Dundar v Bas
[2019] VSCA 315
•20 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0080
| ATA DUNDAR | Applicant |
| v | |
| YUCEL BAS (trading as BAS BROTHERS MARBLE AND GRANITE) and ORS (according to the attached Schedule) | Respondents |
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| JUDGES: | BEACH, McLEISH and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 December 2019 |
| DATE OF JUDGMENT: | 20 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 315 |
| JUDGMENT APPEALED FROM: | [2019] VSC 469 (Moore J) |
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ACCIDENT COMPENSATION – Medical Panel – Opinion on medical questions – Statement of reasons – Judicial review – Adequacy of reasons – Workplace Injury Rehabilitation and Compensation Act 2013, ss 302, 313 – Whether adequate reasons that position was ‘suitable work’ – Whether Panel obligated to expressly reconcile duties of position with applicant’s skills, employment history and English language capability – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, applied – Richter v Driscoll (2016) 51 VR 95, Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, considered – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms M A Schilling with Mr L B R Allan | Zaparas Lawyers |
| For the First Respondent | Mr J P Gorton QC with Ms F C Spencer | Thomson Geer |
| For the Second, Third, Fourth and Fifth Respondents | No appearance |
BEACH JA:
McLEISH JA:
ASHLEY JA:
In connection with admittedly compensable injury sustained by Mr Ata Dundar (‘the applicant’) on 16 June 2014 in his employment by Mr Yucel Bas (‘the first respondent’),[1] on 5 June 2017 a magistrate referred certain questions to a Medical Panel pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 for an opinion pursuant to s 302 of that Act.[2] The Panel provided its opinion on the referred questions in a Certificate of Opinion dated 11 December 2017. Accompanying the Certificate were the Panel’s written reasons. In substance, the Panel concluded that the applicant was still suffering from compensable injury — mild persistent symptoms involving his neck and lower back, mild persisting left arm dysfunction, and an adjustment disorder with depressed mood. But it was also of opinion that, from 10 December 2016 up to and including the date of its examination,[3] the applicant ‘had and still has, a current work capacity’. The Panel’s conclusion that the applicant had a current work capacity meant that weekly payments, which had commenced in June 2014, had lawfully been terminated on 10 December 2016.
[1]Trading as Bas Brothers Marble and Granite.
[2]The Panel members are the second, third, fourth and fifth respondents, who filed a notice of intention not to respond to, or contest, the application for leave to appeal to this Court.
[3]In fact, there were a number of examinations.
The applicant brought a proceeding by originating motion which sought to quash the Panel’s opinion, and to have the questions referred for consideration by a differently constituted panel. There were three grounds of review. For present purposes it is only necessary to set out the first two of them —
35.In determining its response to referred question 2, the Panel fell into jurisdictional error by failing to take into account relevant considerations which it was required by law to take into account.
PARTICULARS
In determining whether the job of an “Estimator (Joinery/cabinet making) constituted “suitable employment” for the plaintiff, the Panel was required to take into account the typical duties and necessary skills of that role, as set out on page 11-12 of the Recovre 130 Week Vocational Assessment Report dated 23 June 2016.
The Panel failed to take into account the following typical duties and necessary skills:
a)interpreting plans, regulations and codes of practice;
b)preparing preliminary sketches, working drawings and specifications;
c)preparing, editing and revising plans, maps and drawings;
d)inspecting work and materials for compliance with specifications, regulations and standards;
e)calculating costs and estimating time scales;
f)collecting data using surveying instruments and photogrammetric equipment;
g)performing routine computations and plotting preliminary data;
h)using a computer to enter data, complete calculations and reports;
i)frequent data access and report writing via a computer;
j)frequent use of office equipment such as computers;
k)mental skills including evaluation, calculation, and organisation both oral and in writing;
l)the need for strong written and communication skills;
m)the need for a proven ability to build relationships with clients and sub-contractors as well as a track record of winning tenders.
Further, in determining whether the job of an “Estimator (Joinery/cabinet making) constituted suitable employment for the plaintiff, the Panel was required to take into account the definition of “suitable employment” set out in section 5(1) of the Accident Compensation Act 1985.
The Panel failed to take into account sub-paragraphs (a)(ii) and (a)(iii) adequately or at all.
Jurisdictional error - failure to provide adequate reasons
36.In determining its response to referred question 2, the Panel fell into jurisdictional error by failing to give an adequate statement of reasons sufficient to comply with section 313(2) of the [Workplace Injury Rehabilitation and Compensation Act 2013].
PARTICULARS
The Reasons of the Panel are inadequate with respect to:
a)How it reconciled the typical duties and necessary skills of an Estimator (as set out on pages 11-12 of the Recovre 130 Week Vocational Assessment Report dated 23 June 2016) with certain mandatory considerations set out in the definition of “suitable employment” contained in section 5(1) of the [Accident Compensation Act 1985], in particular paragraphs (a)(ii) and (iii) of that definition, being the nature of the plaintiffs preinjury employment, his age, education, skills and work experience.
