Dundar v Bas Brothers
[2019] VSC 469
•18 July 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00500
| ATA DUNDAR | Plaintiff |
| v | |
| YUCEL BAS (trading as BAS BROTHERS MARBLE AND GRANITE) | First Defendant |
| and | |
| DR MATTHEW TAGKALIDIS | Second Defendant |
| and | |
| DR DAVID KOTZMAN | Third Defendant |
| and | |
| DR MARIE FELETAR | Fourth Defendant |
| and | |
| MR JOHN BOURKE | Fifth Defendant |
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JUDGE: | MOORE J | ||
WHERE HELD: | Melbourne | ||
DATE OF HEARING: | 8 October 2018 | ||
DATE OF JUDGMENT: | 18 July 2019 | ||
CASE MAY BE CITED AS: | Dundar v Bas Brothers | ||
MEDIUM NEUTRAL CITATION: | [2019] VSC 469 | 1st Revision: 22 July 2019, amending paragraph 4 | |
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JUDICIAL REVIEW — Accident compensation — Medical Panel Review — Opinion on medical questions — Whether Panel’s reasons were adequate — Whether Panel failed to take into account relevant considerations — Whether Panel’s decision was irrational and/or illogical — Richter v Driscoll (2016) 51 VR 95 — Accident Compensation Act 1985 s 93C(1)(a) — Workplace Injury Rehabilitation and Compensation Act 2013 ss 3, 274, 302, and 313(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P H Solomon QC with Mr L Allen | Zaparas Lawyers |
| For the First Defendant | Mr J P Gorton QC with Ms F C Spencer | Thomson Geer |
HIS HONOUR:
Introduction
The plaintiff, Mr Ata Dundar, commenced employment with the first defendant, Yucel Bas (trading as Bas Brothers Marble and Granite), in March 2009. The first defendant produced and installed marble and granite benchtops. The plaintiff worked for the first defendant as an installer, labourer and driver.
On 16 June 2014, in the course of his employment with the first defendant, the plaintiff fell off a truck and suffered an injury described as ‘broken arm, left arm’. He lodged a claim for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRCA) in relation to the injury, which claim was accepted.
On 14 July 2016, the first defendant’s WorkSafe agent notified the plaintiff 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 payments and had a current work capacity, or if he had no current work capacity, then it was not likely to continue indefinitely.
The plaintiff disputed this decision and on 1 June 2017 the Magistrates’ Court of Victoria referred four questions pursuant to s 274 of the WIRCA to a Medical Panel for an opinion pursuant to s 302 of the WIRCA. The Medical Panel (the Panel) was constituted by a psychiatrist, a rheumatologist, an orthopaedic surgeon and an occupational physician – being the second, third, fourth and fifth defendants to this proceeding.
On 11 December 2017, the Panel provided its opinion on the questions referred to it. Relevantly, the Panel concluded that, from 10 December 2016, the plaintiff had a current work capacity.
The plaintiff seeks judicial review of this opinion of the Panel. He seeks orders quashing the Panel’s opinion and remitting the matter for reconsideration by a differently constituted Panel.
The first defendant submitted that there is no error in the Panel’s opinion. The members of the Panel did not participate in the proceeding and informed the Court through their solicitors that they would submit to such orders as the Court might make.
For the reasons set out below, I have concluded that the opinion given by the Panel on 11 December 2017 did not involve legal error and that, accordingly, the plaintiff’s application should be dismissed.
Factual & procedural background
The procedural history to the claims brought by the plaintiff under the WIRCA is complex and is set out in detail in the affidavit of his solicitor, Mr Geoffrey Smith, sworn on 9 February 2018. It is unnecessary to recite that procedural history, save for what is referred to below.
As has been noted, the plaintiff suffered an injury at work described as ‘broken arm, left arm’ when he fell off a truck on 16 June 2014. He lodged a worker’s injury claim form in relation to this injury, which claim was accepted.
On 2 March 2015, the plaintiff lodged a second worker’s injury claim form. In that form he claimed to have suffered further injuries described as ‘neck, left shoulder, aggravation of lower back pain’ as a result of the fall on 16 June 2014.
On 21 October 2015, the plaintiff’s general practitioner, Dr Baglar, requested that liability be accepted for the plaintiff’s psychological treatment. Six sessions of psychological treatment were subsequently funded, without admission of liability.
