Plaintiff v First Defendant

2 By summons on originating motion dated 29 February 2016, and pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015, the plaintiff seeks an order in the nature of certiorari quashing the Panel's opinion, together with an order in the nature of mandamus remitting the matter for determination by a differently constituted panel. The plaintiff relies upon the affidavit of Joseph Anthony Savedra, sworn 29 February 2016, which exhibits materials including the Opinion and the Reasons for Opinion of the Panel dated 31 December 2015 ('reasons'), together with the material provided to the Panel.

3 Mr Brister was born in England. At the time of the Panel's decision he was 42 years old. He attended school until the age of 16, then commenced training as a panel beater. He left that position after 12 months and then worked for two years as a glass blower, for five years installing shower and toilet units in coaches, for two years as a carer for people with severe physical and intellectual disabilities, and then for five years for a company that assembled sports cars.

4 Mr Brister moved to Australia in 2012. He initially worked for a company that fitted accessories to and serviced four-wheel-drive vehicles. After about six months, in mid-2012, he gained employment with the plaintiff, a company which stripped and disabled accident-damaged vehicles. Mr Brister's work for the plaintiff involved the use of various tools and pieces of equipment to strip and disassemble exterior and interior car components, including car engines, and to reassemble vehicles once those parts had been repaired and/or painted. On 11 April 2013 Mr Brister was performing work reassembling a vehicle which was at that time located on a hydraulic hoist. This required that he fit a K-frame to the vehicle. In the course of doing so, while underneath the vehicle, he was required to take the weight of the K-frame on his left arm. During that process, he suffered severe pain in his left shoulder region.

5 Mr Brister rested for a short time after suffering the injury, then continued working that day and for the next few weeks. He attended with his GP on 27 April 2013 complaining of left shoulder pain of two weeks' duration. An ultrasound was reported to reveal a moderate-sized deep fibre partial thickness rotator cuff tear of the supraspinatus tendon, subdeltoid bursitis and bursal impingement.

6 On or about 15 May 2013 Mr Brister lodged a claim for compensation pursuant to the Accident Compensation Act 1985 (Vic) ('the ACA') in respect of the injury to his left shoulder suffered in the course of his employment with the plaintiff on 11 April 2013. The claim was accepted and Mr Brister received compensation by way of weekly payments and payment of medical expenses.

7 A cortisone injection was administered in July 2013. Mr Brister was then referred to see orthopaedic surgeon, Mr Goldwasser, who advised conservative treatment. His symptoms did not improve and Mr Goldwasser referred him to a second orthopaedic surgeon for consideration of surgery. At that stage, in the second half of 2013, Mr Brister was working reduced hours on light duties.

8 Mr Brister first consulted orthopaedic surgeon, Mr Pullen, on 20 November 2013. On 4 February 2014, Mr Pullen performed an arthroscopic subacromial decompression and debridement. Mr Brister ceased work prior to the surgery being performed. On review on 4 July 2014, Mr Pullen noted that Mr Brister had developed recurrent pain. As a consequence, Mr Pullen performed a manipulation under anaesthetic and hydrodilatation on 30 September 2014. At that stage Mr Pullen was optimistic and thought Mr Brister would be fit for light duties in four to six weeks and pre-injury duties in 12 to 16 weeks. On review on 12 November 2014, Mr Pullen noted that Mr Brister was having persistent problems with left shoulder stiffness. Mr Pullen performed a second manipulation under anaesthetic and hydrodilatation on 24 February 2015. On review on 11 March 2015, Mr Pullen noted that Mr Brister's range of motion of his left shoulder had improved, but that his left shoulder pain had increased. On review on 27 May 2015, Mr Pullen noted that Mr Brister was suffering ongoing problems with his left shoulder with persistent left shoulder pain and restricted movement. Mr Pullen recommended that Mr Brister access ongoing assistance from a pain management specialist. Mr Pullen considered the prognosis for Mr Brister's left shoulder to be poor, and expressed the opinion that he would suffer ongoing difficulties with restricted movement and shoulder pain into the future. He considered that the right shoulder problems from which Mr Brister was suffering may have developed as a result of overuse while compensating for his left shoulder injury, and that the right shoulder would require treatment.

9 Allianz Australia Workers' Compensation (Victoria) Limited ('Allianz'), the authorised insurer of the plaintiff, arranged to have Mr Brister reviewed by orthopaedic surgeon Associate Professor Love. Mr Brister was seen for a second time by Professor Love on 18 February 2015, following which Professor Love expressed the following opinion:

I am not of the opinion at this time that this man can return to pre-injury duties but he might be able to work in an occupation that involves extremely light work, non-repetitive lifting of the arms, and not working above shoulder height.

I think it would be reasonable for [him] to be reviewed three months after the forthcoming manipulation under anaesthesia.

I am concerned that this man's absence of current work capacity is likely to continue for the next six to 12 months at least.

10 On 3 March 2015, at the request of Allianz, a report was prepared by a Sammani Dharmatilleka, of AMS Consulting Group (referred to in the materials as the 'NES report'). In the report, AMS Consulting is described as an 'Occupational Rehabilitation Provider'. Ms Dharmatilleka, whose qualifications are recorded in the report as BA (psychology and psychophysiology), and MSocSci (counselling), is described as a 'Vocational Consultant'. The purpose of the report is not entirely clear, but the outcome included identification of suitable employment options. In the preparation of the report the writer appears to have relied upon the opinion of Professor Love following examination on 18 February 2015, documentation from treating GP, Dr Govender, and information obtained from Mr Brister in an assessment on 20 February 2015. The self-reported physical tolerances recorded in the report include:

• Lifting up to 4 kg from ground level and bench height (owing to bilateral shoulder symptoms).
• Carrying lightweight loading only, and short distances (owing to bilateral shoulder symptoms).
• Sitting up to 60 minutes, then requires to get up and move around (owing to bilateral shoulder symptoms).
• Reaching overhead approximately halfway and with difficulty, no weight loading (owing to bilateral shoulder symptoms).
• Reaching forward to shoulder height, no weight loading (owing to bilateral shoulder symptoms).
• Reaching below waist unrestricted, however no weight loading (owing to bilateral shoulder symptoms).
• Pushing/pulling lightweight loading only (owing to bilateral shoulder symptoms).

