Plaintiff v Defendants

2 In this judicial review proceeding, the VWA contends that the Panel, in forming its Opinion and answering the referred questions, denied it procedural fairness in two ways and thereby made a jurisdictional error. First, by not providing it with an opportunity to address new information provided by Mr Whelan when he was interviewed by the Panel that was relevant to his work capacity. In his written submissions and affidavit made in his County Court application, he said that he had not worked since the accident in May 2016, but he told the Panel of casual work that he had performed. Secondly, by the Panel forming the Opinion, that Mr Whelan suffered from a psychiatric condition of an alcohol abuse disorder when none of the material, including medical reports, provided to the Panel suggested such a diagnosis and Mr Whelan had not suggested that the increase in his alcohol consumption was attributable to his work accident.

3 Whether these submissions by the VWA succeed turns on whether the Panel's reliance on the new work information, or its new diagnosis of an alcohol abuse disorder, could have been reasonably anticipated by the VWA.[2]

The Medical Panel's findings about Mr Whelan's medical conditions

4 The Panel considered Mr Whelan's medical conditions and work capacity by separately assessing his physical injuries and psychiatric injuries. The Panel consisted of a General Physician, an Orthopaedic Surgeon, and a Rheumatologist who first interviewed Mr Whelan on 26 August 2020 ('the first interview') and two psychiatrists who interviewed him on 3 September 2020 ('the second interview').

5 The VWA did not dispute that, as a result of the workplace incident, Mr Whelan had sustained injuries to his left foot and ankle as well as psychological injury. Nor that he continued to experience pain and restrictions in his left foot and ankle and some resulting psychological symptoms. But, it disputed, and the Panel found, that he had not suffered or developed any injury to his left leg, left knee or left hip as a consequence of the compensable left foot and ankle injury.

• residual left ankle and foot symptoms following traumatic fractures and associated skin necrosis (surgically treated);
• radiological features of a constitutional degenerate lateral meniscus tear and lateral collateral ligament strain (temporarily exacerbated in 2016) and rheumatoid arthritis;
• constitutional left hip degenerative changes; and
• no other left leg condition other than the medical conditions noted above.

7 The Panel noted the persistence of Mr Whelan's left ankle and foot symptoms from the time of the work accident to the time of the Panel's examination and that no plan existed for further treatment for the symptoms. The Panel also concluded that the Mr Whelan's residual left ankle and foot symptoms following traumatic fractures and associated skin necrosis (surgically treated) were permanent and resulted from, and were materially contributed to by, the injury to the left ankle and foot sustained in the work accident.

8 The Panel concluded that the other physical injuries on which Mr Whelan relied had, in the case of a knee injury, since resolved, and in the case of his left hip involved constitutional degenerative changes.

9 As mentioned, in Mr Whelan's affidavit and submissions filed in his serious injury application, he stated that he had not worked since the work accident.

10 But at the first interview, Mr Whelan told the Panel members, who were the physical injury experts, that he was working for up to 15 hours per week as a delivery driver for a friend, delivering boxes of fruit and vegetables to customers, while at the second interview, with the psychiatrist members, he said that he was working five to six hours, one day a week. He told the Panel that prolonged delivery driving exacerbated his left ankle and foot symptoms, as would the significant manual handling duties required in such a role. He said that he could manage delivery driving provided he had recovery time between shifts. Recently, he had found making 45 deliveries over 12 hours and driving 300 kilometres, exceeded 'his comfortable tolerance for driving and delivering such items'. He said that he was able to drive his friend's automatic van to deliver the boxes, estimating that each box weighed under 6 kg, which he would unload and deliver to the individual customers. The Panel accepted his evidence.

11 Mr Whelan told the Panel that he had applied for a number of delivery driver roles. He had been unsuccessful in applying for accreditation as a taxi driver or Uber driver because of drink driving offences, however he was planning to reapply. He said that he had purchased a seven seater people mover vehicle in order to carry out such driving. He had recently successfully completed his written truck licensing test and was to undertake the practical driving test in September 2020. If he was successful, he would also be able to drive buses and coaches.

12 With respect to the clerical duties described in a vocational assessment made about his work capacity, Mr Whelan explained that his ability to perform those roles would be dependent on the associated standing and walking demands. He considered that he may be able to perform the work of an administration officer or customer service officer with appropriate training.

13 The Panel considered that the functional requirements of Mr Whelan's pre-injury duties as a civil construction worker were beyond his current physical tolerances and concluded that he was not able to return to his pre-injury employment due to his current left ankle and foot conditions.

14 The Panel's conclusion, with which it said Mr Whelan agreed, was that delivery driver work for 24 hours per week, working three eight-hour days with breaks between his working days, would be within his functional tolerances. That capacity was likely to persist for the foreseeable future. The Panel therefore concluded with respect to his physical condition:

• [Mr Whelan] has a capacity for suitable employment as a driver for 24 hours per week;
• working to a maximum of 24 hours per week as a driver is likely to persist for the foreseeable future; and
• [Mr Whelan's] incapacity for work results from and is materially contributed to by [his] residual left ankle and foot symptoms following traumatic fractures and associated skin necrosis (surgically treated).

15 These findings were reflected in the Panel's answers to questions 6 and 10.

16 The Panel separately dealt with the effect of Mr Whelan's psychiatric condition on his work capacity. In that part of its reasons, the Panel recorded that he was currently working as a casual part-time delivery driver for a friend who owned a farm on an 'as needed' basis and when he felt able to do so, most recently for five to six hours, one day a week.

17 After considering Mr Whelan's psychiatric condition, the Panel concluded that he was suffering from a consequential post-traumatic stress disorder, major depressive disorder and alcohol abuse disorder. The Panel concluded that Mr Whelan's incapacity for work was materially contributed to by those psychiatric conditions. The diagnosis of an alcohol abuse disorder was a new diagnosis of which the Panel said:

The Panel notes that the consumption of alcohol has increased from previously described consumption on a weekly basis, mostly in the company of mates and on social occasions to consumption four days a week. He now consumes 12-18 cans of beer starting in the late afternoon that continues well into the night until he falls asleep. The Panel noted that [Mr Whelan] had not identified the recent pattern of excessive alcohol consumption as an area that required professional assistance. He did not have immediate plans to curtail the amount of alcohol consumed. The Panel also noted that alcohol misuse had not yet been identified by his treating practitioners as a health issue and a treatment plan had not yet been put in place.[3]

[t]he clinical history outlined above of progressive psychological deterioration since not engaging with his treating psychiatry and psychology practitioners and his discontinuation of recommended medication for his psychiatric condition.