The plaintiff refers specifically to the following typical duties and necessary skills of an Estimator:
i.interpreting plans, regulations and codes of practice;
ii.preparing preliminary sketches, working drawings and specifications;
iii.preparing, editing and revising plans, maps and drawings;
iv.inspecting work and materials for compliance with specifications, regulations and standards;
v.calculating costs and estimating time scales;
vi.collecting data using surveying instruments and photogrammetric equipment;
vii.performing routine computations and plotting preliminary data;
viii.using a computer to enter data, complete calculations and reports;
ix.frequent data access and report writing via a computer;
x.frequent use of office equipment such as computers;
xi.mental skills including evaluation, calculation, and organisation both oral and in writing;
xii.the need for strong written and communication skills;
xiii.the need for a proven ability to build relationships with clients and subcontractors as well as a track record of winning tenders.
b)Or, if it did not accept the typical duties and necessary skills set out in the Recovre Report, then what it understood the typical duties and necessary skills of an Estimator to be.
c)Why it considered the job of an Estimator to constitute “suitable employment” for the plaintiff.
A judge in the Trial Division heard the application on 8 October 2018. On 18 July 2019, the judge concluded that the applicant had not made out any of the grounds of judicial review, and he ordered that the proceeding be dismissed with costs.
Now the applicant seeks leave to appeal from the judge’s decision, on the single ground that:
The primary judge erred in not concluding that the written statement of reasons of the Panel disclosed an error of law.
It was not suggested below, and it was not suggested in this Court, that the Panel’s identification of the continuing injury revealed error. The entire focus has been upon the Panel’s conclusion that the applicant had, from 10 December 2016, ‘a current work capacity’.
In our opinion, for the reasons which follow, leave to appeal against the judge’s order should be refused.
Circumstances generally described
The applicant was born on 5 February 1961, and thus, when the Panel was seized of the matter, he was aged 56. He commenced employment with Bas Brothers Marble & Granite in about March 2009. Essentially, his work involved transporting and installing stone kitchen bench tops. On 16 June 2014, he fell off a truck and suffered a fracture of his left arm. Also (as the Panel concluded), he sustained injury to his neck and lower back. He has not worked since. He was paid weekly compensation until December 2016. But in July 2016, the employer’s insurer gave notice that it had determined that from 10 December 2016 he was no longer entitled to weekly payments on the grounds that, at that time, he would have received 130 weeks of weekly compensation and that he had a current work capacity, or if he had no such capacity, then it was not likely to continue indefinitely. That notification was in reliance upon s 93C(1)(a) of the Accident Compensation Act 1985, it being the legislation applicable to the applicant’s case.
Constitution of the Panel. Examinations
The Panel was constituted to answer questions relating to the termination of payments in reliance upon the notice. Its members were Mr John Bourke, orthopaedic surgeon; Dr Marie Feletar, rheumatologist; Dr David Kotzman, occupational physician; and Dr Matthew Tagkalidis, psychiatrist.
The applicant was examined with the assistance of a professional Turkish language interpreter: by Dr Tagkalidis on 5 July and 29 November 2017, by Dr Kotzman on 17 July and 20 November 2017, and by Mr Bourke and Dr Feletar (together with Dr Kotzman) on 17 July 2017. The later examinations took place because the applicant’s psychiatric condition was not addressed in the referral to the Panel. The Convenor of the Panel took the matter up with the parties, this leading to further documentation being provided and submissions advanced.
The questions referred and the Panel’s answers.
Questions 1 and 2, and the Panel’s answers, were as follows:
Question 1What is the nature of the plaintiff’s medical conditions, including any sequelae, relevant to the following alleged injuries:
(a)injury to the neck;
(b)injury to the lower back;
(c)injury to the left upper limb/arm?
Answer:In the Panel’s opinion, the Plaintiff is suffering from mild persisting symptoms involving the neck and lower back, without radiculopathy, and from mild persisting left arm dysfunction, as a consequence of a healed fracture of the left olecranon, treated surgically, and from an adjustment disorder with depressed mood.
Question 2In any, and if so what, period from 10 December 2016 up to and including of (sic) the Panel’s examination, has the plaintiff had “no current work capacity”?
Answer:The Panel is of the opinion that from 10 December 2016 up to and including the date of the Panel’s examination, the Plaintiff had and still has, a current work capacity.
The Panel’s reasons
In order to understand the attack now mounted upon the Panel’s reasons, it is necessary to trace their thread.
First, the Panel stated that it formed its opinion having regard to documents and information referred to in two identified enclosures, the history provided by the applicant, and examination findings. The enclosures show that the Panel had regard, inter alia, to a joint statement provided with the referral, the submissions of the parties, documents in the proceeding in the Magistrates’ Court, claim forms, notices and certificates, many radiological reports, a large number of medical reports provided by the applicant’s side, and medical reports, rehabilitation documents and surveillance reports relied upon by the first respondent.
