Plaintiff v First Defendant

1 The plaintiff, Mr Serkan Yildirim commenced employment as a sash maker in 2013 with the first defendant, A&L Windows Pty Ltd. He ceased his pre-injury duties on 5 December 2016, after which he undertook light duties for about 11 months.

2 In his WorkCover claim made 19 December 2016, the plaintiff alleged psychiatric injury sustained through the course of his employment suffered due to the mental and physical nature of the job including a heavy workload, a pressurised work environment, heavy work demands and expectations and a negative work environment (the WorkCover claim).

3 The insurer accepted the WorkCover claim and the plaintiff received weekly payments pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the Act) between 5 December 2016 and 1 June 2019. The insurer terminated the plaintiff's entitlement to weekly payments effective from 1 June 2019 on the basis that he had a current work capacity or alternatively, he did not have a current work capacity but it was not likely to continue indefinitely (the Decision).

4 The plaintiff disputed the Decision and on or about 29 May 2019 he referred the Decision to the Accident Compensation Conciliation Service (ACCS) for conciliation. On 10 September 2019, the ACCS referred two medical questions to a Medical Panel pursuant to s 284 of the Act.

5 A Medical Panel, comprised of the second and third defendants, was convened to determine the two referred medical questions. They conducted an examination of the plaintiff on 27 November 2019 and on 4 December 2019 delivered their opinion on the referred medical questions and reasons for the opinion (the Opinion).

6 The questions asked of the Panel and the answers were as follows:

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

Answer: Mr Yildirim suffers from a chronic Adjustment Disorder with Depressed Mood relevant to the claimed injury.

Question 2. Does the worker have no current work capacity? If so, is this situation likely to continue indefinitely?

Answer: No

7 The plaintiff seeks an order quashing the Opinion and granting a referral to a differently constituted medical panel to be considered and determined in accordance with law.

Ground 1 - The Medical Panel asked itself the wrong question and/or has mistaken and not applied the correct definition of "no current work capacity" as defined in section 3 of the Act.

Ground 2 - If the Medical Panel did apply the correct meaning of "no current work capacity" in reaching its opinion on the evidence before the Medical Panel:

it was not open to conclude that the plaintiff did not have no current work capacity;

in reaching a conclusion, the Medical Panel did not take evidence of his disablement from finding and obtaining work or having a reduced capacity to do so.

Ground 3 - The Medical Panel failed to take into account a relevant consideration in respect of its conclusion that the plaintiff did not have no current work capacity in that it failed to consider his employability including his prior attempts to find employment.

Ground 4 - The Medical Panel failed to adequately disclose its path of reasoning for concluding that the plaintiff would be capable of undertaking his pre-injury role and identified alternative employment options.

9 The Respondent argued that the Panel did not misunderstand the concept of capacity for work as defined or in its application nor did it fail to have regard to matters that it was obliged to have regard to. It was argued that the question as to whether the plaintiff had no 'no current work capacity' under the legislative regime was entrusted to the Panel to decide and is not a decision open to a merits review. Consequently, it was argued that there was no basis to impugn the Panel's decision.

10 In the Panel's Opinion on the diagnosis and discussion including work capacity, it stated:

The Panel noted in the report dated 14 July 2019 by treating forensic psychiatrist Dr Leon Turnbull he diagnosed a Major Depressive Disorder "that has not shifted with psychotropics". The Panel also read and considered the earlier psychiatric reports by independent medical examiner ('IME') consultant psychiatrist A/Prof Shashjit Varma dated 24 January 2018 and 14 January 2019 who diagnosed Adjustment Disorder with mild depression secondary to workplace bullying and harassment which was in remission.

Based on its collective experience and examination of Mr Yildirim, the Panel diagnosed a chronic Adjustment Disorder with Depressed Mood relevant to the accepted psychiatric injury.

The Panel considers that due to the nature of the psychiatric injury and the duration of the associated symptoms, Mr Yildirim's psychiatric condition has substantially stabilised and is unlikely to remit despite medical treatment.

The Panel considered all aspects of the definition of "current work capacity", "no current work capacity" and "suitable employment" and in particular;

• His age of 47 years, which the Panel considers does not limit his employment prospects;
• His education in Turkey which the Panel considers does limit his employment prospects;
• His employment history in Australia, which has been predominantly heavy physical work and truck driving;
• His employment record which has been good;
• He holds a current driver's licence;
• He resides in Keysborough in close proximity to employment opportunities;
• He has adequate English language skills which does not limit his employment opportunities;
• He presents as emotionally flat and unmotivated with some symptoms of depression that does limit his ability to find employment;
• The absence of any current return to work or occupational rehabilitation plan.