11 The report writer identifies 'suitable employment options' as follows:

In order of priority

Re-training is not required to pursue the following job options:

1. Stock Clerk

2. Warehouse Administrator

3. Receiving and Despatch Clerk

Re-training is essential for the following job options:

1. Teachers' Aide

A fifth job option identified in the body of the report, namely, 'Inquiry/Customer Service Clerk/Information Desk Clerk', is not included as one of the suitable employment options, though it is unclear why not. In the report, one page is devoted to each job option. The information in relation to each job option is generic and appears to be sourced from various computer searches. In relation to the job option of stock clerk, the report writer records that a search of various employment websites revealed over 10 full-time and over 10 part-time stock clerk positions advertised in the northern and western suburbs of Melbourne on 3 March 2015. None of those apparently available positions is identified, and the report includes no detail of the tasks and duties required in an actual position of employment. The report writer then records:

Mr Brister has the necessary skills to undertake this role. His computer skills are sufficient for this role given in house packages are commonly utilised for which he can receive on the job training. Care would need to be taken he maintains manual handling restrictions when in this role.

The report writer later records that this job option is seen as suitable '... given transferrable skills, and self-reporting of physical tolerances.' The report writer records and relies on a computer search of Job Markets Australia Data ANZSCO 2013-2014 that the physical demands of the stock clerk job option are sedentary. Later in the report the writer refers to the sedentary classification defined in the 'US Departments of Labours Handbook for Analysing Jobs' as:

Exerting up to 4.5 kgs of force occasionally or a negligible amount of force frequently to lift, carry, push, pull or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are only required occasionally and all other sedentary criteria are met.

12 The NES report was then forwarded by Allianz to Professor Love. In an addendum report dated 20 May 2015, Professor Love expressed the following opinion:

I agree with the recommendations made in the attached vocational assessment report so long as the recommendations do not require repeated lifting, working above shoulder height or lifting objects of weight of more than 5 kg, I believe those tasks should be within his capacity.

...I am of the opinion that he has a capacity for full-time employment in the suitable employment options identified.

...In my original report I made comments about this man's work capacity in my answers to questions 11, 12, 14 and 15. Now that nearly three months has passed since my original examination the opinions expressed on 18 February 2015 may have altered and a further examination may allow further consideration of the VAC assessment.

Relying on the NES report and the reports of Professor Love, Allianz, by a letter dated 26 June 2015, terminated Mr Brister's entitlement to weekly payments as at 17 October 2015 on the basis that weekly payments had been paid or payable for a total of 130 weeks and that Mr Brister had a current work capacity, or alternatively he had no current work capacity but that was not likely to continue indefinitely. Allianz terminated Mr Brister's weekly payments without making arrangement for the suggested re-examination by Professor Love and despite the opinion as to capacity in Professor Love's addendum report being qualified. At no stage was an actual job with requirements and duties which Mr Brister could safely perform identified.

13 Pursuant to s 282 of the Act, the matter was referred to the Accident Compensation Conciliation Service for conciliation. On about 7 October 2015, the conciliation officer referred certain questions to the Medical Panel for an opinion, pursuant to s 284 of the Act, with the referral document stating that the issues in dispute and reasons for referral included whether an alleged right shoulder condition was materially contributed to by the accepted left shoulder injury, and whether Mr Brister had a capacity for suitable employment and if not, whether that situation is likely to continue indefinitely.

14 The Panel gave a Certificate of Opinion and Reasons for Opinion dated 31 December 2015, recording its opinion in respect of the referred medical questions. The questions and opinion in response were as follows:

Question 1: What is the nature of the worker's medical condition (including any sequelae) relevant to the claimed injury?

Answer: In the Panel's opinion the worker has a persisting soft tissue injury of the left shoulder with referred pain to the right shoulder and an adjustment disorder with mixed anxiety and depressed mood relevant to the claimed injury.

Question 2: What is the extent to which any medical condition of the worker's right shoulder results from or is materially contributed to by any, and if so which , of the claimed injuries?

Answer: In the Panel's opinion the worker's [sic] is not suffering from any right shoulder condition (other than referred pain from the left shoulder soft tissue injury) which results from or is materially contributed to by the worker's claimed shoulder injury.

Question 3: Does the worker have no current work capacity? If so, is this situation likely to continue indefinitely?

Answer: In the Panel's opinion the worker has no current work capacity and this situation is likely to continue indefinitely.

15 The Panel conducted its examination of Mr Brister on 18 November 2015. The reasons of the Panel include:

The Panel therefore concluded that the worker has a persisting soft tissue injury of the left shoulder with referred pain to the right shoulder attributable to the claimed left shoulder injury of 11 April 2013.

...

The Panel concluded that the worker has an adjustment disorder with mixed anxiety and depressed mood relevant to the claimed injury.

The Panel concluded that the adjustment disorder with mixed anxiety and depressed mood would affect the worker's ability to work, particularly noting the impairments of energy levels and concentration, and persistent anxiety.

The Panel considered the worker's physical condition is such that the worker is not able to lift more than 2 kg, lift, push or pull repetitively or undertake work above shoulder height. The Panel noted the worker's pre-injury employment as an automotive stripper required forceful use of tools with upper limbs, repetitive lifting, pushing and pulling and use of the upper limbs above the shoulder height and in awkward environments. The Panel considered that the worker is unable to perform his pre-injury employment and therefore has an incapacity for work.