The Panel identified within the last mentioned group of documents ‘vocational assessment reports … dated 17 June 2015 and 31 May 2016, and [sic] transferrable skills analysis report dated 12 November 2015, job seeking plan dated 7 March 2016, and job seeking reviews dated 27 October 2016 and 15 December 2016’ which ‘identified … potential suitable employment options for the worker’.
Second, the Panel stated that the applicant had ‘described … his pre-injury employment, which involved transporting and installing stone kitchen bench tops’. It set out in detail the circumstances in which he had sustained injury, and the course of events thereafter with respect to his claim. It noted that the issue in dispute related to the 130 week termination of weekly payments.
Third, the Panel then noted, at considerable length, the history given by the applicant with respect to his injury and the treatment which he had received for it.
Fourth, the Panel set out its findings on physical examination. It is not necessary to say anything about those findings, because, as we have already said, the conclusions which the Panel reached with respect to the persisting physical injury were not disputed in the proceeding subsequently brought by the applicant. We remark only that the applicant evidently presented in a straightforward way, and that the Panel’s conclusions were in turn straightforward and unsurprising.
Fifth, the reasons show that the Panel then considered the applicant’s psychiatric problems. Here again, the Panel took an extensive relevant history, and considered a number of reports of psychiatrists, a psychologist, the applicant’s general practitioner, surveillance material and further submissions for the first respondent. It concluded that the applicant was currently suffering from an adjustment disorder with depressed mood, but that this did not, in and of itself, affect his capacity for work, contributing ‘marginally when considering the overall assessment of the [applicant’s] capacity for work’.
The Panel then turned to consider whether the applicant had a current work capacity. It is convenient to set out the entirety of its reasoning in that connection:
The Panel noted the nature and severity of the worker’s current physical condition and the functional restrictions which it causes, in conjunction with his pre-injury duties which involved lifting and manoeuvring heavy stone kitchen benches and concluded that the nature of the worker’s physical condition is such that he is not currently capable of returning to his pre-injury employment as a stone kitchen bench installer.
The Panel considered whether the worker 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 56 years (which would partially limit his employment options);
•the nature of his physical conditions (which limit his capacity to undertake repetitive bending, twisting, or heavy lifting);
•his education to year 12, which the Panel considers would not limit his employment options;
•his transferrable skills and previous work experience (working in a farm supply shop in Turkey, factory worker, cleaner and stonemason);
•his limited but adequate English language skills, as noted by the Panel;
•the length of time that the worker 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 the worker’s general practitioner;
•and his place of residence in Craigieburn, (which would not limit his employment options).
The Panel noted the vocational assessment reports from Counselling Appraisal Consultants dated 17 June 2015 and 31 May 2016, and transferrable skills analysis report dated 12 November 2015, job seeking plan dated 7 March 2016, and job seeking reviews dated 27 October 2016 and 15 December 2016 supplied with the referral, which identified the following potential suitable employment options for the worker:
1.Delivery Driver/Courier
2.Truck Driver (General)
3.Product Assembler
4.Forklift Operator
5.Industrial/Office Cleaner
6.Home Improvement Installer/Cabinetry
7.Chauffeur
8.Sales/Customer Service (eg kitchens/trades)
9.Estimator (Joinery/cabinet making)
The Panel asked the worker about the proposed suitable employment options identified in the vocational assessment report. The worker said that he thought he could work as an estimator, but did not think that any such position existed. He said he did not consider that he had adequate English language skills to undertake any sales positions, or the relevant skills to undertake home improvement or cabinet installation. He said that cleaning work was too physically demanding and that he did not consider that his limited neck movements would allow him to undertake any driving roles.
The Panel considered that the worker did not have the physical capacity to undertake the positions of industrial/office cleaner, product assembler, delivery driver or truck driver, or the necessary skills to undertake the positions of home improvement installer/cabinetry or chauffeur. The Panel considered the position of estimator (joinery/cabinet making), in conjunction with the worker’s transferrable skills and previous experience and concluded that notwithstanding the worker view to the contrary, the worker has sufficient English skills and is capable of undertaking this suitable employment option on a reliable and consistent basis, and it therefore does constitute suitable employment for the worker. The Panel also considered that the worker would not exacerbate or aggravate his current physical condition if he were to undertake this role.
The Panel concluded that there is work for which the worker is currently suited and which he could perform on a reliable and consistent basis. The Panel therefore concluded that the worker has a current work capacity. The Panel noted that the worker’s condition has remained stable since recovering from surgery and therefore concluded that from 10 December 2016 up to and including the date of the Panel’s examination, the worker had a current work capacity.
The Panel noted the medical report of treating general practitioner, Dr Hakan Baglar dated 10 April 2017, wherein he stated in relation to the position of Estimator (joinery/cabinet making) that “Of all those employment options listed above, this one is the closest to reality. However this also has certain limitations. Ata’s pre-injury employment was installing finished kitchen products/cabinets in the customers’ premises. He can take measurements and estimate the dimensions and cost of the finished products. However, he needs full explanations of the order before taking measurements and making estimations. His physical injuries do no [sic] prevent him performing such tasks, but his English will not enable him to grasp the full extent and the details of the requested order.
