Batovas v CCRM Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 00894

CHRISTOS BATOVAS	Plaintiff
v
CCRM PTY LTD and others according to the schedule	Defendants

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JUDGE:	LYONS J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2020
DATE OF JUDGMENT:	11 May 2020
CASE MAY BE CITED AS:	Batovas v CCRM Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 178

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ADMINISTRATIVE LAW – Judicial Review – Certificate of Medical Panel – No current work capacity – Suitable employment – More than one medical condition – Need to consider each medical condition in combination with other relevant personal circumstances of worker – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 3 – Richter v Driscoll (2016) 51 VR 95 applied

ADMINISTRATIVE LAW – Judicial Review – Reasons – Adequacy – Where question referred to Medical Panel required determination of work capacity from time weekly payments stopped to Medical Panel’s examination of worker and ‘currently’ – No path of reasoning for earlier period – No inference that Medical Panel plainly engaged with prior medical reports dated during earlier period – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 applied

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A D B Ingram QC with Ms V C McLeod	Arnold Thomas & Becker Pty Ltd
For the First Defendant	Mr M F Fleming QC with Ms M Norton	Russell Kennedy

HIS HONOUR:

Introduction

The plaintiff sustained injury in the course of his employment as a truck driver with the first defendant on 27 July 2015. On 5 October 2015, the plaintiff submitted a worker’s injury claim under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the ‘Act’). The plaintiff’s claim for compensation was accepted, both with respect to weekly payments of compensation, and medical and like expenses. However, by notice dated 16 October 2017, the first defendant determined to terminate the plaintiff’s weekly payments on the grounds that the plaintiff had a current work capacity or, alternatively, no current work capacity but that this was not likely to continue indefinitely.

As a result, the plaintiff commenced proceedings in the Magistrates’ Court of Victoria seeking reinstatement of his weekly payments. On 10 October 2018, Magistrate O’Brien ordered that a series of medical questions be referred to a medical panel following a notice of request pursuant to s 274(1)(b) of the Act (the ‘Panel’). Relevantly, the Panel were asked whether the plaintiff had no current work capacity for two periods of time: during the period from 20 January 2018 to the date of Panel’s examination of the plaintiff (the ‘relevant period’) and currently (i.e. as at the date of the Panel’s decision).[1]
[1]20 January 2018 is relevant because it is the date on which the weekly payments of the plaintiff stopped.

The Panel issued a Certificate of Opinion and supporting reasons, both dated 2 January 2019 (the ‘Certificate’ and the ‘Reasons’). The Panel concluded, in summary, that the plaintiff had during the relevant period and at the time of the Certificate a ‘current work capacity’ and that suitable employment for him was as a ‘Transport and Despatch Clerk (Fleet Controller)’ (‘T & D Clerk’).

The plaintiff brought this proceeding for judicial review of that decision pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). In summary, the plaintiff contended that the Certificate should be quashed on two principal bases.

First, the plaintiff contended that the Panel erred in law in considering separately the effect of his psychiatric condition and his physical condition in determining the plaintiff’s current work capacity. As a result, the plaintiff contended that the Panel thereby failed to assess the plaintiff’s current work capacity, or give adequate reasons in respect of his current work capacity, on a ‘whole person’ basis consistent with Richter v Driscoll.[2] The plaintiff made a related submission that the Panel gave inadequate reasons for the conclusion that the plaintiff had the capacity to undertake suitable employment as a T & D Clerk.
[2](2016) 51 VR 95 (‘Richter’) (Ashley, Osborn and Kaye JJA).

Second, the plaintiff contended that the Panel erred in law in failing to take into account a relevant consideration, namely the histories and clinical observations in the reports of four psychiatrists dated between 28 May 2017 and 15 September 2018 included in the material provided to the Panel (the ‘previous psychiatrists’).[3] Further, in the course of oral argument in this context, issues were raised about the Panel’s conclusion that during the relevant period the plaintiff had a current work capacity. These issues related in particular to whether the Panel had separately considered, and had given adequate reasons regarding, the plaintiff’s psychiatric condition during the relevant period.
[3]The previous psychiatrists are Dr Matthew Tagkalidis, Dr Robert Athey, Dr Nitin Dharwadkar and Dr Richard Prytula.

For the reasons that follow, I have concluded that, in determining whether the plaintiff had a ‘current work capacity’, the Panel erred in not considering both the physical and psychiatric conditions of the plaintiff together, along with the other relevant personal circumstances of the plaintiff, consistent with Richter. The result is that the Certificate should be quashed.

As a result, it is unnecessary for me to determine the other grounds. However, I have also concluded that, absent the failure to consider the plaintiff’s current work capacity on a whole person basis, the Panel did not give adequate reasons (by not displaying a path of reasoning) for its conclusion that, during the relevant period, the plaintiff had a current work capacity.

The facts

The relevant facts leading up to the Certificate are not in dispute. The plaintiff relied upon the affidavit of Mr Joseph Ridley sworn 27 February 2019. The following paragraphs are based, for the most part, on [4]–[25] of the plaintiff’s submissions dated 25 September 2019 which were not disputed by the first defendant.

The plaintiff was born on 30 May 1966 in Greece. He completed schooling to the equivalent of year 12. He commenced, but did not complete, university studies.

The plaintiff lived between Greece and Australia in the 1980s and 1990s before settling in Australia in 1997. The plaintiff operated his own fish and chip shop for six years. He was also employed at various times as a butcher, boner and forklift driver.

The plaintiff drove trucks for several years before commencing his employment in February 2015 with the first defendant as a truck driver delivering steel products. The plaintiff had a long-standing history of back complaints, having undergone lumbar spinal surgery in 1999 and 2013. However, he did not have a history of problems with his neck or left shoulder.

The plaintiff sustained injuries in the course of his employment with the first defendant on 27 July 2015. The plaintiff was strapping down a load on his truck at approximately 4:30 am at the Sunshine depot of the first defendant. It was raining and the plaintiff was pulling on a ‘dog chain’ with his right hand when the chain suddenly gave way causing the plaintiff to fall backwards. As he fell, the plaintiff reached out with his left hand at about shoulder height and grabbed part of the truck. He suffered an acute traction injury to his left arm/shoulder girdle.

On 5 October 2015, the plaintiff submitted a worker’s injury claim form under the Act citing injury by way of a ‘torn ligerment’ [sic] sustained whilst ‘putting dog on chain and my right hand sleep and I hurting my shoulder’ [sic]. The plaintiff’s claim for compensation was accepted both with respect to weekly payments, and medical and like expenses.

The plaintiff consulted with a number of medical professionals in relation to his injuries. His general practitioner was Dr Ikladios at Werribee Group Healthcare. While under the care of Dr Ikladios, the plaintiff:

(1)was referred for an ultrasound which was performed on 10 August 2015 and resulted in treatment with sub-acromial corticosteroid injection which provided approximately 12 hours of pain relief;
(2)was referred for an x-ray of his cervical spine on 11 September 2015 which was reported to show, among other things, moderate narrowing of the C5-6 and C6-7 levels and lesser narrowing of the C3-4 and C4-5 levels;
(3)was referred for an MRI scan of his cervical spine on 18 December 2015 which was reported to show, among other things, evidence of moderate vertebral canal narrowing from C3–6 secondary to generalised disc bulges and local thickening of the posterior longitudinal ligament in addition to moderate narrowing of the right C4-5 and C5-6 intervertebral foramen secondary to osteophytes and eccentric disc material with probable contact of the exiting right C5 and C6 nerve roots;
(4)was referred to a neurosurgeon, Mr Nair, on 19 January 2016 who advised he did not identify any significant cord or nerve root compromise and recommended conservative treatment;
(5)was prescribed Tramal and Lyrica for pain relief and, later, Panadeine Forte and Diazepam;

(6) was referred to My Physio Clinic for the physiotherapy treatment;
(7)was referred to a pain specialist, Dr Sullivan, on 29 August 2016 who recommended repeat radiology;
(8)underwent a further ultrasound of his left shoulder on 7 September 2016 which was reported to show calcific tendinosis of the subscapularis tendon, tendinosis of the supraspinatus tendon and sub-acromial/sub-deltoid bursitis;
(9)underwent a further MRI of his cervical spine on 7 September 2016 which was reported to show moderate to severe foraminal narrowing bilaterally at C5-6 and C6-7 on the left with mild central canal narrowing between C3-4 and C6-7 levels but no significant central canal narrowing;
(10)underwent, on the recommendation of Dr Sullivan, left C6 and left C7 nerve blocks and received a steroid injection into the sub-acromial bursa and manipulation of the left shoulder joint on 19 April 2017. A further steroid injection was administered to the left shoulder on 20 October 2017; and
(11)was referred by Dr Sullivan to a further neurosurgeon, Professor Bittar, on 10 April 2018 who identified left sided neck tenderness with signs of left C6 and C7 radiculopathy and mild weakness of the left elbow flexion and extension as well as weakness of finger extension on the left. Professor Bittar formed the view that the plaintiff’s employment related injuries rendered him totally incapacitated for employment and recommended a C5-6 and C6-7 anterior depression and fusion.