The Panel also noted and considered the Vocational Assessment Report by Nabenet dated 14 November 2018, which identifies the suitable employment options of a sash maker/window assembler, truck driver, product assembler, packer and process worker. The Panel considered that as Mr Yildirim takes multiple sedating medications, truck driving was an inappropriate employment option.

The Panel considered that Mr Yildirim's current psychiatric condition of chronic Adjustment Disorder with Depressed Mood does not affect his psychological functional capacity and that he would be capable of undertaking his pre-injury role as a sash maker/window assembler and the identified alternative employment options of product assembler and packer and process worker. The Panel considered that Mr Yildirim is currently capable of attending a workplace and undertaking these employment options reliably and consistently on a full-time basis as a settled or established member of the wage earning workforce. The Panel however recommended that Mr Yildirim commenced the suitable employment options identified initially on a part-time basis (approximately 15 hours per week) and then to slowly increase his hours of work.

The Panel noted the opinions regarding work capacity from independent medical examiner psychiatrist A/Prof S Varma in his report dated 24 January 2018 and 14 January 2019 when he considered that Mr Yildirim had a current work capacity and capacity to do modified pre-injury duties and hours at his current workplace or even at an alternative workplace. The Panel also read and considered the reports by treating consulting psychiatrist Dr Leon Turnbull who on 7 August 2018 suggested a gradual return to work in another factory at the same workplace but who in his report dated 14 July 2019, said Mr Yildirim's capacity to return to work had been reduced by frustration he had experienced with the Work Cover process; Dr Turnbull thought him then not capable of performing any suitable employment. The Panel reached a different opinion with respect to Mister Yildirim's capacity for employment for the reasons provided above.

The Panel therefore concluded that Mister Yildirim does not have no current work capacity for the reasons stated above.

11 The Panel examined Mr Yildirim on 27 November 2019 and had before it various reports of Mr Yildirim's treating doctors, which included psychiatrist Dr Turnbull[1] and general practitioner Dr Loh[2] and an independent medical examiner, psychiatrist A/Prof Varma.[3] The Panel also had before it the vocational assessment report by Nabenet[4] which was based on an assessment made on 8 November 2018 (Assessment Report).

12 For the reasons that follow, the Court is satisfied that the Panel was in error.

13 Primarily, the Panel erred in its interpretation and application of the test of 'no current work capacity' (Ground 1). However, even if the Panel was correct in its interpretation and application of the test, the Panel failed to consider a pivotal relevant consideration, being the plaintiff's psychological capacity to seek work or his psychological ability to seek to enter an employment relationship (Ground 3), meaning its conclusion was not open to the Panel (Ground 2). Further, the explanation, or chain of reasoning which omitted consideration of this issue was deficient to justify an alternative conclusion (Ground 4).

14 The plaintiff alleged that the Panel asked itself the wrong question, and/or has mistaken and not applied the correct definition of 'no current work capacity' as defined in s 3 of the Act.

15 This ground raises the issue of what is the proper meaning of 'no current work capacity' under s 3 of the Act.

16 Section 3 of the Act provides the following relevant definitions:

No current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment;

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

(a) having regard to the following -

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

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

(iii) the worker's age, education, skills and work experience;

(iv) the worker's place of residence;

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

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

(b) regardless of whether -

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

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

and, for the purposes of Part 4, includes -

(c) employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and

(d) employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and

(e) suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education;

17 The Panel decided that the plaintiff did not have 'no current work capacity', because he was psychologically able to do four identified jobs and to attend a workplace for that purpose. The Panel concluded that the plaintiff:

...would be capable of undertaking his pre-injury role as a sash maker/window assembler and the identified alternative employment options of product assembler and packer and process worker. The Panel considered that Mr Yildirim is currently capable of attending a workplace and undertaking these employment options reliably and consistently on a full-time basis as a settled or established member of the wage earning workforce.[5]

18 The plaintiff submitted the relevant legal concept is a worker's capacity for work, not capacity to work, and this requires that the personal characteristics of the plaintiff caused by the injury suffered to be relevantly taken into account, and not merely the ability to perform the tasks of any particular employment. It was argued that the Panel made an error of law and did not apply the above meaning in reaching its Opinion.

