 'suitable employment' the Panel did not differentiate between her injury and her incapacity. It did not consider the effects of her pain as being an incapacity, although it formed part of her personal circumstances which the Panel was required to take into account, in applying the term 'no current work capacity'. The Panel did not consider whether due to her injury and its sequelae, she had a capacity to be accepted back into the workforce or to find suitable employment. It therefore had not answered questions 3 and 5 in accordance with law.

49 The first defendant, Panda Care, described Ms Popal's case as an attempt at an impermissible merits review of the Panel's opinion. It disputed that the Panel made a jurisdictional error in concluding that Ms Popal had a current work capacity. It argued that the Panel had correctly identified the issues for decision and had taken into account her pre-injury history and duties, although it did not entirely accept her history. The Panel made findings about Ms Popal's physical and psychiatric conditions and considered her age, place of residence, previous work experience, ability to speak English, and her education. The Panel found that she could attend a workplace on a consistent basis. Therefore, it had not made its findings about her 'current work capacity' on the basis of her functional capacity alone.

50 The Panel made clear that it had considered the functional requirements of the identified jobs in conjunction with Ms Popal's current condition and the suitable employment criteria contained in the definition of suitable employment. The Panel excluded some jobs because of their potential to exacerbate or aggravate Ms Popal's physical condition and another because of the retraining needed. However, it concluded that she had the necessary transferable skills for the remaining identified jobs.

51 The Panel's conclusions that Ms Popal's left ankle physical condition was minor and her psychiatric condition was mild justified its conclusion that those conditions did not affect her capacity to work in suitable employment. The Panel's reasons confirmed that it had considered Ms Popal's continued experience of pain, evidence of her abnormal illness behaviour and her statements about her restrictions compared with the Panel's observations of her during its examination and from the surveillance video.

52 The Panel did not accept Ms Popal's claimed level of incapacity and did not accept that she suffered from any psychogenic pain. But it did accept that she has some incapacity and physical restrictions on her capacity to work, including her limp. It was evident that the Panel had considered Ms Popal's pain caused by her physical condition. In any event, ongoing pain does not necessarily preclude work capacity.

53 In my opinion, the Panel did not misconstrue or misapply the test of 'incapacity for work and/or preinjury employment' or fail to differentiate between Ms Popal's injury and her capacity. Nor did it misconstrue or misapply the terms 'current work capacity' or 'no current work capacity'.

54 The Panel referred to, took into account, and made findings about the relevant criteria contained in the definition of suitable employment, including the nature of Ms Popal's incapacity, the nature of her pre-injury employment, her age, education, skills, and work experience and her place of residence. It did not just consider the functional requirements of the jobs proposed, but also considered her current condition and the suitable employment criteria.

55 The parties referred to the Court of Appeal decision in Richter v Driscoll[34] and the Court's consideration of matters relevant to the application of the terms 'no current work capacity' and 'suitable employment'. The Court decided that those terms were directed to the worker's ability to undertake work in employment and were not confined to physical incapacity. They required consideration of the entirety of the worker's personal circumstances. The word 'employment' carries with it the idea of return to work 'as a settled or established member of the wage-earning workforce.'[35] The concept of return to work and employment necessarily engages the question of the worker's employability having regard to both her personal characteristics and the presence and continuing effects of her injury.[36] Before the conclusion is reached that a worker has an ability to engage in employment in a particular job, the Panel is required to give some practical content to the job involved so that its conclusion was capable of being examined.[37]

56 The Panel's approach was consistent with that required by Richter v Driscoll in that it took into account Ms Popal's personal circumstances in considering whether she had the capacity to return to work in employment. Its consideration was not limited to whether she had a capacity to perform work.

57 The Panel made findings about the nature and extent of Ms Popal's physical and psychiatric conditions, which it then applied in considering her suitability for a range of employment positions. It did differentiate between her injury and her capacity. It set out her description of her symptoms and of her pain, but considered that her physical condition was minor or mild with minor restrictions and her psychiatric condition was mild. It did not accept all of her description of her symptoms and thought that she had exaggerated some of them.

58 It considered that she had work capacity and eliminated some jobs because of her physical ankle condition. However, it did not consider that her psychiatric condition affected her work capacity. She thus had a capacity to perform work in suitable employment.

