Plaintiff v Defendants

1 Mr Akbari (the worker) suffered a lower back injury working as a machine operator on 4 March 2015. His Workcover claim for weekly payments and medical expenses was accepted. He made an application to the first defendant[1] for a serious injury certificate in order to commence a claim for damages against his employer. That application was refused and Mr Akbari is seeking leave from the County Court pursuant to s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act). In that proceeding, Judge Bowman referred questions to a medical panel under section 274 of the Act at the request of the defendant. The medical panel (the Panel) provided its Certificate of Opinion (the Opinion) and accompanying reasons on 10 August 2020 (the Reasons).[2] In this proceeding, Mr Akbari seeks an order quashing the Opinion and a further order that the medical questions be answered by a differently constituted medical panel.

2 The Panel concluded that Mr Akbari had sustained a soft tissue injury to the lower back which had resolved, that persistent lower back pain was 'secondary to deconditioning, consequent to inactivity' following that soft tissue injury, and that he had a mild adjustment disorder with mixed anxiety and depressed mood. The Panel also concluded that the worker had a current work capacity and, from a list of thirteen potential employments, the Opinion identified four as presently suitable, and a further two as suitable with appropriate retraining, in relation to his physical condition. The Panel found that from a psychiatric perspective there was no limitation to his employment capacity.

3 The plaintiff's Amended Originating Motion relies on three grounds of review. They are:

(i) a failure to accord procedural fairness by identifying a medical condition which could not be reasonably anticipated by the worker and which he was denied an opportunity to address; that condition being 'pain secondary to deconditioning consequent to inactivity';

(ii) an error in its consideration of current work capacity and suitable employment by not properly construing these terms and not properly applying them. The Panel did not give proper consideration to whether the worker had a capacity to be accepted back into the workforce and find work in those occupations that the Panel considered were within the worker's physical capacity to undertake, and did not give proper consideration to the practical content of the employment it identified as suitable; and

(iii) a failure to explain its actual path of reasoning as to why identified employment roles were in fact suitable employment.

4 The worker was born in December 1993 in Afghanistan. While he was still very young he moved to Pakistan with his mother and his uncle. He completed primary and secondary schooling there to the equivalent of year 11. He learnt basic English at school. It appears that in Pakistan he worked as a retail assistant in a cosmetics shop, and then subsequently worked as a supervisor in an internet café.

5 He arrived in Australia as a refugee in 2012, living in immigration detention for seven months. Upon release, he underwent language, literacy and numeracy courses, including a TAFE Certificate III in Spoken and Written English. He describes his English as lacking in confidence although able to read and write and 'speak some English'. In addition to this, in 2013 the plaintiff completed a one-month hospitality training program.

6 In Australia, from December 2013 he worked for about six weeks as a packer for a chocolate factory, which was relatively light work. From June 2014, for approximately five months, he worked as a machine operator cutting metal sheets. On 21 January 2015, he commenced employment with Tighe Metal Spinners Pty Ltd as a machine operator. It was in this employment that he sustained the injury. His job involved handling metal blanks which were finished to form the blades of air conditioning units. He would carry the blanks from a pallet to a workbench, where they would be loaded into and unloaded from a machine. He described the work as both heavy and repetitive.

7 He described an incident of injury on 4 March 2015 lifting approximately 26 or 27 cylindrical blanks. His claim form described the injury this way:

I was hungry. I lifted up many of blanks on that time my body was warm felt pain on my back but it was not to much pain but on that mid night I felt too pain on my back.[3]

8 The worker was aged 21 at the time of injury. Investigations taken after injury demonstrated radiological changes in the lumbar spine more advanced than would be expected in someone of his age. The worker told the Panel that during the time of his employment he had not suffered any restrictions or symptoms until lifting the blanks on 4 March. The Panel also found that referral of symptoms into the legs came on sometime after the incident. While Mr Akbari could not recall how long after, the Panel noted the first recorded complaint to the general practitioner was seven months after the incident.

9 The debate amongst the various medical opinions, and an issue before the Panel, was whether the work had caused an injury in the extended sense of an aggravation, acceleration, exacerbation or deterioration of the underlying degenerative condition, or whether it caused only injury to the soft tissue structures supporting the spine.

10 Mr Akbari subsequently lodged a claim for an impairment benefit which was also accepted. A referral to a medical panel for opinion as to the degree of permanent impairment was made. On 27 July 2016, a medical panel provided a Certificate of Opinion and accompanying Reasons that stated that the worker had a zero per cent whole person impairment resulting from the accepted lower back injury (the Impairment Opinion). This conclusion was based on a finding that the worker 'was suffering persistent symptoms following a soft tissue injury of the lower back'.[4]

11 On 7 March 2019, following referral from a magistrate, a second medical panel provided a Certificate of Opinion with accompanying Reasons (the Weekly Payments Opinion). That opinion addressed medical questions relevant to a dispute as to the termination of Mr Akbari's weekly payments and medical and like expenses effective from 17 June 2017. It accepted the conclusion in the Reasons accompanying the Impairment Opinion 'that the Plaintiff suffered a soft tissue injury to the lower back as a result of the incident'. However, unlike the earlier Impairment Opinion, it said that notwithstanding the complaints of persistent pain, the effects of the compensable injury had now resolved.

12 Both the Impairment Opinion and the Weekly Payments Opinion were before the Panel.

13 In the serious injury application before the County Court, the worker relied upon consequences of the physical injury to his spine and consequences of a psychiatric injury resulting from the physical injury. It also alleged injury as a result of heavy repetitive nature of tasks in the course of employment as well as the specific incident. The Panel was asked ten questions in total which are set out below at [20].

14 The Joint Statement pursuant to section 304 of the Act characterised the facts or questions in dispute as including:

1. The nature of any medical condition of the plaintiff's (a) spine; (b) mind.

2. Whether the plaintiff's employment with the defendant between 24 January 2015 and 3 March 2015 was a significant contributing factor to any aggravation, acceleration, exacerbation, deterioration or recurrence of any pre-existing medical condition of the plaintiff's spine.