19 The plaintiff submitted that the meaning of 'current work capacity' and 'incapacity for work' in the Act draw from the meaning given for the words 'incapacity for work' in workers' compensation statutes from earlier times. This meaning is the 'ability to undertake work in employment'.[6]

20 In Richter, the Court of Appeal considered the statutory construction of the terms 'no current work capacity', 'current work capacity' and 'suitable employment'. The central analysis of the Court was as follows.

First, as a matter of plain statutory construction, we consider that the definition of 'no current work capacity' requires that there be an injury-caused inability to return to work in employment - whether that be the worker's pre-injury employment or suitable employment. The definition does not end with the words 'return to work.' Rather, the conception is of return to work in employment. The focus is thus upon an injured worker's inability to engage in employment.

Second, we agree with the applicant's submission that the word "employment" carries with it the idea, as King CJ put it in Philmac, of return to work "as a settled or established member of the wage earning workforce". In Philmac, the legislation simply referred to return to work. Even so, King CJ in substance found within that concept an implication of return to work in employment (which is expressly stated in the definition now under consideration); and return to employment in what might be described as a meaningful way, so as to a obliterate a continuing need for weekly payments of compensation.

Third, we agree with the applicant's submission that return to work in employment, so understood, requires more than that a physical capacity to engage in a task or tasks. That is because there is more to an ability to work in employment - "ability" being converse of "inability" which appears in the definitions of "no current work capacity" and "current work capacity" - than the ability to perform a task that happens to be required in that employment. The definition of "suitable employment" which falls for consideration in the context of "no current work capacity", plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise, paragraphs (a)(ii),(iii) and (iv) would have no work to do.[7]

21 At [97] the concept of 'no current work capacity' focused upon 'an assessment of the inhibitions which exist upon the worker's ability to work in employment':

Neither of those ways of looking at the matter is at odds with the settled law that an employer does not guarantee the state of the labour market. Nor do they mean that inability to work in employment covers the situation in which - addressing the reality of what may occur - an employer will not take on a worker only because the latter has been off-work and in receipt of compensation payments. Rather, they focus upon an assessment of the inhibitions which exist upon the worker's ability to work in employment. 'Employment' is a relationship in which a prospective employee must have something - a capacity to work in employment - to sell. A prospective employer will not buy if the entirety of the circumstances personal to the worker, as outlined in these reasons, lead the employer to conclude that the worker has nothing to sell.[8]

These observations may be made. The definitions of "current work capacity" and "no current work capacity" were expressed in language almost identical with that in the repealed definitions of "total" and "partial" incapacity for work. So the definitions of "current work capacity" and "no current work capacity" trace from, and in our view may be taken to be informed by, the fact that physical capacity alone was never considered the be all and end all of determination of incapacity for work. In our view, the plain meaning of the present definition of "no current work capacity" and "suitable employment" is consistent with long-established jurisprudence respecting closely-related concepts. But, to be crystal clear, our opinion as to the meaning of the definitions is one based on reading their text.

About "suitable employment", this may be said. The term was used, in connection with calculating compensation for partial incapacity, from earliest times. A large jurisprudence developed. It is plain that suitability of work was never confined to the physical capacity to perform a task required by a particular job...[9]

23 Whilst disputing that the Panel made an error of law, the first defendant did not disagree that the Court of Appeal's decision in Richter made it clear that it is not simply a matter of the physical ability to perform duties or work but rather the combination of one's personal characteristics together with the physical limitations (or in this case the psychological limitations), which are relevant in whether or not a worker has 'no current work capacity' i.e. whether 'he has something of value to sell'[10] in the labour market.

24 The first defendant cautioned the Court against reliance on extracts from various cases that are not relevant to the assessment of 'no current work capacity'. That said, the first defendant referred to the passage in Richter where the majority reiterated that the concept of 'no current work capacity' focuses upon an 'assessment of the inhibitions which exist upon the worker's inability to work in employment' and that 'employment' is a relationship in which a prospective employee must have something - a capacity to work in employment - to sell and that an employer does not guarantee the state of the labour market.[11]

Did the Medical Panel misconstrue Richter v Driscoll****?