59 The Panel's assessment of Ms Popal's work capacity involved a question of degree and its finding was one of fact.[38]

60 The Panel made no error of law in applying the legislation as to whether Ms Popal had a current work capacity and was able to return to work in suitable employment.

Ground two: irrelevant or relevant considerations

62 Ms Popal's second ground contends that in answering questions three, four, five and six the Panel misunderstood, misconstrued or ignored the effect of her pain as being an incapacity and as forming part of her personal circumstances and that the effects of her injury made her an unattractive work prospect. It also contends that the Panel failed to consider whether the employment options identified were within a reasonable driving distance of Ms Popal's home. The parties' submissions made in respect of ground one are also of relevance to the determination of ground two.

63 Ms Popal submitted in respect of ground two that while the Panel considered her physical considerations and transferable skills, it failed to consider other matters relevant to deciding whether particular employment was suitable. These included her pain and her abnormal illness behaviour. The Panel had to form a view about the extent of her pain and give that issue comprehensive consideration, but did not do so. A person exhibiting her symptoms and behaviours was not likely to be a reliable and consistent worker or an attractive job prospect. The Panel did not consider whether she could perform the identified jobs despite those conditions. It did not consider her employability. The extent of her mental reaction to her injury was relevant to the determination of whether she had the capacity to work as a settled member of the workforce.

64 The Panel had accepted the reality of Ms Popal's pain and found that she had an abnormal illness behaviour. But it failed to consider her work capacity in that context, and failed to take into account her experience of pain. It did not form a view about the extent of her pain and its effect on her and her employability. Richter v Driscoll establishes that a Panel must consider the entirety of the worker's personal circumstances.[39]

65 Ms Popal submitted that the Panel did not adequately consider the Nabenet and CoWork reports about job opportunities and those reports were unclear on whether the identified opportunities for information officer (Afghani community) and cashier/console operator (Afghani community) were general opportunities or opportunities specific to members of the Afghani community. Some of the positions mentioned by the Panel, for instance data entry officer, required skills that she did not have. The Panel did not consider the relevance of her place of residence to the location of, and suitability of, the job opportunities.

66 Ms Popal also submitted that the Panel should have taken into account her age of 51 years in determining that the proposed jobs were suitable employment opportunities. However, that condition was not particularised in ground two.

67 Panda Care submitted that the Panel did take into account both the impact of Ms Popal's physical and psychiatric conditions and their effect on her capacity to work.

68 The Panel had regard to her experience of pain, its persisting condition and its incapacitating effects. It also had regard to her persisting symptoms following a soft tissue injury to the left ankle and described her restrictions as 'minor'. It excluded from consideration jobs which it considered not appropriate as they 'may exacerbate or aggravate her current physical condition'.[40]

69 The Panel had regard to Ms Popal's employability; it concluded that she could perform certain work duties and that she could 'undertake these [identified] roles on a reliable and consistent basis as a settled or established member of the workforce without exacerbating her current and physical and psychological conditions'.[41]

70 The Panel did not wholly accept Ms Popal's description of her pain and considered that she had exaggerated her symptoms. It considered that her psychiatric condition was mild and did not affect her capacity for work.

71 Panda Care pointed out that there were five proposed jobs that the Panel considered would provide Ms Popal with appropriate employment, being those referred to in Ms Popal's submissions, plus the roles of out of school hours coordinator and out of school hours childcare worker. The Panel noted their sedentary nature and light physical demands. As mentioned, the Panel excluded from consideration unsuitable jobs and also considered that she could not return to her previous employment. The Panel thereby demonstrated that it had considered the effect of Ms Popal's pain.

72 The Panel took into account that Ms Popal lived in Dandenong and that positions of the kind it had identified did exist in that area. It considered that her driving capacity was not restricted. It referred to her age and stated that it 'does not limit her employment options'.[42]

73 The Panel found that Ms Popal suffered from persisting symptoms in the setting of a chronic pain syndrome. It also found that she suffered from a chronic adjustment disorder with mixed anxiety and depressed mood based on a Persistent Somatic Symptom Disorder with predominant pain[43] and had a disproportionate and persistent concern about the seriousness of her left ankle pain.

