Douglass v Sunbeam Foods Pty Ltd
[2023] VSC 205
•21 April 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 03226
| SHARON DOUGLASS | Plaintiff |
| v | |
| SUNBEAM FOODS PTY LTD | First Defendant |
| and | |
| ASSOCIATE PROFESSOR PETER GIBBONS | Second Defendant |
| and | |
| MEDICAL PANEL constituted by ASSOCIATE PROFESSOR ANDREW HARDIDGE, DR JANE TRINCA, DR SUSANNE HOMOLKA, and DR STEVEN ADLARD | Third Defendants |
---
JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 March 2023 |
DATE OF JUDGMENT: | 21 April 2023 |
CASE MAY BE CITED AS: | Douglass v Sunbeam Foods Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2023] VSC 205 |
---
ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Panel of opinion that worker had ‘current work capacity’ – Whether Panel misapplied the definition of ‘suitable employment’ in concluding that the role of mystery shopper was suitable employment for the plaintiff – Whether Panel failed to consider relevant material – Whether Panel’s reasons adequate – No error established – Proceeding dismissed – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 3 (definition of ‘suitable employment’), s 313.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr CE Hangay | Slater & Gordon |
| For the First Defendant | Mr MF Fleming KC with Mr C Viney | Lander and Rogers |
| For the Second and Third Defendants | No appearance |
HER HONOUR:
Sharon Douglass was employed by Sunbeam Foods Pty Ltd as a process worker and then a quality controller in a fruit processing plant at Irymple, in northern Victoria. Sunbeam was her first and only employer, and she worked there full time for 25 years, between 1991 and 2016.
Until 2014, her work involved standing at a conveyor belt carrying boxes of loose fruit and visually checking their contents, while using her left arm to halt the line of boxes. Every ten minutes she lifted a random box off the conveyor, emptied out its contents and sorted through them, before returning the refilled box to the conveyor.
In about May 2010, Ms Douglass experienced some pain in her left shoulder while working, and had to take time off work. The pain resolved after rest and treatment — after about a month she was able to undertake light duties, and she resumed her usual duties by the end of July 2010. Four years later, in February 2014, Ms Douglass suffered acute pain in her right shoulder as she lifted a box off the conveyor. She tried to keep working, but by early March the pain had worsened and her general practitioner certified her to be unfit for work. The pain partially resolved with treatment, and she returned to modified duties as a quality controller on the prune line. She had ongoing pain in her right shoulder and also began to experience recurrent pain in her left shoulder, which gradually got worse. In October 2014, Sunbeam transferred Ms Douglass to alternative duties in the packing area.
Ms Douglass made three separate claims for workers’ compensation: in June 2010, in respect of her left shoulder; in March 2014, in respect of her right shoulder; and in October 2014, in respect of her left shoulder. Sunbeam’s claims agent accepted liability for all three claims. Ms Douglass performed alternative duties until May 2016, when Sunbeam terminated her employment because she was unable to resume her pre‑injury duties.
In May 2018, Ms Douglass’ entitlement to weekly payments of compensation was terminated by Sunbeam’s claims agent. Its reasons for that decision included that weekly payments had been paid for a total of 130 weeks and she had a current work capacity, or alternatively if she had no current work capacity it was not likely to continue indefinitely. Ms Douglass disputed the decision on the basis that she was incapacitated for employment, had no current work capacity, and that was likely to continue indefinitely. In April 2020, she commenced a proceeding in the County Court of Victoria, seeking an order that Sunbeam pay her weekly payments of compensation from May 2018.
On 17 December 2020, Judge Coish referred seven medical questions to a Medical Panel for an opinion, pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). A Medical Panel was convened to consider the referral, comprising Associate Professor Andrew Hardidge, orthopaedic surgeon, Dr Jane Trinca, pain medicine physician, Dr Susanne Homolka, occupational and environmental physician, and Dr Steven Adlard, psychiatrist.
On 4 July 2021, the Panel provided its opinion and a written statement of reasons. The Panel found that while Ms Douglass was suffering from right and left shoulder dysfunction which was work-related, she had a current work capacity. In particular, the Panel concluded that Ms Douglass could perform the duties of a mystery shopper. The Panel’s opinion is to be adopted and applied in the County Court proceeding.[1]
[1]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 313(4) (WIRC Act).