3. Whether any medical condition identified by the Medical Panel in answer to question 1 results from, or is materially contributed to by, injury to the plaintiff's spine sustained on 4 March 2015 or over the course of the plaintiff's employment with the defendant from 24 January 2015 and 3 March 2015 (specifying which).

Thereafter, the statement identified disputes as to permanency and issues as to work capacity.

15 The worker's submissions to the Panel were that his physical condition was a recurrence, aggravation, acceleration, exacerbation and deterioration of the degenerative condition of his lumbar spine to which employment remained a significant contributing factor, both as to incident and course of employment. He submitted that the radiological evidence was 'conclusive evidence of a substantive ongoing injury to the lumbar spine'.[5] He argued that the employer's submission that compensable injury had resolved could not be maintained in the face of the radiological evidence. He relied on the specialist medical opinions of Dr Akil, Mr Awad, Professor Bittar, Dr Mehr as well as the general practitioner (Dr Hill) and treating physiotherapist, who had all diagnosed discogenic injury. The plaintiff submitted that the psychological condition was a Major Depressive Disorder and an Adjustment Disorder with mixed anxiety and depressed mood as a consequence of the accepted lumbar spine condition.

16 On the issue of capacity, the worker's submissions drew attention to the test for 'no current work capacity' as requiring consideration of the worker's personal circumstances having a bearing on the worker's ability to work as a settled member of the workforce, as explained in Richter v Driscoll.[6] It also referred to the possibility of work in future bringing about a recurrence of a resolved condition and referred to O'Brien Glass Industries Ltd v Pisani.[7]

17 By contrast, the employer submitted that the worker sustained a soft tissue injury, which it contended had resolved. It relied on the finding of the two previous medical panels of a soft tissue injury, as well as the reports of Dr Wong (physiotherapist),

Mr Steedman and Dr Barton. In addition, it highlighted references to the perpetuation or magnification of symptoms by functional features, psychosocial stressors or illness behaviour (Dr Mehr, Dr Slesinger, Dr Barton). In relation to the psychological condition, the defendants urged the medical panel to find that the plaintiff had an adjustment disorder with mixed anxiety and depressed mood, which did not in and of itself affect his capacity for work as had been expressed in the Weekly Payments Opinion. The defendant submitted that if a compensable lumbar spine condition does continue, then the level of symptoms was indicative of a residual capacity for suitable employment.

18 Video surveillance from July 2015 and February 2017 was relied on by the defendant as demonstrating a greater level of activity than that which was disclosed on medical examinations. Both parties made submissions on the surveillance material.

The Panel noted Mr Akbari's current symptoms of lower back pain radiating into the posterior aspect of his left leg; occasional pain in the posterior aspect of his right leg and numbness in his right foot. The Panel noted from medical records and reports in the referral material and the Reasons of the Opinion of the previous Panel that the nature of Mr Akbari's[8] has varied overtime with respect to the persistence of lower back pain, the radiation of pain into his leg, which leg is more severely affected and the paraesthetic symptoms reported over time. The Panel also noted that despite some hesitancy with lumbar spine movements; give way weakness in lower limb muscle strength and non-dermatomal sensory change in his left foot, Mr Akbari's physical examination was otherwise normal. The Panel further noted the freedom of movement demonstrated by Mr Akbari in the surveillance material, which was not consistent with his restricted movements observed during the Panel's examination. The Panel, concluded that, whilst Mr Akbari continues to report symptoms of lower back and left leg pain and right foot paraesthesia, the distribution of his pain is unrelated to the imaging findings of his lumbar spine, which show mild degenerative change at the L4/5 and L5/S1 level with some possible nerve root contact with the left S1 nerve root. The Panel did note, however, that Mr Akbari has become unfit and deconditioned as a result of his inactivity over the past five years and the Panel considers this deconditioning is contributing to his current lower back and leg symptoms. The Panel considers this deconditioning resulted from inactivity that arose in the setting of his soft tissue injury to the lower back, now resolved, following the injury of 4 March 2014 (sic) and, therefore, the Panel considers Mr Akbari's current lower back symptoms are materially contributed to by the incident of 4 March 2014.[9]

20 The Questions and the Answers of the Panel were:

Question 1 What is the nature of any medical condition of the plaintiff's:

(a) spine;

(b) mind?

Answer: (a) The Panel is of the opinion that Mr Akbari's (sic) has asymptomatic constitutional degenerative disease of the lower lumbar spine.

The Panel is of the opinion Mr Akbari is currently suffering from symptoms of lower back pain secondary to deconditioning, consequent to inactivity, following a soft tissue injury to the lower back that has now resolved, relevant to the injury of 4 March 2015.

The Panel considers there is no longer any intrinsic physical medical condition of the lumbar spine related to the injury of 4 March 2015.

(b) the Panel is of the opinion that Mr Akbari is suffering from a mild Adjustment Disorder with mixed anxiety and depressed mood.

Question 2: Was the plaintiff's employment with the defendant between about 24 January 2015 and 3 March 2015 a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing medical condition of the plaintiff's spine?

Answer: The Panel is of the opinion that Mr Akbari's employment with the defendant between about 24 January 2015 and 3 March 2015 was not a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing medical condition of Mr Akbari's spine.

Question 3 Does any medical condition identified by the Medical Panel in answer to question 1 result from, or is it materially contributed to by, injury to the plaintiff's spine sustained on 4 March 2015 or over the course of the plaintiff's employment with the defendant from about 24 January 2015 to 3 March 2015 (specifying which)?

Answer: The Panel is of the opinion that Mr Akbari is currently suffering from symptoms of lower back pain secondary to deconditioning consequent to inactivity. The Panel considers Mr Akbari's inactivity resulted from the soft tissue injury to the lower back that has now resolved, relevant to the injury of 4 March 2015.

The Panel is of the opinion that Mr Akbari's mild adjustment disorder with mixed anxiety and depressed mood was and still is materially contributed to by his lower back injury of 4 March 2015.