In August 2017, the plaintiff underwent a coronary artery angiogram and subsequently had multiple stents inserted. Anticoagulant medication prescribed for 12 months as a result of this meant that the surgery recommended by Professor Bittar could not take place.

On 21 May 2018, at the request of Professor Bittar, the plaintiff underwent further radiological examination including an x-ray and an MRI scan. Overall, the findings of this MRI did not significantly differ from those of the MRI on 7 September 2016. On 20 November 2018, the plaintiff was reviewed by Professor Bittar who concluded that his clinical findings remained unchanged and that the plaintiff remained totally incapacitated for work and his symptoms persisted.

Further, about four or five months after sustaining injury, the plaintiff began to suffer panic attacks at home. Dr Ikladios referred the plaintiff to a psychologist, Ms Chiara Paganini, whom the plaintiff consulted on eight occasions from 5 May 2016 until 20 October 2016 for counselling. In addition, the plaintiff was prescribed anti-depressant medication.

Dr Ikladios assessed the plaintiff as suffering from pain and restricted range of motion in the cervical spine with radiculopathy from C6 and C7 levels, left shoulder rotator cuff tear, chronic pain syndrome in the left upper quadrant and adjustment disorder with depression.[4] He certified the plaintiff totally incapacitated for employment on an ongoing basis.
[4]See, eg, the report of Dr Ikladios dated 28 February 2019 contained in the referral material.

The plaintiff’s weekly payments of compensation were terminated by the WorkSafe agent of the first defendant by notice dated 16 October 2017. The grounds for termination in the notice were that the plaintiff had current work capacity or, alternatively, no current work capacity but that this was not likely to continue indefinitely.

Referral to the Panel

As a result, on 23 March 2018, the plaintiff commenced proceedings in the Magistrates’ Court of Victoria. On 18 October 2018, Magistrate O’Brien ordered that a series of six medical questions be referred to a medical panel under the Act. The questions, which I will set out with the Panel’s answers below, were formulated in a Notice of Request pursuant to s 274(1)(b) of the Act. In summary, those medical questions related to the nature of the plaintiff’s medical conditions, the extent to which they arose from his injuries on 27 July 2015, and whether the plaintiff in the period from 20 January 2018 to the date of the Panel’s examination of the plaintiff, and at the time of the Panel’s opinion, had ‘no current work capacity’.

The Panel compromised two physicians, one surgeon and two psychiatrists. They were:

(1) Dr David Kotzman, an occupational and environmental physician;

(2) Dr Carolyn Arnold, a pain medicine and rehabilitation physician;

(3) Mr Rodney Simm, an orthopaedic surgeon;

(4) Associate Professor Anne Hassett, a psychiatrist; and

(5) Dr Steven Adlard, psychiatrist.[5]

[5]The Panel members were all defendants to the proceeding together with Associate Professor Peter Gibbons, the second defendant, as Deputy Convenor of Medical Panels under the Act, but did not take part in the proceeding.

As part of the referral, the Panel had available to it significant material including the reports of a number of doctors whom the plaintiff had consulted. The material provided to the Panel was exhibit ‘JR4’ to Mr Ridley’s affidavit (the ‘referral material’). The referral material relevantly included the reports of the previous psychiatrists:

(1) the report of Dr Robert Athey dated 28 May 2017;

(2) the report of Dr Nitin Dharwadkar dated 15 September 2017;

(3) the report of Dr Matthew Tagkalidis dated 17 May 2018; and

(4) the report of Dr Richard Prytula dated 26 June 2018.

The plaintiff was examined by the Panel on two occasions. The non-psychiatrist members of the Panel examined the plaintiff on 19 November 2018. The psychiatrist members of the Panel examined the plaintiff on 18 December 2018. On the first occasion, the Panel also consulted with Ms Phi-Van Houston,[6] an occupational therapist.
[6]Ms Houston was also a defendant to, and also did not take part in, the proceeding.

When examined by the non-psychiatrist members of the Panel on 19 November 2018, the plaintiff reported persisting symptoms of pain in his neck and referred pain to his left shoulder and left upper arm but no longer into his left forearm or hand. The plaintiff had undergone left carpal tunnel release 10 days prior to this examination. The plaintiff also complained of marked limitation of neck movements and the inability to sleep on his left side due to shoulder pain.

The Certificate and the Reasons

On 2 January 2019, the Panel issued its Certificate and Reasons. The Panel answered each of the questions in the Certificate as follows:

Question 1:What is the nature of the Plaintiff’s medical condition relevant to the following alleged injuries as claimed in paragraphs (sic) 4 of the Statement of Claim:
a. Left arm/shoulder injury;
b. Neck injury;
c. Psychiatric injury, including anxiety, depression, chronic pain disorder and agoraphobic symptoms
(hereinafter called “the said injuries”).

Answer: In the Panel's opinion Mr Batovas is suffering from persisting neck dysfunction, without radiculopathy, but with secondary inhibition of left shoulder function, as a consequence of an aggravation of cervical spondylosis, and from a chronic adjustment disorder with mixed anxiety and depressed mood.
In the Panel's opinion, there is no intrinsic medical condition of the left shoulder.

Question 2:What is the extent to which any medical condition of the Plaintiff results from, or is materially contributed to by, any (and if so which) of the said injuries?
Answer: The Panel is of the opinion that Mr Batovas' persisting neck dysfunction, without radiculopathy, secondary inhibition of left shoulder function and , and [sic] chronic adjustment disorder with mixed anxiety and depressed mood, are materially contributed to by the said left arm/shoulder, neck and psychiatric injuries.
Question 3: (a) In the period from 20 January 2018 to the date of the Medical Panels' (sic) examination;
(b) Currently
did/does the Plaintiff have ‘no current work capacity’?

Answer: In the Panel's opinion, in the period from 20 January 2018 to the date of the Medical Panel's examination, and currently, Mr Batovas had, and has, a current work capacity.
Question 4: If the answer to Question 3(a) and/or (b) is 'yes', did/does that incapacity result from, or was/is it materially contributed to by, any of the said injuries (and if so which)?

Answer: Not applicable.
Question 5: If the answer to Question 3(a) and/or (b) is 'yes', was (and is) any such incapacity likely to continue indefinitely?

Answer: Not applicable.
Question 6: Is it appropriate, and if so with what frequency, for the Plaintiff to have the following medical and like services:
a. Home help and gardening services.

Answer: No.

The Reasons are 10 pages long. They are divided into a number of sections. Before referring to those sections, at the outset, I wish to note that Question 3 was a central question for the Panel. As noted above, that question identifies two periods of time: first, the relevant period (i.e. from 20 January 2018 to the date of the Panel’s examination of the plaintiff); and, second, ‘currently’ (i.e. at the date of the Certificate). However the Reasons do not on their face expressly deal with these two periods individually.

As set out below, the Reasons (including as reflected in the section headings) do refer to past history, ‘current’ symptoms and the results of the Panel’s examinations in November and December 2018. Further, sometimes the language of the Reasons and the conclusions reached are expressed in the present tense and sometimes in the past tense. However, there appears to be little or no express reference in the Reasons to the Panel’s consideration of the plaintiff’s physical and psychiatric conditions during the relevant period. This is notwithstanding that the relevant period is referred to at the commencement of the Reasons under the heading ‘Issues in Dispute’ and in the last paragraph under the heading ‘Current Work Capacity’. I will comment on this further below.

Under the heading ‘Issues in Dispute’, the Reasons record that:

(1) the ‘alleged injuries’ are both physical and psychiatric;

(2)the issues in dispute relate to the nature of the plaintiff’s medical condition, the extent to which any current medical condition results from or is materially contributed to by the alleged injuries; and
(3)whether in the period from 20 January 2018 and currently the plaintiff has no current work capacity and if so whether it is likely to continue indefinitely.

Under the headings ‘Past History’ and ‘Sequence of Events’, the Reasons note the referral material, how the plaintiff’s injury was suffered and the consequences of the injury.

Under the heading ‘Current Physical Symptoms’, the Reasons address the then current physical symptoms of the plaintiff including constant pain in the back of the neck, with referred pain to the left shoulder and upper arm. They also refer to marked limitation of neck movements, particularly with rotation, lateral flexion and extension. The Reasons list his current medication.