The Panel arrived at a different conclusion regarding the worker’s level of English language skills and his capacity for suitable employment, for the reasons outlined above.
The judge’s reasons
The judge noted that —
(1)In attacking the adequacy of the Panel’s reasons, applicant’s counsel had directed attention to statements of principle made by Ashley and Kaye JJA in Richter v Driscoll[4] with respect to the content of the statutory terms ‘no current work capacity’ and ‘suitable employment’, and in which it was stated that, if a conclusion was to be reached that the worker had the ability to engage in employment which required particular duties to be performed, the Panel ‘was required [in its reasons] to give some practical content to the job involved, in order that its conclusion was capable of being examined’.[5]
(2)The applicant had drawn attention to, and relied upon, a list of duties and skills required of an Estimator as set out in a 130 Week Vocational Assessment Report dated 31 May 2016 (‘the May Assessment Report’).
(3)The applicant had submitted that this was the most sophisticated of a number of employment options identified in that report. The Panel’s reasons were inadequate because they did not sufficiently disclose how it was that the Panel concluded that the ‘reasonably sophisticated features’ of the position of Estimator were considered to be suitable for an individual in his mid to late fifties, with limited English skills, education, work history and no vocational training.[6] Further, the reasons contained no consideration of the skills and duties relevant to that job. There were, in the event, a ‘series of unanswerable questions’ in relation to the factual findings made by the Panel with respect to the applicant’s capacity to perform the components of the role of Estimator.[7]
[4](2016) 51 VR 95 (‘Richter’).
[5]Ibid 131 [126]; Dundar v Bas Brothers [2019] VSC 469 [30]–[34] (‘Reasons’).
[6]Reasons [39].
[7]Ibid [35]–[40].
The judge rejected the applicant’s submissions.
Having observed that the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[8] set out the standard of reasons required to be provided by a medical panel, the judge stated that Richter should not be treated as prescribing any different or higher standard in relation to the adequacy of reasons.[9] Further, his Honour said of Richter, it was necessarily a product of its particular facts and circumstances which were materially different to those in the present matter.[10] Further again, by contrast with Richter, the present was not a case in which the Panel had incorrectly focused entirely upon the worker’s physical capacity to undertake duties in what was said to be suitable employment.
[8](2013) 252 CLR 480 (‘Wingfoot’).
[9]Reasons [41]–[43].
[10]Ibid.
Against that background, the judge stated that the picture of the applicant advanced on his behalf was ‘seriously incomplete and inaccurate’.[11] It omitted reference to a number of matters recorded in the materials before the Panel. They were the applicant’s own view about his capacity, the view of the applicant’s general practitioner about his capacity, the view of an occupational physician about his capacity, the list of transferrable skills and experience which had been identified in relation to the applicant, and the applicant’s engagement in furthering his English language skills.[12]
[11]Ibid [44].
[12]Ibid.
The judge noted that the applicant’s submission had proceeded ‘from the false premise that it was a necessary condition of the adequacy of the Panel’s Reasons that the Reasons contain a separate analysis of each identified skill or duty’.[13]
[13]Ibid [45].
The judge then summarised the ‘actual path of reasoning undertaken by the Panel’ as follows:
46.The actual path of reasoning undertaken by the Panel may be summarised as follows:
(a)As was accepted by counsel for the plaintiff, the Panel had careful regard to the plaintiff’s physical condition and his functional restrictions and limitations. On the basis of those matters, the Panel concluded that the plaintiff was not currently capable of returning to his pre-injury employment.
(b)The Panel described the plaintiff’s physical incapacity as ‘mild persisting symptoms … without radiculopathy’ and that he suffers ‘from mild persisting left arm dysfunction’. As submitted by the first defendant, this suggests that the Panel considered that the plaintiff had made a reasonably good physical recovery. As to the plaintiff’s psychiatric condition, the Panel did not consider that that condition, in and of itself, affected his capacity for work.
(c)The Panel directed itself to the statutory definitions of ‘current work capacity’, ‘no current work capacity’ and ‘suitable employment’ and took into account nine matters specific or personal to the plaintiff. In proceeding in this way and given the nature of these matters, it is apparent that the Panel understood that its task was not confined to evaluating the plaintiff’s medical condition.
(d)The Panel listed nine employment options for the plaintiff, including Estimator, which had been identified in various materials provided with the referral including the Vocational Assessment Report. The Panel considered that the plaintiff did not have the physical capacity to undertake four of these employment options and did not have the necessary skills to undertake another two of the options.
(e)The Panel considered the plaintiff’s views about the suitability of the nine employment options. The only option the plaintiff identified as being suitable was that of Estimator.
(f)The Panel referred to the plaintiff’s ‘transferrable skills and previous experience’ and ‘sufficient English skills’ (notwithstanding the plaintiff’s view to the contrary) and concluded that the position of Estimator was suitable employment for the plaintiff with the consequence of a finding that the plaintiff had a current work capacity. The Panel also referred at some length to Dr Baglar’s report and stated that it had arrived at a different conclusion regarding the plaintiff’s level of English language skills and his capacity for suitable employment.