On 22 February 2016, the plaintiff commenced proceedings in the Magistrates’ Court of Victoria against the first defendant challenging certain decisions by its WorkSafe agent in respect of his claimed workplace injuries. The plaintiff sought an entitlement to compensation for incapacity from 21 November 2015 and payment of medical and like expenses from that date for injuries in relation to his neck, left shoulder and upper arm, and lower back.
Two matters of relevance to this proceeding occurred on 14 July 2016:
(a) The plaintiff lodged a third worker’s injury claim form in which he claimed to have suffered injuries described as ‘neck, lower back, left shoulder, left arm’ as a result of a gradual process throughout the course of his employment caused by ‘frequent heavy lifting of stone bench and desktops, and other heavy items’.
(b) The first defendant’s WorkSafe agent notified the plaintiff 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 payments and had a current work capacity, or if he had no current work capacity, then it was not likely to continue indefinitely (the 14 July 2016 notice).
The plaintiff’s third worker’s injury claim referred to in sub-paragraph (a) above was contested. On 21 November 2016, certain questions (not those the subject of this application) were referred by the Magistrates’ Court of Victoria to a Medical Panel pursuant to s 274 of the WIRCA for an opinion pursuant to s 302 of the WIRCA. A Medical Panel provided its opinion on those questions in a certificate of opinion and accompanying reasons dated 16 February 2017.
Subsequent to the provision of this opinion, the plaintiff obtained leave from the Magistrates’ Court to add to his proceeding in that court a dispute in relation to the 14 July 2016 notice. That notice had not been the subject of the referral made to the Medical Panel on 21 November 2016 and therefore the opinion dated 16 February 2017.
Referral of further questions to the Panel
On 1 June 2017, pursuant to s 274 of the WIRCA, the Magistrates’ Court referred further questions to a Medical Panel comprising the second to fifth defendants for an opinion pursuant to s 302 of the WIRCA.
The plaintiff was examined by the second defendant on 5 July 2017 and jointly by the third, fourth and fifth defendants on 17 July 2017. After receiving further material and submissions in relation to the plaintiff’s psychiatric condition, the third defendant re-examined the plaintiff on 20 November 2017 and the second defendant re-examined the plaintiff on 29 November 2017. On each of these occasions, the plaintiff was examined with the assistance of a professional Turkish language interpreter.
The questions referred to the Panel and the answers to those questions recorded in a certificate of opinion dated 11 December 2017 (the Opinion) were as follows:
Question 1: What 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 2:In 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.
Question 3:If ‘yes’ to any part of question 2, then in respect of any period identified, was/is that incapacity likely to last indefinitely?
Answer: Not applicable.
Question 4:In any period identified in answer to question 3, did/does that incapacity result from, or was/is it materially contributed to by, any and if so which of the alleged:
(a) injury to the neck;
(b) injury to the lower back;
(c) injury to the left upper limb/arm?
Answer: Not applicable.
The plaintiff’s challenge in this proceeding is confined to the Panel’s opinion in respect of Question 2; namely, that the plaintiff had, from 10 December 2016, a current work capacity.
In forming this opinion, the following parts of the Panel’s reasons for opinion dated 11 December 2017 (the Reasons) are of principal relevance:
(a) The Panel concluded that:
… the worker 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.[1]
[1]Reasons, pg. 8.
(b) The Panel also concluded that the plaintiff was currently suffering from an adjustment disorder with depressed mood, but that that condition did not, in and of itself, affect his capacity for work and contributed marginally when considering the overall assessment of his capacity for work.[2]
[2]Reasons, pg. 10.
(c) The Panel considered that the plaintiff had a current work capacity. It reasoned as follows:
The Panel considered whether the worker has a current work capacity.
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 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 positon 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 not 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.[3]
[3]Reasons, pg. 11-13.
Grounds of review
As has been noted, the plaintiff’s application for judicial review is confined to the Panel’s opinion in respect of Question 2; namely, that he had, from 10 December 2016, a current work capacity. As is apparent from the above extracts from the Reasons, central to that conclusion was the identification by the Panel of the position of ‘Estimator (Joinery/Cabinetmaking)’ (Estimator) as a position which was suitable for the plaintiff.