Under the heading ‘Current Psychiatric Symptoms’, the Reasons address the plaintiff’s then current psychiatric symptoms. There is a summary of the plaintiff’s daily activities and involvement with family and friends. There is also reference to his current medication and his consultations with his general practitioner and other specialists. The Reasons record the plaintiff’s background in Greece, his contact with family members and other relationships.

Under the heading ‘Physical Examination’, the Reasons then set out the observations of the Panel of the plaintiff’s physical examination by Panel members. The Reasons also refer to and consider the reports of medical imaging available to the Panel. The Panel concluded no further imaging or other investigations were required. Under the heading ‘Physical Diagnosis’, the Reasons record the conclusions of the Panel of the plaintiff’s physical injuries. They state:

The Panel concluded that Mr Batovas is suffering from persisting neck dysfunction, without radiculopathy, but with secondary inhibition of left shoulder function, as a consequence of an aggravation of cervical spondylosis. The Panel concluded that notwithstanding the minor abnormalities noted on medical imaging, there is no intrinsic medical condition of the left shoulder.

Under the heading ‘Mental State Examination’, the Reasons set out the observations of the Panel of the plaintiff’s mental state examination by Panel members. The Reasons record, amongst other things, that the plaintiff presented as an alert and cooperative man who did not appear depressed or anxious and that his thought stream and form were normal.

Under the heading ‘Psychiatric Diagnosis’, the Reasons record the conclusions of the Panel on the plaintiff’s psychiatric condition. The Panel concluded that Mr Batovas was ‘suffering from a chronic adjustment disorder with mixed anxiety and depressed mood, which has arisen as a consequence of his physical injury’.

The Reasons then refer to the reports of the previous psychiatrists.

First is the report of Dr Matthew Tagkalidis dated 17 May 2018. The Reasons record that Dr Tagkalidis was of the opinion that the plaintiff was suffering from ‘an Adjustment Disorder with mixed anxiety and depressed mood’ but ‘was fit for alternative employment on the basis of his psychological statement in and of itself’.

Second is the report of Dr Robert Athey dated 28 May 2017. The Reasons record that Dr Athey concluded that the plaintiff:

(1)‘was suffering from an Adjustment Disorder with mixed anxiety and depressed mood’; and

(2) ‘due to his psychiatric condition, Mr Batovas had no capacity for employment’.

Third is the report of Dr Nitin Dharwadkar dated 15 September 2017. The Reasons record that Dr Dharwadkar concluded that the plaintiff:

(1)was ‘suffering from a chronic Adjustment Disorder with mixed anxiety and depressed mood with some agoraphobic symptoms and a history of panic attacks, along with Persistent Somatic Symptom Disorder with predominant pain’; and

(2) ‘had a current work capacity, with some restrictions’.

Fourth is the report of Dr Richard Prytula dated 26 June 2018. The Reasons record that Dr Prytula was of the opinion that the plaintiff:

(1)had ‘Major Depressive Disorder and Generalised Anxiety Disorder with agoraphobia, panic attacks, nightmares and suicidal feelings’; and

(2) ‘had no current work capacity’.

The Reasons then state:

The Panel considered that Mr Batovas' symptoms and signs were more consistent with an adjustment disorder with mixed anxiety and depressed mood than a more severe condition such as major depressive disorder. The Panel did not consider that Mr Batovas' symptoms or signs met the criteria for generalised anxiety disorder. The Panel further concluded that there was no somatic symptom disorder. The Panel considered that Mr Batovas' panic symptoms and obsessional cleaning were consistent with his adjustment disorder.

Under the heading ‘Material Contribution’, the Panel then concluded that the plaintiff’s chronic adjustment disorder with mixed anxiety and depressed mood arose as a consequence of his physical injury. They stated:

The Panel therefore concluded that Mr Batovas' persisting neck dysfunction, without radiculopathy, secondary inhibition of left shoulder function and chronic adjustment disorder with mixed anxiety and depressed mood, are materially contributed to by the said left arm/shoulder, neck and psychiatric injuries.

The Reasons then address the plaintiff’s current work capacity under the heading ‘Work Capacity’. It is appropriate that I set out this section in full. For ease of reference in these reasons, I have numbered each paragraph of this section of the Reasons.

Work Capacity
[1]       The Panel considered whether Mr Batovas has a current work capacity.
[2]The Panel noted the nature and severity of Mr Batovas' current physical condition and the functional restrictions which it causes, in conjunction with his pre-injury duties as a truck driver, which involved climbing in and out of his truck, securing loads of steel and prolonged periods of sitting and concluded that the nature of Mr Batovas' physical condition is such that he is not currently capable of returning to his pre-injury employment as a truck driver.
[3]The Panel considered whether Mr Batovas has a current work capacity or no current work capacity. In doing so, the Panel took into account all aspects of the definition of "current work capacity'', "no current work capacity" and "suitable employment" in the Act and in particular;
·     his age of 52 years (which would partially limit his employment options);
·     the nature of his physical condition (which limits his capacity to adopt constrained neck postures, undertake repetitive neck movements or use his non-dominant left arm above chest height);
· his education to year 12, which the Panel considers would not limit his employment options;
·     his limited transferrable skills and previous work experience (working as a fish and chip shop owner and truck driver) his adequate English language and basic computer skills;
·     the length of time that Mr Batovas has been out of the workforce which would limit his employment opportunities;
·     the absence of a return to work plan or rehabilitation program;
·     the medical information in the referral material including the certificates provided by Mr Batovas' general practitioner;
·     and his place of residence in suburban Werribee (which would not limit his employment options).
[4]The Panel noted the Capacity Support Services Report from Carfi dated 7 January 2016 and Vocational Assessment Report dated 29 September 2017,^[[7]^] supplied with the referral, which identified the following potential suitable employment options for Mr Batovas:
[7]In these reasons, I will refer to this document as the ‘VAR’.
1.        Truck Driver
2.        Forklift Driver/Storeperson
3.        Courier
4.        Fleet Coordinator
5.        Product Quality Controller
6.        Warehouse Pick Pack Manager
7.        Transport and Despatch Clerk (Fleet Controller)
[5]The Panel asked Mr Batovas about the proposed suitable employment options identified in the vocational assessment report. Mr Batovas said that he thought he could work as a fleet controller, production quality controller, warehouse manager or transport and despatch clerk, but he expressed some reservations about report writing, due to his written English language skills.
[6]The Panel considered the functional requirements of the positions provided in the vocational assessment and the suitable employment criteria set out above.
[7]The Panel did not consider that Mr Batovas' psychiatric condition was of sufficient severity to preclude him undertaking suitable employment, and therefore the Panel considered that Mr Batovas had a current work capacity from a psychiatric perspective. The Panel noted that Mr Batovas presented as an alert, relaxed, not sedated, and not depressed or anxious at the interview with the Panel noting that his reported functioning during the day did not suggest more than a mild current psychiatric condition, which would not affect his ability to undertake regular or reliable suitable employment.
[8]The Panel therefore agreed with the opinions of Drs Tagkalidis and Dharwadkar regarding Mr Batovas' work capacity, for the reasons given above.

Professor Bittar’s Opinions
[9]Mr Botovas [sic] was examined by his treating neurosurgeon Professor Bittar on 20 November 2018 and the Panel received a copy of his report dated 20 November 2018. Professor Bittar stated that he found mild weakness of left elbow flexion and extension as well as weakness of finger extension on the left, representing a C6 and C7 radiculopathy. Professor Bittar was of the opinion that Mr Batovas was thus incapacitated for work and he recommended a C5/6 and C6/7 anterior cervical decompression and fusion.
[10]The Panel did not establish and [sic] any such weakness at the left elbow or fingers at its physical examination and therefore disagreed with Professor Bittar's diagnosis.
[11]Based on the Panel's conclusions regarding the nature of Mr Batovas' current physical condition and its consideration of the material contained in the referral including the description of the inherent duties of fleet controller and transport and despatch clerk, as described in the vocational assessment, the Panel concluded that Mr Batovas had the functional capacity and transferable skills to undertake the role of fleet controller and transport and despatch clerk on a reliable and consistent basis. The Panel also concluded that Mr Batovas would not exacerbate or aggravate his current physical or psychological conditions if he were to undertake these roles.
[12]The Panel concluded that there is work for which Mr Batovas is currently suited which he could perform on a reliable and consistent basis and the Panel therefore concluded that in the period from 20 January 2018 to the date of the Medical Panel's examination, and currently, Mr Batovas had, and has, a current work capacity.

I note that it was agreed between the parties that the references in [11] of this section of the Reasons to ‘fleet controller and transport and despatch clerk’ was in fact a reference to ‘Transport and Despatch Clerk (Fleet Controller)’ in [4] of this section of the Reasons.

Under the heading ‘Home Help’, the Reasons then record the Panel’s consideration of the home help required by the plaintiff. This is not relevant to these reasons.