The Panel considered the Plaintiff's capacity for suitable employment.

The Panel considered the Plaintiff's:

• Age of 42 years which it did not consider to be a barrier to employment.
• Physical condition which impairs his ability to perform activities that require lifting, pushing, pulling and above shoulder height and severely restricts his employment options
• adjustment disorder with mixed anxiety and depressed mood which may affect the worker's capacity to work
• employment history has been limited to occupations which require good functional capacity of the upper limbs
• limited range of experience and skills which are of a transferrable nature
• place of residence which has limited reasonable employment prospects for his employment options

The Panel noted the [NES report] dated 3 March 2015 relevant to an assessment performed on 20 February 2015. The report identified potential suitable employment options for the worker including positions of stock clerk, warehouse administrator, receiving and dispatch clerk. The Panel considered that these positions would require the use of the hands above shoulder height, frequent lifting and carrying. The Panel also noted that the positions would require computer skills which the worker does not have. The report also identifies teacher's aide as a suitable employment option. The Panel considered that the worker does not have suitable experience or qualifications for this option. The Panel considered that the worker is not capable of safely performing the potential suitable employment options as described in the report prepared by AMS Consulting.

The Panel concluded that there is no work for which the worker is suited and could perform on a consistent and reliable basis, and that the worker therefore has no current work capacity. The Panel considered that this situation is unlikely to change in the foreseeable future and is therefore likely to continue indefinitely.

The Panel noted the report of Associate Professor Bruce Love Independent Medical Examiner dated 20 May 2015 in which he opined that the worker has capacity for full time employment in the suitable employment options identified. For the reasons described above, the Panel considered that the worker does not have the capacity for the suitable employment options described in the report prepared by AMS Consulting.

16 The grounds for review in the originating motion dated 29 February 2016 fall into two categories: jurisdictional error, and inadequacy of reasons. First, the plaintiff pleads that the Panel fell into jurisdictional error by failing to take into account mandatory considerations (Ground 1), with particulars as follows:

1. In determining its opinion upon referred question 3 as to whether the worker had a current work capacity, the Panel, as shown by its Reasons, failed to give proper consideration to the description of the functional requirements of the suitable employment options identified in the [NES report] dated 3 March 2015, viz, stock clerk, warehouse administrator, receiving and dispatch clerk, and, teacher's aide.
2. In determining its opinion upon referred question 3 as to whether the worker had a current work capacity, the Panel failed to take into account the capacity of the worker to participate in retraining and whether, after retraining, the worker would probably have a capacity for suitable employment such that his incapacity for suitable employment was not likely to continue indefinitely.

17 Second, the plaintiff pleads that the Medical Panel fell into jurisdictional error by making an error of law patent on the record, by making factual findings as to the functional requirements of the employment options identified in the NES report (Ground 2), with particulars as follows:

1. It was not open for the Panel to find that positions of stock clerk, warehouse administrator, and receiving and dispatch clerk (whose 'physical demands' were described by the [NES report] as either 'sedentary' or 'light') required the use of hands above the shoulder height, and frequent lifting and carrying.
2. It was not open for the Panel to find that the said positions would require computer skills that the worker does not have, particularly having regard to the specific assurances of the [NES report] in relation to each relevant employment option that the worker's '...computer skills are sufficient for this role...'.

18 Third, the plaintiff pleads that in determining its response to referred question 3, the Medical Panel fell into jurisdictional error by misconstruing its jurisdiction and/or by asking itself the wrong question (Ground 3), with particulars as follows:

1. In determining its opinion upon referred question 3 as to whether the worker had a current work capacity, the Panel, as shown by its Reasons, failed to respond to the referred medical questions by only having regard to the suitable employment options considered in the [NES report].
2. The Panel, as shown by its Reasons, did not consider whether the worker was able to return to work in suitable employment generally (not merely to the said employment options), as it was bound to do.

19 Finally, the plaintiff pleads that the Medical Panel failed to give an adequate statement of reasons, sufficient to comply with s 313(2) of the Act (Ground 4). Particulars are as follows:

1. The Panel failed to explain the actual path of reasoning by which it arrived at its finding that positions of stock clerk, warehouse administrator, and receiving and dispatch clerk (whose 'physical demands' were described in the [NES report] as either 'sedentary' or 'light') required the use of hands above the shoulder height, and frequent lifting and carrying or why the worker's computer skills were not sufficient for these roles;
2. The Panel failed to explain whether, and if so why, the position of inquiry/customer service clerk/information desk clerk did not constitute suitable employment for the worker, and in particular:
   1. if its finding that "the positions" would require computer skills which the worker does not have was intended to apply to the inquiry clerk position, it failed to explain that this was so, or why the worker did not have sufficient computer skills for the enquiry clerk role, in particular having regard to the rehabilitation consultant's assessment that the worker's computer skills were sufficient for the role given commonly utilised in house packages for which the worker could receive on the job training;
   2. it failed to explain why the worker was not capable of safely performing the position of inquiry clerk.

20 Rule 56.01 of the Supreme Court (General Civil Procedure) Rules 2015 empowers the Court to grant an order in the nature of certiorari (inter alia) by way of either judgment or order. Such relief is available upon one or more of a number of distinct established grounds, which include jurisdictional error and 'error of law on the face of the record'.[1] Although the court may take account of any relevant material placed before it in considering an application for certiorari in respect of the former case, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or tribunal in issue.[2] The court might consider material provided to the Panel in order to determine whether or not to infer that the reasoning in fact adopted by a medical panel is not adequately reflected in its written reasons.[3] The concept of 'jurisdictional error' on the part of such a body encompasses an error of law which results in the tribunal identifying the wrong issue, asking itself a wrong question, ignoring relevant material or relying on irrelevant material, or (at least in some circumstances) making an erroneous finding or reaching a mistaken conclusion, in a way that affects the tribunal's exercise of power or purported exercise of power.[4]

21 Although relief in the nature of certiorari may not be available in respect of an error of law on the face of the record if the error in question is immaterial or trivial, it has been held that a 'material, non-trivial error of law on the face of the record' will attract such relief subject to 'any applicable discretionary factors'.[5] As Mason CJ said in Australian Broadcasting Tribunal v Bond,[6]

A decision does not 'involve' an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.