25 The plaintiff submitted that what follows from Richter,[12] Thompson v Armstrong & Royse Pty Ltd,[13] Cardiff Corporation v Hall[14] and Ball v William Hunt[15] is that a person does not have an ability to undertake work in employment if a mental disorder disables that person from seeking that employment (provided the disability to seek employment is causal from the workplace injury).

26 The plaintiff submitted that the Panel made an error of law in that it considered whether he had no current work capacity only in the context of him being able to do work, or to attend at a workplace, not in the context of being disabled from finding and obtaining work or employment, or in having a reduced capacity to do so.

27 It was suggested that what the Panel had impermissibly done was to consider whether the worker was able to do work or attend at a workplace.[16] This was a different assessment than one which considered whether the plaintiff had capacity to work in an employment relationship.

28 The first defendant argued that the Panel did not misconstrue Richter and characterised the position put by the plaintiff as saying that the Panel, in determining whether the plaintiff had no current work capacity had to, and did not take into account:

• whether the worker was precluded because of his persisting psychiatric condition from seeking work; or
• whether because of his persisting psychiatric condition it was unlikely that an employer would employ him.

29 The first defendant argued that the Opinion demonstrates that the Panel had regard to a variety of considerations, which ultimately led to its conclusion that the plaintiff did not have 'no current work capacity'. Those considerations included:

• the nature and extent of his injury;
• his capability to engage in employment on a reliable and consistent basis and as a settled or established member of the wage earning workforce; and
• the plaintiff's capacity to find employment and the current barriers thereto.

30 What appears from the portion of the Opinion set out above (at [10]) is that the Panel undertook the following analysis:

• the Panel referred to the respective diagnosis of the treating psychiatrist, Dr Turnbull and that of the independent medical examiner;
• the Panel noted that based on its collective experience and examination of the plaintiff, it diagnosed a chronic Adjustment Disorder with Depressed Mood relevant to the accepted psychiatric injury;
• the Panel considered due to the nature of the psychiatric injury and the duration of associated symptoms, the psychiatric condition had substantially stabilised and is unlikely to remit despite medical treatment;
• the Panel then stated that it 'considered all aspects of the definition of 'current work capacity,' 'no current work capacity' and 'suitable employment' and in particular: (without going to any part of those definitions or the jurisprudence which has explained the terms further and provided guidance) listed nine factors which reflect part of the definition of suitable employment set out in s 3 of the Act in (a)(i)-(vi); and
• the Panel noted that it had considered the Assessment Report, which identified suitable employment options and expressed the view that of those provided, truck driving was an inappropriate employment option.

31 There is no analysis of why the other employment options are suitable other than a conclusion that the plaintiff's current psychiatric condition does not affect his psychological functional capacity and that he would be capable of undertaking his pre-injury role as a sash maker/window assembler and the identified alternative employment options of product assembler and packer and process worker. There is no analysis of the Assessment Report in the context of other material before the Panel such as the observation that Mr Yildirim advised of no current job seeking activity due to his current symptoms. Equally, there is no analysis as to why there was a failure of Nabenet to find the plaintiff a suitable job after the 16 week Job Seeker Review Program, which the plaintiff had been engaged with at the time the Assessment Report was submitted, just prior to the Panel's assessment.

32 The Panel has followed the list of matters to which it was to have regard, as set out in the definition of 'suitable employment' in s 3 of the Act. The Panel has then recorded certain factual matters and expressed an opinion as to whether these are positive or negative factors. In particular, the Panel noted the plaintiff's education in Turkey limits his employment prospects as does his presentation as emotionally flat and unmotivated with some symptoms of depression.

33 The Panel notes the most recent report of the treating psychiatrist Dr Turnbull, dated 14 July 2019, which expressed the negative view of the plaintiff's capacity to return to work as he thought him not capable of performing any suitable employment. The Panel reached a different opinion in respect of the plaintiff's capacity for employment which is expressed as explained 'for the reasons provided above'.

34 The Panel does not expressly consider the plaintiff's capacity other than in the context of him being able to do work or to attend a workplace and not in the context of him being disabled from finding and obtaining work or employment or having a reduced capacity to do so. The Opinion appears to have taken no notice of the plaintiff's prior attempts to find employment, his lack of success in doing so and the psychological consequences flowing from that.

35 The analysis is focused on the definition of 'suitable employment', which is only part of the task. What the Panel is also required to assess, according to the authorities, is to determine and explain why the worker has, or has not 'no current work capacity', in the context of the whole person and his circumstances. This assessment requires the Panel to take into account the personal characteristics of the plaintiff caused by the injury suffered and not merely the ability to perform the tasks of any particular employment. The assessment requires consideration beyond those that are specifically identified in the definition of 'suitable employment' in s 3 of the Act.

