Plaintiffs v First DefendantSecond DefendantThird DefendantFourth DefendantFifth Defendant

An order in the nature of certiorari quashing the opinion in response to Question 3 of the medical questions referred to the Medical Panel on 4 May 2007, which opinion being certified in writing dated 2 July 2007 by a Medical Panel comprised by the first, second, third and fourth defendants;

An order in the nature of mandamus remitting Question 3 of the medical questions in respect of which the said certified opinion was given in response thereto back to the Panel to be reconsidered in accordance with law;

Such further or other relief as the Court shall think fit.

**2 As is obvious from the content, this application arises out of an accident compensation claim made by the fifth defendant, Ivan Senek ("the worker").

3 On or about 19 February 2001, as a result of a work related incident which had occurred on 18 January 2001, the worker lodged a claim for weekly payments with the firstnamed plaintiff ("the employer").

4 The claim was admitted and weekly payments commenced and continued until they were terminated on 26 June 2004.

5 The basis of the termination was that the worker had not participated in -

and had not made reasonable efforts to return to work in suitable employment.

6 For completeness, it should be indicated that the worker made a further claim dated 20 April 2004 alleging an additional injury to that originally alleged. That claim was rejected.

7 The worker issued a complaint in the Melbourne Magistrates' Court dated 4 August 2005 against the employer and the Victorian WorkCover Authority ("WorkCover"). That complaint sought review of the decision to terminate and to reject the second claim, and the restoration of weekly payments. The case was defended and it was uplifted to the County Court.

8 In the County Court proceedings, His Honour Judge Coish, by written referral dated 4 May 2007, referred certain medical questions to a Medical Panel. A penal comprising the first four defendants was convened for the purpose of providing answers to referred medical questions.

9 The panel was provided with a large amount of documentary material. In July 2007 the Medical Panel provided a Certificate of Opinion with respect to the medical questions. That Certificate set out the questions and answers as follows:**

"Question 1. What is the plaintiff's medical condition relevant to the alleged injury to the plaintiff's left shoulder, arm, chest, neck and/or cervical spine (the said injuries)?

Answer: The Panel is of the opinion that the plaintiff is suffering from a mild residual dysfunction of the left shoulder following a surgically treated soft tissue injury of the left shoulder and a chronic adjustment disorder with depressed mood, relevant to the said injuries. The Panel is also of the opinion that the plaintiff is not suffering from any medical condition of the left arm, chest, neck or cervical spine, relevant to the said injuries.

Question 2. Was the plaintiff's employment, and in particular on or about 18 January 2001, in fact, a significant contributing factor to any alleged injury to the neck and/or cervical spine?

Answer: No.

Question 3. As at 26 June 2004 (the date the plaintiff's entitlement to weekly payments of compensation was terminated) would the offers of employment dated:

(a) 5 March 2004 (to commence 15 March 2004);

(b) 24 March 2004;

(c) 15 April 2004;

(d) 6 May 2004;

(e) 10 May 2004;

have constituted suitable employment?

Answer: No.

Question 4. As at:

(a) 26 June 2004 (the date the plaintiff's entitlement to weekly payments of compensation was terminated);

(b) the date of the Medical Panel examination in this matter;

did the plaintiff have:

(i) a current work capacity; or

(ii) no current work capacity?

Answer: The Panel is of the opinion that, as at 26 June 2004, the plaintiff had a current work capacity and that he continues to have a current work capacity.

Question 5. If the plaintiff had no current work capacity with respect to either of the dates enquired of question 4 hereof, is the plaintiff likely to continue indefinitely to have no current work capacity?

Answer: Not applicable.

Question 6: If yes to question 5, has the plaintiff's incapacity for work resulted from or has it been materially contributed by any, and if so which, of the said injuries?

Answer: Not applicable."

**10 The Certificate was accompanied by written Reasons for Opinion dated the same date.

11 The matter before the Court involves the answer to Question 3 and the reason given for the answer. In the reasons, the following paragraph appears:**

"As the employment position identified in the 'Offer of Suitable Employment' letters dated 5 March 2004 (to commence 15 March 2004), 24 March 2004, 15 April 2004, 6 May 2004 and 10 May 2004 related to a position of 'Mechanic (Alternative/Restricted Duties)' as part of a return to work program only and not as a permanent job, the Panel concluded that the offers of employment did not constitute 'suitable employment' within the meaning of the Act ("the Act" being the Accident Compensation Act 1985)."