And as Toohey and Gaudron JJ noted in the same case:

For an error of law to be involved in a decision something more than the mere occurrence of error is necessary. The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred.[7]

22 A Panel which decides a question of fact in the absence of evidence to support that finding makes an error of law.[8] What amounts to material that could support a factual finding is ultimately a question for judicial decision - that is, a question of law.[9] In S v Crimes Compensation Tribunal,[10] Phillips JA expressed the view that the so-called 'no evidence' rule was referable to:

the recognition of an unstated premise ... that the tribunal will proceed only according to the evidence and not arbitrarily, according to some frolic of its own.

23 The nature of a medical panel's obligation to give reasons is described in Wingfoot on the following terms:

The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.[11]

An error of law on the face of the record can be constituted either by a statement of reasons meeting the standard referred to above, which discloses an error of law in the way that the Panel formed its opinion, or alternatively by a statement of reasons which fails to meet that standard (i.e. a statement of reasons in which the actual path of reasoning is not explained), in which case that failure itself will constitute an error of law on the face of the record, and will provide a basis for an order in the nature of certiorari which can remove the legal effect of the opinion.[12]

24 The plaintiff, in the summary of relevant legal principles contained within its submissions, makes reference to a number of cases in which the principles in Wingfoot have been considered and applied in the context of cases concerning the adequacy of reasons provided on a Medical Panel review.[13] They include Gruma Oceania Pty Ltd v Bakar,[14] considered at [31] below. In Gruma, the court affirmed that, given that a medical panel is an administrative tribunal whose members are not lawyers, its reasons are entitled to a 'beneficial construction', in that they should not be scrutinised 'overzealously' by 'seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.'[15]

Failure to take into account a relevant consideration

25 A 'relevant consideration', for the purposes of this ground of review, is one which the medical panel was bound to take into account in making the relevant decision.[16] Relevant and irrelevant considerations are identified by reference to the statute which empowers the decision-maker to act,[17] and in circumstances where no explicit provision is made in the Act for the considerations in question they are to be determined by implication from the subject-matter, scope, and purpose of the Act. If the factor which the decision-maker failed to take into account was so insignificant that the failure could not have materially affected the decision, the court will not be justified in setting aside the impugned decision and ordering that the discretion be re-exercised according to law.[18] The court must be careful, when deciding whether an inferior court or tribunal has failed to take into account relevant considerations, not to cross the line between judicial review and merits review, and 'misconstrue dubious findings of fact or questionable weight being given to particular evidence' as jurisdictional errors.[19]

26 It is established that the 'material' provided by the referring body or person to the Panel, including the documents relating to the medical question as provided pursuant to what is now s 304 of the Act, constitutes a consideration which the Panel is required to take into account.[20] However, as is made clear by Cavanough J in Vellios Electrical Contractors Pty Ltd v Barton,[21] this does not mean that every submission, much less every part of every submission provided to the Panel must be 'dealt with in the...statement of reasons in such a way as to show that the decision-maker has engaged in an 'active intellectual process' in relation to the submission or part'. That requirement applies only to mandatorily relevant matters, factors or considerations, which are to be determined by reference to the terms of the relevant statute,[22] not to whatever submission happens to be made to the decision-maker.

27 Although it is generally for the decision-maker to determine what weight ought to be given to a mandatory matter,[23] taking a relevant consideration into account calls for much more than 'mere advertence or lip service'.[24] The failure to expressly refer to a relevant consideration, or to give it any weight, can provide the basis for an inference that it was not taken into account.[25] Similarly, a bare reference to a document, or a mere assertion that a decision-maker has had regard to a matter, may not provide an adequate foundation upon which the conclude that the substance of the material referred to has been taken into account.[26]

28 Allianz determined to terminate Mr Brister's entitlement to weekly payments from 17 October 2015 pursuant to s 93C(1)(a) of the ACA, which provides:

(1) Subject to section 93CD, a worker's entitlement to compensation in the form of weekly payments under this Part ceases upon the expiry of the second entitlement period unless the worker-

(a) is assessed by the Authority or self-insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity;

29 The term 'no current work capacity' is defined in s 3 of the Act to mean:

[I]n 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;

30 The term 'suitable employment' is defined in s 3 the Act as follows:

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

(a) having regard to -

(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;

(ii) the nature of the worker's pre-injury employment;

(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; and

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

Relevant legal principles - suitable employment, assessment of capacity

31 In Gruma,[27] the Court (Neave, Santamaria and Kyrou JJA) remarked as follows:

The Act does not prescribe any reasoning process by which a medical panel may answer the question of whether a worker satisfied the definition of 'no current work capacity'...However, the Act does require that this question be answered by reference to whether the worker is able to return to work either in the worker's pre-injury employment or in 'suitable employment'. In considering suitable employment, the medical panel must apply the criteria set out in the definition of 'suitable employment', including the worker's medical condition and skills.[28]

The Court concluded that the Panel might answer the question as to 'no current work capacity' in a number of ways, provided that findings about work capacity were explored by reference to findings of the Panel about the worker's medical condition and skills.[29] When considering the adequacy of the Panel's reasons, regard must be had to the approach adopted by the Panel in answering the question in relation to work capacity.[30] In Gruma, the Court was critical of the Panel's approach in answering the question as to capacity not by reference to the worker's medical condition and skills, but by relying on sweeping generalisations based on knowledge, experience and expertise of the Panel which went beyond medical matters and which was unexplained.[31]