The plaintiff relied on the following three grounds in his challenge to the Panel’s opinion that the job of Estimator constituted ‘suitable employment’ for him:
(a) The Panel failed to take into account mandatory relevant considerations, namely:
(i) the typical duties and necessary skills of an Estimator, as set out in a report dated 31 May 2016 entitled ‘130 Week Vocational Assessment Report’ (the Estimator Duties and Skills);[4] and
[4]The plaintiff’s Originating Motion and his written submissions refer to a report dated 23 June 2016 entitled ‘Recovre 130 Week Vocational Assessment Report’. In its Reasons the Panel refers to the above report dated 31 May 2016. The two reports are not relevantly different. It was uncontroversial that the plaintiff’s grounds of review and the submissions made in support of them were to be taken to be directed at the report dated 31 May 2016 entitled ‘130 Week Vocational Assessment Report’.
(ii) sub-paragraphs (a)(ii) and (a)(iii) of the definition of ‘suitable employment’ in s 5(1) of the Accident Compensation Act 1985;
(b) The Panel failed to give an adequate statement of reasons sufficient to comply with s 313(2) of WIRCA, in particular:
(i) how it reconciled the Estimator Duties and Skills with the mandatory considerations in subparagraphs (a)(ii) and (a)(iii) of the definition of ‘suitable employment’ in s 5(1) of the Accident Compensation Act 1985; or
(ii) if the Panel did not accept that the stated Estimator Duties and Skills were in fact the typical duties and necessary skills of an Estimator, then what it understood the typical duties and necessary skills of such an Estimator to be; or
(iii) why it considered the job of an Estimator constituted suitable employment for the plaintiff;
(c) The Panel necessarily made findings that were illogical or irrational or unreasonable in that there was no evidence to support its findings, in particular with respect to the plaintiff’s ability to perform the Estimator Duties and Skills.
Relevant statutory provisions
It was not in dispute that, because the plaintiff was injured on 16 June 2014, his entitlement to compensation was governed by the Accident Compensation Act 1985 (the ACA).
Section 93C(1)(a) of the ACA relevantly states:
Weekly payments after the second entitlement period
(1)Subject to section 93CD, a worker’s entitlement to compensation in the form of weekly payments under this Part ceases upon the expiry of the second entitlement period unless the worker—
(a) is assessed by the Authority or self-insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity; or
…
The phrase ‘no current work capacity’ was, at the time of the plaintiff’s injury, defined in s 5(1) of the ACA and is now defined in s 3 of WIRCA. Given the date of the plaintiff’s injury, there is a disagreement between the parties as to which of these provisions applies in this case. It is, however, unnecessary to resolve that controversy because the definition is relevantly identical in the two provisions. ‘[N]o current work capacity’ is defined to mean:
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.
The phrase ‘suitable employment’ was also, at the time of the plaintiff’s injury, defined in relevantly identical terms in s 5(1) of the ACA and is now relevantly defined in s 3 of WIRCA as follows:
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(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;
(ii) the work or the employment is of a type or nature that is generally available in the employment market
…
Ground 2 – Adequacy of reasons
The claimed inadequacy of the Panel’s Reasons was the principal ground on which senior counsel for the plaintiff sought to impugn the legality of the Panel’s Opinion. It is accordingly convenient to deal first with this ground.
Plaintiff’s submissions
In his submissions on the adequacy of the Reasons, counsel for the plaintiff placed particular emphasis on the joint judgment of Ashley and Kaye JJA in Richter v Driscoll[5] in relation to the meaning of the phrase ‘suitable employment’ as defined in the ACA. It was submitted that their Honours’ observations stand as the authoritative construction of the relevant sections of the ACA, including the meaning of ‘suitable employment’.
[5](2016) 51 VR 95 (‘Richter’).
Counsel directed attention to the acceptance by Ashley and Kaye JJA in Richter of the proposition that the word ‘employment’ carries with it the idea of returning to work ‘as a settled or established member of the wage earning workforce’[6] and that returning to work and employment ‘requires more than a physical capacity for an employee to engage in a task or tasks’.[7] Reference was also made to their Honours’ observation that an assessment about whether employment is ‘suitable employment’ ‘will require medical panels to consider matters travelling beyond bare medical expertise’.[8]
[6]Ibid [75], referring to the language used by King CJ in Philmac Pty Ltd v Asti (1980) 26 SASR 213.
[7]Ibid [76].
[8]Ibid [94].
Counsel emphasised the following statement by Ashley and Kaye JJA:[9]
… whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances—these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce ...