**12 It is noted that the reasons alone are not directed in terms to the answer to Question 3 but in the context they must be the reasons for that answer. I note that the response to Question 3 in those reasons was in accordance with submissions made to the Panel on behalf of the worker.

13 It is contended on behalf of the plaintiffs that the reasons set out show the Panel fell into jurisdictional error or alternatively that there is an error on the face of the record.

14 In support of his argument, Mr Fleming, who appeared for the employer, relied upon the frequently quoted passage from Craig v South Australia[1]:**

"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

**15 It is submitted on behalf of the employer that jurisdictional error can be found from the Reasons for Opinion in that the Panel concluded that since the offers made were made as part of a return to work program and were not permanent jobs, they could not "constitute suitable employment". It is submitted that error is so fundamental as to constitute jurisdictional error. It is also submitted that since the Panel based its opinion only upon the consideration it expressed, i.e. as part of a return to work program and not permanent, then jurisdictional error as defined in Craig v South Australia (supra) had occurred. That was so because the Panel had either, "identified the wrong issue" or asked "itself a wrong question".

16 It was finally argued that there was an error of law or the face of the record constituted by the misinterpretation of the meaning of "suitable employment" under the Act.

17 In accordance with the usual practice, the solicitors for the first, second, third and fourth defendants by letter dated 6 September 2007 notified the court that these defendants would submit to such orders as the court may make.

18 Parliament has established an elaborate scheme to deal with injured workers in the Act. Section 156(2) of the Act mandates the preparation of a return to work plan and nominate a return to work coordinator. In addition, a rehabilitation and risk management program must be "established and maintained".

19 Section 160 sets out the matters which must be included in a return to work plan. Among those matters are:

(a) (iii) an offer of suitable employment under section 155A.

20 If a worker has an incapacity for work but has a current work capacity, the worker must be provided "suitable employment" (s 155A(2)(b) of the Act).

21 The worker was entitled to weekly payments under s 93CB, but that entitlement was subject to s 93CB(2) and (3), which state:**

"(2) A worker is entitled, subject to and in accordance with this Part, to weekly payments while incapacitated for work (not being a period during the first entitlement period within the meaning of section 93CA(1)) until the expiry of the second entitlement period at whichever of the following rates apply -

(a) If the worker has no current work capacity, the rate of -

(i) 75 per cent of the worker's pre-injury average weekly earnings; or

(ii) $1130 -

whichever is the lesser;

(b) if the worker has a current work capacity, the rate of -

(i) the difference between 75 per cent of the worker's pre-injury average weekly earnings and 75 per cent of the worker's notional earnings; or

(ii) the difference between $1190 and 75 per cent of the worker's notional earnings -

whichever is the lesser;

(c) if the worker has a current work capacity but the worker's employer has failed to offer suitable employment, the rate of -

(i) 75 per cent of the worker's pre-injury average weekly earnings; or

(ii) $1130 -

whichever is the lesser.

(3) A worker is entitled to receive weekly payments under this section only if -

(a) where subsection (2)(a) applies, the worker -

(i) makes every reasonable effort to participate in an occupational rehabilitation service or a return to work plan; and

(ii) makes every reasonable effort to return to work in suitable employment; and

(iii) participates in assessments of the worker's capacity, rehabilitation progress and future employment prospects when requested to do so from time to time by the employer or the Authority or self-insurer;

(b) where subsection (2)(b) applies, the worker -

(i) participate in an occupational rehabilitation service or a return to work plan; and

(ii) makes every reasonable effort to return to work in suitable employment at the worker's place of employment in co-operation with the employer and the Authority or with the self-insurer (as the case may be);

(iii) makes every effort to return to work in suitable employment at another place of employment; and

(iv) participates in assessments of the worker's capacity, rehabilitation progress and future employment prospects when required by the Authority or self-insurer;

(c) where subsection (2)(c) applies, the worker -

(i) participates in an occupational rehabilitation service or a return to work plan; and

(ii) makes every reasonable effort to return to work in suitable employment at the worker's place of employment in co-operation with the employer and the Authority or with the self-insurer (as the case may be); and

(iii) makes every effort to return to work in suitable employment at another place of employment; and

(iv) participates in assessments of the worker's capacity, rehabilitation progress and future employment prospects when required by the Authority or self-insurer."