In this proceeding, Ms Douglass seeks judicial review of the Panel’s opinion. She contends that the Panel erred in law in applying the definition of ‘suitable employment’ in s 3 of the WIRC Act and ignored relevant material in concluding that the position of mystery shopper was suitable employment for her.[2] She also contends that the Panel’s reasons were inadequate. Ms Douglass seeks an order in the nature of certiorari quashing the Panel’s opinion, and an order in the nature of mandamus remitting the medical questions to a differently constituted Panel.
[2]A further ‘no evidence’ ground was abandoned at trial.
For the reasons that follow, none of these grounds is made out. The proceeding must be dismissed.
The Panel’s opinion and reasons
Seven medical questions were referred to the Panel for its opinion. Those questions, and the Panel’s opinion in relation to each question, were set out in the Panel’s certificate of opinion dated 4 July 2021:
Question 1:What is the nature of the medical condition/s of the Plaintiff’s:
(a) Right shoulder;
(b) Left shoulder;
(c) Mind?
Answer: (a) and (b) In the Panel’s opinion the Plaintiff is currently suffering from right and left shoulder dysfunction as a consequence of an aggravation of bilateral rotator cuff degeneration and acromioclavicular joint osteoarthritis.
(c) In the Panel’s opinion the Plaintiff is not currently suffering from any psychiatric or abnormal psychological medical condition.
Question 2: In any, and if so what, period from 12 May 2018 to the date of the Medical Panel’s examination, did the Plaintiff have ‘no current work capacity’?
Answer: In the Panel’s opinion, in the period from 12 May 2018 to the date of the Medical Panel’s examination, the Plaintiff had a current work capacity.
Question 3: If ‘yes’ to question 2, was it likely to continue indefinitely?
Answer: Not applicable.
Question 4:If ‘yes’ to Question 3, has the Plaintiff’s incapacity for work resulted from, or has it been materially contributed to by, any of the injuries suffered throughout the course of her employment with the Defendant (as alleged in paragraph 4 of the Statement of Claim)?
Answer: In the Panel’s opinion, the Plaintiff’s incapacity for pre-injury work resulted from, was and is materially contributed to by the claimed left and right shoulder injuries.
Question 5:As at the date of the Medical Panel’s examination, does the Plaintiff have ‘no current work capacity’?
Answer: In the Panel’s opinion, as at the date of the Medical Panel’s examination, the Plaintiff has a current work capacity.
Question 6. If ‘yes’ to Question 5, is it likely to continue indefinitely?
Answer: Not applicable.
Question 7. If ‘yes’ to Question 6, does the Plaintiff’s incapacity for work result from, or is it materially contributed to by, any of the injuries suffered throughout the course of her employment with the Defendant (as alleged in paragraph 4 of the Statement of Claim)?
Answer: In the Panel’s opinion, the Plaintiff’s incapacity for pre-injury work resulted from, was and is materially contributed to by the claimed left and right shoulder injuries.
The Panel’s reasons commenced by noting that Ms Douglass was examined jointly by Associate Professor Hardidge, Dr Trinca and Dr Homolka, and separately by Dr Adlard, on 21 May 2021.
The Panel stated that it formed its opinion with regard to the documents and information referred to in Enclosure A to its reasons, the history provided by Ms Douglass, and the examination findings elicited by the Panel. Enclosure A listed 30 documents provided to the Panel with the referral, including radiological reports, medical reports, and vocational assessments. The Panel was also provided with a joint statement setting out agreed facts,[3] which it referred to in its reasons.
[3]Pursuant to WIRC Act, s 304(a)(ii).
The Panel noted that Ms Douglass was born on 16 August 1962, and entered the workforce for the first time in 1991, when she began employment with Sunbeam. She completed secondary education to Year 10 level, in 1978. The same year, when she was 16 years old, she was involved in a transport accident that left her with a fractured pelvis and left leg. While she made a full recovery, it took some time, and she did not resume her education. In 1980, Ms Douglass had the first of her five children. Her other children were born in 1982, 1984, 1986, and 1991. Between 1980 and 1991 she was engaged in domestic duties, caring for her children and raising her family.
Ms Douglass told the Panel that she commenced full-time employment with Sunbeam in February 1991, initially as a process worker and later as a quality controller. The Panel set out her description of her duties, the shoulder injuries she suffered in May 2010, February 2014, and October 2014, and the termination of her employment on 16 May 2016. It noted that, despite her bilateral shoulder problem, Ms Douglass had been coping reasonably well with her alternative duties, which did not require excessive movements of either arm or heavy manual handling.
