Plaintiff v First Defendant

2 Mr Tasiopoulos made a claim for compensation under the Workplace Injury, Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act) for the injuries to his right leg, ankle and foot. This claim was accepted by Total Transport's claims agent, which rejected subsequent claims by Mr Tasiopoulos for compensation for injuries to his lower back and right shoulder. The claims agent terminated Mr Tasiopoulos' weekly payments from 20 May 2016, and stopped paying his medical and like expenses from 3 June 2016, on the grounds that his compensable injury had resolved, and that he no longer had any, or any work-related, incapacity for work.

3 In May 2017, Mr Tasiopoulos commenced a proceeding in the Magistrates' Court, claiming weekly payments of compensation from 20 May 2016 and payment of medical and like expenses from 3 June 2016. In his statement of claim, he alleges that he is incapacitated for work, that his incapacity continues to be materially contributed to by an injury arising out of or in the course of his employment, and that he continues to suffer from injuries as a result of the fall. The injuries claimed are injuries to his right leg, ankle and foot, his lower back and his right shoulder, and consequential psychological injury, consequential chronic pain syndrome/disorder and consequential weight gain.

4 Total Transport denies liability on a number of grounds. It maintains that the claimed lower back and right shoulder injuries did not arise out of, and were not significantly contributed to by, the employment. It also claims that Mr Tasiopoulos is not incapacitated, or alternatively that any capacity for work does not result from, and is not materially contributed to by a compensable injury.

5 On 10 August 2017, at the request of Total Transport, the Magistrates' Court referred a number of medical questions to a Medical Panel,[1] pursuant to s 274 of the WIRC Act. The Panel provided its opinion in response to that referral, together with written reasons for its opinion, on 19 October 2017. In summary, the Panel found that Mr Tasiopoulos had suffered soft tissue injuries to his right leg, ankle and foot, his lower back and his right shoulder, that these injuries were work-related, but had now resolved. The Panel also found that Mr Tasiopoulos had a work-related incapacity for his pre-injury employment from 20 May 2016 to 18 September 2017.[2] The Panel's opinion that Mr Tasiopoulos had an incapacity is final and conclusive, and the Magistrates' Court is bound to adopt and apply that opinion in determining Mr Tasiopoulos' claim for compensation.[3]

6 In this judicial review proceeding, Total Transport seeks an order quashing the Panel's opinion that Mr Tasiopoulos had a work-related incapacity for his pre-injury employment. It contends that this opinion is incompatible with the Panel's conclusion that Mr Tasiopoulos' physical injuries had resolved, and involved jurisdictional error in several respects.

7 For the reasons that follow, the proceeding must be dismissed. The Panel did not fall into jurisdictional error in concluding that Mr Tasiopoulos was unable to return to his pre-injury employment, and gave adequate reasons for its opinion.

8 Seven medical questions were referred to the Panel for its opinion. The questions were interconnected, and covered all of the injuries that Mr Tasiopoulos claims to have suffered as a result of the fall on 11 December 2015. It is worth setting out the questions and the Panel's answers to them given in its certificate of opinion, in full:

Question 1: What is the nature of the Plaintiff's[4] medical condition(s), including any sequelae, relevant to the injuries alleged at paragraph 5 of the Statement of Claim, namely:

(a) Accepted right leg including right ankle and right foot injury;

(b) Alleged right shoulder injury;

(c) Alleged lower back injury;

(d) Alleged consequential psychological injuries including depression and anxiety;

(e) Alleged consequential chronic pain syndrome/disorder; and

(f) Alleged consequential weight gain as a result of inactivity?

('the injuries').

Answer: The Panel is of the opinion that the Plaintiff is suffering from:

(a) No intrinsic medical condition of the right ankle and foot

(b) No intrinsic medical condition of the right shoulder.

(d) A chronic adjustment disorder with depressed mood.

The Panel is of the opinion that the Plaintiff has

(c) Pre-existing constitutional lumbar spondylosis.

The Panel is also of the opinion that the Plaintiff has:

(e) no medical condition attributable to the alleged consequential chronic pain syndrome/disorder; and

(f) no medical condition attributable to the alleged consequential weight gain as a result of inactivity.

Question 2: Was the incident at work on 11 December 2015 a significant contributing factor to the alleged;

(a) Lower back injury?

(b) Right shoulder injury?

Answer: The Panel is of the opinion the incident at work on 11 December 2015 was a significant contributing factor to the alleged soft tissue injury of the lower back and a soft tissue injury to the right shoulder, both of which have resolved.

The Panel is of the opinion that the incident at work on 11 December 2015 was not a significant contributing factor to the Plaintiff's pre-existing constitutional lumbar spondylosis.

