Plaintiff v First Defendant

Supreme Court of Victoria|2017-02-17|Before: Keogh J

ADMINISTRATIVE LAW - Judicial review of an opinion of a medical panel - Jurisdictional error - Inadequacy of reasons - Where medical panel found that plaintiff fit for pre-injury duties working in a commercial laundry - Where the medical panel concluded that the work duties were a significant contributing factor to injury which occurred against the background of a constitutional condition - Where aggravation to which work duties materially contributed remained symptomatic - Ryan v The Grange at Wodonga Pty Ltd & Ors [2015] VSCA 17 applied.

1 In this proceeding the plaintiff applies for review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 of an opinion of a medical panel ('the Panel') that the plaintiff is not incapacitated for her pre-injury duties as a laundry worker by reason of suffering a work-related low back injury and a consequential psychological injury. By the amended originating motion filed at the hearing of 3 October 2016, the plaintiff applies for an order in the nature of certiorari quashing the opinion of the Panel comprised by the first to fifth defendants, together with an order in the nature of mandamus remitting the questions originally referred to the Panel by the Magistrates' Court to a medical panel to be determined in accordance with law.

2 The Panel did not appear at the trial of the proceeding, and will abide by the proceeding's outcome. The sixth defendant, Alsco Pty Ltd ('Alsco'), is the employer of the plaintiff, and the seventh defendant, QBE Workers Compensation (Vic) Ltd ('QBE'), is the employer's claim manager and an authorised agent of the Victorian WorkCover Authority (collectively, 'the defendants').

3 The plaintiff was born on 28 May 1962. She commenced employment with Alsco as a laundry worker in September 1988.

4 The plaintiff attended with her GP, Dr Rozario, on 28 October 2003 complaining of a history of pain in her right buttock of two months' duration. Dr Rozario recorded that for a time the plaintiff was unable to cope with her full duties at work but was able to perform lighter duties. According to a report from Dr Rozario dated 30 July 2004 the plaintiff had resumed her normal duties by July 2004, though with slightly increased pain and infrequent use of analgesics. The plaintiff made a claim for compensation pursuant to the Accident Compensation Act 1985 (Vic) by WorkCover Worker's Claim Form dated 27 November 2003. In that claim form the injury was described as 'upper back', though it is clear from Dr Rozario's report, certificates of capacity completed by Dr Rozario, and reports obtained by QBE from medico-legal specialist Dr Battlay, that the injury claimed was in fact to the low back. The plaintiff received compensation for medical and like expenses on that claim between 17 December 2003 and 17 April 2004.

5 The plaintiff continued performing her normal duties as a laundry worker until around mid-2014. At that time the plaintiff complained of worsening pain in her lower back and right leg, together with pain in her neck and left shoulder. The plaintiff made a second claim for compensation by Worker's Injury Claim Form dated 1 August 2014 with the injury described as 'constant shoulder (both) and lower back pain and neck and arms (both)'. The date of injury was recorded as 1 April 2014. A third claim form was lodged by the plaintiff on 10 September 2014, claiming injury described as 'low back with referred right leg pain' throughout the course of employment.

6 In early August 2014, as a consequence of the worsening of her low back pain and the development of the neck and shoulder pain, the plaintiff was placed on light duties for two hours daily. The plaintiff told the medical panel that by September 2014 that had increased to 20 hours of work per week, and that she maintained those hours on light duties until January 2015, when she ceased work due to an unrelated condition affecting her right kidney. The plaintiff has not since resumed employment.

7 There was limited acceptance of the first and second claims, and rejection of the third claim. Ultimately, all benefits were terminated by QBE. The termination of benefits on the first and second claims and the rejection of the third claim were the subject of a complaint issued by the plaintiff against Alsco in the Magistrates' Court at Melbourne on 11 November 2014, by which the plaintiff claimed entitlement to ongoing compensation by way of weekly payments and medical and like expenses. A notice of defence was filed by Alsco on 6 January 2015. By order dated 29 September 2015 the Magistrates' Court referred a series of questions to the Panel for opinion.

8 Seven questions were referred by the Magistrates' Court to the Panel for opinion. The referral was accompanied by a series of documents, including a statement of issues and agreed facts, submissions, medical reports from various treating and medico-legal doctors, and the clinical notes of Dr Rozario. On 18 November 2015, the Panel examined the plaintiff.