After her employment with Sunbeam ended, Ms Douglass told the Panel that she had not returned to the workforce. She had received unemployment benefits since the termination of her weekly payments in May 2018. She told the Panel that she had not been looking for work because her only job had been with Sunbeam, and she did not know what else she could do.
The Panel recorded that there had been some slight improvement in the intensity of her pain after ceasing work, despite occasional episodes of severe pain, but that overall Ms Douglass felt her bilateral shoulder condition was essentially unchanged. Her left shoulder is worse than the right. Her range of movement in both shoulders is limited by pain, particularly when reaching upwards or behind her.
In relation to activities of daily living, the Panel noted that Ms Douglass is independent in terms of her personal care. She is able to cook, clean, and shop for staples, but receives assistance from her son and daughter-in-law with tasks such as hanging out washing and grocery shopping. She spends a lot of time with her adult children, who all live in her local area, and her nine grandchildren and two great‑grandchildren. She takes the younger children to the park and to their activities, and plays bingo on Saturdays. She is able to drive her manual transmission car locally.
Ms Douglass told the Panel that she had not engaged in any retraining since she ceased work in May 2016. She said that she cannot use a computer, and does not have a computer at home. She does not use social media on her mobile phone. The Panel noted that she was currently thinking about enrolling in some one-on-one computer training that was being offered by her local community aged-care service.
The Panel then recorded details of Ms Douglass’ current treatment, past medical history, its findings on clinical examination, and its review of the available radiological reports. It also set out her psychiatric history and its observations made during a mental state examination.
The Panel diagnosed Ms Douglass to be ‘currently suffering from right and left shoulder dysfunction as a consequence of an aggravation of bilateral rotator cuff degeneration and acromioclavicular joint osteoarthritis’. While it considered this shoulder condition to be constitutional in origin, the Panel concluded that it had been aggravated by the nature and duration of her employment duties, and that the effects of the aggravation persisted.
The Panel did not consider that Ms Douglass suffered from any psychiatric or abnormal psychological condition.
Next, the Panel set out its consideration of Ms Douglass’ work capacity. It was of the opinion that her current bilateral shoulder condition precluded her from performing her pre-injury duties. As to any residual work capacity:
The Panel considered all aspects of the definition of “suitable employment”, “current work capacity” and “no current work capacity’ as defined in the Legislation. The Panel considered:
• The nature, extent and severity of the Plaintiff’s physical medical condition, including her current analgesic intake, which the Panel considered to preclude her from any kind of employment involving heavy manual handling reduce her ability to consistently cope with employment duties involving heavy manual handling or working above waist height with either arm;
• Her age of almost 59 years, which the Panel considered to somewhat limit her employment options;
• Her place of residence in Mildura, which the Panel considered to allow for a range of employment options;
• Her possession of a current driver’s licence a reported driving tolerance limited to her local area, which the Panel considered does preclude her [from] a variety of employment options given her place of residence;
• Her transferable skills, which include a favourable personal presentation, excellent communication skills, good English literacy and numeracy skills, but no computer skills, and an occupational experience limited to the duties of a process worker/quality controller in a dried fruit processing plant;
• The occupational rehabilitation services provided to the Plaintiff, which include job seeking services and a vocational assessment but no retraining; and
• The opinion of the Plaintiff’s treating general practitioner, Dr KC Ibegbulem, expressed in his report dated 24 April 2018 wherein he considered that the Plaintiff’s “has some current capacity for work but it will have to be a desk based job”.
The Panel considered and rejected the alternative employment options of an administration officer, a receptionist, a sales assistant, a human resources assistant, a light process worker, or an office manager, which had been identified in various job seeking service reports included in the referral material. It did not consider that any of these options constituted suitable employment for Ms Douglass because she had no occupational experience in any kind of administrative role, and all of the roles would require some bimanual handling and/or reaching with her arms above shoulder height.
The Panel then considered the remaining alternative employment options of a school crossing supervisor, a nanny, an out of school hours childcare worker, and a mystery shopper to be potentially suitable employment for Ms Douglass. It asked her about her own perception of her ability to undertake these roles, and noted:
[T]he Plaintiff said that she did not think she could do any of these jobs given that she would not be able to lift and hold the school crossing sign, or to lift and carry a small child. She expressed concerns about out of school childcare due to living in a “granny flat” and about the role of a mystery shopper because she had never done any retail or sales work in the past.