Question 4 Is any medical condition of the plaintiff's

(a) spine;

(b) mind

Permanent?

Answer: (a) The Panel is of the opinion that Mr Akbari's condition of constitutional degenerative change in the lower lumbar spine is permanent.

(b) The Panel is of the opinion that Mr Akbari's mild Adjustment Disorder with mixed anxiety and depressed mood is permanent.

Question 5 Does any medical condition of the plaintiff's spine (excluding any psychological or psychiatric consequences of such a condition) result in or materially contribute to him having:

(a) an incapacity for his pre injury employment as a machine operator;

(b) a "current work capacity" within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act); or

(c) no "current work capacity" within the meaning of the Act?

Answer: (a) The Panel is of the opinion that, Mr Akbari's symptoms of lower back pain secondary to deconditioning, consequent to inactivity, result in and materially contribute to his current incapacity for his pre-injury duties.

(b) The Panel is of the opinion that Mr Akbaris (sic) has a 'current work capacity" within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act);

(c) The Panel is of the opinion that Mr Akbari does not have no "current work capacity" within the meaning of the Act.

Question 6 If yes to question 5(b) hereof:

(a) what employment constitutes suitable employment for the plaintiff within the meaning of the Act?

(b) Does employment as a:

i. mail sorter;

ii. parking/car par attendant;

iii. betting clerk;

iv. machine operator;

v. call centre worker;

vi. parking inspector;

vii. stock inventory clerk;

viii. quality inspector;

ix. sales assistants (cosmetics, fragrance, fashion);

x. jeweller;

xi. make-up artist;

xii. display home consultant;

xiii. graphic designer entry-level,

constitute suitable employment for the plaintiff within the meaning of the Act, and if so, for how many hours and days of the week does the plaintiff have capacity to work in the employment?

Answer: The Panel considers that due to Mr Akbari's symptoms of lower back pain secondary to deconditioning, consequent to inactivity and his current limited English language skills, Mr Akbari has a current work capacity for the employment options of a mail sorter, car park attendant, stock inventory clerk, quality inspector, display home consultant or make-up artist. The Panel considers Mr Akbari could start work for five half days per week and increase to fulltime hours thereafter under the supervision of his general practitioners.

Question 7 asked if any incapacity identified in answer to question 5 was permanent and was answered that the incapacity was not permanent.

Question 8 Does any medical condition of the plaintiff's mind result in or materially contributed to him having:

(a) an incapacity for his pre injury employment as a machine operator;

(b) a "current work capacity" within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act); or

(c) no "current work capacity" within the meaning of the Act?

Answer: (a) The Panel is of the opinion that, Mr Akbari's mild Adjustment Disorder with mixed anxiety and depressed mood does not cause any incapacity for his pre-injury duties.

(b) The Panel is of the opinion that, Mr Akbaris (sic) has a "current work capacity" within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act);

(c) The Panel is of the opinion that Mr Akbari does not have no "current work capacity" within the meaning of the Act.

Question 9 repeated Question 6 asking of the listed occupations, which of them constituted suitable employment. The answer given was that Mr Akbari's Adjustment Disorder with mixed anxiety and depressed mood 'is of mild severity' and from a psychiatric perspective he could undertake any of the listed employment options. Question 10 as to permanency of any incapacity was therefore not applicable.

The first ground - An opportunity to be heard

21 Relevant to this ground principally is the answer to the first question. The answers to question 3, 5, 6 and 7 also become relevant.

22 The worker submits that he was not accorded procedural fairness by the Panel concluding that his continuing symptoms of lower back pain were 'secondary to deconditioning consequent to inactivity'. Pain symptoms were submitted to be a medical condition.[10] This was a diagnosis or medical condition not referred to in any of the material provided to the Panel or a matter about which the plaintiff had notice before the opinion was given. The worker submits that the material before the Panel related to whether or not the plaintiff suffered from a continuing organic injury to his spine. As none of the material attributed the worker's physical pain as arising from inactivity or deconditioning (something previously unnoticed by other medical examinations and something that the plaintiff could not reasonably anticipate), he has not been accorded procedural fairness.

23 The defendant submits that the complaint made by the plaintiff is no more than the Panel explaining the continuing lower back pain by reference to a diagnosis of a compensable soft tissue injury. The defendant submits that the explanation for the continuing pain was not something in fact adverse to the plaintiff in the manner contemplated by the relevant authorities. The defendant submits that inactivity and deconditioning following the work injury was uncontroversial on the material provided to the Panel and did not come 'out of the blue'.[11]

24 In reply, the worker said that the conclusion was adverse to him because it led to adverse findings about permanency and improvement with a return to the workforce. The plaintiff could have addressed whether deconditioning and inactivity were secondary to his psychiatric condition. It was unexpected that the deconditioning and inactivity was a cause of the pain symptoms rather than a consequence or result of pain.

25 The parties were agreed that a medical panel was required to afford natural justice.[12] Natural justice includes a reasonable opportunity for a party to be heard, including an opportunity to know the case to be made against that party and an opportunity to respond to it.[13] In the context of a medical panel, this means that where a panel proposes to take into account certain matters in reaching its opinion, including by the application of its own expertise to form that opinion, it must provide a party with a fair opportunity to be heard on a proposed adverse conclusion.[14] The requirement to provide procedural fairness is not met where the party lacks the ability to make submissions or provide expert opinion addressing the proposed conclusion.