[9]Ibid [95]. See also [97]: ‘Neither of those ways of looking at the matter is at odds with the settled law that an employer does not guarantee the state of the labour market. Nor do they mean that inability to work in employment covers the situation in which—addressing the reality of what may occur—an employer will not take on a worker only because the latter has been off-work and in receipt of compensation payments. Rather, they focus upon an assessment of the inhibitions which exist upon the worker’s ability to work in employment. ‘Employment’ is a relationship in which a prospective employee must have something—a capacity to work in employment—to sell. A prospective employer will not buy if the entirety of the circumstances personal to the worker, as outlined in these reasons, lead the employer to conclude that the worker has nothing to sell.’
Their Honours approved of a conception of labour as a ‘merchantable article’,[10] stating that a prospective employer will not buy the services of an employee ‘if the entirety of the circumstances personal to the worker’ lead the employer to conclude that the worker has nothing to sell.[11]
[10]Ibid [96], referring to a statement by Fletcher Moulton LJ in Cardiff Corporation v Hall (1911) 1 KB 1009, 1020.
[11]Ibid [97].
Counsel for the plaintiff also drew attention to Ashley and Kaye JJA’s observation that, if a conclusion was to be reached that a person had the ability to engage in employment which required particular duties to be performed, a medical panel ‘was required to give some practical content to the job involved, in order that its conclusion was capable of being examined’.[12]
[12]Ibid [126].
The central proposition drawn from Richter which counsel for the plaintiff advanced was that, in addition to having regard to a worker’s physical limitations, in considering whether employment is ‘suitable employment’, it was necessary for a medical panel to properly capture a view of the whole person to understand his or her employability in the labour market.
In evaluating the plaintiff’s capacity to sell his labour in the labour market, counsel drew attention to the following characteristics or features personal to the plaintiff. He was 56 years of age and had come to Australia from Turkey in 1990 where he had received a limited education. He had limited English skills and required a professional interpreter when attending independent medical examinations. The plaintiff had no vocational or tertiary qualifications and his employment history was limited to jobs involving a physical component, including factory work for 11 years and work as a forklift driver for five years. A return to work progress report dated 6 June 2015 described the plaintiff’s work as being ‘non–skilled’.
The ‘130 Week Vocational Assessment Report’ dated 31 May 2016 (the Vocational Assessment Report) which was before the Panel[13] identified six ‘suitable employment options’ for the plaintiff: delivery driver/courier; forklift driver; product assembler; chauffeur; sales/customer service (e.g. kitchen/trades); and Estimator.[14]
[13]See fn. 4 above.
[14]In relation to each option, the Vocational Assessment Report set out information including the expected wage rate, work duties and why the option was considered to be ‘achievable’ for the plaintiff.
The Vocational Assessment Report provides that the following duties and skills are among those required of an Estimator (being the ‘Estimator Duties and Skills’ referred to in the plaintiff’s grounds of review):
(a) interpreting plans, regulations and codes of practice;
(b) preparing preliminary sketches, working drawings and specifications;
(c) preparing, editing and revising plans, maps, charts 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; and
(m)the need for a proven ability to build relationships with clients and sub-contractors as well as a track record of winning tenders.
Counsel for the plaintiff submitted that the position of Estimator was the most sophisticated of all of the six employment options identified in the Vocational Assessment Report as it required a higher level of skill, including computer skills, a facility for language and oral and written skills. It was only option which did not involve driving or some form of manual labour.
Counsel for the plaintiff submitted that the Reasons are inadequate because they do not disclose, consistent with principles stated in Wingfoot Australia Partners Pty Ltd v Kocak[15] and Richter, how the Panel concluded that the ‘reasonably sophisticated features’ of the position of Estimator involving interaction, sophisticated work programs and mental aptitude, including calculation, organisation and oral and written skills, were considered to be suitable for an individual in his mid to late 50s with limited English skills, education, work history and no vocational training.
[15](2013) 252 CLR 480 (‘Wingfoot’).
The plaintiff further submitted that the Reasons contain no consideration of the skills and duties relevant to the job of Estimator which are set out in paragraph [37] above. The Panel’s cursory discussion of that job did not in any way enlighten the reader as to the factual findings made by it regarding the plaintiff’s capacity to perform the components of the role of Estimator which necessarily must have underpinned its conclusion that the role constituted ‘suitable employment’. This gave rise to a ‘series of unanswerable questions’ in relation to each of the duties and skills. For example, whether the Panel considered that the plaintiff was presently able to ‘collect data using survey instruments and photogrammetric equipment’ and, if it did, what the basis was for that finding. In this way it was submitted that it was not possible to review the Reasons for error of law.