74 In my opinion, the Panel gave genuine consideration to the nature, extent and severity of the pain suffered by Ms Popal, but considered that it was insufficient to restrict her from engaging in suitable employment. This conclusion is supported by the fact that the Panel recorded in detail Ms Popal's description of her pain and its effects on her life, including her statements that she would not be able to perform any of the vocational options being considered. It noted the medications that she took. It found that there was no objective evidence of an abnormality of her left foot and ankle and considered that her restrictions were mild. It found that there was no evidence of complex regional pain syndrome, although it accepted that her symptoms had persisted and that she had a chronic pain syndrome, which is a diagnosis 'used by doctors to refer to chronic pain that does not have an obvious organic cause'.[44] It clearly did not accept all her account of her symptoms. Based on its own observations during the examination and from the surveillance video, the Panel found that she had exaggerated her range of motion[45] and that the video showed her mobility 'in sharp contrast'[46] to the observations during the physical examination. Those findings appear to have affected the Panel's findings about the significance of Ms Popal's condition.

75 The Panel found that Ms Popal's mental state examination was relatively normal and that her psychiatric condition was mild and that from a psychiatric perspective she had the capacity to do pre-injury duties and that it did not impair her work capacity. But it considered that her physical condition excluded her from pre-injury duties, from non-sedentary positions and from jobs that might exacerbate her conditions.

76 In my opinion, those conclusions make clear that the Panel considered that her physical and psychiatric conditions were mild and that her level of pain did not remove her work capacity. Some of the medical opinions provided to the Panel, including that of her general practitioner, considered that Ms Popal's pain was more severe, but the Panel was obliged to form its own opinion about that issue.

77 As previously mentioned, the Panel's consideration of suitable employment did not just deal with Ms Popal's capacity to perform the functions required by the proposed jobs. The Panel stated that it 'considered the functional requirements of these jobs in conjunction with the plaintiff's current condition and the suitable employment criteria set out above'.[47] The Panel considered the criteria contained in the definition of suitable employment with reference to Ms Popal's personal circumstances, but did not consider that they limited her employment options. They included her age, and her residential address in combination with her ability to drive a car. It also considered her work experience as a clerk in Afghanistan and a child care worker in Australia and her adequate English language speaking ability, which it considered opened for her a number of employment options. It also referred to the higher education diplomas and certificates she had obtained in Australia, which it considered showed her English language ability, intelligence and ability to learn and which also opened for her employment options despite her limited computer skills. The Panel thereby considered Ms Popal's personal circumstances in addition to her functional capacity when considering whether the identified positions were suitable employment in which she could return to work. The Panel's opinion that Ms Popal could return to work was similar to that of the independent examiners, Dr Entwisle, a psychiatrist and Dr Dupuche, a consultant physician.

78 The Panel considered that Ms Popal could undertake the roles of out of school hours co-ordinator or out of school hours child care worker without the need for further training. At the time of injury she was childcare worker looking after children less than four years of age which required lifting, playing and feeding and cleaning up after them. In contrast, it appears that the school hours co-ordinator and childcare worker roles did not require lifting children.[48] She had obtained a Diploma and Certificate III in Children's Services and a Certificate III in Business.

79 The Panel noted that Ms Popal had worked as a clerk and had a Certificate in Business. The Panel considered that she could perform the role of a general clerk and such positions were available in the Dandenong area. The Panel also considered that her transferable skills enabled her to act as an information officer (Afghani community), cashier/console operator (Afghani community) and data entry officer. The Panel did not describe the duties of these positions, although a description appears in the Nabenet's Labour Market Analysis Summary Report.[49] However, there appears to have been no evidence that the positions of information officer or cashier/console operator for the Afghani community, as distinct from similar positions for the community generally, were available in the Dandenong area. Nevertheless, the availability in the Dandenong area of the jobs of out of school hours co-ordinator and out of school hours child care worker[50] was sufficient to support the Panel's conclusion that they provided suitable employment for Ms Popal.