26 The parameters of the dispute to be decided are set by the pleadings, submissions and medical reports provided. If a panel intends to treat as determinative a matter falling outside these parameters, or in the words of Cavanough J a matter that 'came out of the blue', it must give the parties notice of that matter. The communication of matters relied on by a Panel in exercising its own expertise will in every case be a matter of fact and degree.[15]

27 Examples include a psychiatric diagnosis of 'factitious disorder' which was unexpected in the light of existing psychiatric diagnoses and on its face inconsistent with the medical criteria for such a diagnosis;[16] a new psychiatric diagnosis of an undifferentiated somatoform disorder where a psychological cause for unexplained pain was an issue;[17] opioid use as contributing to incapacity where the agreed list of prescriptions did not make reference to any opioids being used;[18] a finding that mood symptoms, irritability and other symptoms were related to menopause and not psychological symptoms consequent on a work injury;[19] a finding that psychiatric conditions, to be assessed for the degree of impairment, were in remission.[20]

28 Kyrou J summarised a medical panel's obligation to provide procedural fairness in this way:

A Medical Panel is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by its opinions on medical questions. The Medical Panel may breach the rules of natural justice where it relies on new information provided to it by the worker during the examination by the Medical Panel, a new medical report, evidence that had not been seen previously by the worker and a matter within the panel's own expertise and does not prior to reaching a final opinion, provide the substance of this new information, evidence or matter to the parties affected by its opinion and give them a reasonable opportunity to address it.[21]

29 Natural justice entitles a party affected by a decision to put information before a decision-maker addressing matters that fall outside the parameters of the dispute:

That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected, any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.[22]

30 The parties understood that, in the serious injury application, the parameters of the dispute made it necessary to identify the compensable physical injury and its impairment consequences, and separately identify the mental or behavioural condition and its consequences.

31 This was not a situation of a Panel acting upon new evidence, but of the Panel's application of its own expertise. Before the Panel, there was a dispute as to whether there was a continuing organic injury to the spine. The worker was contending an ongoing organic injury with pain symptoms deriving from the radiological changes, while the defendant contended a soft tissue injury only, which had resolved. The worker's submissions to the Panel did not grapple with the pain symptoms other than from a degenerative spinal condition. The submissions relied on a diagnosis of a Major Depressive Disorder consequent to the accepted, (and by its submission ongoing) physical spinal injury. The defendant relied on a diagnosis of adjustment disorder consequent to a resolved soft tissue injury. The defendant submitted that illness behaviour and inconsistencies meant that there was no persisting organic injury. The plaintiff did not make submissions as to an explanation for ongoing pain if the physical injury to the lower back was not attributed to the degenerative changes.

32 The Panel rejected any injury occurring other than in relation to the specific incident. The worker does not challenge the conclusion that he has asymptomatic degenerative disease of his lower lumbar spine, nor the conclusion that he had an acute soft tissue injury on 4 March 2015 that has now resolved. Those two conclusions without more would lead inevitably to an absence of any continuing organic injury.

33 However, the issue of continuing pain remained to be dealt with. It needed to be dealt with in a way that identified whether it was a consequence of a physical injury or otherwise. The Panel's conclusion did not accept the submission of either party as to the explanation for continuing pain, but that does not necessarily mean the conclusion was unexpected and could not be anticipated. The Panel 'joined the dots' as it were, to conclude that the pain was still a consequence of the soft tissue injury, even though that injury had resolved at some time before the Panel's examination. It said that a soft tissue injury occurred and was followed by inactivity. A consequence of that inactivity was deconditioning. The continuation of pain was secondary to that deconditioning and therefore, as I read the Panel's opinion, was a consequence of the work related soft tissue physical injury. This is understood in light of the Panel's answer to Question 3: that the current pain symptoms are materially contributed to by the compensable soft tissue injury notwithstanding its resolution.

34 The answer provided by the Panel permits the court determining the serious injury application to understand that pain falls for consideration under the paragraph (a) claim for impairment of body function, not the paragraph (c) claim. That was clearly a matter anticipated by the parties and a necessary step in the court's decision making.

35 I do not accept the argument that the Panel diagnosed a new and different cause for the pain beyond the parameters of the dispute referred to it. In my view, it explained how the present and continuing pain was causally related to the diagnosis of soft tissue injury. In doing so it clearly rejected the employer submissions that pain was a consequence of a mental or behavioural disorder. The Panel appears to accept the worker's experience of pain. Although it notes inconsistencies in functional capacity on surveillance, it notably does not find any functionally driven pain amplification.

36 The plaintiff relied on reasons of Moore J in Emmelmann v Thomson Geer Services Pty Ltd & Ors[23] to submit that 'pain symptoms' are a medical condition, and that therefore an attribution of pain symptoms to deconditioning was a new diagnosis or a new cause. Pain may be a symptom or a consequence of many and varied medical conditions. It may be a product of physical or mental medical conditions or a combination of both. It may result in a psychiatric diagnosis if otherwise unexplained. In Emmelmann, a medical panel accepted the plaintiff suffered ongoing pain. Similarly, in a referral in the context of a serious injury application, the contest was one of pain from exacerbated degenerative changes on the one hand or a resolved musculoligamentous strain on the other. His Honour was concerned with the meaning of the term 'medical condition' as that term is contained in the first of the medical questions prescribed in the Act, but itself not defined. He concluded that a medical condition embodied both physical and mental conditions. In circumstances where that panel found neither a physical condition nor a mental condition, it took an unduly narrow interpretation. In my view, the Panel's conclusion in this case avoids the error identified in Emmelmann which did not address an explanation for the persisting pain that it accepted was still present.

37 Assuming for the moment that the finding of the Panel to be adverse as the worker contends, the question that arises is: should the worker have anticipated the Panel might find his present complaints of pain were as a consequence of a soft tissue injury, even though the injury itself might have resolved? Clearly the possibility that the Panel might find a soft tissue injury only, and one that had resolved was to be anticipated, that was the case urged by the defendant. The fact that the worker's submissions did not grapple with an explanation for persistent pain beyond the primary contention that it was caused by degenerative changes does not make the Panel's explanation one that is unexpected such that the worker needed to be provided with an opportunity to meet it. In essence, the worker contends that what was unexpected was the link between a soft tissue injury and persisting pain consequential to an injury of that nature. However, in my view, this was within the parameters of the dispute between the parties. The material contained many references to inactivity over a sustained period of time and some reference to deconditioning by Dr Slesenger. He made observations that the worker was not engaging in a self-managed exercise program and recommended a graduated return to work as a result of this.[24] The Panel's explanation falls within the parameters of a dispute between whether there was a soft tissue injury or a change in the course of the underlying degenerative condition.