Consideration
The High Court in Wingfoot set out the standard of reasons required to be provided by a medical panel.[16] A medical panel’s statement of reasons must set out ‘the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself’ which must be ‘adequate to enable a court to see whether the opinion does or does not involve any error of law’.[17] The statement of reasons is to contain:
medical reasons in sufficient detail, and only in sufficient detail, to show the court and the worker that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members’ medical knowledge and experience.[18]
[16]Ibid [55].
[17]Ibid [48], [53].
[18]Masters v McCubbery [1996] 1 VR 635, 661 (Callaway JA); Omerasevic v Kotzman [2016] VSC 383, [86].
The function of a medical panel ‘in every case is to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise’. [19] Its function is not to ‘choose between competing arguments nor to opine on the correctness of other opinions’ on the medical questions referred to it.[20] As stated by T Forrest J in Denhamv Consolidated Herd Improvement,[21] it follows from this that the standard of reasons required of a medical panel ‘differs markedly from the standard of reasons required of a judge giving reasons for a final judgment of an action in a court’.
[19]Wingfoot (n 15) [47].
[20]Ibid.
[21][2014] VSC 520, [24].
Three points may be made in relation to the plaintiff’s emphasis on Richter. First, while the principles for which it stands have a particular relevance to this case as I will explain, I accept the first defendant’s submission that it ought not be treated as prescribing any different or higher standard in relation to the adequacy of reasons beyond those principles enunciated by the High Court in Wingfoot. Secondly, it is necessarily a product of its particular facts and circumstances which are materially different to those in the present matter. In particular, although the worker in that case was similar in age to the plaintiff, she had been educated to a significantly lower level than the plaintiff, had difficulties with literacy and numeracy and – of most significance – had been out of the paid workforce for some 19 years. Thirdly, it is important to note the particular holding by the Court of Appeal in Richter: That the medical panel’s ‘consideration of the light process worker option incorrectly focussed entirely upon the applicant’s physical capacity to undertake the duties’.[22] As I will explain below, the Panel’s Reasons in this matter cannot be criticised in this way.
[22]Richter (n 5) [103] (emphasis added).
Central to the plaintiff’s claim that the Reasons do not disclose how the Panel concluded that the position of Estimator was considered suitable for the plaintiff was the picture advanced of the plaintiff as a man in his mid to late 50s with limited English skills, education, work history and no vocational training.[23] This portrait of the plaintiff’s features and characteristics relevant to the assessment of suitable employment is, however, seriously incomplete and inaccurate. It omits any reference to the following matters which were recorded in the materials before the Panel:
[23]As set out in paragraph [35] above.
(a) The plaintiff’s own view about his capacity. The Vocational Assessment Report recorded:
(iv)That the plaintiff had stated that, in his work for the first defendant, his duties involved significantly more than heavy lifting. His duties also included: ‘measuring up sites based on a template’; ‘liaison with cabinetmakers’; ‘assisting manager and trades personnel as required’; ‘teamwork’; and ‘installing benchtops to plan’.
(v) What the plaintiff regarded as employment options he would be interested in when re-entering the labour market. Relevantly, the plaintiff identified ‘Estimation, quoting or non-manual work in his previous industry (marble/granite installations)’.
(b) The plaintiff’s general practitioner’s view about the plaintiff’s capacity.
(i) In a report dated 10 April 2017, Dr Hakan Baglar, the plaintiff’s general practitioner, expressed his opinion about the plaintiff’s suitability to work in a number of employment options[24] having regard to his physical injuries, age, education, skills and work experience (Dr Baglar’s report). In relation to the job of Estimator, Dr Baglar stated that, of all of the options referred to above ‘this one is the one closest to reality’, although it had ‘certain limitations’. He opined:
[24]The employment options identified were: courier; truck driver/delivery driver; product assembler; home improvement installer; factory hand; chauffeur; packer; sales/customer service (kitchen/trades); and Estimator (joinery/cabinet making).
The plaintiff can take measurements and estimate the dimensions and the cost of the finished products. However, he needs full explanations of the order before taking measurements and making estimations. His physical injuries do not prevent him performing such tasks but his English will not enable him to grasp the full extent and the details of the requested order. If he is ever to be employment [sic] in such capacity, he can work only with another person who has full understanding of English.