The Panel considers that optimisation of psychiatric and psychological treatment is required including a treatment plan to address harmful use of alcohol. However, the Panel is unable to determine if or when such treatment may be implemented or the likely success of such a treatment plan. The Panel considers that [Mr Whelan's] psychiatric condition is unlikely to improve in the foreseeable future.

The Panel therefore concluded that [Mr Whelan's] consequential post-traumatic stress disorder, major depressive disorder and alcohol abuse disorder is permanent.

19 The Panel described Mr Whelan as indifferent to, and lacking insight on, the impact that his mental state and alcohol misuse had on his ability to function and perform his employment duties. It said that he was unable to elaborate on the strategies that he would adopt to address those difficulties and the alcohol abuse in maintaining a routine and structure to his day so that he could carry on the necessary employment duties. It concluded that because of his psychiatric condition he had no work capacity, explaining that:

The Panel considers that the severity of [Mr Whelan's] psychiatric condition and alcohol misuse disorder as described above renders him incapable of working as a settled or established member of the wage earning workforce at the present time, despite the observation that he is presently undertaking some part time work as a driver.

The Panel noted [Mr Whelan's] age, level of education and transferrable skills and the functional restrictions resulting from his psychological injury is such that there is no work for which he is currently suited and which he could perform on a reliable and consistent basis. The Panel therefore concluded that [Mr Whelan] has no current work capacity.

From the analysis outlined above, the Panel considers that [Mr Whelan's] incapacity for work results from and is materially contributed to by [Mr Whelan's] consequential post-traumatic stress disorder, major depressive disorder and alcohol abuse disorder.

The Panel therefore also concluded that after disregarding any physical injury, [Mr Whelan's] incapacity for work results from and is materially contributed to by [Mr Whelan's] consequential post-traumatic stress disorder, major depressive disorder and alcohol abuse disorder.[4]

20 The Panel referred to the medical opinions provided to it, from Mr Whelan's treating general practitioner, independent medical examiners, his treating psychiatrist and treating psychologist. Most of those expressed the opinion that Mr Whelan had some current work capacity, including a gradual increase of hours on his return to work.

21 It is first appropriate to recall the functions of a Medical Panel in answering referred questions.

22 The High Court stated in Wingfoot Australia Partners Pty Ltd v Kocak[5]:

The function of a Medical Panel is neither arbitral or adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.

23 The Panel was not required to accept, or not accept, any medical opinion provided to it, as they were provided to assist it in carrying out its duties.[6] The Court of Appeal in Sidiqi v Kotsios,[7] stated:[8]

Secondly, the starting point for judicial review must be a consideration of the Panel's statutory function. The primary function of a medical panel is to form an opinion with respect to questions referred to it. The secondary function is to certify answers to those questions and state reasons for them.

Insofar as the Panel's primary task was to answer the medical questions asked of it, it was required first to form a medical opinion as to the nature, cause and permanency of the applicant's injuries, and secondly, to assess the consequences of his medical conditions in terms of the applicant's ongoing capacity to work.

24 A medical panel must observe the principles of procedural fairness and ensure that the parties are informed of, and have a reasonable opportunity to be heard on, the matters in issue.[9] The party alleging that the Panel denied it procedural fairness must, for the purpose of the present argument, establish that the new matters on which the Panel based its decision, were unexpected, or could not have been reasonably anticipated, or would not obviously have been be open to the Panel on the known material.[10]

25 When informed by a worker of new information, not previously disclosed to the other party, the medical panel must give the other party an opportunity to address that information before it reaches its decision. As the Court of Appeal stated in Weerappah v Nisselle:[11]

While much of the foregoing discussion is centred on the position of the worker, it must be borne in mind that there is always another party to these disputes and it too can be disadvantaged if the Panel does not accord natural justice. For example, in the course of a medical examination, the worker may reveal information of which the insurer is unaware and which may, if accepted, entitle the worker to the compensation that it had been denied. It would be a denial of natural justice for the insurer not to have an opportunity to address that information before the Panel reached its decision.

26 To similar effect was the Court of Appeal's statement in Wagstaff Cranbourne Pty Ltd v Hashimi:[12]

A medical panel does not afford a party a reasonable opportunity to be heard where it reaches an adverse opinion on a matter which the party did not address because it could not reasonably have been anticipated that the medical panel might reach that opinion. For the purposes of the present proceeding, it is not necessary for us to canvas all the circumstances in which it may be found that an opinion of a medical panel could not reasonably have been anticipated. It suffices to say that, depending on the facts, those circumstances may include a situation where, without prior notice, a medical panel treats as determinative a fact or evidence that is known to be before the medical panel but upon which the parties placed no reliance.

...

Procedural fairness required that the Panel form its opinion within those parameters and that, if it intended to treat as determinative a matter falling outside those parameters, it had to give the parties notice of its intention to do so and an opportunity to address the Panel on that matter.[13]

27 As to the legal consequences of a breach of procedural fairness, the majority of the High Court stated in MZAPC v Minister for Immigration and Border Protection[14] that if there was a 'realistic possibility that a different decision could have been made' if there had been no such error, then the error was material.[15] The majority saw no reason to depart from the general rule in all civil cases that the moving party bears the legal burden of proof on all disputed issues of fact, including on the issue of whether there was a realistic possibility that a different decision could have been made if there has been no error, which in this case, was said to be a denial of procedural fairness.[16]

Ground One: New information about work capacity

29 In its first ground, the VWA alleged that in arriving at its opinion on the referred medical questions, the Medical Panel denied it procedural fairness by taking into account new information disclosed by Mr Whelan during the Panel's first and second interviews that he was currently working as a delivery driver, without giving it notice of the new information and the opportunity to address it.