38 I am not persuaded that the conclusion of the Panel is truly adverse to the worker in any event. It is the unchallenged conclusion that the soft tissue injury itself had resolved that is primarily the finding adverse to the worker on questions of permanency and capacity. The Panel accepted a level of symptoms that meant Mr Akbari would presently struggle to return to full pre injury duties or hours despite no 'intrinsic physical medical condition causing Mr Akbari's current lower back and leg symptoms'.[25] The fact that the Panel attributes pain presently to the consequences of the soft tissue injury would be a basis to say that there is presently a loss of body function with pain and suffering, and loss of earning capacity consequences attributable to that injury. However, the Panel does not support this level of impairment as being permanent.

39 The Panel concluded that the worker could presently work in suitable employment at five half-days per week, increasing to full time hours under the supervision of his general practitioner. Although in the Reasons the Panel anticipate an expected (to their mind) timeframe for this progression, I note that there is no such timeframe anticipated by the Opinion that would bind a Court. It also qualified its opinion regarding improvement in his capacity, saying:

The Panel considered Mr Akbari would benefit from consulting an exercise physiologist to improve his symptoms and functioning related to reconditioning.

Taken together, these aspects of the Reasons, although asking about permanency, address the stability of the present level of impairment. Permanency is adversely affected by the unchallenged finding that the compensable injury itself has resolved.

40 The worker's first ground of review is not made out.

Second ground - 'current work capacity' and 'suitable employment'

41 As the Panel had concluded that the worker did not have 'no current work capacity' by reason of his back pain, it went on to consider suitable employment, including whether 13 particular occupations constituted suitable employment. The Panel concluded that only some of those employments constituted suitable employment with respect to the back pain and all were suitable with respect to the mental disorder.

42 In written submissions, this was originally divided into three separate grounds of review. Subsequent amendment of the Originating Motion led to the plaintiff relying on one ground of review with two inter-related aspects to which oral submissions were addressed. These broadly involved an erroneous construction and application of 'suitable employment' and of 'current work capacity', as both are defined in the Act.

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'.

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;

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited -

(a) having regard to the following -

(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'

(v) any plan or document prepared as part of the return to work planning process;

(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;

(i) the work or the employment is available; or

(ii) the work or the employment is of a type or nature that is generally available in the employment market;

and, for the purpose of Part 4, (Return to Work) includes - .....[26]

45 As with no current work capacity a consideration of current work capacity requires an approach to the question on the basis that what is to be looked at is capacity for work in employment, with the type of employment being that which is 'suitable'.

46 Having found the worker was presently unable to return to pre-injury employment, the worker submitted that the Panel was required to read the definitions of 'current work capacity' and 'suitable employment' together to ask itself whether the worker had 'a present inability arising from an injury such that he is not able to return to his preinjury employment but is able to return to work in employment in work for which he is currently suited'. The worker submitted four matters were needed to come to a finding of current work capacity. They were:

a) that a worker be able to perform the tasks of a particular employment;

b) to do so as a settled member of the workforce;

c) that the employment be work for which the worker is currently suited; and

d) that a worker is able to find and obtain that employment.

These four matters were drawn from Richter v Driscoll[27] and the line of cases considering capacity for work in employment discussed there.

47 First, the worker submitted that the Panel's conclusion was erroneous because it was based on a view that was too narrow, confined to looking at only the first of the four requirements; the tasks and functional requirements of each employment, contrary to the proper construction of current work capacity. In respect of that narrow consideration he submitted the Panel also failed to give any practical content to each suggested occupation in order to decide whether the first requirement was met.

48 Second, the worker submitted that in looking at which of the suggested employments constituted suitable employment, the Panel took into account in a general way only, the worker's attributes which, by (a) (i)-(vi) of the definition of suitable employment, were required to be considered. It did not consider whether in respect of each suggested employment those attributes affirmatively made employment suitable.

49 The defendant accepted that consideration of the entirety of personal circumstances is required, noting however that in many cases capacity to perform work tasks will correspond with a capacity to return to work in employment. This submission relied on the Court of Appeal reasoning in Siddiqui v Kotsios.[28] It contended that the Panel did have regard to the particular matters mandated in the statutory definition of suitable employment and to the entirety of the worker's personal circumstances. It submitted that the fourth factor identified was wrong and it was not necessary to consider whether the plaintiff would in fact find or obtain employment in the specified roles.

50 The worker submitted that Siddiqui was distinguishable. He submitted that capacity to perform tasks will not correspond with a capacity to return to work in employment in the following circumstances: where a medical condition is variable and specific exacerbations would prevent regular attendance, where a psychiatric reaction makes it impractical to expect attendance at job interviews notwithstanding an ability to perform the work if given the chance, or where performance would aggravate a condition or cause an unacceptable level of discomfort. Each of these matters were issues that the Panel was obliged to give consideration to given the history it obtained from the worker.

51 Questions 5-10 dealt with the capacity for work. The Questions and the Answers provided are set out above under paragraph [20].

52 In explaining its conclusions, the Panel set out a series of matters under the heading: 'Current work Capacity with Respect the (sic) Mr Akbari's Current Physical Condition'.

a) Their own interview and examinations;

b) A review of Mr Akbari's preinjury employment tasks and past employment history, setting out his preinjury duties in detail. It noted previous work experience as a packer, sheet metal worker and kitchen hand (in Australia), and retail assistant and internet café supervisor (in Pakistan), and briefly as a courier driver. It did not distinguish work history in Australia from that overseas.

c) A list of the medical reports and the treating general practitioner's certificates of capacity, noting that most of the medicolegal reports were based on examinations that took place at least two years ago and so were not sufficiently current to reflect present work capacity. It also noted the opinion of the general practitioner that Mr Akbari has a current work capacity for part-time work.

d) It noted year 11 schooling in Pakistan, including some English language studies and English classes in Australia;

e) It determined that age (26 years) and residence (Dandenong) would not restrict employment or retraining opportunities, but that limited English language skills and his absence from the workforce since 2015 might limit prospective employment;

f) It noted limited vocational training subsequent to injury, with only assessments and job seeking assistance; and

g) It discussed a Co-Work vocational assessment and invited Mr Akbari's own views on the various proposed occupations; some of which the plaintiff dismissed as beyond his sitting or walking tolerances, or his English skills. The Panel recorded:

Mr Akbar thought he might be able to work as a sales consultant for new homes but would require some retraining and he was worried his limited English would be problematic. He considered that he would also require retraining to become a jeweller or makeup artist, but he thought the latter option, particularly, would be possible.