32 In written submissions, counsel for the first defendant placed reliance upon the decision of Beach J in Nicholls v Corlett,[32] in which his Honour summarised a number of relevant legal principles, including:

[T]he reasons of a medical panel are to be read in context, taking into account the background of the case, the material provided and the issues which have to be determined.[33]

33 In Richter v Driscoll,[34] Ashley and Kaye JJA, with whom Osborne JA agreed, said in relation to the definition of 'no current work capacity', that the definition required consideration of a worker's capacity to return to work in employment in a 'meaningful way', as a settled member of the workforce.[35] Accordingly, a worker's capacity to return to work in employment requires more than the physical capacity to perform tasks.[36] A medical panel assessing the capacity of a worker to return to work in employment will be required to 'consider matters travelling beyond bare medical expertise',[37] and to give some practical content to a job under consideration.[38]

34 The plaintiff, in its written submissions, addresses these two grounds together. It is convenient to adopt that approach, and to address them before dealing with Grounds 1 and 3.

35 The substance of the complaint covered by the two grounds is that the Panel's conclusion that Mr Brister had no current work capacity depended on its findings that the employment options of stock clerk, warehouse administrator, and receiving and dispatch clerk required:

(a) the use of hands above shoulder height, frequent lifting and carrying; and

(b) computer skills which Mr Brister did not have.

The plaintiff submits that these findings were not open on the evidence or, alternatively, that the Panel has failed to meet the test for adequacy of its reasons. Further, the plaintiff submits that the reasons do not deal with the positions of inquiry clerk and teachers' aide suggested in the NES report as suitable, and that this results either in the jurisdictional error of failing to take into account relevant considerations, or in an inadequacy of the Panel's reasons.

36 The submissions for the plaintiff were developed as follows. First, the NES report incorporates a detailed description of the duties and physical requirements of each of the suitable employment jobs identified. Second, the 'physical demands' of the positions were classified as 'sedentary' or 'light'. Third, there is nothing in the position descriptions in the NES report or in any other material before the Panel which provided any support for the Panel's conclusion that the positions of stock clerk, warehouse administrator and receiving and despatch clerk would require the use of the hands above shoulder height, frequent lifting and carrying. Rather, based on the NES report, those positions would appear to predominantly involve clerical tasks such as record keeping.

37 Fourth, the conclusion that the employment options of stock clerk, warehouse administrator and receiving and despatch clerk required the use of hands above shoulder height and frequent lifting and carrying was entirely unexplained. Fifth, the Panel's conclusion that those positions would require computer skills which Mr Brister did not have was at odds with the NES report, and was unexplained by any other material before the Panel or by the Panel's reasons. Finally, the reasons fail to explain whether, and if so why, the positions of inquiry/customer service clerk/information desk clerk and teachers' aide are not suitable employment.

38 It was submitted that the failures identified above constitute jurisdictional errors and are material in the sense that the Panel's decision might have been different but for the identified errors. It was further submitted that, given the inadequacy of the reasons, it was impossible to determine whether the Panel's opinion involved an error of law.

39 The first defendant submits that the argument for the plaintiff really amounts to an attack on the correctness of the Panel's conclusions, rather than the identification of reviewable error. Counsel first directed the Court's attention to the material before the Panel, and to the findings of the Panel following examination of Mr Brister, both of which led to the Panel's conclusion that Mr Brister's injuries severely restricted his capacity for employment. This was the basis for the ultimate conclusion of the Panel that there was no work for which Mr Brister was suited which he could perform on a consistent basis. This conclusion covered all forms of work. Second, the Panel considered that Mr Brister suffered from a range of physical restrictions, including the inability to lift weights of more than two kilograms, to push or pull repetitively, or to undertake work above shoulder height. Against the background of its findings as to Mr Brister's physical restrictions, the Panel was entitled to conclude that the job options identified in the NES report were not suitable. In respect of each job option, AMS cautioned that 'care would need to be taken [that Mr Brister] maintains manual handling restrictions when in this role'. Sedentary work was defined in the NES report as 'exerting up to 4.5 kilograms of force occasionally or negligible force frequently to lift, carry, push, pull or otherwise move objects, including the human body'. These requirements, it was submitted, were inconsistent with Mr Brister's restrictions.

40 Third, the NES report did not include a description of the activities required in an actual job. In those circumstances the plaintiff could not be heard to complain, having left the Panel to its own devices in this regard, that the Panel had reached its own conclusions as to job requirements. Fourth, a conclusion that the jobs identified involved activities beyond Mr Brister's capacity is not surprising given that even secretarial positions involve activities such as lifting things onto and off shelves, often above shoulder height, and lifting equipment and boxes, all of which is beyond Mr Brister's capacity.

41 Fifth, Mr Brister's restrictions go to his employability. The Panel looked at the totality of Mr Brister's circumstances and abilities and came to the conclusion '...that there is no work for which the worker is suited and could perform on a consistent and reliable basis, and...the worker therefore has no current work capacity.' It was submitted that in contrast, the case for the plaintiff lacked a degree of reality because it did not look at the whole of the position of Mr Brister, and his employability.

42 Sixth, if it was concluded, contrary to the submissions of the first defendant, that the manner in which the Panel dealt with the NES report did involve error, then that error was immaterial because the NES report does not consider issues of employability, takes no account of the psychological issues faced by Mr Brister, and is otherwise irrelevant to the conclusion expressed by the Panel in the penultimate paragraph of the reasons.