80 The judgments in Sidiqi v Kotsios[51] are of relevance in identifying the legal principles applicable to the facts of this case. There, the Medical Panel accepted that, as a result of a workplace injury, the worker suffered from a chronic pain syndrome affecting his lower back coupled with a mild chronic adjustment disorder with mixed anxiety and depressed mood, and that his conditions were permanent. Nonetheless, the Panel found that neither his physical nor mental condition resulted in him having an incapacity for his pre-injury work and that he had 'current work capacity'. The worker's central complaint was that the Panel's finding of fact in respect of pain symptoms was inconsistent with its conclusions about his capacity to work and sought judicial review. He commenced judicial review proceedings challenging the Panel's opinion.

81 In dismissing the worker's proceeding, Richards J considered that reading the Panel's reasons as a whole, it was clear that it did give genuine consideration to the pain suffered by the worker. Her Honour noted that the Panel had formed the opinion that the diagnosis of chronic pain syndrome did not preclude the worker from undertaking his pre-injury duties and that he could perform the duties of the five jobs identified as suitable employment.[52]

82 The Court of Appeal upheld Richards J's judgment.[53] The Court stated:

In our view, the acceptance of the fact that the applicant suffered from persistent pain symptoms was not inconsistent with a balanced positive conclusion as to the applicant's work capacity. As a matter of logic it was open to the Panel to conclude that the symptoms caused by the applicant's chronic pain syndrome either were or were not of such a nature, severity and extent as to permit him to resume employment in the capacities which the Panel identified. Indeed, it was logically open to conclude that increased exercise associated with a return to work may assist with, and decrease, his pain symptoms.

The conclusions that the applicant's symptoms would persist through the foreseeable future but would not prevent him from returning to his pre-injury work or alternative work involved an evaluative judgment by way of expert opinion as to the nature, extent and severity of the applicant's medical condition. The applicant has not demonstrated that the opinion at which the Panel arrived was not open to it.[54]

83 The Court of Appeal also stated that in many cases the capacity to undertake physical work will demonstrate a capacity to return to work. They adopted observations of Gorton J in Bainbridge v Westside Meats Pty Ltd who said that a capacity to perform duties will, in many circumstances, correspond with a capacity to return to work in employment.[55]

84 So far as the consideration of Ms Popal's residential address in Dandenong was concerned, the Panel referred to that fact, but stated that there were jobs in the identified positions available in that area. It found that her conditions would not restrict her from driving a vehicle.

85 Ms Popal's grounds do not raise any issue about the Panel's failure to consider restrictions on employment caused by her age. But her written submissions contended that the Panel did not adequately consider that age usually has a limiting effect on employment opportunities. However, the Panel's reasons stated that it 'took into account all aspects of the definition of "suitable employment" and "current work capacity" and "no work capacity" in the [Act] including, but in particular: ... [Ms Popal's] age of 51 years, which does not limit her employment options'.[56]

86 The Panel also said in its reasons that 'the Panel noted the vocations suggested by CoWork dated 26 July 2019'. That Co-Work Report stated 'at 50 years old, Ms Popal's age is not a barrier to employment'.[57] It also referred to the average retirement age of all the professions identified in the report, all of which were over 51 years of age.[58]

87 There is no substance to Ms Popal's suggestion that the Panel did not give adequate consideration to the limiting effect of her age.

Ground three - Were the Panel's reasons adequate?

89 This ground was particularly directed at the Panel's answers to questions 3 and 5.

90 Ms Popal submitted that at several stages in its reasons, the Panel reached a conclusion without providing its path of reasoning. For example, in concluding that her Persistent Somatic Symptom Disorder was mild, the Panel did not provide the reasons for assessing her condition as mild, and simply stating the conclusion was insufficient. The Panel failed to explain how Ms Popal, with a mental condition, could be employed as a settled member of the workforce. The recitation of that formula from Richter v Driscoll was insufficient to provide adequate reasons. Panda Care's submissions amounted to the proposition that everything necessary to establish the adequacy of the Panel's reasons could be, and should be, inferred rather than being expressly stated.

91 Ms Popal also referred to the Panel's characterisation of her physical condition as mild and submitted that there was no path of reasoning to explain the conclusion that her pain did not affect her capacity for employment. A similar submission was made about the Panel's statement that her pain, as she described it, and its effects, did not affect her capacity for work. She submitted that the Panel's statement that she suffered from a mild condition was a conclusion, not a statement of reasons as required by the WIRC Act.