53 The somewhat unusual consideration of jeweller or makeup artist seems to have its origin in a history provided to Co-Work author Joanna Bryant, an occupational therapist, that Mr Akbari planned on investigating a modelling career prior to injury. That vocational assessment noted that on arrival in Australia he had few vocational choices other than to approach the job market for unskilled work, despite sound training in software and design packages in Pakistan.

54 The Panel said of his inability to return to work in pre-injury employment that:

... given his current lower back symptoms and deconditioning, Mr Akbari would struggle to return to his full preinjury duties or hours. The Panel also considered that given there is no intrinsic physical medical condition causing Mr Akbari's current lower back and leg symptoms, the Panel did not consider that this incapacity was indefinite. The Panel considered Mr Akbari would benefit from consulting an exercise physiologist to improve his symptoms and functioning related to deconditioning.[29]

55 The Panel then concluded as to whether he was able to return to work in suitable employment:

The Panel considered that despite Mr Akbari's current symptoms of lower back pain and his deconditioning due to inactivity, he would be able to perform some of the proposed suitable employment options. The Panel considered that, as Mr Akbari is currently socially isolated and living with men of his own cultural group, speaking their native language, he would benefit from using his English language skills more regularly. The Panel also considered that as Mr Akbari returns to the workforce, it is likely that his deconditioning will improve, resulting in improved functional tolerance and reducing his need for pain medication and associated side effects.

The Panel considered that in returning to the workforce, Mr Akbari would be best suited to employment options that would allow him to vary his sitting, standing and walking position throughout the day and employment options in which his developing English skills would not significantly disadvantage him. The Panel also considered it appropriate for Mr Akbari to undergo retraining where necessary, for example, as a makeup artist. The Panel also considered, as Mr Akbari has been out of the workforce for the last five years and has become relatively deconditioned and suffered a loss of social confidence, it would be appropriate to return to work on a graduated a part-time basis, for example, restarting work five half days per week and increasing his hours under the supervision of his general practitioner, thereafter. The Panel anticipates Mr Akbari would return to full time work over a three to six month period.

Of the suitable employment options proposed, the Panel considered, given Mr Akbari's current symptoms of pain: the side effects of his current medication and his limited English skills, he would be best suited to the roles of parking/car park attendant, stock inventory clerk or quality inspector, however the Panel considered that with the appropriate retraining, he could work as a make-up artist or a display home consultant.[30]

56 Richter v Driscoll dealt with error in the construction of the term no current work capacity. The inquiry to be made does not focus on the identification of the work itself but the 'inability to work in employment'. In upholding the first ground of appeal, Ashley and Kaye JJA said:

To say, as the Panel did, that it was not required to determine whether the plaintiff would be successful in obtaining employment was true, so far as it was a statement only directed to inability to obtain employment by reason of the state of the labour market. It could not be carried any further. In particular, it was not a correct statement if it meant that the Panel was not required to consider whether the entirety of the applicant's relevant personal circumstances - that is her injury caused incapacity and other relevant personal circumstances which we have discussed- meant that she would likely be unsuccessful in obtaining employment because she had nothing 'merchantable' to sell. The entirety of the worker's relevant personal circumstances, in a case such as the present, would readily be understood to have a compounding effect.[31]

57 The question of Ms Richter's capacity for work in employment was asked in circumstances where weekly payments had been paid for an incapacity for a period in excess of nineteen years to someone who had had a minimal employment history as an adult in the years before injury. The compounding nature of age, incapacity, education, skills and work experience in those circumstances is readily understandable.

58 In my view, the Panel's Reasons do disclose that it considered more that Mr Akbari's physical capacity for employment. It gave consideration to the matters mandated by the definition of suitable employment, and as set out above, considered that language and the time out of the workforces would negatively impact upon his ability to engage in employment. The plaintiff's complaint is that the Panel considered age, place of residence, education and work experience but did not relate its conclusions to the requirements of any particular occupation identified as suitable. The plaintiff argues that the Panel ought to have asked in respect of each employment it considered:

a) whether there were in fact opportunities for employment of that nature within a reasonable distance;

b) how the previous work experience was applicable, favourably or otherwise, to the employment;

c) How plaintiff's limited English skills would be applied to the specific employments identified;

d) how the length of absence from the workforce would be applied to a consideration of whether the plaintiff might obtain work in each employment; and

e) that if any of these considerations were answered in the negative then the occupation under consideration was not suitable employment.

By failing to make these specific enquiries for each occupation identified as suitable, the Panel did not do what the statute required, or has not taken into account matters required by the statute.

59 I do not accept this submission. It is clear from the Panel's rejection of some proposed occupations but not others that the barriers that were identified were considered in relation to each employment option. It appears for example that the Panel agreed with Mr Akbari's own assessment that English language would limit retail sales options. Likewise, the references to current socially isolated circumstances, deconditioning and time out of the workforce, and the medical certification of the general practitioner for part-time work are relevant matters that go to the hours of work that Mr Akbari could presently participate in as a settled member of the workforce. Equally, the Panel did have regard to employment history, which in Australia at least, was limited to packing, machine operating and courier work which had required no formal qualifications or prior experience. It recognised that a driving infringement might impact some employment options (although it was not asked to consider any driving occupations). It is clear that from the vocational material an applicant required neither prior experience nor special training to obtain a position as a car park attendant, mail sorter, stock inventory clerk or quality inspector. The vocational assessment by Workstreams identified that prior experience in production operation would be of beneficial relevance in applying for jobs as a Quality Inspector.