9 The Panel's certificate of opinion and reasons for opinion ('Reasons') are both dated 16 December 2015. The first five questions referred to the Panel, and the Panel's answers, are relevant to this proceeding. They are as follows:

Question 1. What is the nature of the Plaintiff's current medical condition, if any, relevant to any injury to her-

(i) neck;

(ii) thoracic spine;

(iii) left and right shoulder;

(iv) left and right arm;

(v) lumbar spine with referred pain into the right leg;

(vi) anxiety and depression

("the said injuries")?

Answer: (i) symptomatic cervical spondylosis with referred pain but no cervical radiculopathy or myelopathy

(ii) no intrinsic medical condition;

(iii) no intrinsic medical condition

(iv) no intrinsic medical condition;

(v) mild low back dysfunction due to aggravation of lumbar spondylosis with referred pain but no lumbosacral radiculopathy;

(vi) a mild Adjustment Disorder with Depressed Mood

Question 2. What is the extent to which any medical condition of the Plaintiff:

a. results from, or is materially contributed to by;

b. resulted from, or was materially contributed to by, the said injuries?

Answer: The Panel is of the opinion that the Plaintiff's symptomatic lumbar spondylosis with referred pain but no clinical radiculopathy, and a mild Adjustment Disorder with Depressed Mood, collectively resulted from were [sic] and are materially contributed to by the said 'lumbar spine with referred pain into the right leg' injury.

Question 3. Was the Plaintiff's employment with the Defendant in fact, or could it possibly have been, a significant contributing factor to the alleged injury to the Plaintiff's low back with referred right leg pain (claim form dated 10 September 2014) occurring in 2003 and throughout the course of that employment?

Answer: Yes.

Question 4. Is the Plaintiff incapacitated for her preinjury duties as a laundry worker?

Answer: No.

Question 5. If yes, to question 4, does such incapacity result from or is it materially contributed to by any and which of the said injuries?

Answer: Not applicable.

10 Section 313(4) of the Workplace Injury Rehabilitation and Compensation Act 2013 provides that the opinion of the medical panel on a question referred to it must be adopted by a court as final and conclusive. Therefore, the effect of the Panel's opinion, particularly in response to Question 4, is that the plaintiff has no ongoing entitlement to weekly payments of compensation.

11 The plaintiff relies on four grounds as the basis for the relief sought in the amended originating motion. They are as follows:

The Medical Panel committed an error of law on the face of the record by giving reasons which were not adequate.
The Medical Panel fell into jurisdictional error in determining its opinion by failing to have regard to matters to which the Medical Panel was bound to have regard, namely whether a return by the Plaintiff to her pre-injury duties as a laundry worker would further aggravate her lumbar spondylosis with referred pain but no lumbosacral radiculopathy and Mild Adjustment Disorder with Depressed Mood.
The Medical Panel fell into jurisdictional error by making a critical finding of fact which was not open on the Panel's findings and/or on the evidence before the Panel.

PARTICULARS

If the Panel's finding that the Plaintiff could "safely" perform her pre-injury duties should be read as a finding that a resumption of pre-injury duties would not further aggravate the Plaintiff's lower back and psychological injuries (which the Plaintiff denies), that finding was not open on the Panel's own findings of fact and/or on the evidence before it.

The Medical Panel's opinion in respect of Questions 4 and 5 of the referred medical questions was irrational, illogical and unreasonable.

The Plaintiff confirmed that she commenced employment with the Defendant in about 1988, as a commercial laundry worker. She stated from the outset the job was "hard work" and outlined her preinjury job duties which included controlling four machines handling towels, linen, uniforms and other clothing items.

She said the hardest machine was "number two - tablecloths". The Panel was satisfied that the job involved a significant amount of bending, lifting, pushing and pulling. The Panel also appreciated the job in the laundry could be fast paced, repetitive and reasonably heavy, as well as being a hot working environment.

The Plaintiff said that in about 2003 she started to have pain in the lower back which she attributed to her job duties. The low back pain was of gradual onset. The Plaintiff explained that she was treated by her GP with pain medication but was unable to provide detail. She said she kept working despite the low back pain.

The Plaintiff recalled that she had some physiotherapy but said she did not have exercises in the water as she did not swim. The Plaintiff explained that she was working on lighter duties but normal hours (in the so-called "serviette" section) for a few months and with a reduced workload, her back improved such that she was able to transition to normal duties and continued to perform her normal job up to about mid-2014.

...

Although musculoskeletal assessment was challenging due to the Plaintiff's (drug-induced) Parkinsonism, the Panel concluded that the Plaintiff currently suffers from symptomatic cervical spondylosis with referred pain but no cervical radiculopathy or myelopathy, and from mild low back dysfunction due to an aggravation of lumbar spondylosis with referred pain but no lumbosacral radiculopathy.