92 Panda Care submitted that the Panel's reasons disclosed that it had taken all the relevant material and medical reports into account, conducted examinations of Ms Popal and formed a view as to the impact of her condition upon her capacity for work. The Panel was performing an evaluative exercise which may not permit detailed reasoning. Its reasons were sufficient to show its path of reasoning and to enable an assessment of whether it had made any legal error.

93 Section 313(2) of the WIRC Act requires a Medical Panel to provide a written statement of reasons for its opinion. Wingfoot Australia Partners Pty Ltd v Kocak requires:

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.[59]

94 As Richards J stated in Sidiqi v Kotsios a statement of reasons is not adequate if there is a 'real doubt' whether the Panel correctly performed its statutory functions.[60] A real doubt may exist where a Panel's conclusions are open to more than one interpretation, and in that case a reviewing court should not speculate about a Panel's path of reasoning in order to resolve an ambiguity or fill gaps. But a Panel's reasons need only be sufficient to enable a reviewing court to understand that it has performed its functions of forming and giving its opinion on the medical questions referred to it. The Panel's reasons must be read fairly, as a whole and in context, and should not be subject to 'overzealous judicial review'. A Panel's reasons may be able to be understood by combining what is expressly stated with inferences necessarily arising, although any such inferences must have 'proper evidential foundations disclosed in the reasons'.

95 For the following reasons, I conclude that the Panel provided adequate reasons to explain its path of reasoning in answering the questions.

96 First, the Panel's reasons must be read as a whole, commencing with its findings about Ms Popal's physical condition, continuing to its findings about her psychiatric condition and leading to its findings about her current work capacity.

97 Secondly, the Panel's reasons set out in detail what its members observed in the physical and psychiatric examinations of Ms Popal. It took into consideration her history, the documents and reports provided, its own examination findings, the imaging investigation reports, and the surveillance video. It concluded that there was no objective evidence of abnormality of her left foot or ankle. The imaging reports revealed no fracture, but a recent inversion injury with a partial tear of her ligaments. The Panel considered Ms Popal to be suffering from persisting symptoms following a soft tissue injury to the left ankle with no objective evidence of a left ankle or foot abnormality.[61] Although accepting that she did still experience chronic pain, the Panel considered her physical condition to be mild and minor in nature. It did not prevent her from retaining work capacity.

98 Thirdly, the Panel concluded that Ms Popal displayed abnormal illness behaviour 'in that there was a difference in formal measurements of range of motion and the range of motion of the left ankle observed at other times'.[62]

99 Fourthly, the Panel referred to the surveillance video which showed Ms Popal's movements in 'sharp contrast to the observations during the physical examination'[63]. For example, the Panel said it observed Ms Popal squatting freely, but being unable to squat in its physical examination. It noted that the surveillance footage:

showed the plaintiff in driving, walking on uneven ground, squatting and cutting greenery in a field all in no obvious pain although a slight left sided limp while walking.[64]

100 It recorded that she 'had no comment' on the inconsistency. The video also suggested that Ms Popal's ability to drive a motor vehicle was not restricted.

101 The Panel also noted that on four occasions Ms Popal requested the Panel view her left ankle which she believed was discoloured blue. The Panel did not believe the ankle was discoloured.

102 The Panel's path of reasoning in respect of Ms Popal's psychiatric condition began with its description of her psychiatric and mental state examinations. It noted her statement that she was emotionally 'still not well', her expressions of hopelessness and depression, and her difficulties sleeping. It noted that she initially denied having any past psychiatric or psychological problems, although she then accepted that she had been prescribed Lexapro, an antidepressant, by a psychiatrist. It described Ms Popal's presentation as:

The plaintiff was a talkative, friendly, tidily dressed and overweight woman with adequate self-care who was happy to be seen without a professional Dari interpreter. ... She was not agitated, distressed, tearful or psychomotor disturbed.[65]

103 When examining Ms Popal's mental state, the Panel found her to be relatively normal and without any psychotic symptoms or suicidal intent. It recognised Ms Popal to have some impairment of both insight and judgement. It concluded that she was suffering a chronic Adjustment Disorder with Mixed Anxiety and Depressed mood, as well as a Persistent Somatic Symptom Disorder. It described her psychiatric condition as mild, a conclusion or finding based on its examination of Ms Popal, her responses and the information and reports received about her.