60 The Panel's Reasons do not make specific reference to age or place of residence in relation to each of the occupations. It was not suggested how a person with the characteristics of the worker, aged 26 and living in metropolitan Melbourne, were somehow personal circumstances that made one or more of the occupations identified by the Panel otherwise unsuitable. I do not see how individually, or even by compounding other identified barriers, either characteristic would compel a conclusion that employment requiring tasks within the worker's physical capacity was not also employment that was suitable having regard to the whole of his circumstances.

61 It follows that I do not accept the submission that a negative answer to any one of the components set out at (a)(i) to (vi) of the definition of suitable employment necessarily results in the occupation under consideration not being suitable. The individual circumstances of a plaintiff may require consideration of a particular personal characteristic individually, but in general, the definition of suitable employment is a holistic inquiry not an exercise in ticking boxes. It goes too far in my view to say that the approach must necessarily demonstrate that the Panel has asked whether each factor, which makes employment suitable, is positively applicable to each employment. It may be that some factors are simply neutral, or if negative, do not adversely impact the suitability of particular employment. For example, a worker who has only ever worked in one type of job, but could no longer work in that capacity, might nevertheless have a current work capacity for other employment, despite having no previous experience in such a role. Employment as a bank teller might be suitable employment for a person who had only ever worked as a real estate agent. Previous work experience could not be positively answered in relation to the occupation of bank teller, but a holistic approach to the factors that fall for consideration in identifying 'suitable employment' might still permit such a conclusion.

62 To the extent that the worker submitted that the Panel was to have regard to his ability to find employment I accept that is so but only in the sense identified in Richter; that he has something to sell in the employment market, not that he be successful in selling that asset. The focus on finding or obtaining employment remains on the qualities of the worker and his or her ability to engage in the employment marketplace. The Reasons disclose that the worker told the Panel he had applied for jobs as a mail sorter without success. When discussing the surveillance, he told the Panel that outside the home he makes an effort to walk normally to avoid embarrassing himself. The Panel concluded that the surveillance did provide some objective evidence of functional capacity not wholly consistent with reported function. Given these matters, there was nothing that obliged the Panel to seek out further information in order to elicit difficulties in job seeking or interview presentation.[32] I do not accept that the illustrations in Bainbridge, approved in Siddiqui, are further questions that the Panel must necessarily direct its attention to. They are illustrations of circumstances where there is 'some feature of the individual worker arising from the relevant injury that justifies a distinction being drawn'[33] between a capacity to perform work duties and a capacity to return to work in employment.

63 In my view, the Panel correctly construed and applied the definitions of current work capacity and suitable employment.

64 The worker also submitted that, in considering the first requirement - that a worker be able to perform the tasks of a particular employment - the Panel failed to give practical content to the identified employment options. This submission also relies on the reasoning in Richter, where the medical panel's reasons did not meet the Wingfoot standard. This was because, by concluding as it did upon its own experience and expertise that the worker was physically able to perform certain duties, it acted upon vocational assessments that merely generically described process work tasks as being 'light to medium physically'. Particular jobs of a 'light process work' nature that were identified as potentially suitable by the vocational assessment gave no information as to the physical requirements of those roles. Given the deficiencies in the vocational material, the Panel was obliged in its Reasons to 'give some practical content to the job involved, in order that its conclusion was capable of being examined'.[34] The Reasons demanded this detail so that any potential error of law might be ascertained.

65 The need for the Reasons to provide practical content to job requirements is therefore informed by the information available to the Panel from the vocational assessments or other material. There were three vocational assessments before the Panel each of which identified overlapping but different suitable employment options.

66 The four occupations that the Panel opined were presently 'suitable employment' had been identified by a 2015 Workstreams vocational assessment and/or a 2016 Recovre assessment. Those options were not considered by the 2018 CoWork assessment. Of the five suitable occupations identified by CoWork none were considered presently suitable by the Panel, but two: sales consultant (display homes) and make up assistant, might be suitable upon provision of retraining. What that training might involve was not identified.

67 Although dated by the time it was considered by the Panel, assessments by Workstreams and Recovre each provided some information as to the availability of jobs of that type in the labour market generally and more particularly within south east region of Metropolitan Melbourne.

68 Importantly, the Workstream vocational assessment, like that in Richter, failed to identify the physical demands of the occupations it identified as potentially suitable - which included mail sorter, quality inspector and parking attendant. It described a series of tasks but not the physical demands associated with them. For example it did not identify the physical demands of operating mail processing equipment as a mail sorter. It simply described the duties to be rated as 'light demand level'. Its assessment was dated June 2015 only months after the occurrence of injury. Importantly, the suitability of the positions of mail sorter and quality inspector were qualified by Workstreams who said:

It has been recommended that the position be mainly seated, with the flexibility of standing or sitting.

It is far from clear that the positions as might be available to someone as a settled member of the workforce were ones that were either mainly seated or allowed flexibility in sitting and standing. However, given the passage of time, in the context of the Panel's Reasons as a whole, the Panel made no such qualification on those occupations and embraced them as providing for a variation in seated and standing or walking tasks.

69 The Recovre Assessment was dated 27 October 2016 (the Recovre report). The positions it identified included stock inventory clerk and car park attendant. For each proposed suitable employment it did list the physical and psychological demands of the occupation. For example, it identified that a stock inventory clerk frequently walks and stands to verify cargo and examine shipping documents and frequently sits at a computer workstation. It also identified other physical demands that are not typically a significant component of the job. The Recovre report also identified the size of the employment market for such jobs and the number of advertised jobs on a particular day within a 30-60 minute drive from the worker's home.

70 Given that the Recovre report gave practical content to the positions it recommended, the Panel was able to rely on that information, and was not simply applying its own expertise to an assessment of the physical tasks required. However, the Panel was necessarily applying its own expertise to the physical demands of a mail sorter and quality inspector, because the only vocational material that provided details of those job did not identify the physical demands. It is clear, that the Panel as an expert tribunal is entitled to apply its own expertise, the real question is whether the reasons adequately disclose what factual basis their conclusion rested upon.