Based on its own clinical examination, the Panel agreed that Ms Douglass’ shoulder condition would preclude her from being able to cope with the duties of a school crossing supervisor and a nanny. Consequently, it concluded that those roles would not constitute suitable employment. As to the remaining two roles:
The Panel considered the functional, educational and intellectual requirements of an out of school childcare worker (OSHC worker) and a mystery shopper. The Panel noted that the Plaintiff is effectively performing the general duties of OSHC worker on a voluntary, ad hoc and informal basis for her grandchildren, and considered that this role would not be beyond her current functional capacity. However, the Panel also noted that unless the Plaintiff secured employment with a large childcare organisation that was able to provide her with on-the-job training, she would require a Certificate III in Children’s Services, which she does not currently possess. Consequently, the Panel considered that the role of OSHC worker would constitute suitable employment for the Plaintiff only with the proviso that her employer was able to provide her with on-the-job training and/or pending her retraining to obtain the required Vocation Certificate. The Panel noted that the Vocational Assessment report, although containing a detailed Task Analysis of the OSHC position, did not identify whether an employer able to provide the Plaintiff with appropriate on-the-job training existed in her local area. Consequently, the Panel concluded that although the worker has a demonstrated capacity to physically perform the duties which would be required of an [OSHC] worker, this role may not constitute suitable employment for her in her area.
The Panel considered the detailed Task Analysis pertaining to the role of a mystery shopper contained in the Vocational Assessment report. The Panel noted that the duties of the role require an ability to access various premises but otherwise primarily involve observational tasks, with some computer-based input of the collected information. The Panel noted that a new incumbent to the role would be trained with respect to the required data input, and the Panel also noted that the role would offer the opportunity for casual part-time employment. Furthermore, the Panel noted the job advertisement included with the Vocational Assessment report, which states “Mystery Shoppers Required – Mildura” indicating that such work is available in the Plaintiff’s local area. The Panel considered that the Plaintiff has both a physical and an intellectual functional capacity to perform the duties of a mystery shopper on a consistently reliable basis as a settled member of the wage-earning workforce, and that such work would be available to her locally, and would therefore constitute suitable employment for her. The Panel also considered that this has been the case in the period from 12 May 2018 to the Panel’s assessment.
The Panel therefore concluded that Ms Douglass has a current work capacity, and that this had been the case in the period from 12 May 2018 to the date of the Panel’s assessment. It noted the contrary opinions of the orthopaedic surgeon Mr Thomas Kossmann, the occupational physician Dr Joseph Slesenger, and the vocational assessor Paul Hartley, but said that it had formed a different opinion ‘for the reasons above’.
In conclusion, the Panel said that it had noted and considered the information provided and the issues raised in the submissions made to it on behalf of Ms Douglass, specifically the submission that she had no work capacity. It did not accept those submissions, and considered that its reasons had clearly explained the rationale underlying its opinion.
Did the Panel err in its application of the definition of ‘suitable employment’?
Ms Douglass contended that the Panel misapplied the definition of ‘suitable employment’ in reaching its conclusion that the role of mystery shopper was suitable employment for her.
A worker who suffers an injury arising out of or in the course of any employment is entitled to compensation in accordance with the WIRC Act.[4] Where the worker has an incapacity for work that results from, or is materially contributed by a compensable injury, the compensation must be in the form of weekly payments, subject to and in accordance with the WIRC Act.[5] Under s 163 of the WIRC Act, a worker’s entitlement to compensation in the form of weekly payments ceases after an aggregate period of 130 weeks, unless the worker is assessed ‘as having no current work capacity and likely to continue indefinitely to have no current work capacity’.[6]
[4]WIRC Act, s 39.
[5]WIRC Act, s 160.
[6]See also WIRC Act, s 152, definitions of ‘first entitlement period’ and ‘second entitlement period’.
Section 3 of the WIRC Act defines the terms ‘current work capacity’, ‘no current work capacity’, and ‘suitable employment’, 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;
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment;
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to the following—
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker's pre-injury employment;
(iii) the worker's age, education, skills and work experience;
(iv) the worker's place of residence;
(v) any plan or document prepared as part of the return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b) regardless of whether—
(i) the work or the employment is available; or
(ii) the work or the employment is of a type or nature that is generally available in the employment market;
…[7]
[7]Paragraphs (c) to (e) of the definition of ‘suitable employment’ apply for the purposes of Part 4 – Return to work, and are not relevant here.