This is the only work he can do and only with the provision of an English speaking assistant.
As submitted by counsel for the first defendant, in the opinion of the plaintiff’s general practitioner, the only barrier to the plaintiff performing work as an Estimator was his English language skills.
(c) The plaintiff’s occupational physician’s view about the plaintiff’s capacity.
(i) In an opinion dated 24 June 2015, the plaintiff’s physician Dr Jonathan Hooper referred to the fracture sustained by the plaintiff in the fall and expressed the following opinion:
This was treated, union failed on the first attempt, but it appears union has been achieved on the second operation. He should be able to mobilise and get back to light work in the not too distant future. He is complaining of neck/shoulder/back pain, but he has no major pathology in these areas. …
However, once he regains his fitness he may be able to return to his usual duties, but this may not be for some time.
As the first defendant submitted, this indicates the physician’s view that the plaintiff would be able to return to his pre-injury duties, albeit in some weeks or months.
(d) The list of transferrable skills and experience which had been identified in relation to the plaintiff.
(i) The vocational assessor expressed the following opinion in the Vocational Assessment Report (emphasis added):
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. Furthermore, Mr Dundar has suitable transferrable skills in working unsupervised, communicating, teamwork, managing time and the ability to work to deadlines. Mr Dundar is currently undertaking an English course to improve his skills and was observed to communicate in basic English required for this role. His level of English may need to be assessed as at Vocational Level prior to being able to undertake this role. Medical clearance would also be required before Mr Dundar was to commence in this role.
(ii) In relation to the provision of English training to the plaintiff, the following materials before the Panel established that the plaintiff had engaged in a significant retraining program:
· A ‘joint return to work job seeking plan’ dated 7 March 2016 which records that, in September 2015, the plaintiff was scheduled to commence an English course in December 2015 and that certain rehabilitation services were suspended ‘to allow for the plaintiff to focus on improving his English language and literacy skills’. The document also records that the plaintiff had enrolled in an English course to commence on 1 February 2016 involving classes over three days per week between 9.30am and 12.30pm each day.
· A ‘job seeking review report’ dated 27 October 2016 which noted that, in September 2016, the plaintiff had reported that he was attending English classes until early December and that he was keen to continue with English language training. The document also records that the plaintiff had reported that he ‘continues to attend English classes and has seen significant improvement in his English language skills’.
· A ‘retraining outcome report’ dated 14 December 2016 which identified that one of the transferrable skills acquired by the plaintiff was ‘better understanding of the English language’. The report stated that the plaintiff had completed 10 months of English language training to increase his language skills and confidence and that a service provider had been contacted for him to obtain further English language training.
As to the plaintiff’s submission based on the absence from the Reasons of any reference to the Estimator Duties and Skills set out in paragraph [37] above, this complaint proceeds 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.[25]
[25]The complaint that the Panel erred by failing to take into account the Estimator Duties and Skills as set out in the Vocational Assessment Report is addressed in relation to Ground 1 below.
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’.[26] 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.[27]
[26]Reasons, pg. 8. See para [21(a)] above.
[27]Reasons, pg. 11.
(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.[28] 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.
[28]The plaintiff’s age, his physical conditions, his education, his transferrable skills and previous work experience, his ‘limited but adequate English language skills’, the length of time that the plaintiff had been out of the workforce, the absence of a return to work plan or rehabilitation program, the medical information contained in the in the referral material, the certificates provided by his general practitioner and his place of residence.
(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[29] 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.
[29]Extracted in paragraph [44(b)(i)] above.
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;[30]
(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’;[31]
(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.[32]
[30]See paragraph [44(a)] above.
[31]See extract in paragraph [44(d)(i)] above.
[32]See paragraph [44(d)(ii)] above.
Ground 2 is not made out.
Ground 1 – Relevant considerations
Under Ground 1, the plaintiff contended that the Panel erred in determining its response to Question 2 by failing to take into account the following considerations which, it was submitted, were relevant mandatory considerations:
(a) sub-paragraphs (a)(ii) and (a)(iii) of the definition of ‘suitable employment’ in s 5(1) of the ACA;[33] and
(b) the Estimator Duties and Skills set out in the Vocational Assessment Report.
[33]See paragraphs [28]-[29] above.