30 Mr Whelan, in his County Court serious injury affidavit and submissions, which were provided to the Panel, said that he had not worked at all since the accident.

31 During the first interview, Mr Whelan told the Panel that he was currently working for up to 15 hours per week as a delivery driver for a friend who was a local farmer. In the second interview, he said that he was working five to six hours one day a week. This was new information that was obviously relevant to his capacity for suitable employment. However, the Panel formed the opinion that, notwithstanding his current employment, Mr Whelan had no current work capacity as a result of his psychiatric condition, without advising the VWA of the new information, or affording it, any opportunity to investigate it, address it or respond to it. The Medical Panel thereby denied the VWA procedural fairness.

32 The VWA's written submissions[17] filed in the County Court application and which were provided to the Panel, contended that Mr Whelan had the capacity to return to a range of suitable employment and emphasised medical opinions, contained in the referral material, that a return to employment would be beneficial for his psychological state and overall wellbeing. The VWA's submissions referred, as an 'historical matter', to the clinical notes of Mr Whelan's treating psychologist, Ms J James, made in October 2018. These notes, which were part of the referral material, recorded that he was setting up a car business. However, the VWA proceeded on the understanding that, in mid-2020 at the time of the referral of questions to the Panel, Mr Whelan was not working.

33 Many of the medical reports provided to the Panel discussed Mr Whelan's capacity for employment since the accident. None recorded that he had returned to work as a delivery driver or otherwise.

34 The VWA's solicitor made an affidavit stating what he would have done differently if the Medical Panel had given it notice of the new information. The solicitor stated that he would have sought further information about Mr Whelan's employment, including when it commenced, his earnings and hours of work, the nature of the work duties, whose truck Mr Whelan was driving and whether he owned or leased it, how he obtained the employment, whether he had sought or obtained medical clearance to engage in it and whether he was an employee or independent contractor. He would have sought relevant documents through discovery or by subpoena. He would also have sought medical opinions as to whether this employment constituted suitable employment for Mr Whelan, and if so, for how many days and hours per week he had the capacity to perform it. He may have also sought an up to date vocational assessment focusing on employment as a delivery driver. He would have briefed counsel to prepare further submissions for the Panel addressing Mr Whelan's delivery driving employment and whether such employment constituted suitable employment for him.

35 This process may have led the Panel to find that Mr Whelan's work capacity, considering only his physical injuries, was greater than 24 hours per week. Mr Whelan's treating psychiatrists and other doctors had given their opinion on his capacity to re-enter the workforce on the premise that he was not currently working.

36 Although Mr Whelan submitted that he did not have the capacity for any suitable employment, Dr S Raghav, his treating psychiatrist, stated that he was restricted to about 12-15 hours a week of work, Mr R Simm, an orthopaedic surgeon, considered he had a capacity for suitable light employment, and Mr G Grossbard, also an orthopaedic surgeon , said that, in theory, he had the capacity for simple non-manual tasks subject to reservations. In contrast, Dr J Slesenger, an occupational physician, considered that he would not be capable of performing suitable alternative duties on a consistent and reliable basis.[18]

37 The VWA contended that Mr Whelan had the capacity to work full time in suitable employment and, to the extent that he did not, such incapacity did not result from, nor was materially contributed to, by any compensable injury and was not likely to be permanent. He could obtain suitable employment as a taxi driver, bus and coach driver and Uber driver and could return to alternative employment with restrictions. The VWA referred to the opinions of Mr Whelan's treating psychiatrist, Dr S Raghav and Ms J James, his treating psychologist, who considered that he had the capacity for some suitable work.

38 The unfairness to the VWA of not being provided with an opportunity to respond to the new information was underscored by the different opinions reached by the physical injury and psychiatric specialists on the Panel about Mr Whelan's capacity for employment. Those opinions appear to have been informed by the different information Mr Whelan provided in the two interviews. Thus, while he informed the physical injury specialists of intermittent delivery driving work of up to 15 hours per week, driving the farmer's automatic van and unloading and delivering fruit and vegetables in polystyrene boxes, in the second interview, with the psychiatrists, he described his delivery driver work as being offered on an as-needs basis, and when he felt able to attend, which recently had been 5-6 hours work one day a week.

39 While it was for the Panel to form its own opinion in answering the referred medical questions, it was not free of all constraints, and was required to take into account the material provided to it, including the referral documents themselves, the parties' submissions, the court documents and the medical reports. Those documents established the parameters of the dispute as the Court of Appeal stated in Hashimi.[19]

40 Mr Whelan's disclosure to the Panel that he had worked since the work accident was a matter of real importance to the determination of his capacity for suitable employment. The Panel had been procedurally unfair to form its opinion and answer the referred medical questions without first notifying the VWA of the new information, providing it with an opportunity to investigate the work that Mr Whelan was performing and to address its significance by obtaining further medical opinions and making additional submissions about the extent of his work capacity.

41 Mr Whelan accepted that the new work information was not contained in his affidavit, his submissions, or the reports of any of the doctors that were before the Panel. His affidavit and submissions were incorrect in stating that he had not worked since the work accident. However, the new information the Panel obtained in its examination was not inconsistent with prior reports of his work capacity. By choosing to refer questions to the Medical Panel, the VWA forfeited its right to cross-examine him at a hearing before a judge and to obtain further medical reports.