Question 3: Do any, and if so which, of the medical conditions identified by the Panel in answer to question 1 result from, or are they materially contributed to by, the:

(a) Accepted right leg injury including right ankle and right foot injury;

(b) Alleged right shoulder injury; and/or

(c) Alleged lower back injury?

Answer: The Panel is of the opinion that the Plaintiff's soft tissue injury to the right leg including right ankle and right foot injury, soft tissue injury to the right shoulder and soft tissue injury to the lower back resulted from and was, but is no longer materially contributed to by the accepted right leg including right ankle and right foot injury, the alleged right shoulder injury and the alleged lower back injury.

The Panel is of the opinion that the Plaintiff's chronic adjustment disorder with depressed mood results from and is materially contributed to by the accepted right leg including right ankle and right foot injury, the alleged right shoulder injury and the alleged lower back injury.

The Panel is of the opinion that the Plaintiff's pre-existing constitutional lumbar spondylosis does not result from and is not materially contributed to by the alleged lower back injury.

Question 4: In any, and if so what, period from 20 May 2016 up to and including the date of the Medical Panel's examination, did the Plaintiff have an incapacity for his pre-injury employment as a Truck Jockey?

Answer: The Panel is of the opinion that in the period from 20 May 2016 up to and including the date of the Panel's examination, the Plaintiff had an incapacity for his pre-injury employment as a Truck Jockey.

Question 5: In respect of any period identified in answer to question 4, did the Plaintiff's incapacity for work result from, or was it materially contributed to by any, and if so, which of the injuries?

Answer: The Panel is of the opinion that in the period from 20 May 2016 up to and including the date of the Medical Panel's examination, the Plaintiff's incapacity for work resulted from and was materially contributed to by the accepted right leg including right ankle and right foot injury and the alleged right shoulder injury and the alleged lower back injury.

Question 6: Are any of the following medical services, namely:

(a) General Practitioner review;

(b) Panadol;

(c) Voltaren;

(d) Lexapro;

(e) Psychology services;

(f) Physiotherapy services;

(g) Chiropractic services;

an adequate and/or appropriate medical service for any (and if so, which) of the injuries?

Answer: The Panel is of the opinion that Panadol, Voltaren, Physiotherapy services and Chiropractic services are no longer adequate and/or appropriate medical services for the Plaintiff's alleged physical injuries.

The Panel is of the opinion that General Practitioner, Lexapro and psychology services are appropriate but not adequate for the Plaintiff's claimed psychiatric injury.

Question 7: If yes to any part of question 6, please specify the appropriate frequency for that service.

Answer: The Panel is of the opinion that General [P]ractitioner visits, Lexapro and psychological services are appropriate for the Plaintiff's psychiatric condition, as recommended by the treating doctors.

9 Total Transport contends that the Panel's answers to questions 4 and 5 involved jurisdictional error. It does not dispute the opinions given in answer to questions 1, 2, 3, 6 and 7.

10 In its written reasons, the Panel explained its conclusion that Mr Tasiopoulos was not currently suffering from any 'intrinsic medical condition' of the right ankle and foot or the right shoulder, and its opinion that the soft tissue injuries to his right leg, ankle and foot, right shoulder and lower back had all 'now resolved'. No complaint is made about that opinion, which was based on the Panel's examination of Mr Tasiopoulos on 18 September 2017. The Panel was not asked for, and did not give, an opinion as to exactly when these injuries resolved. All that can be drawn from its opinion and reasons is that the injuries resolved at some time before 18 September 2017.

11 In relation to capacity for work, the Panel noted:

... the nature of the Plaintiff's pre-injury duties as a truck jockey ... includ[ed] heavy lifting, bending twisting and carrying. The Panel considered that in the period from 20 May 2016 up to and including the date of the Panel's examination the Plaintiff would not have been able to perform these duties and would have most likely exacerbated or aggravated his soft tissue injury of the shoulder, lower back and/or right foot and ankle if he had attempted to return to his pre-injury employment in this time.

The Panel concluded that in the period from 20 May 2016 up to and including the date of the Panel's examination, the Plaintiff had an incapacity for his pre-injury employment as a Truck Jockey and, for the reasons stated above, the Plaintiff's incapacity for work resulted from and was materially contributed to by the accepted right leg including right ankle and right foot injury and the alleged right shoulder injury and the alleged lower back injury.

12 In other words, the Panel concluded that Mr Tasiopoulos was still incapacitated for his pre-injury employment at the time it examined him on 18 September 2017. By that time, the Panel found, the injuries giving rise to his incapacity had all resolved.