...

The Panel concluded that the Plaintiff is currently suffering from a mild Adjustment Disorder with Depressed Mood.

...

The Panel took into account the general nature, duration and intensity of the Plaintiff's pre-injury job duties, and the nature of the constitutional lumbar spine condition which, in the Panel's opinion, was influenced by the Plaintiff's employment. The Panel concluded that general persistence of the Plaintiff's lower back symptoms reflects the persistent effects of employment on the Plaintiff's lumbar spine condition, although the condition is now relatively mild. The Panel therefore concluded that the Plaintiff's employment was in fact a significant contributing factor to the alleged injury to the Plaintiff's low back with referred right leg pain (claim form dated 10 September 2014) occurring in 2003 and throughout the course of employment.

As noted above the Panel considered the Plaintiff's lower back was affected by her pre-injury duties. The Panel noted history of onset and persistence of pain despite conservative treatment. The Panel also noted the subsequent development of a psychological condition as a result of persisting pain and dysfunction from her physical injury. The Panel considered that the Plaintiff's lower back and subsequent psychological condition were affected by her employment and those effects persist and therefore concluded the Plaintiff's low back dysfunction due to an aggravation of lumbar spondylosis with referred pain but no lumbosacral radiculopathy and the associated mild Adjustment Disorder with Depressed Mood, resulted from, were and still are materially contributed to by the said 'lumbar spine with referred pain into the right leg' injury.

The Panel considered its own clinical history and examination findings and relevant medical information contained in the referral, including the surveillance material and concluded that, while the Plaintiff's current lower back condition has persisted and has not resolved since the incident of injury, her back condition currently produced relatively little physical dysfunction compared to the dysfunction attributable to the bradykinesia and stiffness due to the psychotropic drug-induced Parkinsonism.

The Panel took note of the description of the pre-injury duties outlined in the Plaintiff submission, the Plaintiff's remarks about her pre-injury job, the nature and severity of her low back condition (which is considered mild) and contribution of the work related psychiatric condition, which is also considered mild. The Panel concluded that the Plaintiff is currently capable of fully and safely performing all of her pre-injury duties and could return to her pre-injury employment as a laundry process line worker. The Panel therefore concluded the Plaintiff is not incapacitated for her pre-injury duties as a laundry worker.

13 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 a number of grounds, including jurisdictional error and 'error of law on the face of the record'.[1] The plaintiff in this case also seeks relief on the basis of irrationality, illogicality and/or unreasonableness, the existence and content of which proposed ground of review remains uncertain.[2]

Grounds 2 and 1 - Jurisdictional error (failure to have regard to relevant considerations) and inadequacy of reasons

14 The plaintiff placed primary reliance on Ground 2, and in the alternative on Ground 1. It is convenient to deal with these grounds together and in that order.

15 An administrative decision-maker has committed a jurisdictional error if it fails to take into account a matter that it is bound to take into account in making the relevant decision, in circumstances where that failure materially affected the decision itself.[3] If the factor in question was so insignificant that the failure to consider it could not have materially affected the decision, then the court will not be justified in setting aside the impugned decision and ordering that the discretion be re-exercised in accordance with the law.[4] Particular care must be taken, in determining whether an administrative decision-maker has failed to take a relevant consideration into account, to avoid crossing the line between judicial review and merits review and to 'misconstrue dubious findings of fact or questionable weight being given to particular evidence' as jurisdictional errors.[5] Taking a relevant consideration into account calls for much more than bare advertence or lip service,[6] and a mere assertion that a decision-maker has had regard to a matter may not provide an adequate foundation upon which to conclude that the substance of the material referred to has been taken into account.[7]

16 In Ryan,[8] the Court of Appeal considered a situation in which it was submitted by the plaintiff that a medical panel had failed to take into account a relevant consideration in finding that the appellant was capable of returning to her pre-injury duties, in circumstances in which the panel concluded that those very duties were the cause of a persisting aggravation of a pre-existing condition. In Ryan, the matters which the medical panel said it took into account in reaching its decision included the following:

The Panel considered that the nature and extent of the worker's current physical medical condition of an aggravation of pre-existing rotator cuff degenerative changes of the right and left shoulder is mild, and the Panel also considered that notwithstanding the worker's reported symptoms of pain, she is capable of performing all aspects of her pre-injury employment for 19 hours per week, and also for any such additional further hours as she may wish to undertake.