Ms Douglass’ submissions
Ms Douglass submitted that, on their proper construction, the definitions of ‘no current work capacity’ and ‘suitable employment’ in s 3 of the WIRC Act required the Panel to consider the following matters identified in Richter v Driscoll:[8]
[8](2016) 51 VR 95 (Richter v Driscoll).
(a) whether there was an injury-caused inability to engage in employment;[9]
[9]Referring to Richter v Driscoll, [74].
(b) the word ‘employment’ connotes a return to work in a meaningful way, as a settled or established member of the wage-earning workforce;[10]
[10]Referring to Richter v Driscoll, [75].
(c) return to work in employment requires more than a physical capacity to engage in a task or tasks;[11]
[11]Referring to Richter v Driscoll, [76].
(d) all relevant matters set out in the definition of ‘suitable employment’, including the location of the employment relative to the worker and the existence of employment in a distance within the worker’s incapacity-caused travel limits;[12]
[12]Referring to Richter v Driscoll, [77].
(e) that the focus is on the worker’s ability to perform certain work, not whether the work is available, and whether the employment is suited to the worker;[13]
[13]Referring to Richter v Driscoll, [78]–[79], in turn referring to Barwon Spinners v Podolak (2005) 14 VR 622 [25]–[27].
(f) for employment to be suitable, the worker must be able to undertake work in employment;[14]
(g) while the concept of ‘suitable employment’ requires the vagaries of the labour market to be disregarded, the employment must still exist in the worker’s location;[15] and
(h) that ‘employment’ is a relationship in which the prospective employee must have something — a capacity to work in employment — to sell.[16]
[14]Referring to Richter v Driscoll, [81].
[15]Referring to Richter v Driscoll, [82].
[16]Referring to Richter v Driscoll, [97].
Ms Douglass also referred to the authorities of:
(a) Sodhexo Australia Pty Ltd v Rowe,[17] in which Smith J emphasised the need to consider the reality of the alleged suitable employment, and whether it can be described as meaningful or should more properly be described as artificial;[18] and
(b) Bainbridge v Westside Meats Pty Ltd,[19] in which Gorton J held that the definition of ‘suitable employment’ required consideration of a worker’s relevant personal circumstances — which in that case included the extended time that the worker had been out of the workforce.[20]
[17](2009) 31 VAR 365 (Sodexho).
[18]Sodexho, [17]–[20].
[19][2021] VSC 320 (Bainbridge).
[20]Bainbridge, [37]–[39]; cf [40]–[42], where the worker’s marijuana use was held not to be a ‘personal characteristic’ requiring mandatory consideration.
According to Ms Douglass, the Panel’s conclusion that the role of mystery shopper was ‘suitable employment’ for her failed to take into account or give proper consideration to:
(a) the lack of any relevant experience or training that might enable her to obtain employment as a mystery shopper, which she argued required a good understanding of the role of a sales assistant in order to be able to assess the performance of other sales assistants;
(b) her prior experience, which was limited to fruit packing work, and was unlikely to make her attractive to a prospective employer in the role of mystery shopper;
(c) her relatively low level of education, which disqualified her from a role advertised as requiring ‘a good eye for detail, a good memory and excellent written communication skills’ and for which good spelling and grammar were essential; and
(d) her total lack of digital literacy, including the fact that she did not have access to a computer and the internet.
Ms Douglass reiterated the written submissions made to the Panel on her behalf, in particular that there were no realistic job options for her as a long-term manual worker with extensive bilateral shoulder impairment, limited education, and near total lack of transferable work skills. She submitted that the Panel had not fairly engaged with her argument that it would beggar belief to say that she has a realistic work capacity as a settled member of the workforce, in light of her relevant personal circumstances.
Sunbeam’s submissions
Sunbeam emphasised that there is no scope in a judicial review proceeding to reconsider the merits of the decision under review. It referred me to recent statements of principle by the Court of Appeal about the approach to be taken to judicial review of an opinion of a Medical Panel that is informed by the expertise of its members.[21] It said that the correct approach requires attention to the ‘big picture’, which encompasses all of the material provided to the Panel and inferences to be drawn from that material, as well as the content of the Panel’s reasons.[22]
[21]Swidryk Investments Pty Ltd v El-Najjar [2023] VSCA 11, [49], quoting Sidiqi v Kotsios [2021] VSCA 187, [34], [36]–[37].