71 Although there was no identification of physical demands in the vocational assessment, the Panel had opinion from an occupational physician, Dr Slesenger that identified physical restrictions as 'no carrying push/pull weights over 5kg, no repetitive bending or twisting',[35] and 'sit stand as required'.[36] Dr Slesenger's opinion was that car park attendant was an occupation within those physical restrictions and that mail sorter may be.[37] Additionally, the Reasons record that the Panel was told Mr Akbari had applied for work as a mail sorter and that the Panel canvassed with him his own views about whether he could undertake the employment options identified as suitable, including that of mail sorter.

72 I accept that the Panel was required to give some practical content to the physical demands of work. As to the other suitable occupations, the material available to the Panel did provide practical content but it did not do so in respect of a mail sorter or quality inspector. In those circumstances, the Panel would have to give it that content by applying its own knowledge and expertise and the reasons should disclose how it approached this. Whether the Panel's reasons adequately demonstrate that it did so is the ground to which I now turn.

73 Curiously, the Reasons express the conclusion as to work capacity in the following terms:

Of the suitable employment options proposed, the Panel considered, given Mr Akbari's current symptoms of pain; the side effects of his current medication and his limited English skills, he would be best suited to the roles of parking/car park attendant, stock inventory clerk or quality inspector, however the Panel considered that with appropriate retraining, he could work as a make-up artist or a display home consultant.[38]

74 Given this, it is not clear at all from the Reasons why the occupation of mail sorter is added to the list in the Opinion. The material available to the Panel did not give any practical content to its physical demands. To the extent that Dr Slesenger's opinion did address whether the tasks required of a mail sorter were or were not within particular physical demands, his later-held opinion was that the role of mail sorter exceeded the physical limitations he would impose. If the Panel thought mail sorter was suitable employment, their Reasons do not address why that is so. Indeed, the Reasons on their face seem to exclude that occupation from meeting the definition of 'suitable employment'.

75 As to quality inspector, the same lack of practical content as to the physical demands exists in the vocational assessments. However, the observation was included by Workstreams that prior work experience in a production environment was beneficial. To that end the Panel observed the variety of past work experience in Australia and Pakistan. However, what is clear from the Workstreams report was that modification of the role would be required to ensure that it was mainly seated, as his sitting tolerances would limit work as a quality inspector. The Panel was entitled to infer from this information that the sitting required by this role was interspersed with walking and standing requirements. It specifically prefaced suitable employment as options that allowed variation in sitting, standing and walking throughout the day. However, apart from postural variation, there was nothing in the available material or otherwise identified in the reasons to understand the basis upon which the Panel included that occupation as otherwise meeting the attributes.

76 In my view the Panel's reasons do not demonstrate the basis for its conclusion that mail sorter and quality inspector were suitable employment.

77 Other than in this respect, in my view the Reasons are adequate. They have set out a path of reasoning that underpins the conclusions arrived at and does not require speculation. They have permitted the analysis I have undertaken above to ascertain whether there has been error as alleged. This is the standard of Reasons required by Wingfoot. Subject to hearing from the parties, I propose quashing only the answer to Question 6 insofar as it refers to the occupations of mail sorter and quality inspector.

[1] I will refer to the Victorian Workcover Authority as the defendant, it being the only defendant that actively participated in the proceeding. The other defendants have indicated to the Court that they would abide the outcome in accordance with R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors [1980] HCA 13; (1980) 144 CLR 13.

[2] The Panel's Certificate of Opinion and a Reasons pursuant the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) is dated 10 August 2020 ('Panel's Reasons') and was included in the court book at pages 75-94 ('CB').

[5] Plaintiff, 'Plaintiff's Submissions', Submissions in Akbari v Victoria WorkCover Authority & Ors, S ECI 2020 03890, 20 January 2020, [14], at CB 112.

[6] [2016] VSCA 142; (2016) 51 VR 95 ('Richter').

[7] [2018] VSC 294.

[8] There is clearly a word omitted here, most likely 'condition'.

[9] The Panel have elsewhere in the reasons correctly recorded the date of injury as 4 March 2015. The parties drew no significance from the error in the date appearing in this paragraph of the Reasons.

[10] Relying on Emmelmann v Thomson Geer Services Pty Ltd & Ors [2020] VSC 801.

[11] Barrett Burston Malting Co Pty Ltd v Kotzman & Ors [2103] VSC 248, [48] (Cavanough J).

[12] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 580, [47].

[13] Kioa v West [1985] HCA 81; (1985) 159 CLR 550.

[14] Wagstaff Cranbourne Pty Ltd v Hashimi [2020] VSCA 33 at [39]- [41], [58].

[15] North v Homolka [2014] VSC 478 (Ashley JA).

[16] Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248.

[17] Midfield Meat Processing v Fish [2015] VSC 195.

[18] Toyota Motor Corporation Australia Ltd v Bendrups & Ors [2016] VSC 718.

[19] Calleja v Franet [1999] VSC 202.

[20] Edwards v State of Victoria [2021] VSC 423.

[21] Vegco Pty Ltd v Gibbons [2008] VSC 363, [23].

[22] Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576, [30] (Northrop, Miles and French JJ).

[23] [2020] VSC 801.

[24] See in particular the defendant's Medical Report by Dr Slesenger dated 14 February 2017, at CB 335.

[26] Workplace Injury Rehabilitation and Compensation Act 2013, s 5.

[27] Richter (n 6) (Ashley, Kaye, Osborn JJA).

[28] [2021] VSCA 187.

[32] As discussed in Chang v Neill [2019] VSCA 151, [49].

[33] Bainbridge v Westside Meats Pty Ltd [2021] VSC 320, [25] (Gorton J).

[34] Ibid [126] (Ashley and Kaye JJA).

[35] Report of Dr Slesenger dated 20 October 2015.

[36] The additional restriction was added in the report dated 14 January 2016.

[37] In his 2015 report, Dr Slesenger thought the job was within the restrictions he nominated, but in 2016 said the manual handling requirements would exceed it.