The law
The Act

Section 39(1) of the Act provides that a worker is entitled to compensation if he or she sustains ‘an injury arising out of or in the course of any employment’ (a ‘compensable injury’). ‘Injury’ is defined in s 3 to mean ‘any physical or mental injury’.

Section 160 of the Act provides that if a worker’s incapacity for work results from, or is materially contributed to by, a compensable injury, the compensation to which the worker is entitled is to be in the form of weekly payments. Weekly payments are set at rates according to periods of incapacity, known as ‘entitlement periods’. The compensation for each entitlement period is set out in ss 161–3 of the Act.

Relevantly, after the second entitlement period (being an aggregate period of 117 weeks after the expiry of the first entitlement period of 13 weeks’ compensation), a worker is only entitled to continue to receive compensation in the form of weekly payments if assessed as ‘having no current work capacity and likely to continue indefinitely to have no current work capacity’.[8]
[8]Section 163(1) of the Act.

Under the Act:

(1)the expression ‘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’;[9] and
(2)the expression ‘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’.[10]

[9]Section 3 of the Act (definition of ‘no current work capacity’).

[10] Section 3 of the Act (definition of ‘current work capacity’).

‘Suitable employment’, in relation to a worker, has an extended definition under the Act. It provides:

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.[11]

[11]Section 3 of the Act (definition of ‘suitable employment’).

Medical Panels are constituted by medical practitioners who are selected from a list of members appointed by the Governor in Council. Pursuant to s 302 of the Act, the function of a Medical Panel is to ‘give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment’ that is referred to it. Medical questions may be referred by a number of bodies including, relevantly, the Magistrates’ Court.[12]
[12]Section 302(1) of the Act. See also s 274 of the Act.

A ‘medical question’ is defined to include, among other things:[13]

(1)‘a question as to the nature of a worker’s medical condition relevant to an injury … ’;
(2)‘a question as to the existence, extent or permanency of any incapacity of a worker for work or suitable employment …’;
(3)’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’; and
(4)‘a question as to the extent to which any physical or mental condition, including any impairment, results or resulted from or was or is, materially contributed to by the injury’.

[13]Section 3 of the Act (definition of ‘medical question’).

The procedures and powers of a Medical Panel are set out in div 3 of pt 6 of the Act. Relevantly, s 303(1) provides that a Medical Panel is not bound by rules or practices as to evidence and may inform itself on any matter relating to a reference in any manner it thinks fit. Further, a Medical Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.[14]
[14]Section 303(2) of the Act.

Pursuant to s 313(1) of the Act, a Medical Panel has an obligation to give a certificate as to its opinion and a written statement of reasons for that opinion. Pursuant to s 313(4), the opinion of the Medical Panel on a medical question referred to it ‘is to be adopted and applied by any court …’ and ‘must be accepted as final and conclusive by any court …’ irrespective of who referred the medical question or when the medical question was referred.

It is important to note the function of a Medical Panel. In Wingfoot Australia Partners Pty Ltd v Kocak[15] (‘Wingfoot’), the High Court said:

The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
[15]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (‘Wingfoot’) 498–9 [47] (citations omitted).

Judicial review

A certificate of opinion of a Medical Panel is subject to judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). Relevantly, the grounds for review can include jurisdictional error and inadequacy of reasons.

It is important to recall the limited nature of judicial review. It is not a merits review and the function of the Court is not to substitute its own decision for that of the decision maker. Further, the reasons of an administrative decision maker should be construed ‘beneficially’ which means the Court should not construe the reasons for decision ‘minutely and finely with an eye keenly attuned to the perception of error’.[16] The reasons of an administrative decision maker are ‘meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’.[17]
[16]Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 (‘Liang’) 271–2 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[17]Liang (n 16) 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

Jurisdictional error

It is important to appreciate the limited nature of what is meant by ‘jurisdictional error’. As the High Court said in Craig v South Australia,[18] a jurisdictional error is an error of law which causes an administrative tribunal ‘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’ in a way that affects its exercise of power.[19] This list is not exhaustive.[20] Further, different kinds of error may overlap.[21] Such an error results in the decision-maker exceeding the authority or powers given to him or her by the relevant statute such that he or she did not have jurisdiction to make the decision that was made.[22]
[18]Craig v The State of South Australia (1995) 184 CLR 163 (‘Craig’).
[19]Craig (n 18) 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) quoted in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (‘Yusuf’) 351 [82] (McHugh, Gummow and Hayne JJ).
[20]Yusuf (n 19) 351 [82].
[21]Yusuf (n 19) 351 [82].
[22]Yusuf (n 19) [82].

As to the nature of jurisdictional error in the context of the review of a decision of a Medical Panel, in Alcoa Holdings Ltd v Lowthian,[23] J Forrest J concluded:
[23][2011] VSC 245 (‘Alcoa’) (J Forrest J).

A Medical Panel may fall into jurisdictional error in a number of ways:
(a)it may misconstrue the relevant statute and thus misconceive the nature of the function which it is performing; or

(b) it may identify a wrong issue or ask itself a wrong question; or
(c)it may ignore a matter it is bound to take into account (or alternatively have regard to a matter it is bound to ignore) and such failure materially affects its decision.[24]

[24]Alcoa (n 23) [78] (citing Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, 39–41, Craig (n 18) 179, Yusuf (n 19) [82]–[83] and Kirk v Industrial Court (NSW) (2010) 239 CLR 531 [72]).

I also note that the Court of Appeal in Chang v Neil[25] recently held, in a case concerning judicial review of a decision of a Medical Panel under the Act, that a factual error may constitute jurisdictional error if it ‘amounts to a constructive failure to perform the statutory function conferred on the decision-maker’.[26] The Court concluded that:

Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material – properly construed - is an essential feature of a valid exercise of the function.[27]

[25]Chang v Neill [2019] VSCA 151 (‘Chang’)[92] (Maxwell ACJ, Beach and Kyrou JJA).

[26]Chang (n 25) [92] (Maxwell ACJ, Beach and Kyrou JJA).

[27]Chang (n 25) [92] (Maxwell ACJ, Beach and Kyrou JJA).

The plaintiff’s current work capacity was required to be assessed in accordance with the principles set out in Richter. In that case, the Court of Appeal relevantly held, in relation to equivalent provisions of the then applicable Accident Compensation Act 1985 (Vic):

(1)as a matter of statutory construction, the definition of ‘no current work capacity’ requires that the worker’s inability to return to work in employment, whether that be the worker’s pre-injury employment or suitable employment, be caused by an injury: the focus is on the injured worker’s inability to engage in employment;[28]
(2)the return to work in employment requires more than a physical capacity to engage in a task or tasks because there is more to an ability to work in employment than the ability to perform a task that happens to be required in that employment. This is consistent with and confirmed by the definitions of ‘no current work capacity’ and, in particular, of ‘suitable employment’ which requires consideration of factors beyond an ability to perform a particular task;[29]
(3)neither the definition of ‘no current work capacity’ nor ‘suitable employment’ focuses solely upon a worker’s physical capacity to undertake a task.[30] Rather, whether a worker has ‘no current work capacity’:
requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances—these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.[31]

[28]Richter (n 2) 114 [74] (Ashley and Kaye JJA).

[29]Richter (n 2) 114 [76] (Ashley and Kaye JJA).

[30]Richter (n 2) 115–7 [78]-[80], 120 [93] (Ashley and Kaye JJA).

[31]Richter (n 2) 120 [95] (Ashley and Kaye JJA).

Further, the Court of Appeal held that:

(1) all aspects of the relevant personal circumstances of the worker must ‘be comprehensively brought into account’ by the Panel;[32] and

(2) the entirety of the relevant personal circumstances may have a compounding effect. [33]

[32]Richter (n 2) 123 [103] (Ashley and Kaye JJA).

[33]Richter (n 2) 126 [106] (Ashley and Kaye JJA).

It was accepted for the purpose of this proceeding that the Panel was bound to consider the referral material, including the reports of the previous psychiatrists, when forming its opinion and delivering its Reasons consistent with Ryan v Grange at Wodonga Pty Ltd.[34] In that case, the Court of Appeal held that a Medical Panel had not properly had regard to a relevant consideration because its reasons did not ‘indicate that the Panel undertook any meaningful consideration’ of a relevant matter raised in the referral material.
[34][2015] VSCA 17 (‘Ryan’) [60] (Neave JA; Santamaria JA and Ginnane AJA agreeing).

Further, as Ginnane J said in Sensis v Jones:[35]

(1)a Medical Panel must have engaged in an ‘active intellectual process’, in which each relevant matter received genuine consideration;[36] and

(2) a ‘lack of express reference in its reason to a fundamental issue can support the inference that [the Panel] did not take [the relevant matter] into account’.[37]

[35][2018] VSC 754 (‘Sensis’).