The Panel therefore concluded that the worker is capable of performing her pre-injury duties.[9]

17 Neave JA, with whom Santamaria JA and Ginnane AJA agreed, stated as follows:

In my view the appellant's answers to the Panel and the reports...of the practitioners raised the issue whether the appellant's return to her pre-injury duties would further aggravate her pre-existing shoulder condition. It is not for this Court to decide whether such an aggravation was likely or probable. However, I accept the appellant's submission that if, after considering the matter, the Panel concluded that a return to duties would aggravate the appellant's pre-existing injury, she should not have been regarded as capable of returning to her pre-injury duties...I consider that by failing to consider the question whether the appellant's work would aggravate her previous shoulder injury, the Panel failed to have regard to a relevant consideration.

...

[T]here is nothing in the Reasons which indicates that the Panel considered whether what they described as 'minor pain' would worsen if the appellant returned to work and performed the same duties which had initially aggravated her shoulder condition.[10]

...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 enable a court to see whether the opinion does or does not involve any error of law.[11]

The Court of Appeal, in Gruma Oceania Pty Ltd v Bakar,[12] 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 scrutinized 'overzealously' by 'seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed'.[13] In Richter v Driscoll,[14] Ashley and Kaye JJA expressed the view that there was 'considerable force to' submissions urging that the decision in Wingfoot had the effect of reinstating the extent of the obligation to give reasons that was stated in Masters v McCubbery,[15] that is:

A medical panel is not required to do more than provide sufficient reasons to enable it to be seen by the court and the parties that it has arrived at its decision in accordance with its statutory functions...They are required to do no more than to provide a succinct statement of why they came to the conclusions which they did sufficient to enable the parties and the court to see that they have addressed their mind to relevant matters and have not acted unreasonably.

19 A mere failure to refer to a mandatory relevant consideration will not necessarily mean that a medical panel failed to have regard to it. A panel is free to accord a matter little or no weight, as long as it can reasonably be inferred that the panel has, before doing so, engaged in an 'active intellectual process' of consideration.[16] As is made clear by Cavanough J in Vellios Electrical Contractors v Barton,[17] 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'. Rather, the requirement applies only to mandatorily relevant matters, factors or considerations, which are to be determined by reference to the terms of the relevant statute, rather than by reference to the submissions made to the decision-maker.[18]

20 The plaintiff refers to the Panel's findings, set out above, that there was a causal link between the plaintiff's pre-injury duties, and her low back injury ('the low back injury') with its psychological sequelae; that the low back injury was an aggravation of lumbar spondylosis with referred pain; that even when placed on 'light duties' in late 2014, the plaintiff's symptoms persisted unabated; that the plaintiff's employment was a 'significant contributing factor' to the low back injury, it being implicit in that finding that the employment was 'of considerable amount or effect'[19] in causing the low back injury and psychological sequelae; and that neither injury was likely to have occurred if the employment had not taken place. The plaintiff submits therefore that although the Panel considered the compensable injury to be 'mild', the contribution of the plaintiff's employment to that injury was 'considerable'. In the plaintiff's submission, it necessarily flows from the findings of the Panel enumerated above that a return to the plaintiff's pre-injury duties would result in a resumption of the significant work-related aggravation of the plaintiff's low back injury, with the logical risk that that injury might deteriorate further and/or cause further consequential psychological injury. Further, it was submitted, this issue was squarely raised on the referral documents.

21 In the plaintiff's submission, the Panel's failure to have regard to the possibility that, if returned to laundry duties, she would experience further aggravation of her injuries constitutes an error of law which is of the same character as that identified in Ryan,[20] discussed at [16]-[17] above. In Ryan, the Panel's finding was overturned on the basis that a relevant consideration - namely, that a return to work was liable to further aggravate the plaintiff's compensable injury - was not taken into account.

22 The plaintiff submits that if, contrary to her argument in respect of Ground 2, the Panel's path of analysis did include consideration of the potential effect on the plaintiff's medical condition of a return to her pre-injury duties, including further aggravation and/or deterioration of her condition, then that step was not adequately disclosed in the Reasons. It is submitted that the mere inclusion of the word 'safely' in the Reasons of the Panel, in reference to the plaintiff's ability to return to her pre-injury work, is not adequate to enable the plaintiff to determine whether the opinion does or does not involve any error of law, and that there is nothing in the Panel's factual findings in respect of either the plaintiff's pre-injury duties or her medical condition from which the Panel's conclusion as to her capacity might be logically self-evident.