43 Seventh, there was no description of the computer skills required in any of the identified jobs, or of the packages or training which may be available to a new employee. Mr Brister's computer skills are basic. He does not currently have computer skills relevant to the suitable employment options identified in the NES report. Whether he will ever gain those skills depends on uncertain matters in the future. In the circumstances, the conclusion of the Panel that Mr Brister does not have the necessary computer skills to qualify for various types of positions is unremarkable.

44 Finally, counsel for the first defendant submitted that there was no inadequacy in the reasons of the Panel, arguing that there was no requirement that the Panel descend into further detail when considering Mr Brister's capacity for the job categories identified in the NES report.

45 There was no dispute that Mr Brister is not able to return to his pre-injury employment. The real issue to be considered by the Panel was Mr Brister's capacity to return to suitable employment as defined. That issue was considered by the Panel against the background of material available to it which provided, at most, meagre support for a conclusion that Mr Brister had a capacity for suitable employment.

46 In September 2014 the treating surgeon, Mr Pullen, was optimistic that Mr Brister would quickly recover sufficiently to allow a return to pre-injury duties. However, by March and May 2015 Mr Pullen noted increased left shoulder pain and persistent restriction of movement which he thought would continue, and a developing right shoulder problem which would require treatment. He considered the prognosis for Mr Brister's left shoulder to be poor. In his report dated 10 August 2015 the treating GP, Dr Govender, considered the prognosis for returning to work in either a full-time or part-time capacity to be poor. In his addendum report of 20 May 2015, Professor Love agreed with the recommendations made in the NES report that Mr Brister had capacity for the job options identified in the report, '... so long as the recommendations do not require repeated lifting, working above shoulder height or lifting objects of weight of more than 5 kg ...'. Professor Love then referred to parts of his earlier report in which he had expressed the opinion that Mr Brister had no current work capacity, and suggested that a further examination of Mr Brister '...may allow further consideration of the [NES report].'

47 I make the following comments in relation to the NES report.

(a) The report writer identified four employment options as suitable '... given [Mr Brister's] transferrable skills, and self-reporting of physical tolerances'. The writer then stated, '[n]o further services are recommended at this juncture given there is no support of work capacity via GP or [independent medical examiner] opinion'. The reference to 'no further services' is odd. The material does not establish that any occupational rehabilitation services had been provided to Mr Brister up to that point. It is clear that the purpose of Allianz obtaining the NES report was not to consider the provision of rehabilitation services to Mr Brister, but to gather material upon which to base a determination to terminate weekly payments. It is also odd that the writer proposed certain job positions as suitable when contemporaneous medical evidence was unequivocal that Mr Brister had no capacity.

(b) The report writer did not identify an actual job which was said to be suitable. Rather, the writer relied upon computer searches to make generic comments in relation to duties and physical demands of the employment options.

(c) The report writer qualified the opinion that each suitable employment option was within Mr Brister's capacity as follows:

Care would need to be taken he maintains manual handling restrictions when in this role.

There is further qualification in the reasons section of the report, where the writer records:

His self-reporting of his physical tolerances would indicate 'suitable employment' currently will need to be sedentary in nature where he avoids any significant manual handling, and has the ability to alternate posture on a regular basis.

Given these qualifications, it is difficult to understand how the conclusion was reached that the suitable employment options were within Mr Brister's capacity. The options 'warehouse administrator' and 'teachers' aide' are classified as 'light'. I infer that the physical requirements of a position classified as 'light' are more onerous than those of a position classified as 'sedentary'. This would appear to result in the options not being suitable. Sedentary work, as defined in the report, exceeds Mr Brister's capacity because it involves exerting up to 4.5 kg of force occasionally, frequently lifting, carrying, pushing and pulling, and sitting most of the time. These requirements appear to exceed Mr Brister's self-reported physical tolerances.

(d) There is nothing in the NES report to indicate that the writer gave any consideration to whether the suitable employment options might involve the requirement to work at or above shoulder height. Yet the nature of the positions and the job duties listed raised that distinct possibility.

(e) The conclusion that the identified employment positions were suitable was based entirely on the report writer's conclusion as to Mr Brister's capacity to undertake the generic duties described as constituting the job position, and did not consider Mr Brister's capacity to work in employment.

(f) Professor Love relied on the NES report when reaching his qualified conclusion in the addendum report of 20 May 2015 that Mr Brister had capacity for the jobs identified as suitable in the NES report. It is worth remembering that after Professor Love's examination on 18 February 2015, Mr Brister underwent a further procedure performed by Mr Pullen, and that at subsequent consultations Mr Pullen noted increased shoulder pain, persistent restriction of movement and the complication of developing right shoulder problems requiring treatment, as a consequence of which he expressed the opinion that Mr Brister had a poor prognosis. This evidence from Mr Pullen was not available to Professor Love or the NES report writer, but clearly undermines the opinions expressed by each of them.

48 It was against that background that the Panel assessed Mr Brister and gave its reasons for opinion. I make a number of comments in relation to those reasons and the findings of the Panel. First, the Panel concluded that Mr Brister was not able to lift more than two kilograms; to lift, push or pull repetitively; or to undertake work above shoulder height. There was not, nor could there be, any criticism of these findings by the Panel. Although there was no need for the Panel to reach conclusions consistent with the background material provided, these conclusions are consistent with the apparent deterioration in Mr Brister's condition observed by Mr Pullen in March and May of 2015. What is more relevant is that those restrictions render unsuitable even the sedentary job options identified in the NES report, which were generically defined to include exerting up to 4.5 kilograms of force occasionally and frequent lifting, carrying, pushing and pulling.

49 Second, the Panel concluded that Mr Brister was suffering from a psychological disorder with consequent '... impairments of energy levels and concentration, and persistent anxiety', which '... would affect the worker's ability to work.' The effect of the psychological condition suffered by Mr Brister was not taken into account by Professor Love or in the NES report.