42 In addition, Mr Whelan submitted that the errors in his affidavit, written submissions and statements to medical practitioners were known to the VWA. Those statements were contradicted by the information that he gave to his psychologist, Ms James, in October 2018, to a vocational assessor, Ms R Willett, in March 2020 for preparation of a vocational assessment report and to Mr R Simm, an orthopaedic surgeon in April 2019. The VWA was aware of Mr Whelan's error or incorrect statements because it relied on this work capacity information in its submissions to the County Court on 23 June 2020. Those submissions stated:

Importantly, [Mr Whelan] himself is keen to return to work and appears to believe he has the capacity to do so. He told Mr Simm (11 April 2019...) that "he is giving consideration to going back to work, and thought he may be able to work as a taxi driver, as this occupation would allow him short rest and exercise breaks." Similarly, in discussions with Ms Willett in March 2020, [Mr Whelan] 'expressed an interest in gaining accreditation to work as a taxi driver and he acknowledged that bus driving roles could also be suitable if he acquires the appropriate accreditation'...He described to Ms Willett that he had made inquiries with 13CABS and had established that once he gained taxi driving accreditation, he only had to attend induction training and would then be qualified to work for them. He has even purchased a 7 seater Sanyang vehicle with a view to gaining a taxi driving licence. He has a previous conviction for drink driving (in 2010) which he described as "proving a hurdle in gaining his taxi driving accreditation", however he reported to Ms Willett that he was intending to apply for his taxi driver accreditation again soon. According to [Mr Whelan], there is currently no taxi driver in Lang Lang, which has a population of approximately 1600 people. (Vocational assessment report dated 19 March 2020, p7). It would therefore seem that working as a taxi [driver] in Lang Lang would be a good employment opportunity for [Mr Whelan].

In addition to taxi driving, [Mr Whelan] has also identified the possibility that he could contact a previous employer (AJ Civil Construction, which is based in Pakenham) and explore working in a supervisory role with them (vocational assessment report dated 19 March 2020, p7). In sessions with psychologist, Ms James, in October 2018, [Mr Whelan] reported setting up a car business (which he was excited about) (see clinical note dated 9 October 2018) and that he was doing delivery driving for a business with a new car he had purchased (23 October 2018).

43 Mr Whelan attended his treating psychologist, Ms James, regularly. The VWA had her report and her notes of the following two consultations with him in October 2018:

Duane Whelan 9/10/18

looking better - more healthy

Said stopped drinking.

Mate has dementia.

Setting up car business + excited about that.

Said doing EMDR helped his sleep - gave him tapper - to do EMDR himself - his time - needs a [indistinct] of it!

Still watching too much TV till all hours so tired! Needs some routine again.

Duane Whelan 23/10/18

Better is DOING

Bought a car + delivering for a business - get connected - home moving.

Still at pool a couple of times a week - keeping up that routine - important exercise.

[indistinct] is needed - with exercise. Discussed this. Do - [indistinct]!

Sleep better - needs to feel he is in control of s/t - has plans now!

Did DASS again!

44 Mr Whelan also argued that the new work information was most unlikely to have caused the Panel to come to a different conclusion about his work capacity. This was because the VWA's case had been that he had capacity for full-time suitable employment taking into account only his left foot and ankle injury and, separately, his psychological injury. It had provided the Panel with two vocational reports that identified ten vocational options for Mr Whelan and the Panel had considered that information. The new work information supported the VWA's submissions that Mr Whelan had a capacity for suitable employment. The Panel accepted that he had capacity for 24 hours a week.

45 The VWA's real concern with the Panel's opinion was not about Mr Whelan's capacity for suitable employment, but about the number of hours that he could work. Providing the new work information to the VWA for comment would not have resulted in the Panel reaching a different conclusion about his work capacity.

46 The information about Mr Whelan's delivery driving and work plans was clearly relevant to his capacity for suitable employment and the answers that the Panel might give, particularly to questions 6 and 10 concerning his physical injuries and to question 11 concerning his psychiatric condition.

47 The VWA argued, in its County Court submissions dated 23 June 2020, that Mr Whelan had capacity for particular full time employment. It argued that he had a wide variety of transferable skills and that the consensus of recent medical evidence was that he had the capacity to return to alternative employment with restrictions. It also submitted that he was keen to return to work. In that respect, it relied on information contained in Ms James' notes and Ms Willett's and Mr Simm's reports and opinions. That information, particularly Ms James' notes, indicated that Mr Whelan's statements that he had not worked since the work accident were wrong. His affidavit, in which he stated that he had been unable to return to work because of his injuries, was made on 4 October 2019. His County Court submissions which state that '[Mr Whelan] has not worked at all since the incident' were dated 22 June 2020. The last medical reports obtained by the VWA were dated 26 March 2020. The extent of Mr Whelan's work capacity was an issue in dispute. The VWA contended that he could return to full time work, while Mr Whelan contended that he had no capacity to work. The Panel's opinion that he could work 24 hours a week fell between those two points and was more than the 15 hours a week, which Mr Whelan told the Panel he was working. The VWA included the information that Ms James and Ms Willett had received from Mr Whelan in its County Court submissions and thereby demonstrated that it understood its significance. That information conflicted with Mr Whelan's statements in his affidavit and submissions that he had not worked since the work accident. The VWA could have investigated this conflict and sought further information about his work in the manner its solicitor described. It could have sought further reports from the doctors who had examined Mr Whelan, but were not aware of the new information. It did not do so. Nor did it seek information of the use that Mr Whelan had made of the seven-seater Sanyang vehicle he had purchased with a view to gaining a taxi driving licence. The fact that the Panel, when interviewing Mr Whelan, received more detail about the delivery driving work he had performed is not decisive, because the VWA was aware that he had been performing delivery driving work.

48 The information that Mr Whelan provided to the Panel suggested that his delivery driving, of which the VWA was aware from Ms Jones' notes, had continued intermittently, despite his statements that he had not worked since the work accident. In my opinion, the VWA cannot reasonably contend that it was taken by surprise by the new information and the details of the delivery driving work that he gave the Panel. It could have reasonably anticipated that he had continued to perform some delivery driving work. Moreover, it could have reasonably anticipated that the Panel would have used that information in determining the extent of Mr Whelan's work capacity.

49 Although, much of Mr Whelan's material asserted that he had not worked since the work accident, his statements to Ms Jones contained significant information to the contrary. The VWA viewed Ms James' notes, although made in 2018 and Ms Willett's and Mr Simm's reports, as sufficiently important to quote from and refer to in its County Court submissions. They remained relevant to the question of Mr Whelan's capacity for suitable employment in October 2020 when the Panel issued its Opinion.