23 In reply, the defendants submit that the inclusion of the words 'and safely' in the Panel's conclusion indicates that the Panel did consider whether a return to work would cause further injury, and thought that it would not. By contrast, in Ryan the panel did not consider whether a return to work was 'safe'.[21] The defendants rely on the following statement of Kyrou J (as his Honour then was) in Ryan v The Grange at Wodonga Pty Ltd,[22] with which the Court of Appeal did not find error:[23]

A work-related injury which has not fully resolved and which continues to cause some pain does not necessarily prevent the worker from performing his or her pre-injury duties. These were matters for the Panel's professional medical assessment and opinion.[24]

The defendants submit that only Dr Rozario directly addressed the possibility of a recurrence of injury, opining in a report dated 30 July 2004 that 'it is likely that her discomfort will recur in the future'. The plaintiff did however return to her full duties after that time, and was able to continue performing those duties for the next ten years. Dr Rozario had previously noted, in a report dated 23 March 2004, that it was 'anticipated that [the plaintiff] will gradually resume her normal duties as her injury permits'. The defendants point also to the fact that the plaintiff had previously returned to her full employment duties after suffering from back pains, and had ceased work not long after the increased back symptoms in 2014 for unrelated reasons (i.e. due to problems relating to her kidneys).

24 The defendants submit that the Panel considered the nature of the plaintiff's compensable injuries, and found that they were mild; had regard to the duties which the plaintiff had previously performed; and then expressed its opinion that the plaintiff was capable of fully and safely performing those duties. That opinion, it was submitted, was formed based upon the history given by the plaintiff, the Panel's examination of the plaintiff, the documents provided to it, and the application of the Panel's own expertise. The defendants submit that the Reasons contain sufficient detail to enable the reviewing court to decide whether or not that opinion involved any error of law.

25 Whether return to her pre-injury duties would cause the plaintiff to suffer aggravation of her low back condition, and the implications this would have for her capacity for her pre-injury duties, was squarely raised as an issue by the chronology of events detailed in [3]-[7] above, the medical reports which formed part of the referral material, and by the Panel's own findings. In his report of 31 March 2015, orthopaedic surgeon Mr Shannon considered that it was consistent that the constitutional changes affecting the plaintiff's lower back could become symptomatic by work which '... involved prolonged standing and was fairly repetitive and although there was no major heavy lifting ...'. Mr Shannon went on to conclude:

I think that she has a capacity for suitable light work which is neither strenuous nor repetitive and does not require significant bending or lifting, but she would appear to have few alternative skills or qualifications.

In a report dated 30 July 2004, which was prepared following the initial episode of back pain suffered by the plaintiff, GP Dr Rozario said:

The heavy and repeated nature of the tasks performed and the degenerative changes in the spine together, contributed to her clinical picture. It is likely that her discomfort will recur in the future.

In a later report dated 2 October 2014, which followed the April 2014 low back aggravation, Dr Rozario considered that the plaintiff suffered a degenerative condition affecting both the cervical and the lumbar spine, to which her work was likely to have contributed, and that as a consequence the plaintiff was unlikely to return to her full pre-injury duties. Orthopaedic surgeon Dr Kossmann concluded that the lumbar spine degenerative disease was constitutional, but had been aggravated by the plaintiff's work, and that the plaintiff was unfit for her pre-injury duties. Rheumatologist Dr Stockman expressed a similar view. Vascular and general surgeon Mr Flanc noted that 'comparison of radiological reports of 2003 and 2014 suggest' that there 'may have been some progression of the degenerative process', that the plaintiff's work, which he understood involved repeated bending and heavy lifting over many years, was likely to have been a significant aggravating factor to this pre-existing condition, that the lower back condition was likely to become more severe as the degenerative process progressed, and that the plaintiff was unfit to return to her pre-injury duties.

26 The Panel's Reasons demonstrate the following findings and path of reasoning:

(a) the plaintiff suffers from a constitutional condition of her lumbar spine, namely, lumbar spondylosis;

(b) the plaintiff's work as a laundry hand involves significant bending, lifting, pushing and pulling, and could be fast paced, repetitive and reasonably heavy ('the work duties');

(c) the plaintiff's constitutional lumbar spondylosis was influenced by performance of the work duties, such that employment was a significant contributing factor to the low back and referred right leg pain injury ('the low back injury') which occurred in 2003 and throughout the course of the plaintiff's employment;

(d) the plaintiff is currently suffering mild low back dysfunction due to an aggravation of lumbar spondylosis with referred pain and a mild adjustment disorder with depressed mood which developed as a result of persisting pain from the physical low back injury;

(e) the low back dysfunction due to aggravation of lumbar spondylosis, and the adjustment disorder with depressed mood, both of which cause persisting symptoms, resulted from and were materially contributed to by the low back injury;

(f) the plaintiff can 'fully and safely' return to the work duties.