[36]Sensis (n 35) [63] (citations omitted).

[37]Sensis (n 35) [64].

Adequacy of the Reasons

As to the standard required of written reasons given by a Medical Panel, the High Court in Wingfoot held that a statement of reasons ‘must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion … in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law’.[38]
[38]Wingfoot (n 15) 501 [55].

However it is important to recall that, as set out above, in Wingfoot the High Court also stated that it ‘goes too far … to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions’.[39] The function of the Medical Panel is ‘neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question’.[40]
[39]Wingfoot (n 15) 498–9 [47] (citations omitted).
[40]Wingfoot (n 15) 498–9 [47] (citations omitted).

That is not to say that material supplied to a Medical Panel ‘at odds’ with the Medical Panel’s conclusion will never be relevant to the adequacy of the Medical Panel’s reasons.[41] As the High Court said in Wingfoot:

The nature of the question referred to a Medical Panel, and the way the question was addressed by other medical practitioners supplied to a Medical Panel, might allow an inference to be drawn […] that the reasoning in fact adopted by a Medical Panel in arriving at its own differing opinion is not adequately reflected in its written statement of reasons. An inference might be drawn, for example, that the reasoning involved one or more steps not reflected in the written statement of reasons either at all or in sufficient detail to allow the court to see whether a Medical Panel made an error of law in those steps.[42]
[41]Denham v Consolidated Herd Improvement Services Co-Op Ltd [2014] VSC 520 [25] (T Forrest J).
[42]Wingfoot (n 15) 501 [57].

Grounds of review

In his originating motion, the plaintiff contended that the Certificate should be quashed because the Medical Panel erred in law in:

(1) considering separately the effect of his psychiatric condition and of his physical condition in determining his current work capacity (‘Ground (a)’);

(2) failing to assess his current work capacity on a whole person basis consistent with Richter (‘Ground (b)’);

(3) failing to demonstrate a process of reasoning assessing the plaintiff’s current work capacity on a whole person basis (‘Ground (c)’); and

(4) failing to take into account a relevant consideration, namely the histories and clinical observations of the previous psychiatrists (‘Ground (d)’).

As noted above, in written and oral submissions, counsel for the plaintiff dealt with Grounds (a)–(c) together as they each related to the Panel’s consideration of the plaintiff’s psychiatric and physical conditions. I will adopt that course for the purposes of my analysis.

Grounds (a)-(c)
The submissions

In the course of argument, it became apparent that the plaintiff had two points in relation to these grounds. First, the Panel separately considered the physical and psychiatric conditions of the plaintiff and thus failed to assess the plaintiff’s current work capacity, and/or to demonstrate a path of reasoning, on a ‘whole person basis’ consistent with Richter. Second, the Panel provided inadequate reasons for concluding that a suitable employment option for the plaintiff was as a T & D Clerk. I will deal with each in turn.

The ‘whole person basis’ submissions

Senior counsel for the plaintiff submitted that the Reasons disclosed that the Panel considered the physical and mental conditions of the plaintiff in isolation, rather than in combination, for the purpose of determining whether the plaintiff has a ‘current work capacity’. He submitted that the Panel was obliged to have regard to both of these conditions which arose as a result of the plaintiff’s injury on 27 July 2015, in particular, having regard to the definition of ‘current work capacity’ and ‘suitable employment’ under the Act. He contended that such an approach was mandated by Richter which, as set out above, requires consideration of a worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances. As a consequence, there was a failure to demonstrate a path of reasoning on a whole person basis consistent with this approach.

Senior counsel for the plaintiff referred to the separate consideration in the Reasons of the physical condition and of the psychiatric condition of the plaintiff. He noted the separate consideration of:

(1) the plaintiff’s physical condition, in particular under the headings ‘Physical Examination’, ‘Medical Imaging’ and ‘Physical Diagnosis’ on pages 7 and 8 of the Reasons; and

(2) the plaintiff’s psychiatric condition, in particular under the headings ‘Mental State Examination’ and ‘Psychiatric Diagnosis’ on pages 8 and 9 of the Reasons.

He then referred to the analysis and conclusions of the Panel under the heading ‘Work Capacity’. Counsel noted that:

(1) in [2] of that section (as identified above), the Panel referred only to the physical condition of the plaintiff; and

(2) in [3] of that section, when considering the aspects of the definition of ‘current work capacity’, ‘no current work capacity’ and ‘suitable employment’, the Panel only referred to the nature of the physical conditions, and not the psychiatric conditions, of the plaintiff.

Counsel highlighted that it was only after the Panel considered potential suitable employment options for the plaintiff in [4], [5] and [6] of that section that the Panel mentioned or addressed the plaintiff’s psychiatric condition in [7]. Counsel for the plaintiff relied in particular on the opening sentence of [7] which states:

[7]The Panel did not consider that Mr Batovas' psychiatric condition was of sufficient severity to preclude him undertaking suitable employment, and therefore the Panel considered that Mr Batovas had a current work capacity from a psychiatric perspective.[43]

[43]Emphasis added.

Senior counsel for the plaintiff submitted that this was a separate and disjunctive consideration of the plaintiff’s psychiatric condition leading to a separate conclusion that the plaintiff had a ‘current work capacity from a psychiatric perspective’.[44] He submitted that this was not consistent with Richter, which relevantly held that a Medical Panel must consider the plaintiff from a ‘whole person perspective’, based on the combination of his psychiatric and physical conditions or incapacities, as well as the other relevant circumstances set out in the definition of ‘suitable employment’ under the Act.
[44]Emphasis added.

Counsel then noted that:

(1) the Panel returned in [8] and [9] to the physical condition of the plaintiff; and
(2)it was only the plaintiff’s physical condition, and not his psychiatric condition, that was referred to in the Panel’s conclusion in [11] that the plaintiff had the functional capacity and transferable skills to undertake the role of a T & D Clerk.

By contrast, senior counsel for the first defendant submitted that the Panel did not err in concluding that the plaintiff had a current work capacity in the sense of being able to return to work in ‘suitable employment’. He submitted this is because the Panel had regard to both the impact of the plaintiff’s physical and psychiatric conditions on his work capacity. In this regard, senior counsel for the first defendant noted that it is commonplace for a worker to be examined separately by the psychiatric and non-psychiatric members of the Panel: indeed, it is commonplace for judges to divide considerations of incapacity into physical injury and psychiatric injury.

Senior counsel for the first defendant submitted that the plaintiff’s reading of the Reasons was inconsistent with the principles set out in [56] above. He submitted that, on a proper reading of this section of the Reasons, the Panel considered both the plaintiff’s physical and psychiatric conditions in the context of his capacity to work, consistent with Richter at [95]. In doing so, he referred to this section of the Reasons (in particular, [4]-[6], [7], [11] and [12]) in the context of the Reasons as a whole.

Senior counsel for the first defendant submitted that in [7] the Panel concluded that the psychiatric condition of the plaintiff did not have any impact on his ability to work. Thus, he submitted it was not a case where the worker’s physical and psychiatric conditions gave rise to an incapacity to work when considered in aggregate: given the Panel did not consider the plaintiff’s psychiatric condition had any impact on his ability to work, there was nothing to aggregate. He relied in particular on the last sentence in [7]:

The Panel noted that Mr Batovas presented as an alert, relaxed, not sedated, and not depressed or anxious at the interview with the Panel noting that his reported functioning during the day did not suggest more than a mild current psychiatric condition, which would not affect his ability to undertake regular or reliable suitable employment.

Senior counsel for the first defendant also referred to [11] which sets out the conclusion of the Panel. He noted the last sentence in [11] as supporting the conclusion that the Panel considered both the physical and psychiatric condition of the plaintiff.

Senior counsel for the first defendant relied upon the fact that the consideration of the plaintiff’s psychiatric condition took place after consideration of suitable employment options in [4]–[6]. In argument he conceded that there might be cases where there is a cumulative effect of both the psychiatric and physical injuries of a worker. However, he submitted this was not so in this case given the findings of the Panel that the plaintiff’s psychiatric condition was not of sufficient severity to preclude the plaintiff from undertaking any suitable employment.

Senior counsel for the plaintiff disputed this analysis. He submitted that, on the face of the Reasons, the Panel clearly determined in [7] the plaintiff’s capacity for suitable employment from a physical perspective and did so disjunctively from a psychiatric perspective. He submitted that the Panel did not say that the plaintiff’s psychiatric condition had no impact on the plaintiff’s ability to undertake suitable employment, referring again to [7]. In oral argument, he submitted:

What is required – you might have a minor contribution from a psychiatric condition which is required to be considered by the medical panel in conjunction with the physical aspect, and together, the psychiatric contribution might tip the balance. You don't, as a matter of correct application of law, say the psychiatric contribution is so minor that it wouldn't preclude employment, therefore it gets put to one side and disregarded …[45]

[45]Transcript of Proceedings, Batovas v CCRM Pty Ltd (Supreme Court of Victoria, S ECI 2019 00894, Lyons J, 12 March 2020) (‘Transcript’) 6–7 (ADB Ingram QC).