50 This case differs from circumstances where the employer could not have known that the worker had attempted to return to work.[20]

51 I do not consider that the Medical Panel denied the VWA procedural fairness as the VWA contends in ground one.

Ground Two: New compensable condition - alcohol abuse disorder

52 The VWA's second ground was that, in arriving at its opinion on the referred medical questions, the Medical Panel denied it procedural fairness by forming its opinion outside the parameters of the dispute between the parties, without notice, and without giving it an opportunity to address the Panel in connection with its conclusions that:

(a) Mr Whelan was suffering from a diagnosable psychiatric condition in the form of an alcohol abuse disorder;

(b) the alcohol abuse disorder had arisen as a consequence of his physical injuries and was permanent; and

(c) together with [Mr Whelan's] other psychiatric conditions, it rendered him incapable of performing any employment.

53 The Panel's conclusions on this issue were contained in its answer to question 11, which together stated:

Question 11. Disregarding any physical injury:

(a) Does the [Defendant] have capacity for suitable employment;

(b) If yes to question 11(a), what employment would constitute suitable employment?;

(c) If yes to question 11(a), for how many hours per week can the [Defendant] perform such employment?;

(d) Is the number of hours identified in response to question 11(c) permanent (i.e. likely to persist for the foreseeable future)?

(e) If no to question 11(d), how many hours can the [Defendant] work in that employment permanently?

(f) Does any incapacity for work result from or is it materially contributed to by any, and if so which, physical condition identified in response to question 1(e)?

Answer:

(a) No.

(b) Not applicable.

(c) Not applicable.

(d) Not applicable.

(e) Not applicable.

(f) Yes. The [Defendant's] incapacity for work results from and is materially contributed to by [the Defendant's] consequential post-traumatic stress disorder, major depressive disorder and alcohol abuse disorder.

54 The Panel, in arriving at its opinion that Mr Whelan's psychiatric condition made him unable to return to employment, relied on its finding that he was suffering from consequential post-traumatic stress disorder, major depressive disorder and an alcohol abuse disorder. The Panel concluded that the alcohol abuse disorder arose from the work accident and had contributed to Mr Whelan's psychiatric incapacity for employment. This was a new diagnosis and had not been made by Mr Whelan's treating psychiatrist, psychologist or general practitioner, or by any of the medico legal practitioners who had examined him, including the psychiatrists Drs Douglas and Duke.

55 The VWA's case was that the Panel, by making a diagnosis that Mr Whelan had an alcohol abuse disorder, denied it procedural fairness and made a jurisdictional error, because it had not been given a reasonable opportunity to respond to that diagnosis or the information on which it was based.

56 Despite the Panel noting that alcohol misuse had not been identified by Mr Whelan's treating practitioners as a health issue, it failed to give the VWA notice of its proposed conclusion and afford it an opportunity to make further submissions or submit further expert medical opinions about the proposed diagnosis and its aetiology.

57 The VWA emphasised that the referral material provided to the Panel did not suggest that Mr Whelan had been diagnosed with a compensable alcohol abuse disorder. He had not stated in his affidavit, or in his submissions, that increases in his alcohol consumption, or his drinking to excess, were due to the work accident. His submissions to the Panel did not rely on his alcohol intake as a compensable consequence of the work accident that had adversely affected his capacity for employment.

58 The VWA's solicitor stated that had the Medical Panel given notice that it was proposing to diagnose Mr Whelan as suffering from an alcohol abuse disorder in circumstances where this diagnosis had hitherto not been made by any of the psychiatrists who had examined him and when alcohol abuse was not a matter deposed to in his affidavit in support of his serious injury application, nor relied upon in his submissions to the Medical Panel, he would have sought a further psychiatric medical opinion about the proposed diagnosis, its permanency and its causal relationship to Mr Whelan's compensable physical injuries and engaged counsel to prepare further submissions for the Panel addressing these matters.[21] The VWA submitted that it would also have sought a psychiatrist's opinion about the effect of any such disorder on Mr Whelan's current and future earning capacity.

59 The authorities establish that, while a Medical Panel is convened to form its own opinion, it is also obliged to give a party a fair opportunity to be heard if its opinion is new, different, or could not reasonably have been anticipated.[22]

60 Mr Whelan submitted that the issue of his alcohol consumption was in the plain sight of the VWA. The following medical practitioners, noted his alcohol consumption:

(a) 1 December 2016, Dr Raghav, treating psychiatrist:

"He is a social drinker and at times drinks too much."[23]

(b) 21 April 2017 Dr John Douglas, medico-legal psychiatrist who examined Mr Whelan on two occasions at the request of the insure recorded that:

"He said he drank about once a week, when he would have 6 to 10 drinks."[24]

(c) 8 March 2018, Dr Michael Duke, medico legal psychiatrist, who examined Mr Whelan twice at the request of the insurer, noted::

"He goes to the hotel one night per week and drinks 6-10 drinks and on social occasions."[25]

(d) 25 September 2019 Dr Raghav, treating psychiatrist:

"He is a social drinker and at times drinks too much."[26]

(e) 18 February 2020, Dr Slesenger, occupational physician:

"Mr Whelan has developed depression and anxiety. His alcohol intake has increased and is currently drinking up to 10 units a day".[27]

61 When Mr Whelan was interviewed by the psychiatrist members of the Medical Panel, he told them that, on four days a week, he drank 12-18 cans of beer between 4:00pm and 10:30pm when he went to bed. He said that this pattern of alcohol consumption had been present since the accident, but was particularly pronounced for the last one to two years. Prior to that time, he was a social drinker on Fridays and weekends. He did not report alcohol withdrawal, craving or early morning drinking.

62 Mr Whelan contended that, in light of these references to his alcohol consumption, the VWA had been put on notice of his alcohol abuse, regardless of whether it had been diagnosed as an alcohol abuse disorder.

63 The VWA could have investigated and addressed this issue but did not. Drs Duke and Douglas, the psychiatrists who the VWA had examine Mr Whelan, did not suggest that his psychological condition was caused by anything other than the work accident. Accordingly, given the Panel's finding that he was suffering from the psychological condition of an alcohol abuse disorder, its only cause could be the work accident, and his psychiatric problems, of which the alcohol abuse was just a manifestation, must also have flowed from the work accident.