The Panel concluded that the constitutional low back condition was 'influenced' by the plaintiff's employment, such that employment was a significant contributing factor to the low back injury. The way in which the Panel considered the constitutional condition to have been so influenced was not further explained, but I infer in the context of the definition of 'injury' in the Workplace Injury Rehabilitation and Compensation Act 2013 that this was by way of 'recurrence, aggravation, acceleration, exacerbation or deterioration of' the constitutional condition. Further, the Panel concluded that the symptoms from which the plaintiff now suffers are due to aggravation of the lumbar spondylosis, which resulted from and was materially contributed to by the low back injury.

27 The following material and findings suggested a worsening of the low back injury in 2014 from which the plaintiff had not recovered:

(a) In early to mid-2014 the plaintiff suffered aggravation of the lumbar spondylosis, the symptoms of which persisted while the plaintiff was on light duties and since she ceased work in January 2015;

(b) The plaintiff's psychological condition developed in 2014 in response to persisting pain caused by the aggravation;

(c) With the exception of Mr Troy, the opinion of each doctor whose reports formed part of the referral material was that the low back condition incapacitated the plaintiff for her pre-injury work. Mr Troy's opinion is premised on an understanding that the plaintiff's work duties were significantly less onerous than was concluded by the Panel;

(d) Since August 2014, the plaintiff has not returned to her pre-injury employment.

28 The Panel's findings, either alone or in combination with the chronology of events and the medical material to which I have referred, mandated that the Panel consider, when answering Question 4, the impact on the low back injury, the current symptomatic aggravation, and the psychological injury of a return to the very duties which it had concluded were a significant contributing factor to the low back injury, and had materially contributed to the symptomatic aggravation and to the psychological injury. The first question is whether, against that background, and despite its conclusion that the plaintiff is currently capable of fully and safely performing all of her pre-injury duties, it should be inferred that the Panel failed to have regard to a mandatory issue. The Panel did conclude that the physical and psychological conditions from which the plaintiff suffered were mild. However, the Panel also concluded that the work duties as a laundry hand were physically demanding, and that those duties were a cause of the low back injury and the persistent aggravation. Against the background of the material before it and the findings of the Panel as to the nature of the work duties, the injury, and causation, it was necessary that there be some demonstration of the Panel having actively engaged with what was the central issue of the impact of a return to the physically onerous work duties upon the low back injury.

29 The court in Ryan was dealing with a very similar set of circumstances.[25] In Ryan, the medical panel concluded that the plaintiff, who worked as a kitchen hand, had suffered a work related aggravation of pre-existing bilateral rotator cuff degeneration. In relation to the requirement that the medical panel give meaningful consideration to the aggravation issue, Neave JA said that in that case:

However, [the Panel] was required to explain how it had taken account of the chronology of events and why it had not inferred from its own finding that the injury was an aggravation injury of a pre-existing condition that, if the appellant returned to the same work, it was likely that she would again experience an aggravation of her shoulder condition.[26]

In Ryan, the Panel concluded that the plaintiff was capable of performing all aspects of her pre-injury employment. The only potentially material difference in the opinion currently under consideration is the Panel's conclusion that the plaintiff can 'safely' perform her pre-injury duties. In my view, in the context described above, the Panel's conclusion that the plaintiff can fully and safely return to the work duties does not demonstrate that the Panel had regard to the issue of the impact that a return to work in pre-injury duties might have on the low back injury and the symptomatic aggravation, in the sense of having engaged in an 'active intellectual process' in respect of the issue.[27] I infer that the Panel did not have regard to this mandatory issue. I conclude that the plaintiff has made out Ground 2 of the amended originating motion.

30 If I am wrong in that conclusion, and it were thought that the Panel's finding that the plaintiff is currently capable of fully and safely performing all of her pre-injury duties represented consideration of the identified mandatory issue, then I would conclude that the Panel's Reasons fail to adequately disclose its path of reasoning. The Panel might have concluded that:

(a) A return to pre-injury duties would not cause further aggravation or deterioration of the low back injury or the current symptomatic aggravation, or worsening of the psychological injury; or

(b) Any aggravation or deterioration which a return to pre-injury duties might cause to the low back injury or the currently symptomatic aggravation of that injury, or to the consequent psychological condition, would not render the plaintiff incapable of performing her pre-injury duties.