Sub-paragraphs (a)(ii) and (a)(iii) of the definition of ‘suitable employment’
These parts of the definition of ‘suitable employment’ refer respectively to ‘the nature of the worker’s pre-injury employment’ and ‘the worker’s age, education, skills and work experience.’
It was uncontroversial that these statutory definitions were matters which the Panel was required to take into account in performing its statutory function. The onus is, however, on the plaintiff to establish that the Panel did not take these considerations into account.[34] The fact that a decision-maker does not refer explicitly to a mandatory consideration, does not necessarily mean that it did not have regard to it.[35]
[34]B Marsh Nominees v City of Moonee Valley [2004] VSC 237, [29]; XYZ v State Trustees Limited [2006] VSC 444, [31].
[35] Collins v Nave [2008] VSC 85, [48].
Very little argument was advanced in support of this aspect of Ground 1. It is without substance.
As to subparagraph (a)(ii) of the definition of ‘suitable employment’, the Panel specifically referred to the nature and severity of the plaintiff’s physical condition and the functional restrictions which it caused, ‘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’.[36] The Panel then explicitly ‘considered whether [the plaintiff] has a current work capacity or no current work capacity’ and ‘[i]n doing so, … took into account all aspects of the definition of “current work capacity”, “no current work capacity” and “suitable employment”’.[37] As Beach J (as his Honour then was) stated in Ventrice v Riva Plaster,[38] the Court is entitled to:
take into account the fact that the members of the Panel were experienced medical practitioners who were familiar with the relevant provisions of the Act who were expressing their views in non-legal language but with a clear awareness of the relevant definitions contained in s 5 of the Act.[39]
[36]Reasons, pg. 11. Also see paragraph [21(c)] above. The reference to the plaintiff’s ‘pre-injury employment’ also engages paragraph (a)(iii) of the definition.
[37]Reasons, pg. 11 (see paragraph [21(c)] above).
[38][2008] VSC 415.
[39]Ibid [29].
As to subparagraph (a)(iii) of the definition, the Panel explicitly referred to the plaintiff’s age, his level of educational attainment and his ‘transferrable skills and previous work experience’.[40] In relation to the latter, the Panel also referred to a ‘Transferrable Skills Analysis Report’ dated 12 November 2015 which identified a number of transferrable skills acquired by the plaintiff from his past employment. It may be noted that this included the skill(s) of ‘measuring of kitchen and provide quotes’ obtained from his employment with the first defendant.
[40]Reasons, pg. 12 (see paragraph [21(c)] above).
The plaintiff has failed to persuade me that the above parts of the statutory definition of ‘suitable employment’ were not taken into account by the Panel in forming the Opinion. To the contrary, I am affirmatively satisfied that the Panel gave active consideration to each of those matters. This aspect of Ground 1 is not made out.
The Estimator Duties and Skills
Plaintiff’s submissions
The Estimator Duties and Skills were recorded in the Vocational Assessment Report and are set out in paragraph [37] above.
In his written submissions, the plaintiff submitted that:
(a) The Estimator Duties and Skills were not considered at all in the Reasons, beyond the physical requirements for the role and the plaintiff’s English speaking skills;
(b) There was no material referred to by the Panel that suggested that the plaintiff had any of the other Estimator Duties and Skills;
(c) All the Panel said about the plaintiff’s suitability for the Estimator job was in the following passage:
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 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.
It was contended that this statement did not expose any actual consideration of the plaintiff’s suitability for the Estimator job, particularly given the lack of any discussion in the Reasons or in the Panel members’ notes about the Estimator Duties and Skills, beyond the physical requirements of the job and the plaintiff’s English speaking ability; and
(d) The Reasons do not suggest that the Panel attempted to reconcile the plaintiff’s previous work experience or transferrable skills with any of the Estimator Duties and Skills, apart from the ‘bland’ statement of having taken those matters into account.
These submissions were qualified in oral submissions. Counsel for the plaintiff did not contend that the Panel was required to direct itself separately to each one of the skills and duties which comprised the Estimator Duties and Skills, but instead submitted that the Panel was required to evaluate them ‘collectively’. What, specifically, this required the Panel to do was not further developed in submissions.
Counsel for the plaintiff also essentially restated his submission on Ground 2 in relation to the claimed inadequacy of the Reasons; that it was not apparent how the Panel could have conceived that the ‘fairly sophisticated position’ of Estimator was relevantly suitable to the plaintiff. The plaintiff also referred the Court to extracts from the notes made by three of the four members of the Panel who examined the plaintiff, but did not advance any particular submission by reference to them.