64 During the Panel's psychiatric examination of Mr Whelan, the Panel took a history of his substance use, which included the recent significant increase in his alcohol consumption. Without the VWA being given the opportunity to make submissions about the significance of his increased alcohol consumption, the Panel diagnosed Mr Whelan with an alcohol abuse disorder, a DSM-V condition, and determined that it resulted from the work accident and contributed to his psychiatric incapacity for any suitable employment.

65 The Panel said of Mr Whelan's alcohol consumption:

He reports consumption of alcohol on four days a week followed by abstinence for three days. He drinks alone. He reports that alcohol helps him deal with his depression. The alcohol consumption starts around 4:00 PM and he drinks until he falls asleep. He consumes 12-18 cans of beer in this time. He spends approximately $150 per week on alcohol. This pattern of alcohol consumption has been present since the accident, but particularly pronounced for the last one to two years. Prior to this time, he described himself as a social drinker, who would drink alcohol on Fridays and weekends. He does not report alcohol withdrawal, craving or early morning drinking.[28]

...

He acknowledged that his alcohol intake had increased considerably over the last year. He did not appear particularly concerned about the increased use. He lacked insight with regards to alcohol misuse. He appeared stoic in his responses and [had] his judgment was impaired when reflecting on the impact of his current mental state and increase[d] alcohol consumption on his sense of wellbeing and functioning.[29]

66 It is clear from these passages that Mr Whelan's reports of his alcohol consumption were directly relevant to the Panel's formation of its opinion about his psychiatric conditions. The Panel described his consumption of alcohol as excessive and increasingly pronounced in the previous one or two years. It was not simply excessive social drinking. A diagnosis of an alcohol abuse disorder required more than regular alcohol consumption.

67 The Panel also diagnosed Mr Whelan with the psychiatric conditions of post-traumatic stress disorder and major depressive disorder.

68 The Panel understood that neither Mr Whelan, nor his treating health practitioners, had identified the increase in alcohol consumption as a health issue and said so in the passage of its reasons I have set out previously.[30]

69 The question is whether in view of the material available to the VWA at the time of the referral of the questions, it ought reasonably have anticipated that the Panel might diagnose Mr Whelan as suffering from an alcohol abuse disorder, or a similar psychiatric condition, that was caused by the work accident and which was affecting his work capacity and which, in combination with his other psychiatric conditions, resulted in him having no capacity for suitable employment. I do not consider that the VWA ought to have so anticipated.

70 Mr Whelan referred to five statements made by four different doctors that I have set out above. The statements by Dr Raghav, his treating psychiatrist, on 1 December 2016 and 25 September 2019 concluded that '[Mr Whelan] is a social drinker and at times drinks too much.' This was not indicative of an alcohol abuse disorder or behaviour or conduct that would necessarily have had an effect on his capacity for suitable employment. Similarly, Dr Douglas' statement on 21 April 2017 that '[Mr Whelan] said he drank about once a week, when he would have 6 to 10 drinks' is not necessarily indicative of an alcohol abuse disorder. Similarly with Dr Duke's statement on 8 March 2018 that '[Mr Whelan] goes to the hotel one night per week and drinks 6-10 drinks and on social occasions'.

71 Mr Whelan told the Panel about his increased alcohol consumption and that appears to have contributed to its diagnosis of an alcohol abuse disorder. That diagnosis appears to have been significant in the Panel forming the opinion that Mr Whelan's psychiatric conditions resulted in him having no capacity for suitable employment. This conclusion about the Panel's reasoning gains support from contrasting its diagnosis with the psychiatric opinions which were provided to the Panel. Those opinions suggested that Mr Whelan's other psychiatric conditions, being post-traumatic stress disorder and major depressive disorder, had not removed all his capacity for suitable employment. Dr Raghav, his treating psychiatrist, diagnosed him with a post-traumatic stress disorder with depressive symptoms, possibly a major depressive disorder which were directly related to the work accident. But in September 2019, he considered that Mr Whelan had the capacity for 'suitable/alternative employment', recommending that he start with 12-15 hours per week, gradually increasing to full time work, depending on his progress and stability. In April 2017, Dr Douglas diagnosed Mr Whelan as suffering from post-traumatic stress disorder, which was slowly resolving. He considered that '[f]rom a psychiatric perspective he now has a capacity to return to suitable alternative duties', but that he should not return to his pre-injury duties. In March 2018, Dr Duke diagnosed him as suffering from non-secondary, post-traumatic stress disorder, DSM-V category 309.81 and said that he was 'fit for education and suitable duties'.

72 The significant difference between these psychiatric opinions and the Panel's opinion was that the Panel placed importance on Mr Whelan's increased alcohol consumption in making the additional diagnosis of an alcohol abuse disorder. That diagnosis appears to have significantly influenced the Panel's conclusion that he had no capacity for suitable employment. So much appears in the following passage in its reasons:

The Panel considers that the severity of [Mr Whelan's] psychiatric condition and alcohol abuse disorder as described above renders him incapable of working as a settled or established member of the wage earning workforce at the present time, despite the observation that he is presently undertaking some part time work as a driver.[31]

73 Increased alcohol consumption may be associated with post-traumatic stress disorder and major depressive disorder, although the psychiatric reports provided to the Panel did not emphasise that possibility. But the Panel diagnosed a separate and additional psychiatric condition of alcohol abuse disorder and regarded it as significant in concluding that Mr Whelan had no capacity for suitable employment. It treated the diagnosis as of much greater significance than merely giving a name to Mr Whelan's increased alcohol consumption.

74 Dr Slesenger, an occupational physician who examined Mr Whelan at the request of his solicitors, was the only doctor to mention this increased alcohol consumption. In his report of 18 February 2020, he stated that:

Mr Whelan has developed depression and anxiety. His alcohol intake has increased and is currently drinking up to 10 units a day.