31 It was necessary that the Panel make clear which conclusion was adopted and how it reached that conclusion. Given the history of injury and aggravation, conclusion (a) required that the Panel explain why it was that there was no risk of further aggravation. On the other hand, conclusion (b) required the Panel to explain how it reasoned that any aggravation caused by a return to pre-injury duties would not incapacitate the plaintiff for those physically demanding duties. The absence of the necessary explanation does not enable me to determine whether or not the Panel's opinion involves any error of law.

Ground 3 - Jurisdictional error (finding not open)

32 In S v Crimes Compensation Tribunal,[28] Phillips JA concluded that if a tribunal of fact makes a finding which is simply not open to it, that may give rise to an error of law. There will only be an error of law if the unsubstantiated finding was critical to the ultimate determination of the tribunal.[29] Where a tribunal is to act upon its own expertise, it will be more difficult to demonstrate that the finding was not open.[30] In the High Court case of Kostas v HIA Insurance Services Pty Ltd,[31] the majority concluded:

A tribunal that decides a question of fact when there is 'no evidence' in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law.[32]

Where there is even the slightest evidentiary basis for a tribunal's finding, review for jurisdictional error cannot succeed.[33]

33 The plaintiff submits that, based on the Panel's findings and the evidence before it, a conclusion that performance of pre-injury duties would not further aggravate her injuries was not open to the Panel. Even accepting that the Panel may apply its medical expertise to reach such a conclusion, there was still a need to base the conclusion on intermediate factual findings, in the absence of which the conclusion was not open.

34 The defendants note that the role of the expert medical panel is to express its own opinion on medical questions referred to it, and that it is not part of the Panel's role to adjudicate on the material before it. The defendants submit that, given the nature of the Panel's role, it is difficult to conceive of a circumstance in which it could be successfully argued that the opinion of the Panel was not open to it, and that in any event this is certainly not such a case.

35 I agree with the submissions of the defendant as to Ground 3. The Panel concluded that the plaintiff was capable of fully and safely performing the work duties. In order for the plaintiff to succeed on this ground she must establish that there was no evidence to support such a finding. In this case there was at least some evidentiary basis for the Panel's conclusion as to capacity. First, there was the opinion of Mr Troy. That opinion is difficult to understand and is subject to different interpretations, but does include:

She has a capacity for pre-injury duties; if she is lifting and bending correctly and that is the type of work she is now doing.

36 Second is the fact that despite the low back injury and the underlying condition, the plaintiff was able to perform her work duties in the 10 years to mid-2014. That history might support a conclusion that the plaintiff remains capable of returning to those work duties. Third, and most importantly, the Panel was entitled to rely on its own expertise. The Panel's expertise extends to the history it obtained from the plaintiff, the examination it conducted of the plaintiff and the assessment of referral materials. As such, the Panel's expertise provided a basis which might support its conclusion that the plaintiff was capable of fully and safely performing the work duties.

38 In Minister for Immigration and Citizenship v Li,[34] the High Court considered the circumstances in which an unreasonable exercise of an administrative discretion - in that case, the refusal of an adjournment - would constitute a jurisdictional error. Hayne, Kiefel and Bell JJ noted that:

A standard of reasonableness in the exercise of a discretionary power given by statute has been required by the law long before the first statement of 'Wednesbury unreasonableness' in Associated Provincial Picture Houses Ltd v Wednesbury Corporation.[35]

Their Honours stated that unreasonableness is a conclusion which 'may be applied to a decision which lacks an evident and intelligent justification'.[36] The decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh further supported the view that the lack of an intelligible justification for the conclusion reached may permit a court to set aside an administrative decision, at least in circumstances where the exercise of a discretionary power is concerned.[37]

39 In Ryan, Neave JA (with Santamaria JA and Ginnane AJA agreeing) observed that despite the decisions in Singh and Li,[38] there remains considerable uncertainty about the circumstances in which the irrationality/illogicality/unreasonableness grounds of review may apply.[39] Relevantly, her Honour noted that there remains a lack of clarity as to whether, even assuming that those grounds of review were available, the decision itself must demonstrate irrationality, illogicality or unreasonableness, or whether it was sufficient to show that the reasoning by which it was reached demonstrated those flaws.[40] Uncertainty also exists as to the relationship between those principles and the concept of Wednesbury unreasonableness.[41]

40 The Court in Ryan approved the finding of the learned trial judge, Kyrou J, that even if 'unreasonableness' could stand alone as a ground of review, it was not made out in that case.[42] His Honour had observed that:

In order for the plaintiff to succeed on the irrationality ground, she must satisfy me that no rational or logical decision-maker could have concluded, as the Medical Panel did, that the plaintiff is capable of performing her pre-injury duties. She will be able to do so if she can demonstrate that the Panel's conclusion was based on reasoning that was not open to it or that the evidence before the Panel mandated a different conclusion.[43]

41 The plaintiff relies on the unreasonableness ground in the alternative, submitting that the Panel's conclusion that she was able to return to her pre-injury duties was 'irrational, arbitrary and legally unreasonable'. This is so, it is argued, because the plaintiff had not engaged in her pre-injury duties since mid-2014, with her return to full-time work on lighter work in July of that year having been unsuccessful. The factual situation in Ryan is distinguished,[44] it is submitted, on the basis that there was no medical evidence or other evidence before the Panel consistent with the conclusion that the plaintiff had the capacity to return to her pre-injury duties. The plaintiff refers to the Panel's findings that the plaintiff's symptoms did not improve when she was performing lighter duties, and that she continued to suffer from constant, diffuse lumbosacral pain, which increased as a result of coughing, sneezing, straining and prolonged standing. The plaintiff submits that on the basis of the Panel's findings and the material before it, it was not rationally or reasonably open to the Panel to conclude that a resumption of normal duties would not further aggravate her injuries.

42 The defendants dispute that unreasonableness is an independent basis upon which a decision of a medical panel may be quashed, further contending that this Court should not find the Panel's decision to have been unreasonable in any event. It is submitted that a finding of unreasonableness would, in effect, require the Court to sit in 'medical judgment on medical experts' and, further, that the opinion of Mr Troy that the plaintiff 'has the capacity for pre-injury duties' (having earlier set out what those involved) represents a basis upon which the Panel's decision could have been made.

43 I will proceed, as Kyrou J did at first instance in Ryan, by assuming that the decision of the High Court in Minister for Immigration and Citizenship v SZMDS 'stands for the proposition that Australian law recognises irrationality as a separate ground for administrative review'.[45] There were a number of paths of reasoning available to the Panel to the conclusion that the plaintiff was capable of safely returning to her pre-injury duties, notwithstanding that she continued to suffer some mild persistent symptoms associated with aggravation of her low back injury. The Panel had available the evidence to which I have referred in paragraphs [35] and [36] above, which it might properly have concluded supported the conclusion it reached. It was not inevitable that the Panel would conclude that because the plaintiff continued to suffer symptoms causally related to the low back injury and to the aggravation that the plaintiff was incapable of performing her pre-injury duties. Therefore Ground 4 fails.

44 I have concluded that the plaintiff has established jurisdictional error by the Panel, and on that basis has made out Ground 2 of the amended originating motion. I will hear from the parties as to the course which should now be adopted in relation to the matter, and as to the question of costs.

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

[2] See Ryan v The Grange at Wodonga Pty Ltd & Ors [2015] VSCA 17 ('Ryan'), [92]-[98].

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

[5] Milwain v Sim [2009] VSC 75, [22] (Kyrou J); see also Ryan [2015] VSCA 17, [61] (Neave JA, with Santamaria JA and Ginnane AJA agreeing).

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

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

[11] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 ('Wingfoot'), 501 [55].

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

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

[17] [2014] VSC 664, [79]; see also Haq v Dodgshun [2015] VSC 450, [42]-[44] (Dixon J).

[18] Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [79].

[19] Citing Popopvski v Ericsson Australia Pty Ltd [1998] VSC 61, [61].

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

[33] SZNKV v Minister for Immigration and Citizenship [2010] FCA 56, [37] (Kenny J).

[35] Li [2013] HCA 18; (2013) 249 CLR 332, 362-3 [64] (citation omitted).

[39] Ryan [2015] VSCA 17, [82]-[91].

[42] Ibid [100], citing Ryan v The Grange at Wodonga Pty Ltd [2014] VSC 135, [135]-[137] (Kyrou J).

[43] Ryan v The Grange at Wodonga Pty Ltd [2014] VSC 135, [150] (Kyrou J).

[45] Ryan v The Grange At Wodonga Pty Ltd [2014] VSC 135, [149]; citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Supreme Court (General Civil Procedure) Rules 2015

Compensation Act 1985

Workplace Injury Rehabilitation and Compensation Act 2013

(2009) 163 LGERA 400

At a glance

Court

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Judgment (117 paragraphs)

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Legislation Cited (3)

Cases Cited (11)