So it was, the judge concluded:
47.This path of reasoning is unremarkable. It leaves me with no ‘real doubt’ that the Panel had regard to relevant considerations and did not have regard to irrelevant considerations and otherwise correctly performed its statutory functions. In short, and to summarise the more detailed outline of the Panel’s chain of reasoning set out above, the Reasons reveal that the Panel concluded that the position of Estimator was suitable for the plaintiff because of the following:
(a)The mild nature of the plaintiff’s physical incapacity and the marginal impact of his psychiatric condition on his capacity for employment;
(b)The plaintiff’s education to year 12;
(c)The plaintiff’s own view about his capacity to work as an Estimator;
(d)The plaintiff’s transferrable skills and previous work experience. The Vocational Assessment Report noted that the plaintiff had transferrable skills in ‘working unsupervised, communicating, teamwork, managing time and the ability to work to deadlines’;
(e)The Panel’s conclusion, after careful consideration, that the plaintiff had sufficient English skills. That conclusion was consistent with the material before the Panel which demonstrated that the plaintiff had undertaken a significant retraining program in skills in English
Submissions
For the applicant
In written submissions, having referred to several passages in Richter to the effect noted by the judge in his reasons, the applicant focused upon this passage in the Panel’s reasons:
The Panel considered the position of estimator (joinery/cabinet making), in conjunction with the worker’s transferrable skills and previous experience and concluded that notwithstanding the worker [sic] view to the contrary, the worker has sufficient English skills and is capable of undertaking this suitable employment option on a reliable and consistent basis, and it therefore does constitute a suitable employment for the worker. The Panel also considered that the worker would not exacerbate or aggravate his current physical condition if he were to undertake this role.
The written submissions continued that the judge had erred in concluding that the Panel’s reasoning was ‘unremarkable’ because none of what was said in the passage upon which focus was placed identified which of 14 duties and/or skills which might be required of an Estimator, according to the May Assessment Report[14] had been the subject of consideration by the Panel. Nor was there any identification which of the 14 duties and/or skills were within the applicant’s capacity.
[14]Replicated in a second 130 Week Vocational Assessment Report submitted 24 June 2016.
It was then submitted that ‘[m]any of those duties and skills would, at face value, appear well beyond the capabilities of the [a]pplicant as revealed by the material before the Panel and its description of its examination of him’.
It was further submitted that, when presented with a vocational report devoid of any real-world application, the Panel was required to give some practical content to the job involved, in order that its conclusion was capable of being examined[15] and provide some exposition of what it took to be the duties involved in the Estimator job that it envisaged the applicant performing.[16]
[15]Citing Richter (2016) 51 VR 95, 131–2 [126].
[16]Ibid 132 [127].
It was not the applicant’s case below, it was submitted, that it was a necessary condition of the adequacy of the Panel’s reasons that they contain a separate analysis of each identified skill or duty. The primary judge had wrongly taken that to be the applicant’s submission.
In attractive and thorough oral submissions, Ms Schilling, for the applicant, having identified the standard of reasons required by Wingfoot, referred to the decision of this Court in Gruma Oceania Pty Ltd v Bakar.[17] There, in answer to a question whether the worker had ‘no current work capacity’, the Panel had answered, simply, ‘[i]n the Panel’s opinion the worker has a current work capacity’.[18] In its reasons, the Panel, partly based on ‘its collective knowledge, experience and expertise’, had concluded that the worker had transferrable skills which were sufficient to secure employment in a range of suitable vocational options including, but not limited to, work as a school crossing supervisor, a small product assembler, a ticket seller, and a sandwich maker.[19]
[17][2014] VSCA 252 (‘Gruma’).
[18]Ibid [5].
[19]Ibid [18].
In affirming the primary judge’s conclusion that the Panel’s reasons were inadequate, this Court stated that –
Far from setting out the Panel’s path of reasoning for its Opinion regarding Ms Bakar’s current work capacity, the Reasons merely set out conclusions of a general nature without any meaningful reasons.[20]
[20]Ibid [36].
In passages to which applicant’s counsel drew our attention, the Court stated that the Panel had not linked its conclusion about Mrs Bakar’s capacity to perform what it considered were suitable jobs to any aspect of her medical condition.[21] Having decided to answer the question with respect to ‘no current work capacity’ by reference to the worker’s ability to perform certain jobs, the Panel had been required to set out its path of reasoning for answering the question in the way it did and with sufficient detail to enable the Court to see whether its answer did or did not involve any error of law.[22] Further, it was emphasised that ‘[i]f the reasons are such that the Court is left in real doubt about whether the panel correctly performed its statutory functions, the reasons will not comply with s 68(2) of the Act’.[23]
[21]Ibid [40].
[22]Ibid [44].
[23]Ibid [47].