75 Dr Slesenger did not 'anticipate him returning to work performing suitable alternative duties on a consistent and reliable basis at this stage', although he not consider that his restrictions for alternative duties could be regarded as permanent. However, Dr Slesenger was an occupational physician and not a psychiatrist and did not diagnose Mr Whelan with an alcohol abuse disorder. His statement about Mr Whelan's drinking immediately follows his note that he was suffering from depression and anxiety, which suggests that his statement concerned those conditions, rather than being a formal diagnosis of a separate disorder.

76 The Panel had to take into account the material provided to it, including Mr Whelan's affidavit, the parties' submissions and the medical reports. They set the parameters of the parties' dispute. Procedural fairness required that the Panel form its opinion within those parameters and that, if it intended to treat as determinative a matter falling outside them, it had to give the parties notice of its intention to do so and an opportunity to address the Panel on that matter.[32] No party or medical practitioner suggested that there was a causal relationship between Mr Whelan's work injury and his alcohol consumption. It was not part of Mr Whelan's case. The medical reports provided to the Panel did not focus on that issue. It cannot be concluded that the Panel would have reached the same conclusion about the effect of Mr Whelan's psychiatric conditions, if the VWA had been given notice of the possibility that the Panel might diagnose an alcohol abuse disorder and had been provided with an opportunity to address the issue of that possible diagnosis. There is a 'realistic possibility that a different decision could have been made',[33] and opinion formed, in answering question 11, if the VWA had been given the opportunity to obtain further medical reports addressing the effect of Mr Whelan's alcohol consumption on his work capacity and whether he had an alcohol abuse disorder and to make written submissions on his history of alcohol consumption and why it had increased.[34]

77 The VWA could not have reasonably anticipated the possibility that the Medical Panel would make a diagnosis of an alcohol abuse disorder, or find that Mr Whelan's alcohol consumption, or increased alcohol consumption, was caused by the work accident and contributed to his incapacity for suitable employment.

79 I will order that those answers in the Panel's Certificate of Opinion that concern Mr Whelan's psychiatric conditions be quashed and that the questions to which those answers relate be remitted to a differently constituted Panel for redetermination. The remainder of the Certificate of Opinion will remain unaffected and in force.

80 I will give the parties an opportunity to address the appropriate form of orders.

The Plaintiff requested the County Court to refer questions to a Medical Panel for an opinion. The questions, as well as the Panel's answers, are below:

Question 1. What is the nature of any medical condition of the [Defendant's]:

(a) Left ankle and foot;

(b) Left leg;

(c) Left knee;

(d) Left hip;

(e) Psychological state?

Answer: The Panel is of the opinion that the [Defendant] has:

(a) residual left ankle and foot symptoms following traumatic fractures and associated skin necrosis (surgically treated);

(b) no other left leg condition other than the medical conditions noted in 1(a), 1(c), and 1(d);

(c) radiological features of a constitutional degenerate lateral meniscus tear and lateral collateral ligament strain (temporarily exacerbated in 2016) and rheumatoid arthritis;

(d) constitutional left hip degenerative changes; and

(e) a consequential post-traumatic stress disorder, major depressive disorder and alcohol abuse disorder.

Question 2. Is any, and if so which, medical condition identified in response to question 1 permanent (i.e. likely to persist for the foreseeable future)?

Answer: The Panel is of the opinion that the [Defendant's] residual left ankle and foot symptoms following traumatic fractures, associated skin necrosis (surgically treated), and consequential post-traumatic stress disorder, major depressive disorder and alcohol abuse disorder are permanent.

Question 3. Was the incident on 25 May 2016 a significant contributing factor to the aggravation, exacerbation, recurrence, deterioration or acceleration of any pre-existing injury of the left knee?

Answer: The Panel is of the opinion that the incident on 25 May 2016 was a significant contributing factor to a temporary exacerbation of the constitutional degenerate lateral meniscus tear and lateral collateral ligament strain, the effects of which have since resolved.

Question 4. If yes to question 3, does any medical condition identified in response to question 1(c) currently result from, or is it materially contributed to by, the injury referred to in response to question 3?

Answer: The Panel is of the opinion that the [Defendant's] constitutional degenerate lateral meniscus tear, lateral collateral ligament strain and rheumatoid arthritis does not result from and is not materially contributed to by the claimed left knee injury.

Question 5. Does any, and if so which, medical condition identified in response to question 1(b), (c) or (d) currently result from, or is it materially contributed to by, the injury to the left ankle and foot sustained by the [Defendant] in the incident on 25 May 2016?

Answer: The Panel is of the opinion that the [Defendant's] residual left ankle and foot symptoms following traumatic fractures and associated skin necrosis (surgically treated) results from and is materially contributed to by the injury to the left ankle and foot sustained by the [Defendant] in the incident on 25 May 2016.

The Panel is of the opinion the [Defendant's] radiological features of a constitutional degenerate lateral meniscus tear, lateral collateral ligament strain, rheumatoid arthritis and constitutional left hip degenerative changes do not result from and are not materially contributed to by the left ankle and foot injury sustained on 25 May 2016.

Question 6. Considering only the left ankle and foot injury, and disregarding any psychiatric consequences of physical injury:

(a) Does the [Defendant] have capacity for suitable employment;

(b) If yes to question 6(a), what employment would constitute suitable employment?;

(c) If yes to question 6(a), for how many hours per week can the [Defendant] perform such employment?;

(d) Is the number of hours identified in response to question 6(c) permanent (i.e. likely to persist for the foreseeable future)?

(e) If no to question 6(d), how many hours can the [Defendant] work in that... employment permanently?

(f) Does any incapacity for work result from or is it materially contributed to by any, and if so which, physical condition identified in response to question 1(a)?

Answer:

(a) Yes.

(b) Employment as a driver without significant manual handling duties.

(c) 24 hours per week.

(d) Yes.

(e) Not applicable.

(f) Yes. The [Defendant's] incapacity for work results from and is materially contributed to by his residual left ankle and foot symptoms following traumatic fractures and associated skin necrosis (surgically treated).

Question 7. Considering only the left leg injury, and disregarding any psychiatric consequences of physical injury:

(a) Does the [Defendant] have capacity for his pre-injury employment?

(b) Does the [Defendant] have capacity for suitable employment?

(c) If yes to question 7(a) and/or (b), what employment would constitute suitable employment?