104 Based on this finding, the Panel concluded that, from a psychiatric perspective alone, Ms Popal had a capacity to do pre-injury duties and hours, and that her limitations were physical. When considering Ms Popal's ability to work, the Panel noted the psychiatric reports prepared by Dr Rahimikia, Dr Entwisle, Dr Jager and Dr Dharwadkar. The Panel reached its own conclusions, as it was required to do and they were somewhat similar to the opinions of Dr Entwisle.

105 This conclusion led to the Panel considering that Ms Popal's psychiatric condition did not affect her work capacity. It considered that the psychiatric condition was mild and that it included a disproportionate and persistent concern about the seriousness of her left ankle pain. It referred to, and considered, the statutory criteria in the definition of suitable employment.

106 The Panel explained its path of reasoning concerning Ms Popal's 'current work capacity'. It noted that she had not worked since June 2016. It did not accept all her report of the extent of her left ankle limitations and considered that they were minor or mild in nature and severity. The assessment of work capacity is largely an evaluative exercise, involving questions of degree and findings of fact.[66]

107 Ms Popal's argument that the Panel did not consider all of her personal circumstances which might affect her capacity to work in employment is answered by its reasoning process that I have described above. The Panel's reasons suggest that its consideration went beyond the functional requirements of the jobs proposed as suitable employment. It expressly stated that it considered those functional requirements in conjunction with Ms Popal's current condition and the suitable employment criteria. Having stated its approach, it identified the roles that were 'within the plaintiff's current functional restrictions' and found that 'the plaintiff could undertake these roles on a reliable and consistent basis as a settled or established member of the wage earning workforce without exacerbating or aggravating her current physical or psychological conditions'.[67] That path of reasoning led it to conclude that 'there is work for which the plaintiff is currently suited and which she could perform on a reliable and consistent basis' and that therefore she did have a current work capacity.[68] It identified jobs that it considered provided suitable employment.

108 The Panel's reasons explain why it considered that despite Ms Popal's physical and psychiatric conditions, including the pain that she experienced, that she did have a current work capacity in the relevant period. In my opinion, the Panel's reasons were adequate.

110 None of Ms Popal's grounds of review have been established and the proceeding must be dismissed.

111 Costs usually follow the event. However, in case either the plaintiff or the first defendant wish to make submissions about costs, I will give directions to enable that to occur.

THE CONVENOR OF MEDICAL PANELS Second Defendant

[1] Reasons for Opinion of the Medical Panel Re Ms Najia Popal dated 17 February 2020 (Ref: M119/3582), 14 ('Reasons') at Court Book, Najia Popal v Panda Care Pty Ltd (Supreme Court of Victoria, S ECI 2020 01799, Ginnane J, 14 April 2021) 100 ('CB').

[15] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 498-9 [47] ('Wingfoot').

[29] Workplace Injury Rehabilitation and Compensation Act 2013 ('WIRC Act') s 3.

[30] See Sidiqi v Kotsios [2021] VSCA 187 ('Sidiqi'), [29]-[64] from which these principles are derived.

[31] Citing Lang v Spendless Shoes Pty Ltd [2019] VSC 367, [19(5)]. See also Richter v Driscoll (2016) 51 VR 95.

[32] The plaintiff relied on Ball v William Hunt & Sons Ltd [1912] UKLawRpAC 29; [1912] AC 496 and Richter v Driscoll (2016) 51 VR 95.

[33] (2016) 51 VR 95.

[34] (2016) 51 VR 95.

[38] Haq v Dodgshun [2015] VSC 450 ('Haq'), [61].

[39] (2016) 51 VR 95, 114-121.

[43] This condition appears to be found in DSM-V, see Dr Dharwadkar's report CB 294, but the parties did not make any express submissions about the description of the condition contained in that manual.

[44] Sidiqi v Kotsios [2020] VSC 446, [23].

[51] [2020] VSC 446.

[55] [2021] VSC 320, [25].

[59] [2013] HCA 43; (2013) 252 CLR 480, 501 [55].

[60] [2020] VSC 446, [41]-[42].