Against that background, counsel submitted that the Panel should have explained how it reached its conclusion that employment as an Estimator was suitable work for the applicant. Counsel pointed out that, of all the jobs mentioned in the various Vocational Assessment and like reports, this was the highest paid and, on its face, involved the most sophisticated work. Moreover, the average age of employment in the particular sector was 35 to 44 years —whereas the applicant was a man in his fifties.
Counsel further submitted, by reference to a number of documents in the enclosures provided to the Panel, that — (1) there was a good deal of evidence, contrary to the Panel’s conclusions, that the applicant’s English language skills —oral and written — remained an impediment to performing the work of an Estimator, despite his undertaking a ten month course in the English language; (2) the Panel had failed to grapple with the fact that the applicant’s work history was essentially that of an unskilled labourer; (3) the transferrable skills identified in various reports to which the Panel said it had regard were essentially irrelevant; (4) the applicant was noted in material before the Panel to have only limited computer skills; (5) the reasons were internally contradictory in that the Panel stated on the one hand that the applicant did not have the skills to be a chauffeur, and yet had the necessary skills to undertake the more sophisticated task of an Estimator; (6) such computer skills as the applicant was shown to possess were plainly not to the extent required of an Estimator; and (7) the applicant’s understanding of what employment as an Estimator required was evidently incomplete. He apparently believed that it simply required ‘measuring’.
For the first respondent
It was submitted for the first respondent in writing that the primary judge did not err. The Panel, in a careful analysis, had understood the applicable legal principles, considered relevant factors, formed the opinion that the applicant was fit for a particular suitable employment, and answered the questions accordingly. The outcome was unsurprising, given the limited nature of the applicant’s physical injuries, his work experience and skills, his own views as to his capacity, his general practitioner’s opinion that it was only his English language skills that prevented the work being suitable, the Panel’s observation that the applicant had since engaged in English language training, and its judgment that his English was now adequate.
It was submitted that, as the judge below found, the Panel’s reasons disclosed a clear path to its conclusion. In addition to the mild nature of the persisting physical conditions and the marginal impact of the psychiatric condition on capacity for employment, there were the applicant’s Year 12 education, his transferrable skills and previous work experience (which included installing benchtops to plan, measuring and providing quotes), and his own assessment of his capacity to work as an Estimator. In forming the opinion that it did, after identifying relevant material, the Panel considered, after applying its own expertise and value judgments, that the applicant had the capacity to work as an Estimator.
The first respondent further submitted that the applicant’s attempt to impugn the adequacy of the Panel’s reasons, based upon its failure to address the list of duties/skills taken from the May Assessment Report with respect to the position of Estimator, should be rejected. It was apparent that the Panel did have regard to the Assessment and, by necessary implication, the matters there set out. Further, it was not necessary for the Panel to separately list and analyse in its reasons each duty or skill listed in the Vocational Assessment in order for it to explain its own opinion, as an expert body, that the applicant was fit for suitable employment as an Estimator. Again, the May Assessment Report did not state that all of the duties and skills would be necessary in all jobs. Rather, it identified that the duties might include the enumerated list of duties and skills.
The first respondent further submitted that, in this case, there was no dispute that the applicant had work experience and skills that were relevant to work as an Estimator, that his pre-injury duties had included measuring up sites based on a template, liaising with cabinetmakers, assisting a manager and trade personnel as required, installing benchtops to plan, the measuring of kitchens and providing quotes, and taking measurements and reading rudimentary plans/templates. Again, the applicant himself thought that he could work as an Estimator. He had identified ‘[e]stimation, quoting or non-manual work in his previous industry (marble/granite installations)’ as employment options in which he would be interested when re-entering the labour market, and he had told the Panel that he thought he could work as an Estimator, although he did not think that any such position existed.
Further still, the first respondent submitted, the applicant’s general practitioner, Dr Baglar, had opined, in effect, that, apart from limitations in the applicant’s English language skills, work as an Estimator was the most realistic option which had been suggested.
With respect to Richter, the first respondent submitted that what was said about the adequacy of reasons was to be understood as an application of Wingfoot. The passages in Richter relied upon by the applicant were not propositions of law that were required to be applied by the primary judge in determination of the application before him. The facts and circumstances in Richter were materially different to the facts and circumstances of the present case. There, the Panel had erred by focusing entirely upon the worker’s physical capacity to undertake duties, and had failed to have regard to the entirety of her personal circumstances. Here, to the contrary, there was no issue that the applicant was physically and psychiatrically capable of doing estimating work. Moreover, the Panel did have regard to the factors listed in the sub-paragraphs to paragraph (a) of the definition of ‘suitable employment’.
Orally, senior counsel for the first respondent made additional submissions: that the Panel had regard to the circumstances mandatorily requiring consideration by reason of paragraph (a) of the definition of ‘suitable employment’, that the Panel applied a real-world assessment in determining that employment as an Estimator was suitable employment, and that a number of the reports referring to the applicant’s English language difficulties pre-dated the applicant’s completion of an English language course in December 2016.