22 The worker, it was submitted, was subject to s 63CB(2)(b) and (3)(b). It follows therefore, that he was subject to the next sub-section, namely:

"(4) Where a worker does not make reasonable efforts to return to work and in particular does not comply with the requirements of subsection (3) that are applicable in his or her case, the worker's entitlement to further weekly payments in respect of the injury shall thereupon cease and determine."

**23 It was in accordance with that sub-section that the employer terminated the worker's payments.

24 "Suitable employment" is defined in s 5 of the Act:**

"suitable employment, in relation to a worker, means employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following -

(a) the nature of the worker's incapacity and pre-injury employment;

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

(c) the worker's place of residence;

..."

25 The relevant section of "Medical question" is also defined as follows:

"medical question means -

...

...

(aba) a question as to whether a worker has a current work capacity or has not current work capacity and what employment would or would not constitute suitable employment; or

..."

26 These definitions are said to be relevant to the above analysis and in addition references to "suitable employment" in s 93D are said to support the plaintiff's arguments:

"93D Suitable employment

(1) Subject to this section, a reference in this Division to a worker making every reasonable effort to return to work in suitable employment includes any reasonable period during which -

(a) the worker is waiting for a response to a request for suitable employment made by the worker and received by the employer; and

(b) if the employer's response is that suitable employment may or will be provided at some time, the worker is waiting for suitable employment to commence; and

(c) if the employer's response is that suitable employment cannot be provided at some time, the worker is waiting for a response to requests for suitable employment from other employers; and

(d) the worker is waiting for the commencement of an occupational rehabilitation service or return to work plan, after approval has been given.

(2) A worker must not be treated as making every reasonable effort to return to work in suitable employment for the purposes of this section if the

worker -

(a) has refused to have an assessment made of the worker's employment prospects; or

(b) has refused or failed to take all reasonably necessary steps to obtain suitable employment; or

(c) has refused or failed to accept an offer of suitable employment from any person; or

(d) has refused or failed to participate in an occupational rehabilitation service or return to work plan.

(3) A reference in section 93CA, 93CB or 93CC to suitable employment provided or offered by the worker's employer includes -

(a) employment in respect of which -

(i) the number of hours each day or week that the worker performs work; or

(ii) the range of duties the worker performs -

is suitably increased in stages (in accordance with a return to work plan or otherwise); and

(b) if the employer does not provide employment involving the performance of work duties - suitable training or vocational re-education provided -

(i) by the employer at the workplace or elsewhere; or

(ii) by any other person or body under arrangements approved by the employer -

but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends the suitable training or vocational re-education."

**27 It is significant to note that although s 93D has the heading "Suitable Employment", it is actually concerned with the matter of "every reasonable effort to return to suitable employment."

28 In the County Court the employer sought referral of the matter to a Medical Panel pursuant to s 45(1) of the Act. That section empowers a County Court Judge to refer a "medical question" to a Panel. Some draft questions had been prepared by the employer and those questions formed the basis of the questions referred but the questions are by no means identical.

29 It was clear that the employer was interested in three main issues, which were:

(1) Was the second injury, to the neck and spine, of which the worker complained caused by his work?

(3) Did the offers contained in the five nominated letters constitute offers of suitable employment?

30 That followed by virtue of the fact that the worker's weekly payments had been discontinued because of s 63CB(4).

31 The worker made submissions to the Panel in the following form:**

"5. Whether the various offers of employment from 5 March 2004 to 10 May 2004 constituted suitable employment in the circumstance. Alternatively, did the Plaintiff have a current work capacity as at 26 June 2004?

(a) It is submitted that the Panel should determine that it is unable to answer Medical Question 3 or Medical Question 4(a) as the questions require consideration of the Plaintiff's medical condition at the time rather than at the time of examination by the members of the Panel.

(b) If the Panel determines that it is able to provide answers, the Plaintiff submits as follows:

(i) the Plaintiff's efforts and limitations relevant to attempts to comply with the offers of employment are described in the Affidavit (document 55).

(ii) The plaintiff did remain at work during the relevant period, and was under the care of his general practitioner Dr Stesin, who referred him to Mr Peter Wilde on 5 May 2004 and Professor Chambers on 17 August 2004.

(iii) In fact the Plaintiff continued to work with the Defendant after the Notice terminating his entitlement to weekly payments, and only ceased work when served with the letter from the Defendant terminating his employment 30 May 2005 (document 52).