13 Total Transport argued that, as a matter of logic, an injury that has resolved cannot be incapacitating. In its grounds for review, it framed this argument in several different ways:

(a) First, it said that the Panel made a finding of fact that was not open to it. It submitted that, since the Panel found that Mr Tasiopoulos' injuries had all resolved by the time it examined him on 18 September 2017, it was not then open to the Panel to find that, as at that date, he had an incapacity for work that either resulted from, or was materially contributed to by, those injuries.

(b) Second, it contended that the Panel's finding of incapacity was grossly illogical or irrational.

(c) Third, it argued that the Panel misconstrued or misapplied the concepts of 'injury' and 'incapacity'.

Each of these matters was said to amount to a jurisdictional error, or an error of law patent on the record, which should be corrected by an order in the nature of certiorari.

14 The concepts of 'injury' and 'incapacity for work' are central to the WIRC Act. A worker who suffers 'an injury arising out of or in the course of any employment' is entitled to compensation in accordance with the WIRC Act.[5] Section 160 provides for weekly payments of compensation, in the following terms:

If a worker's incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation, the compensation must be in the form of weekly payments, subject to and in accordance with this Act.

15 Section 3 of the WIRC Act gives a broad definition of 'injury':

injury means any physical or mental injury and, without limiting the generality of that definition, includes -

(a) industrial deafness; and

(b) a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment); and

(c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;

16 By contrast, 'incapacity' is not comprehensively defined. Section 3 gives an inclusive definition, as follows:

incapacity includes -

(a) a disfigurement that is sufficient to affect the earning capacity of a worker or a worker's opportunities for employment; and

(b) in relation to industrial deafness, inability to engage in the worker's own or other suitable employment because of an immediate and substantial risk of increasing the industrial deafness to a level of material disability;

17 The related terms 'current work capacity' and 'no current work capacity' are defined in s 3. A worker with 'current work capacity' has 'a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment'. A worker has 'no current work capacity' if the worker has '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'.[6] Whether a worker has 'current work capacity' or 'no current work capacity' determines the amount of the weekly payments to which the worker is entitled, and the duration of the entitlement.[7]

18 In the scheme of the WIRC Act, the concepts of 'injury' and 'incapacity for work' are separate and distinct. Importantly, an 'injury' alone does not give rise to an entitlement to weekly payments. That entitlement only arises under s 160 if a worker has an 'incapacity for work' that results from, or is materially contributed to by, an 'injury'. An 'incapacity for work' is not confined simply to physical incapacity - it is concerned with the economic consequences of a work-related injury.[8]

Was the Panel's opinion on incapacity not open, illogical or irrational?

19 Total Transport submitted that it was simply not open to the Panel to find that Mr Tasiopoulos had an incapacity for work at a time when his soft tissue injuries had resolved. The essence of its argument was as follows:[9]

There must be persisting physiological changes that give rise to the risk of the worker suffering further problems should he return to work; for the soft tissue injuries to be "exacerbated" or "aggravated", they must be persisting. Logically, this is inescapable.

20 The Panel's use of the words 'exacerbated' and 'aggravated' was emphasised by Total Transport. It submitted that it was illogical or irrational to speak of exacerbating or aggravating an injury that was no longer present. It distinguished this case from others in which there was an underlying condition that was likely to flare up if the worker resumed pre-injury duties,[10] or where there was an identified risk of the injury recurring on a return to work.[11]

21 Total Transport contended that the Panel had fallen into jurisdictional error by forming an opinion that was not open on the evidence, and that was illogical and irrational. However, it pointed out that there remains uncertainty as to the extent to which illogicality, irrationality or legal unreasonableness are grounds for review of an opinion formed by a Medical Panel in relation to medical question.[12]

22 Illogicality and irrationality are subsets of the legal unreasonableness ground of review, where the focus is on the decision-maker's reasoning process rather than on the outcome.[13] Hesitation about the availability of illogicality, irrationality or unreasonableness as a ground of review of a Medical Panel opinion is not easy to reconcile with other authority to the effect that legal reasonableness is a condition of the lawful exercise of statutory power.[14] As a matter of principle, it is difficult to see why the standard of legal reasonableness should not apply to the formation of an opinion by a Medical Panel, as much as to the exercise of a discretion[15] or satisfaction as to the existence of a jurisdictional fact.[16] Indeed, the standard has been applied in decisions of this Court concerning Medical Panels.[17]

23 It is not necessary for me to resolve that question in this case, because I am not persuaded that the Panel's opinion that Mr Tasiopoulos had an incapacity for work was illogical or irrational.