For the applicant, in reply
Counsel submitted that the content of the several Vocational Assessment Reports, and opinions there expressed, were not a substitute for the Panel’s required consideration whether the applicant had current work capacity.
Analysis
The single ground upon which the applicant seeks leave to appeal is Delphic. It could mean that the judge allegedly erred because he did not conclude that the Panel’s reasons insufficiently disclosed a path of reasoning. Alternatively, it could mean that the judge allegedly erred by not concluding that the Panel’s reasons disclosed an evident fault in its reasoning process.
In oral argument in this Court, counsel for the applicant made it clear that the error complained of was that the judge erred in concluding that the Panel’s reasons met the standard required by Wingfoot. It was submitted, in substance, that the Panel’s reasons were inadequate to disclose its path of reasoning to the conclusion that the applicant had capacity to work as an Estimator (joinery/cabinetmaking).
It is worthwhile stating principles to do with a Panel’s reasons.
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.[24]
[24]Wingfoot (2013) 252 CLR 480, 501–2 [54]–[56].
Second, the standard of reasons required of a medical panel is not to be equated with the standards 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.[25]
[25]Ibid 502 [56].
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.[26]
[26]Wingfoot (2013) 252 CLR 480, 499 [47].
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.[27]
[27]See, for example, Gruma [2014] VSCA 252 [29].
Sixth, Richter was a case which involved a panel’s reasons. But to say that it was concerned only with the adequacy of reasons in a particular factual setting would misunderstand what it decided. Richter involved the statutory construction of the terms ‘no current work capacity’, ‘current work capacity’, and ‘suitable employment’. That construction was and is of general application. Ashley and Kaye JJA observed that, if a conclusion was to be reached that the worker had an ability to engage in employment which required one or more duties which had been generically described in a computer print-out, the Panel was ‘required to give some practical content to the job involved, in order that its conclusion was capable of being examined’.[28] That was no more than Wingfoot required.
[28]Richter (2016) 51 VR 95, 131 [126]. See also 132 [127].
Seventh, it is a commonplace for panels to state that they have considered ‘all aspects’ of the definitions of ‘suitable employment’, ‘current work capacity’, and ‘no current work capacity’. Such a ritual incantation, however, could be no answer to demonstrable deficiencies in a panel’s understanding of the content of those terms or exposition of its path of reasoning in a particular case.
Turning now to the challenge to the sufficiency of the reasons in the present case, we should immediately say something about the submission for the applicant noted at [35] above. As we apprehend it, the purpose of the submission was not to show that there was material before the Panel which permitted a different answer to the question whether employment as an Estimator was ‘suitable work’ for the applicant. Its purpose was rather to demonstrate that the Panel’s reasons were inadequate because they did not disclose by a path of reasoning whether, and if so how, the Panel had addressed a number of alleged obstacles to the applicant’s employability as an Estimator.
When the matter was before the primary judge, there was a ground which contended that the Panel made findings of fact which were illogical and irrational when finding that the job of an Estimator constituted suitable employment for the applicant. The judge rejected the ground, and it was not pursued in this Court. Assuming that illogicality or irrationality is a basis for finding jurisdictional error, the matters listed by applicant’s counsel — though in a different context — in this Court were not, we think, unimportant. But that is presently beside the point.
In our opinion, the Panel’s reasons disclose not only a clear path of reasoning, but a path of reasoning which, by necessary inference, was sound.
First, the reasons show that the Panel examined the worker both with respect to his physical and psychiatric condition. It concluded, and it is not in dispute, that his residual physical disabilities were mild, and that his psychiatric problems were essentially non-contributory. It was not in issue that work as an Estimator was physically within his capabilities.
Second, the Panel specifically paid attention to the various aspects of the definition of ‘suitable employment’, which travel beyond bare physical capacity.
Third, the Panel had available to it, and it highlighted, what we have called the May Assessment Report. It was that Report which, for the first time, proposed that work as an Estimator would be suitable employment for the applicant. Before that time, other documents to which the Panel referred had listed a variety of allegedly suitable employments. Those documents had not identified the job of an Estimator.
It was hardly surprising that the May Assessment Report included the job of Estimator because, in that Report, under the heading ‘Worker Job Interests’, it was said that the applicant had reported that he would be interested in —
the following employment options when considering re-entering the current labour market …
•Estimation, quoting or non-manual work in his previous industry (marble/granite installations).
In the same document, it was asserted that the option of employment as an Estimator was achievable because
Mr Dundar reported experience in taking measurements and reading rudimentary plans/templates as part of his work as a benchtop installer, and that he has satisfactory numeracy skills.
That was consistent with the employment history as advised to the author of the report. He had described his duties in the first respondent’s employment as including —
•measuring up sites based on a template; and
•liaising with cabinetmakers
The May Assessment Report, when answering the question why employment as an Estimator would be suitable employment, did note limitations upon the applicant’s spoken English. That is a matter to which we will return a little later.