(iv) It is submitted that the efforts made by the Plaintiff to comply with the offers of employment were reasonable taking into account the medical condition that he was in at the time. It is submitted that insofar as each offer of employment exceeded the capacity of the Plaintiff to perform in full, such offers did not constitute an offer of "suitable employment" as defined by the Act.

(v) It is submitted that the offers of employment were made as part of an obligation under the Act for the Defendant to provide modified or restricted duties to injured workers. The fact that the Plaintiff engaged in such restricted duties did not mean that such duties would constitute a "real" job in respect of other employers. It is submitted that the Panel should not speculate as to whether or not the Plaintiff had in the past a "current work capacity" as defined by the Act."

**32 It was in response to submission (v) above that the Panel answered Question 3 in the way that it did.

33 It was submitted before me that Question 3 cannot be directed to the issue of decision to terminate weekly payments. In written submissions it was put that:**

"It is submitted that Question 3 is not, nor can it be, directed to the issue the subject of the decision to terminate weekly payments. The issues to be determined by the Court in respect of the grounds for termination of weekly payments are firstly whether each return to work plan constituted an offer of suitable employment under section 155A, and if so whether the worker made very reasonable effort to return to work in such suitable employment. There is not provision for referral of a medical question as to whether "the offers of employment (a) - (e) constituted an offer of suitable employment under section 1554A", being one of the requirements of section 160 of the Act in respect of contents of a return to work plan.

Accordingly, Question 3 should be construed as relating solely to the matters relevant to medical question (aba) of the definition in respect of "current work capacity".

The term "current work capacity" is defined in section 5 as follows -

"current work capacity", in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.

It is submitted that the term "suitable employment" should be construed in the context it appears in various parts of the Act."

**34 In oral submissions it was further submitted that the tense used in the definition of "medical question" in s 5 of the Act did not allow any question to be asked as to the situation in the past.

"(aba) a question as to whether a worker has a current work capacity or has no current work capacity and what employment would or would not constitute suitable employment".

36 For completeness, the only other place in the definition of "medical question" that the words "suitable employment" are used is in the preceding definition.

"(ab) a question as to the existence, extent or permanency of any incapacity of a worker for work or suitable employment and the question whether a worker is partially or totally incapacitated".

**37 It followed in the defendants' argument that the expression "suitable employment" was used in a number of places throughout the Act and had different meanings, depending on context.

"(a) When used in Part VI - Occupational Rehabilitation, Return to Work Plans and Risk Management - the term should be used in the context of the obligations and duties of the employer and worker to effect a return to work. The reference in Section 160 to the contents of a return to work plan clearly indicate obligations on the particular employer that would not be expected of some other prospective employer. The reference in section 160(1)(a)(iii) to "an offer of suitable employment under section 155A" must mean suitable employment subject to compliance with the other requirements of section 160".

**39 Contrast was then drawn between those provisions and the use of suitable employment associated with current work capacity as it referred to in Part IV - Division 2 - Benefits. In general, it was submitted that the Part IV provisions would also relate to suitable employment with a different employer.

40 It would follow in the worker's submission that the contrast would lead to the conclusion that the expression "current work capacity" in the s 5 definition linked to "suitable employment" should be construed as meaning "suitable employment" in the sense of a real job. (Reference was made to Barwon Spinners Pty Ltd and Ottas v Podolak [2005] VSCA 33, [15] and State of Victoria v Rattray [2006] VSCA 145).

(ii) Eventually, the offers contained in the letters are made. They are all made in an effort to establish the worker's return to work.

(iii) The employer ceased weekly payments on 24 June 2004 and purported to have done so on the basis that the worker had failed, inter alia, "... not made reasonable efforts to return to work in suitable employment".

(iv) The worker issued proceedings challenging the employer's decision.

(v) After the matter had been uplifted to the County Court, his Honour Judge Coish, by letter dated 27 May 2007, referred the medical questions set out in paragraph 9.

43 The major issue between the parties is whether or not the employer was entitled to have terminated weekly payments.

44 The return to work plan arises under s 146(2) of the Act. The contents of the return to work plan are directed by s 160.

"s 160 Contents of Return to Work Plan

(1) A return to work plan must -

(a) include -

(i) ...

(ii) ...

(iii) an offer of suitable employment

Under s 155A; and ..."

"(2) (a) ...

(b) if the worker has a current work capacity, with suitable employment."