[22]Swidryk, [55], [94].
By reference to the reasoning in Richter v Driscoll,[23] Sunbeam pointed to passages in the Panel’s reasons that it said demonstrated that the Panel had taken the correct approach to the question of ‘suitable employment’. It submitted that the Panel correctly applied the test for ‘suitable employment’ set out in Richter v Driscoll, having regard to the entirety of Ms Douglass’ personal circumstances and the requirements of the role of mystery shopper. It argued that to find error with the Panel’s approach required more than an impermissibly nit-picking approach; it would require a reconsideration of the evidence and newly subjective opinions to be formed as to the weight to attribute to that evidence, as to which reasonable minds might differ.[24]
[23]In particular, [74]–[76], [97].
[24]Referring to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) and Attorney-General (NSW) v Quin (1990) 170 CLR 1, 37 (Brennan J).
Sunbeam cautioned against too strict a reliance on the reasons in Richter v Driscoll, which it said should not be read as if they had statutory force.[25] It argued that the reasoning in that case was context dependent, and that the context in this case was quite different. In contrast to the plaintiff in Richter v Driscoll, Ms Douglass had long work experience in stable employment and had been out of the workforce for a relatively short time. It reiterated that each case turns on its own facts and said that, in this case, the Panel had clearly had regard to the mandatory considerations identified in the definition of ‘suitable employment’, including Ms Douglass’ education, work experience, and lack of computer skills.
[25]Referring to Jordan v Kotsios [2022] VSC 332, [5] and Barker v Eureka Lodge Pty Ltd [2023] VSC 63, [139]–[144].
Consideration
The constraints of judicial review present a fundamental difficulty for the contention that the Panel misapplied the definition of ‘suitable employment’. I am not reviewing the merits of the Panel’s opinion that the role of mystery shopper was suitable employment for Ms Douglass, but whether it correctly applied the statutory definition in forming that opinion.
The definition of ‘suitable employment’ in s 3 of the WIRC Act identifies, as mandatory considerations, the worker’s age, education, skills and work experience, and the worker’s place of residence. Beyond those matters, every case turns on its particular facts, and considerations that are decisive in one case may carry little weight in another.
I agree with the observation of O’Meara J in Barker v Eureka Lodge Pty Ltd,[26] that the reasons in Richter v Driscoll should not be read as if they were provisions of a statute. The essence of that authority is that the question of whether a job is ‘suitable employment’ depends not only on the worker’s physical capacity to do the work, but also on whether the worker can engage in that employment in a meaningful way in light of their relevant personal circumstances. It will depend on the context of the particular case what personal circumstances of the worker must be considered by a Medical Panel in assessing whether a role is suitable employment for that worker.
[26]Barker, [144].
Reading the Panel’s reasons fairly, in their context, and as a whole, I do not consider that the Panel misapplied or misdirected itself as to the definition of ‘suitable employment’. I note the following:
(a) The Panel took a thorough history from Ms Douglass, which included her age, her limited education and training, her work experience with Sunbeam, and her residence in Mildura. It specifically noted that she could not use a computer and did not have one at home, although she had tentative thoughts about enrolling in some computer training.
(b) It commenced its discussion of work capacity with the consideration that Ms Douglass’ shoulder condition precludes her from performing her pre-injury duties. It appropriately focused on whether there was an injury-caused inability to return to work in employment, consistent with Richter v Driscoll.[27]
[27]Richter v Driscoll, [74].
(c) The Panel said that it had considered all aspects of the definitions of ‘suitable employment’, ‘current work capacity’, and ‘no current work capacity’. It specifically considered a number of matters beyond Ms Douglass’ physical incapacity, including her age, her place of residence, her limited driving tolerance, her transferable skills and occupational experience, her literacy and numeracy skills, her lack of computer skills, and the fact that she had not been provided with any retraining.[28]
[28]See the extract from the Panel’s reasons at [22] above.
(d) The Panel appears to have formed a good impression of Ms Douglass. It referred in particular to her favourable personal presentation, her excellent communication skills, and her good English literacy and numeracy skills, which it balanced against her lack of computer skills and limited occupational experience.