Senior counsel for the plaintiff submitted that the fact that the Panel was viewing ‘suitable employment’ capacity disjunctively is evident from the fact that it expressed agreement with the opinions of Dr Tagkalidis and Dr Dharwadkar who considered the plaintiff’s suitability for employment solely from a psychiatric perspective. Further, he disputed that the final sentence in [11] supported the submission that the Panel considered both the physical and psychiatric conditions of the plaintiff in concluding he had a current work capacity: that sentence only related to whether the work would exacerbate or aggravate those conditions.

Submissions on the adequacy of the Panel’s Reasons regarding ‘suitable employment’

Senior Counsel for the plaintiff submitted that the Panel failed to give adequate reasons for its conclusion that ‘suitable employment’ for the plaintiff was as a T & D Clerk. He submitted that, while the Panel said it took into account all aspects of the relevant definitions, it did not state how it did so or how it applied them to the considerations that it stated it took into account in coming to this conclusion.

Further, senior counsel for the plaintiff submitted that the Panel took improper account of the assessment reports referred to in [4] of this section of the Reasons for the purpose of its conclusion that ‘suitable employment’ for the plaintiff was as a T & D Clerk. This is because:

(1) the VAR expressly provided its primary purpose was ‘to identify suitable vocational options in relation to Mr Batovas’ compensable physical claim only’;[46]

(2) the VAR expressly provided that the suitable employment options identified as a result of the assessment tool ‘are indicators of vocational interest, not ability’; and

(3) the VAR acknowledged that the plaintiff did not then have a current work capacity for any of the suggested employment options and that prior to commencing job seeking to obtain employment in a T & D Clerk role, it was ‘recommended that the suitability of this role is reviewed and approved by his treating health practitioners or independent medical examiners’.

[46]Emphasis added.

I also note that under the heading ‘Reasons for Vocational Assessment Recommendations’ the VAR states:

Given that Mr Batovas does not have a current capacity to return to work, the aforementioned employment options were identified based on Mr Batovas’ existing transferrable skills, interests, qualifications and motivation, rather than his certified work capacity. These options should be reviewed by medical practitioners to determine if they are appropriate upon Mr Batovas’ development of a current work capacity.

Senior counsel for the plaintiff submitted that the job description of a T & D Clerk in the VAR appeared beyond the capacity of the plaintiff as its duties included ‘maintaining spreadsheets’, ‘date entry and administrative processes’, and ‘solid computer skills and the ability to pick up new systems quickly’. He submitted that there was no analysis or examination in the Reasons why employment as a T & D Clerk was suitable for the plaintiff. He submitted that the response of the plaintiff to questions from the Panel as to his own suitability for these roles was irrelevant.

Senior counsel for the first defendant responded that the Panel was an expert and experienced Medical Panel and included an expert rehabilitation physician and occupational and environmental physician. He submitted that the Panel was obliged to take into account the referral material which included the VAR but that it was not limited to that material or bound to consider only the evidence of the parties. Rather, the Panel was entitled to apply their expertise to form its own medical opinion on the questions referred to it, consistent with Wingfoot. This included a medical opinion as to whether any of the employment options identified in these reports were in fact ‘suitable employment’ for the plaintiff.

Senior counsel for the first defendant submitted that the basis upon which the Panel reached its conclusion was evident from [4]–[6] and [11] of the Reasons, namely having regard to the plaintiff’s functional limitations, other circumstances personal to him, his mild psychiatric condition which did not affect his work capacity and the plaintiff’s own view that he could work in the nominated role.

In this regard, senior counsel for the first defendant denied the answers of the plaintiff were irrelevant. The plaintiff told the Panel he thought he could work in a T & D Clerk role among others that had been identified as potentially suitable in the VAR. The plaintiff expressed ‘some reservations about report writing, given his written English skills’. No such report writing duties are listed in the T & D Clerk role. Rather, they are referred to in the ‘Product Quality Control’ role, which the Panel did not consider was a suitable role for the plaintiff.

Analysis
The ‘whole person basis’ submissions

In summary, I have concluded that the Panel erred in failing to consider the impact of both the physical condition and the psychiatric condition of the plaintiff along with the other relevant personal circumstances of the plaintiff for the purpose of determining whether the plaintiff did have, during the relevant period or, alternatively, at the date of the Certificate, ‘no current working capacity’. This is because in order to determine whether a person has ‘no current work capacity’ or a ‘current work capacity’ in respect of ‘suitable employment’ under the Act consistent with the principles in Richter set out in [61] and [62] above, it is necessary to assess a worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances, bearing in mind that each of those circumstances may have a compounding effect.

Based upon my reading of the Reasons, I have concluded that the Panel considered the physical condition and the psychiatric condition of the plaintiff separately. This is evident from the structure of the Reasons set out above. It is important to note that the Panel concluded in the Reasons that the plaintiff is suffering from both:

(1) a physical condition, namely ‘persistent neck dysfunction, without radiculopathy, but with secondary inhibition of left shoulder function, as a consequence of an aggravation of cervical spondylosis’, which was affected by the incident on 27 July 2015; and

(2) a psychiatric condition, namely ‘a chronic adjustment disorder with mixed anxiety and depressed mood, which has arisen as a consequence of his physical injury’ on 27 July 2015.

These two conditions were considered separately in the Reasons as the summary set out above indicates. This separate consideration was also continued, for the most part, in the section headed ‘Work Capacity’ where the Panel set out their reasons for determining whether the plaintiff has a ‘current work capacity’ or ‘no current work capacity’.

It is only the plaintiff’s physical condition that is addressed in [2] of that section. Paragraph [3], in which the Panel commences its consideration of whether the plaintiff has a current work capacity or no current work capacity, sets out a number of the personal circumstances of the plaintiff by reference to the definition of ‘suitable employment’ under the Act. Relevantly, the Panel refers to the plaintiff’s physical condition. No reference is made in this paragraph to his psychiatric condition at all.

In [4]–[6], the Panel then notes the various potential suitable employment options for the plaintiff by reference to the assessment reports. In this context, the Panel considers in [5] the plaintiff’s own views about the suitability of these employment options. The Reasons note that the plaintiff expressed some reservations about report writing due to his written English language skills. The Reasons then set out in [6] that the Panel considered the functional requirements of these positions provided in the VAR and the suitable employment criteria but does not record any consideration of his psychiatric condition.

The plaintiff’s psychiatric condition is addressed at [7] and [8]. It is appropriate that I set out those paragraphs again:

[7]The Panel did not consider that Mr Batovas' psychiatric condition was of sufficient severity to preclude him undertaking suitable employment, and therefore the Panel considered that Mr Batovas had a current work capacity from a psychiatric perspective. The Panel noted that Mr Batovas presented as an alert, relaxed, not sedated, and not depressed or anxious at the interview with the Panel noting that his reported functioning during the day did not suggest more than a mild current psychiatric condition, which would not affect his ability to undertake regular or reliable suitable employment.
[8]The Panel therefore agreed with the opinions of Drs Tagkalidis and Dharwadkar regarding Mr Batovas' work capacity, for the reasons given above.

The first sentence of [7] records that the Panel did not consider that the plaintiff’s psychiatric condition was ‘of sufficient severity to preclude him from undertaking suitable employment, and therefore the Panel considered that [the plaintiff] had a current work capacity from a psychiatric perspective’.[47] Significantly, as is plainly reflected by the words ‘from a psychiatric perspective’, the Panel made a finding that, based on his psychiatric condition alone, the plaintiff had a current work capacity. That finding is not based upon any of the other factors listed in [3], including the plaintiff’s physical condition: rather, it is based solely upon the plaintiff’s psychiatric condition.
[47]Emphasis added.

In the last sentence of [7] the Panel concludes that the plaintiff’s ‘reported functioning during the day did not suggest more than a mild current psychiatric condition which would not affect his ability to undertake regular or reliable suitable employment’.

However, in my view, reading [7] as whole, the Panel appears to be addressing solely the plaintiff’s psychiatric condition and its effect on the plaintiff’s ability to undertake regular or reliable suitable employment. While [7] refers both to the present and past tense, it appears to be an assessment of such ability or suitability at the date of the Certificate, rather than during the relevant period. This is because the Panel refers in [7] to the plaintiff’s presentation at the Panel’s examination and in the last sentence to his mild ‘current’ psychiatric condition.