24 The opinion of the Panel about incapacity was similar to that of another Medical Panel considered by the Court of Appeal in O'Brien Glass Industries Ltd v Pisani.[18] In that case, the Panel found that Ms Pisani's soft tissue injuries were 'fully resolved' by October 2013. It also concluded that she had an incapacity for work until March 2014 because of a propensity for re-injury. O'Brien Glass sought judicial review of that opinion, on similar grounds to those advanced by Total Transport in this case. At first instance, Daly AsJ dismissed the application for review, finding that there need not necessarily be a temporal nexus between an injury and a resulting incapacity, and that there is no overarching requirement that a work related injury be subsisting for there to be incapacity.[19]

25 The appeal by O'Brien Glass was dismissed, although the Court of Appeal found it unnecessary to determine whether there can be incapacity beyond the date that an injury has, without qualification, resolved.[20] In reaching its decision, the Court of Appeal accepted the submission of Ms Pisani that the Court 'should not be overly literal or strictly grammatical in understanding the reasons for opinion'.[21] While 'under a forensic gaze' the Panel's reasons 'might be better expressed', 'it would be wrong to construe its reasons like a statute or a contract'.[22] Reading the reasons as a whole and in context, and 'not dwelling too closely on isolated words', the Court of Appeal understood the Panel to have concluded that Ms Pisani's injuries had resolved by October 2013, subject to an underlying susceptibility to recurrence that continued until March 2014.[23]

26 The same approach must be taken to reading the Panel's reasons in this case. Jurisdictional error involves something more than 'looseness in the language of the tribunal' or 'unhappy phrasing of the tribunal's thoughts'.[24] The reasons of a non-legal, expert tribunal such as a Medical Panel should be given a beneficial construction,[25] and should not be construed 'minutely and finely with an eye keenly attuned to the perception of error'.[26]

27 Reading the Panel's reasons as a whole and in context, it is apparent that the Panel was of the view that, although Mr Tasiopoulos' injuries had resolved by the time the Panel saw him, he could not perform his pre-injury duties as a truck jockey because he was susceptible to re-injury if he did. It is true that the critical paragraph of the Panel's reasons[27] could have been better expressed, and its use of the words 'exacerbated' and 'aggravated' was liable to be misunderstood by a reader searching for error. Taking care not to dwell on those words in isolation, I understand the Panel to have reasoned that Mr Tasiopoulos had an incapacity for his pre-injury employment during the relevant period, because his injuries would most likely have recurred if he returned to work during that time.

28 This conclusion was open on the evidence before the Panel, and was not illogical or irrational. None of these grounds of review is made out.

Did the Panel misconstrue 'injury' and 'incapacity'?

29 Total Transport did not develop, in written submissions or in oral argument, its contention that the Panel had misconstrued or misapplied the concepts of 'injury' and 'incapacity'. I invited senior counsel for Total Transport to develop the argument that the Panel had misconstrued 'injury' and 'incapacity for work'. This did not prompt any submission based on the text, context or purpose of the WIRC Act. Rather, there was a repetition of the argument that, as a matter of logic, there can be no incapacity resulting from a past injury, where the incapacity is referable only to the possibility of future injury. I could not distinguish this submission from the argument put on the first two grounds, and so I will not deal with it separately.

30 It is sufficient to observe that Total Transport accepted that 'injury' and 'incapacity for work' are separate and distinct concepts.[28] It is plain from the Reasons that the Panel took care to distinguish between the two concepts. The Panel concluded that Mr Tasiopoulos had an ongoing incapacity for work, although his injuries had resolved. As I have already found, that conclusion was open to the Panel and was not illogical or irrational.

31 The construction of 'injury' and 'incapacity for work' in the WIRC Act received careful attention from Daly AsJ in Pisani.[29] Based on the relevant authorities, including Richter v Driscoll,[30] her Honour held that 'while there must be a causal nexus between an injury and incapacity for work, there need not necessarily be a temporal nexus between that injury and the resulting incapacity'.[31] Had it been necessary, I would have adopted this reasoning in relation to the construction of 'injury' and 'incapacity for work', and would have held that 'there is no overarching requirement that an employment related injury must be subsisting, or unresolved, for there to be incapacity, provided that the incapacity results from the injury'.[32] I note that Daly AsJ's reasoning was not criticised on appeal, although the Court of Appeal resolved the matter on a different basis.[33]

32 Section 313(2) of the WIRC Act requires a Medical Panel to provide a written statement of reasons for its opinion. Those reasons must explain the Panel's actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law.[34] A statement of reasons is not adequate if there is a 'real doubt' whether the Panel correctly performed its statutory functions.[35]