36 As noted above at [29], the Panel had specific regard to the plaintiff's capacity to find employment and the current barriers thereto.

37 It did not however, make express reference to or consider the plaintiff's unsuccessful attempts to find work, nor his lack of motivation to do so based on his psychiatric condition.

38 The first defendant argued that the concept of 'no current work capacity' requires a total inability to return to work. In the Opinion, the Panel found the plaintiff's presentation and depressive symptoms 'limit his ability to find employment'. The Court was asked to infer by both the use of the word 'limit' and the subsequent finding that the plaintiff could undertake employment as a settled or established member of the workforce, that the Panel was specifically not making a finding that his ability to return to was destroyed.

39 Further, the first defendant argued that there was no basis for concluding that the plaintiff had some psychiatric barrier that precluded him from applying for employment. Although the first defendant deemed there to be no basis, consideration of this issue was not included in the Opinion. The Panel expressly noted the plaintiff's psychiatric status, again using the term 'limit' in respect of his ability to find employment. It was urged upon the Court that it should imply from the language read in the context of the Opinion, that the plaintiff's psychiatric state would not entirely preclude him from finding employment. It was submitted that a better reading of the Opinion is that it formed the view that any barriers the plaintiff might have faced were not insurmountable and were not such as to render him incapable of returning to work in pre-injury or suitable employment.

40 The first defendant also argued that Richter does not expressly identify a separate consideration of a worker's ability to look for work as part of the assessment of 'no current work capacity'. Whilst the Court in Richter reiterated the need for a worker to have a merchantable article, being a capacity to work in employment, the first defendant argued that none of the historical authorities cited in Richter or now relied upon by the plaintiff give consideration to the plaintiff's circumstance - where the worker retains such a merchantable article but by reason of the injury he is unable to offer that asset to the labour market. It was acknowledged by the first defendant that the plaintiff's injuries were psychiatric whereas in Richter the primary injury was physical in nature.

41 Whilst this is correct insofar as the words of the statute do not require that express consideration, the concession that Richter does provide authority for the proposition that the characteristics of the worker as a whole must be considered. The concession negates the first defendant's argument. As stated in Richter, 'the focus is thus upon an injured worker's inability to engage in employment'.[17]

42 The first defendant argued that it was important to bear in mind that the focus is on capacity to work in 'suitable employment' and that employment can be 'suitable employment' even if it is not available to that worker.[18] The state of the job market, which must include the extent to which a worker must compete with other workers to be selected to perform the employment, is not the concern if the worker has capacity to perform the employment under consideration. The Court was urged to be cautious in extending or adding any unnecessary gloss to the concept of 'no current work capacity' by reference to whether a worker would succeed in obtaining a job, that is in defeating other candidates for the position and that he or she could otherwise perform.[19]

43 In effect, the question is whether in determining the question of 'no current work capacity' the employee is capable of getting to the starting line in the employment race. If the characteristics of the worker as a whole are such that he is not capable of getting to the starting line that is a different question, and one which must lead to the conclusion that he has 'no current work capacity'. If an employee is capable of getting to the starting line but cannot in a competitive market environment win the race, the employer is not liable for that outcome.

44 In my view, there is force in the plaintiff's submission in the challenge to the Panel's construction of the task to be undertaken in accordance with the section as understood by reference to Richter. The Panel's task required consideration of the term 'no current work capacity' in the context of the whole of the employee's characteristics, physical and psychological. This required consideration of his capacity for work in an employment relationship which must include consideration of his physical and psychological ability to seek that relationship as well as perform his part of that relationship.

45 The Panel has failed to consider the definition of 'no current work capacity' in this regard and consequently has erred in its task. I find that Ground 1 is made out.

47 The plaintiff argued that if the Panel applied the correct meaning in reaching its Opinion, then on the evidence before it, it was not open to conclude that the plaintiff did not have 'no current work capacity'. In reaching an alternative conclusion, the plaintiff argued that the Panel did not take certain evidence into account.

48 Ground 2 has significant overlap with Ground 3 which challenges whether all relevant considerations were taken into account.