Further, the Panel does not appear by this paragraph to be considering the plaintiff’s psychiatric condition in combination with his physical condition and/or the other personal circumstances of the plaintiff which may affect his ability to undertake regular or reliable suitable employment. As the first sentence of [7] states, the Panel appears to have arrived at the conclusion that the plaintiff ‘had a current work capacity’ by a consideration only of the plaintiff’s psychiatric condition.

The Reasons in [8] record that the Panel agreed with the opinions of Drs Tagkalidis and Dharwadkar regarding the plaintiff’s work capacity. This might be thought to be a reference to conclusions for the relevant period, although the Reasons are far from clear. I will return to this further in relation to Ground (d) below.

The Reasons then return in [9] and [10] to further consideration of the plaintiff’s physical condition and, in particular, whether the Panel agrees with Professor Bittar’s opinion that the plaintiff was suffering from radiculopathy at C6 and C7. The Panel disagreed with this opinion based upon the Panel’s examination of the plaintiff.

In [11], the Reasons record the Panel’s conclusion that the plaintiff had the functional capacity and transferable skills to undertake the role of a T & D Clerk on a reliable and current basis. Those conclusions are expressed to be based on ‘the nature of Mr Batovas’ current physical condition and [the Panel’s] consideration of the material contained in the referral including the description of the inherent duties of [a T & D Clerk]’.[48] Once again, at this key stage, there is no consideration of the plaintiff’s psychiatric condition.
[48]Emphasis added.

It is true that [11] records that the Panel concluded that the plaintiff ’would not exacerbate or aggravate his current physical or psychological conditions if he were to undertake these roles’. However, as submitted by the plaintiff, that sentence only relates to whether the role of a T & D Clerk as potential suitable employment would exacerbate or aggravate either of those conditions. It does not relate to, and is not a consideration of, the issue of whether or not there is available to the plaintiff suitable employment and thus whether the plaintiff has a current work capacity by reason of those conditions.

As a result, after considering the structure and content of the Reasons, in particular under the section ‘Work Capacity’, I have formed the view that the Panel reached its conclusion that the plaintiff has a ‘current work capacity’ without considering each of the plaintiff’s physical and psychiatric conditions along with the entirety of the plaintiff’s personal circumstances, consistent with the principles in Richter set out above.

I am unable to accept the submission of the first defendant that in [7] of the Reasons the Panel concluded that the psychiatric condition of the plaintiff did not have any impact on his ability to work with the result that the principles in Richter were complied with. This is because the Panel did not address whether the two medical conditions of the plaintiff, which it earlier in the Reasons found arose from the injury suffered, in combination and together with the entirety of the plaintiff’s personal circumstances had any and if so what effect on the plaintiff’s ability to work. In short, in my view, Richter required the Panel to consider and assess the compounding effect, if any, of both those medical conditions and together with the entirety of the plaintiff’s personal circumstances. On the face of the Reasons, the Panel did not do so.

Further and as a result, I have concluded that the failure of the Panel to consider the two medical conditions of the plaintiff in this way was to misconstrue the task imposed on the Panel by the Act and/or led it to assess the plaintiff’s current work capacity by asking itself the wrong question.

In reaching this conclusion, I have been mindful that a beneficial interpretation should be given to the reasons of an expert panel, such as a Medical Panel under the Act, in a judicial review context. I have also had regard to the submissions of the first defendant that the Panel had regard to both the impact of the plaintiff’s physical and psychiatric conditions on his work capacity. I agree that this is so. However, I am unable to agree that the Panel did so in a way that is consistent with principles in Richter.

The result is that the Certificate should be quashed.

Adequacy of the Panel’s Reasons regarding ‘suitable employment’

In light of my above conclusion, I do not consider it is necessary or appropriate for me to consider whether the Panel’s Reasons are adequate in respect of its conclusion that the plaintiff had the capability to undertake the role of a T & D Clerk. It suffices to say that the Panel was required to consider the medical conditions of the plaintiff in combination with the entirety of the plaintiff’s relevant personal circumstances in determining whether he had the capability to work in employment in the particular role.

Ground (d)
The submissions

Ground (d) of the plaintiff’s originating motion is that the Panel erred in law in failing to take into account a relevant consideration, namely the histories and clinical observations of the previous psychiatrists.

In written submissions, the plaintiff submitted in substance that:

(1)the reports of Dr Athey dated 18 May 2017 and Dr Prytula dated 26 June 2018 contained recent histories and clinical observations which showed a much worse picture of the plaintiff’s psychiatric condition than the brief conclusion of the Panel on the plaintiff’s psychiatric condition based upon its examination of him; and
(2)while the Panel was entitled to rely upon its own perceptions, there is no sign that the Panel had taken into account the observations of these practitioners and given them appropriate weight in assessing the plaintiff’s psychiatric condition and its effect on his employability.

In written submissions, counsel for the first defendant submitted in substance that this ground should be rejected for two reasons. First, the Panel took into account all four of the previous psychiatric reports, noting the diagnosis reached by each of them. The Panel explained its reasons for reaching a different diagnosis to Dr Athey and Dr Prytula and it was reasonable to infer that the Panel considered the histories and clinical observations contained in those reports. Second, in any event, the Panel was not obliged to take into specific account the histories and clinical observations recorded by Dr Athey and Dr Prytula as those descriptions stood in marked contrast to the Panel’s examination of the plaintiff set out in the Reasons under the heading ‘Mental State Examination’.

As noted above, in the course of oral argument in this context, issues were raised about Panel’s conclusion that during the relevant period the plaintiff had a current work capacity. These issues related in particular to whether the Panel had separately considered, and had given inadequate reasons regarding, the plaintiff’s psychiatric condition during the relevant period. Senior counsel for the first defendant did not object to the plaintiff seeking to raise these matters, and addressed them in argument.

In the course of oral argument, senior counsel for the plaintiff did not dispute that the Panel had displayed a path of reasoning for conclusions reached about the current psychiatric condition of the plaintiff based, in particular, upon the Panel’s examination of the plaintiff set out under the heading ’Mental State Examination’.[49] However, he submitted that the Panel had not truly considered the psychiatric condition of the plaintiff in the period before that time and, in particular, from 20 January 2018 (i.e. the relevant period).[50] He relied upon, among other things, the absence of any engagement by the Panel with the reports of Dr Athey dated 18 May 2017 and Dr Prytula dated 26 June 2018.
[49]Transcript (n 45) 28:10–14.
[50]Transcript (n 45) 29:13–19, 32:31–33:11.

Senior counsel for the plaintiff noted [8] under the heading ‘Work Capacity’ of the Reasons which alone might be read as expressing a view as to the mental state of the plaintiff and its effect on his ‘current work capacity’ for the whole of the relevant period. However, he noted in particular the report of Dr Dharwadkar, relied upon by the Panel, which expressly stated that there were ‘psychiatric restrictions’ on the plaintiff’s capacity to work in other suitable employment, namely part time hours and not involving crowds.

By contrast, senior counsel for the first defendant submitted that the Panel was aware of the task of assessing the current work capacity of the plaintiff not only ‘currently ‘ (i.e. as at the date of the Certificate), but also for the relevant period.[51] He submitted this was evident from the Panel’s answer to Question 3 and [8] and [11] under the heading ‘Work Capacity’.
[51]See, eg, Transcript (n 45) 53:13–17.

Senior counsel for the first defendant submitted that the Panel had ‘plainly engaged with psychiatric opinions’ of the previous psychiatrists.[52] He noted that a summary of each report was contained under the heading ‘Psychiatric Diagnosis’. Further, in [7], the Panel expressed their view that the plaintiff ‘had a current work capacity from a psychiatric perspective’ based upon the plaintiff’s presentation at the Panel’s examination. In [8], it could be inferred that the Panel expressed its view for the relevant period based upon the opinions of Dr Tagkalidis and Dr Dharwadkar. He submitted it was obvious that the Panel had read through and thought about the reports of all the previous psychiatrists for the purpose of a diagnosis and for the purpose of determining the plaintiff’s current work capacity during the relevant period.
[52]Transcript (n 45) 54:13.

Senior counsel for the first defendant submitted that the Court should infer a sufficient basis for these conclusions, consistent with the concept of ‘implicit findings’ in Calleja v Franet Pty Ltd[53] and Wingfoot.[54] Senior counsel for the first defendant submitted that, in this case, the Panel had chosen to agree with two of the four previous psychiatrists: the Court should infer that there were implicit findings and infer that each of their reports was considered by the Panel. Further, he submitted that the Reasons did not show that the Panel misunderstood ‘what their job was, what their jurisdiction was … or that they had no basis for making the [findings] they made’.[55]
[53]Calleja v Franet Pty Ltd [2000] VSC 339 [36]–[55] (Ashley J).
[54]Wingfoot (n 15) [63].
[55]Transcript (n 45) 56:4–8.