(e) The Panel asked Ms Douglass what she thought about her ability to undertake various employment options. In relation to the role of mystery shopper, it noted her concern that she had never done any retail or sales work.
(f) The Panel considered and rejected a number of employment options that had been suggested as suitable. It did so by reference to Ms Douglass’ particular physical capacity and occupational experience and — in relation to out of school hours childcare — the fact that she did not hold the required qualification.
(g) The Panel appreciated that suitable employment carries with it the idea of return to work ‘as a settled or established member of the wage-earning workforce’.[29] It expressly applied that test in determining that Ms Douglass had the physical and intellectual capacity to perform the duties of a mystery shopper.
(h) It also considered the specific duties of the role of mystery shopper, and the fact that it was available in the Mildura area. The requirements of the role, on the material before the Panel, did not include any prior sales or retail experience. The Panel expressly referred to the requirement for some computer-based input of collected information.
[29]Richter v Driscoll, [75].
In light of those matters, it appears to me that the Panel correctly applied the test for ‘suitable employment’, having regard to all of Ms Douglass’ relevant personal circumstances.
I have not overlooked the argument that ‘suitable employment’ is employment that is real and meaningful, and not artificial. The Panel reached its conclusion that mystery shopper was suitable employment for Ms Douglass by reference to some quite detailed information about the requirements and duties of the role, and all of her relevant personal circumstances. The conclusion was not glaringly improbable, and was open on the material before the Panel. While I accept that the opposite conclusion was also open, Ms Douglass did not suggest that the Panel’s conclusion was legally unreasonable in any sense.
This ground is not made out.
Did the Panel fail to consider relevant material?
In conjunction with, or in the alternative to, the first ground, Ms Douglass contended that the Panel had failed to take into account material that was relevant to the question of whether the role of mystery shopper was suitable employment for her. Specifically, she submitted that the Panel had not considered:
(a) her relatively low education and poor scholastic achievement;
(b) her relatively low English literacy and grammar skills;
(c) the fact that she did not own a computer, which was required as part of the role;
(d) her lack of proficiency with computers;
(e) her lack of relevant skills, training and experience in retail, clerical work, or as a mystery shopper, or in assessing and preparing reports about the performance of others.
By reference to information in the vocational assessment reports prepared on her behalf, Ms Douglass argued that the Panel had ignored relevant material that it was obliged to take into account.[30]
[30]Referring to authorities including Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [82] (McHugh, Gummow, and Hayne JJ, Gleeson CJ agreeing); Chang v Neill (2020) 62 VR 174, [75]; Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [60]; and Combined Enterprises Pty Ltd v Brister [2016] VSC 807, [26].
The Court of Appeal recently summarised the relevant principles in Victorian WorkCover Authority v Putrus:[31]
It is well-settled that a medical panel will commit jurisdictional error if it fails to give genuine consideration to matters which it is required by statute to consider, and that consideration could have materially affected its decision, or if it fails to give genuine consideration to fundamental issues raised by the facts of the case. Thus a medical panel examining a worker in accordance with the provisions of the Act is required to consider:
• the medical questions referred to the panel;
• the submissions of the parties (if provided);
• the document provided by the parties, required by s 304(a) of the Act, specifying the alleged injury and the agreed facts and disputed facts;
• the documents relating to the medical questions, provided by the parties pursuant to s 304(b) of the Act; and
• matters arising out of the medical panel’s examination of the worker (including the worker’s history, evidence as to any investigations, tests, studies or the like, and the panel’s findings on examination).
[31][2023] VSCA 28, [37] (footnotes omitted).
Largely for the reasons already given, I am not persuaded that the Panel ignored any relevant material that was essential to the proper performance of its statutory function. In addition to the matters set out at [41] above, I have no reason to doubt the Panel’s statements that it had formed its opinion with regard to the documents and information referred to in Enclosure A, and that it had noted the information contained in particular documents contained in the referral material.[32] The Panel’s reasons as a whole disclose that it gave careful consideration to the referral material, in particular the vocational assessments.
[32]Namely, the agreed statement of facts, the statement of claim, the affidavit in support of serious injury application, and the parties’ written submissions.
This second ground of review is not made out.
Were the Panel’s reasons adequate?