**47 The right to receive weekly payments arises for a worker who has a current work capacity.

"(ii) makes every reasonable effort to return to work in suitable employment; and ..."

49 The right to terminate weekly payments arises under s 93CB(4):

"Where a worker does not make reasonable efforts to return to work and in particular does not comply with the requirements of subsection (3) that are applicable in his or her case, the worker's entitlement to further weekly payments in respect of the injury shall thereupon cease and determine."

50 In this context, it must be remembered that suitable employment is defined in s 5 of the Act:

"suitable employment, in relation to a worker, means employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following-

(a) the nature of the worker's incapacity and pre-injury employment;

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

(c) the worker's place of residence;

(d) the details given in medical information including the medical certificate supplied by the worker;

(e) the worker's return to work plan, if any;

(f) if any occupational rehabilitation services are being provided to or for the worker".

51 In my view, the correlation of the words in s 155A(2)(b) and words in the definition of medical question -

"(aba) a question as to whether a worker has a current work capacity or has no current work capacity and what employment would or would not constitute suitable employment"

52 That question will necessarily involve an assessment at a particular point in time. It simply cannot be resolved in the present tense, i.e. at this moment.

53 Given the nature of the proceedings, it was important for the Court to be assisted as to whether or not, given the current work capacity of the worker, at the time were the offers in the letters referred to offers of "suitable employment".

54 The definition of "medical question" seems to me framed not to exclude s 155A but with s 155A specifically in mind.

55 Since "suitable employment" does include reference to -**

**it did not depend upon the offer being the offer of a permanent job. In my view, subject to current work capacity and the relevant considerations in the definitions, the offer of a suitable return to work plan is capable of amounting to an offer of suitable employment.

56 I refrain from comment as to what the position might be in relation to the consideration of "no current work capacity" in s 93CC of the Act.

57 Perhaps the question is in slightly infelicitous terms. I repeat it:**

"Question 3. As at 26 June 2004 (the date the plaintiff's entitlement to weekly payments of compensation was terminated) would the offers of employment dated:

(a) 5 March 2004 (to commence 15 March 2004);

(b) 24 March 2004;

(c) 15 April 2004;

(d) 6 May 2004;

(e) 10 May 2004;

have constituted suitable employment?"

**58 The Medical Panel, in answer to Question 4(a), found that as at 26 June 2004 the plaintiff did have a current work capacity.

59 The question then being posed in Question 3 was: (given the existence of a current work capacity at the relevant date) did the offers of employment (a) to (e) constitute offers of suitable employment?

60 It follows from what I have already said that I am satisfied that the Medical Panel was in error when it concluded that the offers could not have constituted offers of suitable employment for the reason that the offers were "as part of a return to work program only and not as a permanent job". That conclusion is wrong and constitutes an error on the face of the record.

61 One matter which should not pass without comment is this. It does not seem to me that the worker suggested in his original summons that the offers contained in the letters did not constitute suitable employment separate from current work capacity and efforts to return to work.

62 The whole debate as it has taken place before me is related to the technical meaning of "medical question".

63 It seems to me to strengthen the argument that his Honour, when referring the questions which he did refer, did so in part for the purpose of having answered the medical question relating to current work capacity to perform the work offered in the letters.

64 The question arises as to what relief the employer is entitled to. There was no interpleader and no argument has been put to me as to the other answers of the Panel are attended by error.

65 What was referred to the Medical Panel was a series of questions. The Originating Motion and the summons thereon make reference only to Question 3 and seek relief in relation to Question 3.

66 I am satisfied the medical questions are sufficiently discrete to allow an individual question to be dealt with in this way. Even if I am wrong about that, there is ample authority to say that I could sever the part of a singular decision infected by error.[2]

67 I order that the opinion in response to Question 3 of the medical questions referred to the Medical Panel on 4 May 2007, which opinion was certified in writing dated 2 July 2007 by a Medical Panel comprising the first, second, third and fourth defendants be quashed and that Question 3 be remitted to the Medical Panel to be reconsidered in light of my reasons and according to law.

68 I further order that the fifth named defendant pay the costs of the plaintiffs.**

[1] [1995] HCA 58; (1995) 184 CLR 163, 179 (decision of the Court comprising Brennan, Deane, Toohey, Gaudron and McHugh JJ)

[2] R v Marshall; Ex parte Baronor Nominees Pty Ltd [1984] VicRp 17; [1984] VR 211 at 226.