The Panel, then, was seized of a Vocational Assessment Report in which (1) the applicant asserted an interest in undertaking work in estimating or quoting in his previous industry, (2) there was a history that he had engaged in some pertinent activity in his employment with the first respondent and (3) the position of Estimator was characterised as suitable employment
Fourth, the Panel stated in its reasons that, having identified nine potentially suitable employment options for the applicant, it had ‘asked the worker about the proposed suitable employment options identified in the Vocational Assessment Report’. It could not sensibly be imagined, and the Panel’s reasons should not be read as meaning that, the applicant was asked no more than, for example, ‘Could you work as a delivery driver/courier, or could you work as a product assembler?’, these being two of the nine identified options. We think it is very clear from its reasons that the Panel must have discussed the nuts and bolts of the various job descriptions with the applicant, in order to then reach the conclusions which it did about the unsuitability of a number of the employment options, either on the basis that they were beyond his physical capacity, or that he lacked necessary skills. The reasons cannot sensibly be read in any other way. At the very least, as explained below, the Panel knew that the applicant understood what was involved in work as an Estimator.
Fifth, the Panel recorded that the applicant ‘said that he thought he could work as an [E]stimator, but did not think that any such position existed’. That was a further step in its reasoning
The Panel was entitled, after discussion with the applicant, to conclude that this was an informed opinion on his part. It is quite clear that the job description set out in the May Assessment Report was computer-generated. Without really describing what the work of an Estimator involved, it set out duties which might — not ‘would’ — be required of an Estimator. The applicant was the man on the ground. The Panel’s reasons show that it evidently concluded, when the applicant told it that he thought he could work as an Estimator, that he had a practical understanding of what such employment involved in the particular industry in which he had worked. It was no answer to the Panel’s conclusion that the position of Estimator was ‘suitable work’ if, let it be assumed, in other areas of the construction industry the position of Estimator required more sophisticated skills.
Sixth, the Panel considered the report of the treating general practitioner, Dr Hakan Baglar dated 10 April 2017. It noted that in that report, Dr Baglar stated:
[I]n relation to the position of Estimator (joinery/cabinet making) that “[o]f all those employment options listed above, this one is the closest to reality. However, this also has certain limitations. Ata’s pre-injury employment was installing finished kitchen products/cabinets in the customers’ premises. He can take measurements and estimate the dimensions and cost of the finished products. However he needs full explanations of the order before taking measurements and making estimations. His physical injuries do no [sic] prevent him from performing such tasks, but his English will not enable him to grasp the full extent and details of the requested order”.
From that quoted part of Dr Baglar’s report, a number of matters were necessarily evident to the Panel. First, Dr Baglar had evidently been provided with a list of what were said to be potentially suitable employments. The Panel did not know what all of them were, but it did know that one of them was the position of Estimator. Next, Dr Baglar had evidently discussed the various employment options with the applicant. How else could he have reported that the applicant ‘can take measurements and estimate the dimensions and cost of the finished products’? It could readily be inferred by the Panel, and it appears to us that it was inferred, that, as in his discussions with the Panel, when speaking with Dr Baglar, the applicant had in his mind’s eye the work required of an Estimator, and his own conclusion that he was equipped to do that work.
In circumstances where the applicant had indicated an interest in taking on work as an Estimator or in quoting, where he had evidently discussed both with the Panel and with Dr Baglar the suitability of that employment having regard to the skills which he possessed and the requirements, from his own experience, of what work as an Estimator involved, the question resolved itself, as the Panel perceived it, into the question whether the applicant’s English language skills were sufficient. There, the Panel reached a conclusion different to that expressed by Dr Baglar. Its conclusion was reached following interviews with the applicant — albeit with an interpreter present and assisting — between early July and late November 2017. That was a period which was well after the applicant had completed an English language course in December 2016, and also somewhat later than Dr Baglar’s report.
The Panel had to make up its own mind whether the applicant’s English language skills were sufficient. It is notable that, in its reasons, the Panel recorded that the applicant had said that ‘he did not consider that he had adequate English language skills to undertake any sales positions’. That is, he did not describe a perceived problem in communication in English in an Estimator’s position.
All of the matters to which we have referred show, in our view, that the Panel’s reasons adequately disclose its path of reasoning, It was not necessary, for the Panel, for instance, to set out in extenso such discussion as it had with the applicant which led to him saying, as reported, that ‘he thought he could work as an Estimator’. The reasons necessarily imply sufficient discussion to generate that conclusion on the applicant’s part.
In the quite particular circumstances, this was not a case where the Panel was required to go further than it did in explaining its conclusion that work as an Estimator provided a suitable employment option for the applicant.
Order
As foreshadowed, we refuse the applicant leave to appeal against the order made by the judge below.
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SCHEDULE OF PARTIES
| ATA DUNDAR | Applicant |
| v | |
| YUCEL BAS (trading as BAS BROTHERS MARBLE AND GRANITE) | First Respondent |
| DR MATTHEW TAGKALIDIS | Second Respondent |
| DR DAVID KOTZMAN | Third Respondent |
| DR MARIE FELETAR | Fourth Respondent |
| MR JOHN BOURKE | Fifth Respondent |
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