Ms Douglass’ third ground of review was that the Panel failed to provide adequate reasons for its conclusion that the mystery shopper role constituted ‘suitable employment’ for her. She submitted that the Panel’s reasons did not explain its path of reasoning, having particular regard to:
(a) the fact that she had no prior retail experience or skills from which to judge the quality of others’ performance;
(b) her relatively low education, scholastic achievement, and literacy and grammar skills;
(c) the fact that she did not own a computer and lacked computer proficiency; and
(d) her lack of relevant skills, training and experience in retail, clerical work, or as a mystery shopper, or in assessing and preparing reports about the performance of others.
More generally, Ms Douglass contended that the Panel was required to, and did not, show that it had given consideration to her capacity to return to work in employment in a ‘meaningful way’, as a settled and established member of the workforce, not limited to her physical capacity to perform the role of mystery shopper. She also complained that the Panel had not explained its reasons for forming a different opinion from that given by Mr Paul Hartley in his vocational assessment reports.
The Court of Appeal’s recent judgment in Grujovska v Brand[33] conveniently summarised the legal principles to be applied in assessing the adequacy of a Medical Panel’s reasons:[34]
[33][2023] VSCA 59 (Grujovska v Brand).
[34]Grujovska v Brand, [23]–[24] (footnotes omitted).
As has been said before, a medical panel is an administrative tribunal whose members are not lawyers: it is an expert tribunal, and not a judicial body. Its reasons are entitled to a beneficial construction, in the sense that they should not be scrutinised over-zealously by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
In Wingfoot Australia Partners Pty Ltd v Kocak,[35] the High Court held that, consistently with the nature of its function, a medical panel must explain the path of reasoning by which it has arrived at its opinion. The reasons must enable a court to assess whether the panel’s opinion involved an error of law. A panel is not required to give reasons of the kind which would be required by a tribunal carrying out an adjudicative function. In Dundar v Bas,[36] this Court summarised the relevant principles governing the assessment of the adequacy of a medical panel’s reasons as follows:
First, the standard is that required by Wingfoot. A statement of reasons must be sufficient to explain the Panel’s path of reasoning, and to enable a court to see whether the Panel’s opinion involved any error of law.
Second, the standard of reasons required of a medical panel is not to be equated with the standard of reasons that would be required of a judge giving reasons for a final judgment after the trial of an action in a court.
Third, as a corollary, a Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.
Fourth, the function of a medical panel is neither arbitral nor adjudicative. Its function in every case is to form and give its own opinion on the medical questions referred to it by applying its own medical experience and its own medical expertise.
Fifth, a panel’s reasons must be read fairly, as a whole and in context, and should not be subjected to overly zealous judicial review. ...
[35](2013) 252 CLR 480.
[36][2019] VSCA 315, [47]–[51] (footnotes omitted).
Applying these principles, I do not consider that the Panel’s reasons were deficient.
As I have explained, the reasons disclose that the Panel correctly applied the definition of ‘suitable employment’ and had regard to relevant material. Reading the reasons as a whole, I am not left in any doubt that the Panel understood the meaning of ‘suitable employment’ and reached its conclusions after considering Ms Douglass’ relevant personal circumstances. The Panel was plainly aware of her limited education and work experience, it made a realistic appraisal of her transferable skills, and it knew that she could not use (and did not own) a computer. It was also aware that the role of mystery shopper involved some computer use.
I consider that the Panel adequately explained its conclusion that Ms Douglass could perform the role of mystery shopper, notwithstanding the gap between her skills and experience and the requirements of the role. Its path of reasoning is evident from two specific passages in the reasons:
(a) first, the Panel’s description of her transferable skills, ‘which include a favourable personal presentation, excellent communication skills, good English literacy and numeracy skills, but no computer skills, and an occupational experience limited to the duties of a process worker/quality controller in a dried fruit processing plant’; and
(b) second, the Panel noted that the tasks of the role included ‘some computer‑based input of the collected information’ and that a new incumbent would be trained with respect to that data input.
The inference that necessarily arises from these passages is that the Panel considered that, with some training in the use of a computer, Ms Douglass had personal qualities that would enable her to perform the role of mystery shopper, including those aspects of the role that were new to her.
Finally on this question, I note that the Panel’s obligation to give reasons did not require it to explain why it disagreed with the opinion of Mr Hartley given in his vocational assessment reports. It was required only to explain how it reached its own opinion, which it did more than adequately.
Disposition
No error has been established, and so the proceeding must be dismissed. I will hear the parties on the question of costs.
0
13
0