Analysis

In light of my conclusions in respect of Grounds (a)–(c), it is not necessary to determine Ground (d) or the issue raised in the course of oral argument relating to the conclusions of the Panel in respect of the plaintiff’s psychiatric condition and thus his current work capacity during the relevant period. However I consider it appropriate that I express my views shortly in relation to this later issue. This is notwithstanding that this issue is impacted by the failure of the Panel to consider the plaintiff’s current work capacity consistent with Richter. In my view, it is appropriate to deal with the Panel’s path of reasoning relating to the relevant period because it raises an issue of some general application where opinions of a Medical Panel are sought in respect of the work capacity of a worker not only as at the time of the Medical Panel’s decision but also during an earlier relevant period.

As set out in [28] above, it is important to recall that Question 3 required the Panel to determine whether the plaintiff had ‘no current work capacity’ as at two periods of time: first, during the relevant period and, second, ‘currently’ (i.e. as at the date of the Certificate). The earlier time period was relevant because 20 January 2018 was the date on which the plaintiff’s payments stopped. The Panel concluded in answer to Question 3 that during the relevant period, and currently, the plaintiff had, and has, a current work capacity.

In my view, absent the failure of the Panel to consider the plaintiff’s current work capacity on a whole person basis, the Reasons do display a path of reasoning for concluding that the plaintiff had a current work capacity as at the time of the Certificate and the Reasons (i.e. currently). This is because of the conclusion of the Panel based upon its examinations of the plaintiff in late 2018 which are set out above.

However absent the failure of the Panel to consider the plaintiff’s current work capacity on a whole person basis, I am of the opinion that the Reasons do not display a process of reasoning for the conclusion that during the relevant period (i.e. from 20 January 2018 to the date of Panel’s examination of the plaintiff) the plaintiff had a current work capacity. In this regard, I note that the Reasons for the most part speak in the present tense and express the view of the Panel of the plaintiff’s conditions as at the time of the Reasons. For example, no reference is made to the ‘relevant period’ under the heading ‘Work Capacity’ until its concluding paragraph at [12]. However, the reasoning for this conclusion in [12] does not refer to or address expressly the relevant period at all.

In my view, there is an absence of a path of reasoning in relation the Panel’s conclusions about the plaintiff’s psychiatric condition and thus his work capacity in the context of suitable employment before the Panel’s examinations of the plaintiff. The psychiatric condition of the plaintiff is addressed in the Reasons under the headings ‘Current Psychiatric Symptoms’, ‘Mental State Examination’, ‘Psychiatric Diagnosis’ and ‘Work Capacity’ at [7] and [8].

First, under the heading ‘Current Psychiatric Symptoms’ the Panel appears to record the symptoms the plaintiff told the Panel about at the examination by the psychiatrist members of the Panel (i.e. on 18 December 2018 shortly before the Certificate was issued). I have inferred this from the frequent reference to ‘he said’ in this section.

Second, under the heading ‘Mental State Examination’ the Panel refers to the plaintiff’s presentation at his examination by the psychiatrist members of the Panel. I will refer to the significance of the results of this examination further below.

Third, under the heading ‘Psychiatric Diagnosis’ the Panel makes conclusions regarding its diagnosis of the plaintiff’s psychiatric condition. The language under that heading is not expressed to relate to either the relevant period or currently. However, in the first sentence, the Panel concludes that the plaintiff ‘is suffering from a chronic adjustment disorder with mixed anxiety and depressed mood, which has arisen as a consequence of his physical injury’.[56]
[56]Emphasis added.

Under this heading, reference is then made to the reports of the previous psychiatrists and the Panel summarises their findings. I have set out those findings above. The next paragraph then set outs out the Panel’s opinion that:

(1) the plaintiff’s symptoms and signs ‘were more consistent with an adjustment disorder with mixed anxiety and depressed mood than a more severe condition such as a major depressive disorder’; and

(2) there was no somatic symptom disorder.

However it is not clear from this paragraph that the Panel’s conclusions relate to the relevant period. Indeed, there is no reference in this section to the relevant period at all.

Fourth, under the heading ‘Work Capacity’, the Panel records in [1] that the Panel only considered ‘whether [the plaintiff] has a current work capacity’.[57] This speaks in the present tense and does not refer to the time-periods raised in Question 3. There appears to be no reasoning in this section as to why the plaintiff had a current work capacity during the relevant period.
[57]Emphasis added.

Fifth, reference is made in [7] and [8] to the Panel’s conclusions as to the extent of the plaintiff’s psychiatric condition. I have set them out above. Once again, that section is not expressed to relate to either the relevant period or currently, although I note the conclusion in [7] is that the plaintiff ‘had a current work capacity from a psychiatric perspective’. However, as noted in [99] above, this conclusion appears to be an assessment as at the date of the Certificate.

The Reasons then record:

The Panel therefore agreed with the opinions of Drs Tagkalidis and Dharwadkar regarding Mr Batovas’ work capacity, for the reasons given above.

As noted above, senior counsel for the first defendant submitted that:

(1)the Court should infer from this paragraph and the Reasons as a whole that the Panel considered the reports of the previous psychiatrists, which relate to the relevant period, in reaching this conclusion; and
(2)there was therefore an implicit finding of the Panel about the plaintiff’s psychiatric condition and work capacity during the relevant period.

However I am unable to accept this submission. As is evident, the process of reasoning of the Panel is not clear. It may be that the Panel was intending to convey that:

(1)it reached the same conclusion regarding the plaintiff’s psychiatric condition and work capacity for the relevant period as it did as at the time of its examination of the plaintiff; and
(2)this was based, in particular, on two of the four reports of the previous psychiatrists set out under the heading ’Psychiatric Diagnosis’, which concluded that the plaintiff then had a current work capacity.

In my view, the Reasons do not disclose a path of reasoning for such a conclusion either expressly or by proper inference. The reference to the reports of the previous psychiatrists and the limited views expressed by the Panel about them do not disclose such a process of reasoning. In this regard, it is important to recall the importance of Question 3, to both the plaintiff and the Panel, and the two specific periods of time in respect of which the Panel were tasked to form an opinion and answer.

Even if I were to draw such an inference, as senior counsel for the plaintiff submitted, one of the two reports of the previous psychiatrists relied upon by the Panel (i.e. of Dr Dharwadkar) concluded that the plaintiff’s current work capacity, as at September 2017, was subject to restrictions. While the Panel agreed with Dr Dharwadkar’s opinion regarding the plaintiff’s work capacity, they did not address the consequences of the restrictions identified by Dr Dharwadkar, when considering suitable employment options for the plaintiff during the relevant period.

I note in passing that the psychiatric condition of the plaintiff is referred to in [11]. However this reference does not support the conclusion that the Panel considered the plaintiff’s psychiatric condition and work capacity during the relevant period.

Once again, I am mindful of the beneficial interpretation that should be given to the reasons of an expert panel such as a Medical Panel under the Act in a judicial review context. I am also mindful of the Panel’s role and that, in forming an opinion on the matters referred to it, is not obliged to decide a dispute or to make up its mind by reference to competing contentions or medical opinions, but is to form its own view on those medical questions. I am also conscious that the relevant period is not a long period of time, comprising approximately 10 months. However, I am conscious too that both physical and psychiatric conditions can change over time: indeed, the possibility of change seems to be the very reason why Question 3 specified each of the two periods on which the Panel was asked to form a view.

In all the circumstances, for the reasons set out above, I have formed the view that the Reasons do not explain the path of reasoning by which the Panel arrived at its conclusion that the plaintiff had a current work capacity during the relevant period (particularly in respect of his psychiatric condition) in sufficient detail to enable me to determine whether the conclusion does or does not involve any error of law.

Conclusion

The result is that the Certificate will be quashed and the matter should be remitted to a differently constituted Medical Panel for consideration in accordance with the Act. I will hear from the parties on the appropriate orders to be made and the issue of costs in light of these reasons.

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SCHEDULE OF PARTIES

S ECI 2019 00894

CHRISTOS BATOVAS	Plaintiff
CCRM PTY LTD	First Defendant
ASSOCIATE PROFESSOR PETER GIBBONS (DEPUTY CONVENOR OF MEDICAL PANELS)	Second Defendant
DR DAVID KOTZMAN	Third Defendant
DR CAROLYN ARNOLD	Fourth Defendant
MR RODNEY SIMM	Fifth Defendant
ASSOCIATE PROFESSOR ANNE HASSETT	Sixth Defendant
DR STEVEN ADLARD	Seventh Defendant
MS PHI-VAN HOUSTON	Eighth Defendant

[2020] VSC 178

11 May 2020