49 I agree that if the test as applied by the Panel was correct (notwithstanding the finding above that it was not) then consideration of the evidence did require the Panel to consider the matters identified by the plaintiff in its submissions,[20] including that:

• the plaintiff showered approximately every two weeks and changed his clothes about weekly;[21]
• the plaintiff feels useless, upset and does not want to see people or do anything;[22]
• the plaintiff had been engaged with an occupational rehabilitation provider, Nabenet, who had not been able to find him a job.[23] The Assessment Report included the comment that the plaintiff advised no current job seeking activity due to his current symptoms and that Nabenet was assisting him through engagement in the Job Seeker Review program, which he had been participating in for 16 weeks at the time the report was undertaken;[24]
• the plaintiff's use of sedating medications;[25]
• relevant observations by Dr Turnbull in his report dated 14 July 2019, which stated that the plaintiff exhibited signs including depression, low mood, lost confidence, feelings of worthlessness, evaporated motivation, lost vigour and no improvement despite medications. Dr Turnbull referred to frustrating attempts to help the plaintiff to move into meaningful activities, and that the plaintiff now struggles to trust service providers, given repeated failures over the past few months;
• the plaintiff is not motivated enough to go out and look for a job and that he does not look for a job because he has lost confidence;[26] and
• the plaintiff presented as emotionally flat and unmotivated with some symptoms of depression that does limit his ability to find employment.[27]

50 Whilst a number of these factors are referred to in the Opinion, it is clear that the Panel formed a different conclusion.

51 It is the function of the Panel to form its own view as it is an expert panel. It is not its task to choose between competing medical opinions.[28] However, it must take into account all relevant considerations.

52 Of these nominated factors, what the Panel does not seem to have considered is the plaintiff's lack of success in obtaining work notwithstanding the identification of the work being available in the areas and types of job identified as suitable by Nabenet and as concluded by the Panel.

53 The Panel does not turn its mind to the psychological consequences of the inability to seek work, such inability to work being caused by the compensable psychological injury. Having determined that the plaintiff had a medical condition related to his work injury it does not follow that the Panel could ignore the psychological capacity of the plaintiff to seek or obtain employment either in his pre-injury employment or other examples of what might be deemed suitable employment.

54 Given my conclusion in relation to Ground 1, it is unnecessary for a conclusion to be formed in respect of this ground. However, it follows that if the Panel did not apply the correct test its analysis of the evidence will be incomplete and serious doubt as to the finding being open on the evidence is established.

55 Were all relevant considerations taken into account?

56 It was argued that the Panel failed to take into account a relevant consideration in its determination as to 'no current work capacity' in that it failed to consider the plaintiff's employability including his prior attempts to find employment.

57 Pursuant to s 163(1) of the Act, the Panel was bound to take into consideration the legal concepts of 'no current work capacity' and 'capacity for work'. The plaintiff's 'employability' was argued to be a relevant factor to the legal concepts according to Richter.[29]

58 It was argued that the Panel considered the plaintiff's capacity for work only in the context of him being able to do work, or to attend at a workplace, not in being disabled from seeking employment. There was evidence before the Panel which it accepted, or did not dispute, that there were factors which would make an employer unlikely to employ him as a settled member of the workforce.

59 Insofar as the plaintiff suggests it would be sufficient, in the context of this judicial review, if he had a reduced capacity to look for or obtain work, the defendant argued this must be rejected. The defendant argued that the concept of 'no current work capacity' requires a total inability to return to work. Here, the Panel found the plaintiff's presentation and depressive symptoms 'limit his ability to find employment' and the defendant argued that the Court should infer that both by the use of the word 'limit' and a subsequent finding that the plaintiff could undertake employment as a settled or established member of the workforce, the Panel was specifically not making a finding that this ability was destroyed.

60 The first defendant challenged the relevant considerations ground as unexplained and unsustainable and reiterated that the Panel is an expert body required to form its own opinion based on its own experience and expertise rather than a judicial body required to adjudicate on material before it.

61 In addition to my findings in relation to Grounds 1 and 2, it follows that not taking into account the uncontested evidence of the plaintiff's psychological state influencing his lack of ability to engage in seeking an employment relationship, his lack of success in doing so, and the psychological consequences flowing from that, there is a failure by the Panel to take into account a relevant and determinative consideration.