33 A Panel's reasons may be able to be understood combining what is expressly stated with inferences necessarily arising. However, ambiguity in a Panel's reasons may render those reasons inadequate, where its conclusions are open to more than one interpretation.[36] A reviewing court must not speculate about a Panel's path of reasoning in order to fill the gaps,[37] and should avoid drawing inferences that lack a 'proper evidential foundation disclosed in the reasons'.[38] At the same time, the court should not subject the Panel's reasons to 'over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed'.[39] A balance must be struck between requiring too much, or too little, of Medical Panels.[40]

34 Total Transport submitted that the Panel's Reasons are insufficient to understand how the Panel concluded that Mr Tasiopoulos' resolved physical injuries were capable of exacerbation or aggravation. It also submitted that the Reasons did not explain how the Panel concluded that Mr Tasiopoulos had an incapacity for work resulting from or materially contributed to by his resolved injuries.

35 It should be apparent from what I have already said that I consider the Panel's Reasons to be adequate.[41] They could have been better expressed, and the use of the words 'exacerbated' and 'aggravated' was unfortunate. However, it is clear enough that that Panel found that Mr Tasiopoulos could not return to his pre-injury duties because his injuries were likely to recur if he did. That is the obvious inference from what the Panel noted in its Reasons about the injuries Mr Tasiopoulos sustained in December 2015, the nature of his pre-injury duties as a truck jockey, and its conclusion that he was unable to perform those duties.

36 As none of the grounds of review has been made out, the proceeding must be dismissed. I will hear the parties on the question of costs.

[1] Medical Panels are constituted under s 537 of the WIRC Act as necessary for the purposes of the WIRC Act, the Accident Compensation Act 1985 (Vic) and Part VBA of the Wrongs Act 1958 (Vic). A Medical Panel is convened from a list of medical practitioners appointed by the Governor in Council.

[2] The date on which the Panel examined Mr Tasiopoulos.

[4] The Panel used 'Plaintiff' to refer to Mr Tasiopoulos, who is the plaintiff in the Magistrates' Court proceeding.

[6] The term 'suitable employment' is also defined in s 3.

[8] Ball v William Hunt & Sons Ltd [1912] AC 496; Richter v Driscoll (2016) 51 VR 95 (Richter v Driscoll), [88] (Ashley and Kaye JJA).

[9] Plaintiff's Outline of Submissions, [16].

[10] Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533.

[11] Richter v Driscoll; Re Wakep Pty Ltd (in liquidation) v Kattelus [1990] FCA 435, [4]; Caldipp Pty Ltd v Delov [2002] FCAFC 352, [85]; Calleja v Franet Pty Ltd [2000] VSC 339.

[12] Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [82]-[100].

[13] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS), [124]-[131] (Crennan and Bell JJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li), [72] (Hayne, Kiefel and Bell JJ), [105] (Gageler J); Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh), [43]-[48]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 (SZVFW), [82] (Nettle and Gordon JJ).

[14] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J); Li, [26]-[29] (French CJ), [63]-[67] (Hayne, Kiefel and Bell JJ), [88]-[90] (Gageler J); SVFW [51]-[53] (Gageler J), [80] (Nettle and Gordon JJ), [131]-[135] (Edelman J).

[17] E.g. Moore v Barton [2014] VSC 78, [67]-[70], [78]; City of Melbourne v Neppessen [2019] VSC 84, [64]-[68], [87], [148]-[154].

[18] [2019] VSCA 61 (Pisani (CA)).

[19] O'Brien Glass Industries Ltd v Pisani [2018] VSC 294 (Pisani), [54], [61]. See also her Honour's comprehensive analysis of the authorities at [52]-[61].

[20] Pisani (CA), [63] (Almond AJA, Kyrou and McLeish JJA agreeing).

[24] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 (Pozzolanic), 287, approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang), 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

[25] Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252 (Gruma Oceania), [29].

[26] Pozzolanic, 287; Wu Shan Liang, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ). See also Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322; (2012) 38 VR 45, [9], [20] and Gruma Oceania, [29].

[27] Reproduced at [11] above.

[28] This was reaffirmed by the Court of Appeal in Pisani (CA), [42]

[30] (2016) 51 VR 95.

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

[36] Pearce v Lloyd [2016] VSC 806, [62].

[37] Denham v Consolidated Herd Improvement Services Co-op Ltd [2014] VSC 520, [37].

[38] Tan v Kotzman [2016] VSC 482, [22].

[39] Wu Shan Liang, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). See further [26] above.

[40] Kipniak Pty Ltd v Rann [2017] VSC 651, [97].