50 Third, the Panel concluded that Mr Brister's physical condition '... severely restricts his employment options.' Fourth, the Panel found that Mr Brister's employment history was limited to occupations requiring good capacity of the upper limbs, and that Mr Brister had a limited range of experience and transferrable skills.

51 This path of reasoning led to the Panel's conclusion '... that there is no work for which the worker is suited and could perform on a consistent and reliable basis, and that the worker therefore has no current work capacity'. That conclusion was not based on sweeping generalisations but on the Panel's findings about Mr Brister's medical condition and skills. Plainly the Panel was suitably focused on the question of Mr Brister's ability to work in employment which, as was observed by the majority in Richter, carries with it the idea of return to work 'as a settled or established member of the wage earning work force'.[39] The path of reasoning of the Panel to this conclusion is clear, and discloses no error of law.

52 The criticisms of counsel for the plaintiff focused on four aspects of the paragraph of the Panel's reasons which dealt with the NES report. For a number of reasons, I conclude that the content of that paragraph does nothing to impugn the Panel's opinion in answer to question 3 or the Panel's reasons. First, the plaintiff criticised the conclusion of the Panel that the positions of stock clerk, warehouse administrator and receiving and dispatch clerk 'would require use of the hands above shoulder height, frequent lifting and carrying'. This conclusion must be understood in the context of the material before the Panel and the Panel's own conclusions as to the degree to which Mr Brister's function was limited by the medical condition. The Panel found that Mr Brister is not able to undertake work above shoulder height. That finding was not qualified. The finding renders unsuitable a position which requires any work above shoulder height. Whilst the NES report is silent on the point, it is likely that the positions of stock clerk, warehouse administrator and receiving and dispatch clerk would require performance of some duties above shoulder height. Stock must be stored, most often on shelving or racking. Stock is often delivered or processed for orders in boxes or packages stacked on pallets, in containers or on vehicles. The conclusion of the Panel that the positions of stock clerk, warehouse administrator and receiving and dispatch clerk would require work above shoulder height is consistent with the generic description of the position duties in the NES report, and with common sense. It is not the product of the sort of sweeping generalisation based on unexplained 'knowledge and experience of industry' which was the subject of criticism by the Court in Gruma.[40] Rather, it is an appropriate attempt by the Panel, left as it was to its own devices on the issue because the material provided to it was silent as to the requirement for above-shoulder work, to give some practical content to the position involved in order to test whether Mr Brister had capacity to perform the role.[41]

53 Second, the plaintiff criticises the conclusion of the Panel that the positions of stock clerk, warehouse manager, and receiving and dispatch clerk, would require computer skills which Mr Brister does not have. There was nothing in that conclusion that was inconsistent with the NES report. It is consistent with the description of position duties in the NES report that a significant portion of the work of a stock clerk, warehouse administrator or receiving and dispatch clerk will be performed on computers. Currently, Mr Brister's computer skills are limited to navigating the internet and basic emails. The writer of the NES report concludes that Mr Brister will be able to use 'in house [computer] packages' after 'on the job training'. Whether or not Mr Brister could, with training, learn the computer skills required in a particular job is uncertain. However, a finding that he did not currently possess the sort of computer skills which such positions require was unexceptional, and was a finding relevant to the issue the Panel was considering, that is, the capacity of Mr Brister to work in employment.

54 Third, the plaintiff is critical of the conclusion of the Panel that Mr Brister does not have suitable experience or qualifications for the position of 'teachers' aide'. In its reasons, the Panel records that while in England Mr Brister worked as a carer for people with severe physical and intellectual disabilities, and that he obtained qualifications in disability care which are not recognised in Australia. Mr Brister has not previously worked as a teachers' aide. He does not possess the qualification required to work in that position. The conclusion that Mr Brister does not have experience or qualifications for the position of teachers' aide was open to the Panel, and was relevant to the issue it was considering.

55 Fourth, the plaintiff criticises the failure of the Panel to consider the position of 'Inquiry/Customer Service Clerk/Information Desk Clerk'. As previously noted, this was not one of the positions included in the first page summary or 'reasons for recommendation' sections of the NES report. The Panel specifically stated in the final sentence of the third last paragraph of the reasons that it was dealing with the potential suitable employment options described in the NES report. There is no reason to doubt that the Panel considered all suitable employment positions in the NES report, including the position of inquiry clerk.

56 The reasons should be read as a whole against the background of the material provided and the issues that the Panel was required to address. When viewed in that way, the Panel's path of reasoning to the conclusion was Mr Brister was not able to return to work in employment is clear. The Panel concluded that the physical restrictions caused by the left shoulder condition and the referred pain into the right shoulder severely restricted Mr Brister's employment options, and that Mr Brister was suffering from a psychological condition which further affected his ability to work. The Panel took account of Mr Brister's skills and experience. It was on that basis that the panel concluded that there was 'no work for which [Mr Brister] was suited and could perform on a consistent and reliable basis'.

57 If I am wrong in my conclusion that there is no error of the type identified by the plaintiff in the paragraph of the reasons in which the NES report is discussed, I would nevertheless conclude that any such error is immaterial. The physical restrictions which the Panel found to exist meant that, on the description contained in the NES report, the employment options identified in the report were not suitable because the tasks described were beyond Mr Brister's capacity.

58 Counsel for the plaintiff submit that when considering question 3, the Panel failed to take into account:

(a) the duties associated with suitable employment options identified in the NES report, and the classification of those options as 'sedentary' and 'light';

(b) the inquiry clerk position identified in the NES report as a suitable employment option; and

(c) the teachers' aide position, and the capacity of Mr Brister to engage in training and qualify for this suitable employment option.