(d) If yes to question 7(a) and/or (b), for how many hours per week can the [Defendant] perform such employment?

(e) Is the number of hours identified in response to question 7(d) permanent (i.e. likely to persist for the foreseeable future)?

(f) If no to question 7(e), how many hours can the [Defendant] work in that employment permanently?

(g) Does any incapacity for work result from or is it materially contributed to by any, and if so which, physical condition identified in response to question 1(b)?

Answer:

(a) No.

(b) Yes.

(c) Employment as a driver without significant manual handling duties.

(d) 24 hours per week.

(e) Yes.

(f) Not applicable.

(g) Yes. The [Defendant's] incapacity for work results from and is materially contributed to by his residual left ankle and foot symptoms following traumatic fractures and associated skin necrosis (surgically treated).

Question 8. Considering only the left knee injury, and disregarding any psychiatric consequences of physical injury:

(a) Does the [Defendant] have capacity for his pre-injury employment?

(b) Does the [Defendant] have capacity for suitable employment?

(c) If yes to question 8(a) and/or (b), what employment would constitute suitable employment?

(d) If yes to question 8(a) and/or (b), for how many hours per week can the [Defendant] perform such employment?

(e) Is the number of hours identified in response to question 8(d) permanent (i.e. likely to persist for the foreseeable future)?

(f) If no to question 8(e), how many hours can the [Defendant] work in that employment permanently?

(g) Does any incapacity for work result from or is it materially contributed to by any, and if so which, physical condition identified in response to question 1(c)?

Question 9. Considering only the left hip injury, and disregarding any psychiatric consequences of physical injury:

(a) Does the [Defendant] have capacity for his pre-injury employment?

(b) Does the [Defendant] have capacity for suitable employment?

(c) If yes to question 9(a) and/or (b), what employment would constitute suitable employment?

(d) If yes to question 9(a) and/or (b), for how many hours per week can the [Defendant] perform such employment?

(e) Is the number of hours identified in response to question 9(d) permanent (i.e. likely to persist for the foreseeable future)?

(f) If no to question 9(e), how many hours can the [Defendant] work in that employment permanently?

(g) Does any incapacity for work result from or is it materially contributed to by any, and if so which, physical condition identified in response to question 1(d)?

Question 10. Considering all injuries to the left lower limb, and disregarding any psychiatric consequences of physical injury:

(a) Does the [Defendant] have capacity for suitable employment;

(b) If yes to question 10(a), what employment would constitute suitable employment?;

(c) If yes to question 10(a), for how many hours per week can the [Defendant] perform such employment?;

(d) Is the number of hours identified in response to question 10(c) permanent (i.e. likely to persist for the foreseeable future)?

(e) If no to question 10(d), how many hours can the [Defendant] work in that employment permanently?

(f) Does any incapacity for work result from or is it materially contributed to by any, and if so which, physical condition identified in response to question 1(a), (b), (c) or (d)?

Answer:

(a) Yes.

(b) Employment as a driver without significant manual handling duties.

(c) 24 hours per week.

(d) Yes.

(e) Not applicable.

(f) Yes. The [Defendant's] incapacity for work results from and is materially contributed to by his residual left ankle and foot symptoms following traumatic fractures and associated skin necrosis (surgically treated).

Question 11. Disregarding any physical injury:

(a) Does the [Defendant] have capacity for suitable employment;

(b) If yes to question 11(a), what employment would constitute suitable employment?;

(c) If yes to question 11(a), for how many hours per week can the [Defendant] perform such employment?;

(d) Is the number of hours identified in response to question 11(c) permanent (i.e. likely to persist for the foreseeable future)?

(e) If no to question 11(d), how many hours can the [Defendant] work in that employment permanently?

(f) Does any incapacity for work result from or is it materially contributed to by any, and if so which, physical condition identified in response to question 1(e)?

Answer:

(a) No.

(b) Not applicable.

(c) Not applicable.

(d) Not applicable.

(e) Not applicable.

(f) Yes. The [Defendant's] incapacity for work results from and is materially contributed to by [the Defendant's] consequential post-traumatic stress disorder, major depressive disorder and alcohol abuse disorder.

[1] The application was made by Gippsland Excavations Pty Ltd, the defendant in the County Court proceeding, but I will refer to it as the Victorian WorkCover Authority or 'the VWA'.

[2] Wagstaff Cranbourne Pty Ltd v Hashimi [2020] VSCA 33, [40].

[3] Reasons for Opinion Re: Mr Duane Whelan, M120/1879, 19 ('Reasons').

[5] [2013] HCA 43; (2013) 252 CLR 480, 498-9 [47].

[6] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480.

[7] [2021] VSCA 187.

[9] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 498 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ).

[10] Weerappah v Nisselle [1999] VSC 249, [50].

[11] [1999] VSC 249, [50].

[12] [2020] VSCA 33, [40] (citations omitted) ('Hashimi').

[14] (2021) 95 ALJR 441.

[15] Ibid [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [84] (Gordon and Steward JJ) and [157] (Edelman J).

[17] The submissions were filed in the County Court application in the name of Gippsland Excavations Pty Ltd, who was the defendant in the proceeding, but I will refer to them as 'the VWA's submissions'.

[18] Mr Simm, Mr Grossbard and Dr Slesenger examined Mr Whelan at the request of his solicitors.

[20] Cf Moggill Cove Pty Ltd v Burton [2018] VSC 24.

[21] Affidavit of Scott Newlan dated 30 November 2020, [14].

[23] Report of Dr Sangeeta Raghav dated 1 December 2016 at Court Book, Victorian WorkCover Authority v Duane Whelan (Supreme Court of Victoria, S ECI 2020 04425, Ginnane J, 18 October 2021) 71 ('CB').

[24] Report of Dr John Douglas dated 21 April 2017 at CB 173.

[25] Report of Dr Michael Duke dated 8 March 2018 at CB 183.

[26] Report of Dr Sangeeta Raghav dated 25 September 2019 at CB 78.

[27] Report of Dr Joseph Slesenger dated 18 February 2020 at CB 100.

[33] MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, [39].