63 The plaintiff argued that the Panel failed to adequately disclose its path of reasoning for its conclusion that the plaintiff is currently capable of:

• attending a workplace to undertake employment in the plaintiff's pre-injury role as a window assembler/sash maker; or
• attending a workplace to undertake employment in identified alternative employment options, being a product assembler, packer and process worker, and the Panel concluded that the plaintiff could undertake these employment options reliably and consistently on a full-time basis as a settled or established member of the wage earning workforce.

64 In Wingfoot Australia Partners Pty Ltd v Kocak, the High Court of Australia held that a Panel must in its statement of reasons set out the actual path of reasoning by which the it arrived its opinion.[30]

65 The plaintiff illustrated this position by reference to the Opinion, which it argued does not provide the path of reasoning with respect to the five jobs the Panel considered the plaintiff able to undertake. The Opinion stated that:

• the plaintiff presents as emotionally flat and unmotivated with some symptoms of depression that does limit his ability to find employment;[31]
• the Panel considered that as the plaintiff takes multiple sedating medications, truck driving was an inappropriate employment option;[32]
• the Panel considered the plaintiff's current psychiatric condition of chronic Adjustment Disorder with Depressed Mood does not affect his psychological functional capacity and that he would be capable of undertaking his pre-injury role as a sash maker/window assembler and the identified alternative employment options of product assembler and packer and process worker. The Panel considered the plaintiff currently capable of attending a workplace and undertaking these employment options reliably and consistently on a full-time basis as a settled or established member of the wage-earning workforce; and
• the Panel did however, recommended that the plaintiff commence the suitable employment options identified initially on a part-time basis and then slowly increase his hours of work.[33]

66 Save for the explanation as to why truck driving was not an appropriate occupation, the Panel did not disclose its path of reasoning in respect to the four other jobs nominated as suitable.

67 I agree that there is no analysis as to why these four other jobs would be appropriate as they all would appear to require some use of machinery, some confidence and the need to focus which do not appear to be characteristics the plaintiff currently possesses.

68 I am mindful of the exhortation of the Court of Appeal that the Panel is an expert tribunal and not a judicial body. Its findings need to be reviewed in that light. Its statement of reasons is meant to inform and should be read fairly, as a whole and with overzealous judicial review to be eschewed.[34]

69 The first defendant argued that the Court must be reminded that the capacity of the worker is an evaluative question on which medical opinions could reasonably differ and the reasons behind the formation of an opinion by a medical panel on an evaluative question of that nature cannot often be extensively articulated. No doubt there are questions of degree and evaluation.

70 It was conceded by the second defendant that whilst the Court may conclude that more detailed reasons may have been desirable, it does not mean that they were legally required.

71 It was submitted by the second defendant that the Opinion was sufficient for the Court to understand that whilst the worker's intake of sedating medications precluded him from work as a truck driver, his persisting psychiatric injury otherwise did not render him incapable to engage in other employment including his pre-injury role.

72 No doubt as the Court of Appeal in Gruma Oceania Pty Ltd v Bakar observed, each case will of course turn on its own facts. In that case, the Court of Appeal's criticism of sweeping generalisations followed from its observation that whilst the respondent was found to be precluded from certain suitable employment options because of her medical condition and linguistic skills, a similar explanation was not provided for the Court's conclusion that she was capable of performing other identified jobs. Further the Court of Appeal found that the panel had erred by 'not linking its conclusion about Ms Bakar's capacity to perform the Capable Jobs to any aspect of her medical condition'.[35]

73 It was argued by the first defendant that the present case deals with a different set of facts and different reasons and that beyond confirming relevant legal principles the Bakar case provided no helpful or significant parallels which could be legitimately discerned.

74 I agree with the observation made in the first defendant's submissions that it certainly would have been more desirable for the Opinion to have been more fulsome. I also agree that that does not necessarily mean they were legally required. What is necessary is that the statement of reasons must explain the actual path of reasoning in sufficient detail to make it possible for a Court to see whether the opinion does or does not involve any error of law. I am satisfied that the path of reasoning demonstrates legal error as it discloses the lack of understanding and application of the correct test, and demonstrates that there is a failure to deal with all relevant considerations.

75 Having found that Ground 1 is made out it is unnecessary to make a finding on Ground 4. However, the path of reasoning will inevitably fail where the starting point was in error.

76 Ground 1 is made out and to the extent that it is necessary to deal with subsequent grounds to dispose of the appeal, they are also upheld.

77 The appeal will be allowed and the Opinion of the Medical Panel dated 4 December 2019 will be quashed and the matter referred to a differently constituted medical panel to be considered and determined in accordance with law.