59 I disagree. The Panel found Mr Brister's medical condition to be more limiting than was assumed in the NES report in that Mr Brister was unable to lift more than 2 kilograms, to lift, push or pull repetitively (with no reference to weight loading), or to work above shoulder height, and that he suffered from a psychological condition which would further affect his capacity to work. The restrictions found by the Panel explained and justified the Panel's conclusion that Mr Brister was not capable of safely performing the suitable employment options. Given the Panel's findings as to Mr Brister's restrictions, the list of duties for each job option in the NES report, and the definition of sedentary work contained in the report, it is difficult to see how the Panel could have reached a different conclusion. The restrictions it found to exist incapacitated Mr Brister from even sedentary work as defined. The Panel clearly engaged with the material before it, including the NES report and the opinion of Professor Love. But the Panel made different findings as to the degree to which the medical condition restricted Mr Brister, and on that basis concluded that Mr Brister was not capable of safely performing the suitable employment options and that there was no work for which he was suited that he could perform on a consistent and reliable basis. In my view it was unnecessary for the Panel to go further and to respond in a more detailed fashion to each suitable employment option and to the generic duties identified in the NES report.

60 The position of inquiry clerk, whilst mentioned in the body of the NES report, was not identified on the front page of the report or in the reasons section of the report as a suitable employment option. I note that in the termination letter from Allianz to Mr Brister, dated 26 June 2015, 'inquiry clerk' is not included as one of the suitable employment options identified by Allianz. In any event, in my view that option was caught and sufficiently dealt with by the Panel in the final sentence of the paragraph of its reasons dealing with the NES report, and by the conclusion of the Panel in the penultimate paragraph of the report.

61 The position of teachers' aide required significant re-training. According to the NES report there was a need to obtain at least a vocational Certificate III. AMS recommended Allianz consider supporting Mr Brister completing a Certificate III in education support. There is no evidence the support was offered by Allianz. There was no material made available to the Panel by the plaintiff to describe the requirements or length of the course, and how Mr Brister would be able to complete the course. Whether Mr Brister could ever obtain the teachers' aide qualification is uncertain. As stated above, it was open to the Panel to conclude that Mr Brister did not have the experience or the qualifications for the position of teachers' aide. Given the findings of the Panel as to Mr Brister's physical restrictions, the requirements of that position were beyond him. In the circumstances it was unnecessary for the Panel to go further to consider whether Mr Brister might at some future time be able to the obtain the teachers' aide qualification.

62 For the reasons given above, I conclude that Ground 1 fails.

63 In support of Ground 3, counsel for the plaintiff submit that the Panel's reasons identified that in reaching its conclusion as to work capacity the Panel '... only had regard to the suitable employment options suggested in the vocational assessment and failed to consider whether the worker was able to return to work in suitable employment generally'.

64 I disagree. The penultimate paragraph of the Panel's reasons clearly demonstrates the conclusion of the Panel that there was no work for which Mr Brister had capacity. There is no reason to limit the general words used by the Panel only to the suitable employment options identified in the NES report. I conclude that Ground 3 fails.

65 For the reasons given, each ground upon which the plaintiff relies in seeking to review the opinion of the Panel fails. I propose to order that the originating motion and summons be dismissed. I will hear from the parties as to the form of orders and as to costs.

[1] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-6 (Brennan CJ, Deane, Toohey, Gaudron and McHugh JJ).

[3] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 ('Wingfoot'), 502 [57].

[4] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179; see also Kirk v Industrial Relations Commission (New South Wales) [2010] HCA 1; (2010) 239 CLR 531, 572.

[5] Wilson v County Court of Victoria [2006] VSC 322; (2006) 14 VR 461 ('Wilson'), 471 [43].

[6] [1990] HCA 33; (1990) 170 CLR 321, 353; see also Wilson [2006] VSC 322; (2006) 14 VR 461, 472 [47].

[7] Australian Broadcasting Tribunal v Bond (1990) 179 CLR 321, 384.

[8] Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, 418 [90] (Hayne, Heydon, Crennan, Kiefel JJ).

[10] [1998] 1 VR 83.

[11] [2013] HCA 43; (2013) 252 CLR 480, 501 [55].

[13] Other cases cited include Ryan v The Grange at Wodonga Pty Ltd [2014] VSC 135 (Kyrou J), Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, and Denham v Consolidated Herd Improvement Services Co-Op Ltd [2014] VSC 520 (T Forrest J).

[14] [2014] VSCA 252 ('Gruma').

[15] Ibid [29], citing Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259, 271-2.

[16] Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24, 39-41.

[19] Milwain v Sim [2009] VSC 75, [22] (Kyrou J).

[20] Moyston Court Fisheries v Malios [2007] VSC 518, [47] (J Forrest J); cited with approval in Treacy v Newlands [2008] VSC 395, [14] (Beach J).

[21] [2014] VSC 664; see also Haq v Dodgshun [2015] VSC 450, [42]-[44] (Dixon J).

[22] Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [79], citing Bat Advocacy NSW Inc v Minister for Environment Protection Heritage and the Arts [2011] FCAFC 59 (6 May 2011), [44].

[23] Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24, 40-1.

[24] Anderson v Director General of the Department of Environmental and Climate Change [2008] NSWCA 337; (2009) 163 LGERA 400, 421 [58].

[25] Bat Advocacy NSW Inc v Minister for Environment Protection Heritage and the Arts [2011] FCAFC 59 (6 May 2011), [44], [46]; Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675, 679-80 (Barwick CJ), 683-4 (Stephen J).

[26] LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; (2012) 203 FCR 166, 178 [52], 196 [31].

[27] [2014] VSCA 252.

[32] [2010] VSC 115.

[34] [2016] VSCA 142 ('Richter').

[35] Ibid [74]-[75] (citations omitted).

[39] [2016] VSCA 142, [75], citing Philmac Pty Ltd v Asti (1980) 26 SASR 213, 218 (King CJ).

[40] [2014] VSCA 252.

[41] See Richter [2016] VSCA 142, [94], [126].