78 I will receive short submissions as to costs of the appeal and decide that matter on the papers.

[1] Dr Leon Turnbull, 'Psychiatric Report', Filed in Yildirim v A&L Windows Pty Ltd & Ors, S ECI 2020 00437, 7 August 2018; Dr Leon Turnbull, 'Psychiatric Report', Filed in Yildirim v A&L Windows Pty Ltd & Ors, S ECI 2020 00437, 28 August 2018; Dr Leon Turnbull, 'Psychiatric Report', Filed in Yildirim v A&L Windows Pty Ltd & Ors, S ECI 2020 00437, 14 July 2019.

[2] Letter from Dr Kenneth Loh to Zaparas Lawyers, Filed in Yildirim v A&L Windows Pty Ltd & Ors, S ECI 2020 00437, 14 August 2019.

[3] Letter from Assoc. Prof. Shashjit Varma to Allianz Workers Compensation, Filed in Yildirim v A&L Windows Pty Ltd & Ors, S ECI 2020 00437, 24 January 2018; Letter from Assoc. Prof. Shashjit Varma to Allianz Workers Compensation, Filed in Yildirim v A&L Windows Pty Ltd & Ors, S ECI 2020 00437, 16 April 2018; Letter from Assoc. Prof. Shashjit Varma to Allianz Workers Compensation, Filed in Yildirim v A&L Windows Pty Ltd & Ors, S ECI 2020 00437, 14 January 2019.

[4] Nabenet, 'Vocational Assessment Report', Filed in Yildirim v A&L Windows Pty Ltd & Ors, S ECI 2020 00437, 14 November 2018 ('Vocational Assessment Report').

[5] Medical Panel, 'Reasons for Opinion', Filed in Yildirim v A&L Windows Pty Ltd & Ors, S ECI 2020 00437, 4 December 2019, 6 ('Opinion').

[6] Richter v Driscoll (2016) 51 VR 95 [80], [92] (Ashley and Kaye JJA) ('Richter').

[7] Ibid [74]-[76] (Ashley and Kaye JJA).

[10] A&L Windows Pty Ltd, 'First Defendant's Outline of Submissions', Submission in Yildirim v A&L Windows Pty Ltd & Ors, S ECI 2020 00437, 12 August 2020, [6]-[9].

[11] Richter (n 6) [97] (Ashley and Kaye JJA).

[13] [1950] HCA 46; (1950) 81 CLR 585, 601-602.

[15] [1912] UKLawRpAC 29; [1912] AC 496, 502, 507 and 508-509.

[16] Serkan Yildirim, 'Plaintiff's Outline of Submissions in Support of its Originating Motion Filed on 30 January 2020', Submission in Yildirim v A&L Windows Pty Ltd & Ors, S ECI 2020 00437, 22 June 2020, [20].

[17] Richter (n 6) [74] (Ashley and Kaye JJA).

[18] Barwon Spinners v Podolak (2005) 14 VAR 622, 636 [25] (Ormiston, Chernov and Phillips JJA); State of Victoria v Rattray [2006] VSCA 145 [13], [16] (Bongiorno AJA); See also the definition of 'suitable employment ' in s 3 of the Act.

[19] Lang v Spendless Shoes Pty Ltd & Ors [2019] VSC 376 [65]-[75] (Cavanough J); Me_nzies Aviation Group (Australian) Pty Ltd v Vegter_ [2018] VSC 130 [23]-[37] (Kaye JA).

[20] Serkan Yildirim, 'Plaintiff's Outline of Submissions in Support of its Originating Motion Filed on 30 January 2020', Submission in Yildirim v A&L Windows Pty Ltd & Ors, S ECI 2020 00437, 22 June 2020, [34].

[24] Vocational Assessment Report (n 4) 1.

[26] Letter from Assoc. Prof. Shashjit Varma to Allianz Workers Compensation, Filed in Yildirim v A&L Windows Pty Ltd & Ors, S ECI 2020 00437, 14 January 2019, 3.

[28] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR ('Wingfoot').

[34] Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252 [29] (Neave, Santamaria, Kyrou JJA) ('Bakar'); Dundar v Bas [2019] VSCA 315 [48], [51] (Beach, McLeish and Ashley JJA).

[35] Bakar (n 34) [40] (Beach, McLeish and Ashley JJA).