Consideration
The plaintiff’s challenge on this aspect of Ground 1 very substantially involved a restatement of the arguments made in support of the attack on the adequacy of the Reasons under Ground 2. To the extent that the same arguments are in substance advanced by the plaintiff in support of Ground 1, they are rejected for the reasons I have explained in relation to Ground 2. Beyond those matters, the challenge also fails for the reasons set out below.
When considering the Estimator Duties and Skills, it is important to note that the Vocational Assessment Report does not state that the listed skills and duties are necessarily required for every type of job as an Estimator. The document states that the ‘duties may include’ certain identified matters. Likewise, two of the particular duties and skills which comprise the Estimator Duties and Skills[41] are drawn from an advertisement for a particular job as an Estimator which was apparently included in the Vocational Assessment Report to demonstrate the availability of jobs of this type. These matters are, in my view, fatal to any suggestion that Panel was mandatorily required to have regard to each and every duty and skill which comprise the Estimator Duties and Skills listed in paragraph [37] above.
[41]Those referred to in subparagraphs (m) and (n) in paragraph [37] above.
However, accepting that the Panel was required to take into account the Estimator Duties and Skills in a more general or collective way as submitted by the plaintiff, it is apparent from the Reasons that, in forming the Opinion, the Panel did engage in an active intellectual process in respect of that matter.
The Panel stated[42] that it formed its Opinion having regard to the documents and information referred to in Enclosures A and B of the Reasons which included the Vocational Assessment Report and a ‘Second 130 Week Vocational Report’ dated 24 June 2016. The Estimator Duties and Skills were listed in both of these documents. Counsel for the plaintiff accepted that the Court should proceed on the basis that the Panel did in fact have regard to the documents and information contained in Enclosures A and B. Further confirmation that the Panel did so is provided by the fact that the Panel made hand written corrections to the listing of documents which comprised Enclosure A, including in relation to the Second 130 Week Vocational Report dated 24 June 2016.[43]
[42]Reasons, pg. 3.
[43]The Panel amended the recorded length of the report from 27 to 15 pages.
A conclusion that the Panel engaged in an active intellectual process in respect of the Estimator Duties and Skills is confirmed by the fact that, as I have explained in paragraphs [46] above, the contents of the Vocational Assessment Report was an important element in the Panel’s chain of reasoning. The Panel ‘noted the vocational assessment reports from Counselling Appraisal Consultants dated 17 June 2015 and 31 May 2016, and transferable 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’ and reached its conclusion having ‘considered the position of estimator (joinery/cabinet making), in conjunction with the worker’s transferable skills and previous experience’.[44] Having addressed itself in this way, it was a matter for the Panel to determine the weight to be given to these considerations including, relevantly, the duties and skills associated with the position of Estimator.[45] The absence from the Reasons of specific references to particular Estimator Duties and Skills is not a proper basis from which to infer that they were not considered, let alone that they were not considered in a collective way as submitted by the plaintiff.
[44]Reasons, pg. 12 (emphasis added).
[45]Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 41; Blacker v Boss Trailers [2017] VSC 538, [18].
Ground 3 – Irrationality and illogicality
The plaintiff advanced two bases in respect of his challenge under Ground 3:
(a) the Panel necessarily made findings that were illogical, irrational or unreasonable because there was no evidence to support its findings in respect of the plaintiff’s ability to perform the Estimator Duties and Skills; and
(b) the Panel’s conclusion that the job of Estimator constituted ‘suitable employment’ for the plaintiff was unreasonable or illogical.
The first defendant submitted that, save in the case of a finding of jurisdictional fact or the exercise of a discretion, unreasonableness or illogicality is not a valid ground of judicial review. The present matter is not, as correctly submitted by the first defendant, within either of these exceptions.
The asserted limitation on the availability of this ground of review advanced by the first defendant appears to be inconsistent with recent authorities from both the High Court and this Court.[46] It is, however, unnecessary and undesirable for me to decide that question given the limited argument advanced on the point and my conclusions in respect of the plaintiff’s contentions set out below, assuming that the ground of challenge is available.
[46]See Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, [53], [55], [80], [82], [84], [85], [89], [131]; Moore v Barton [2014] VSC 78, [67]-[70], [78]-[80]; Bazouni v State of Victoria & Ors [2019] VSC 407, [10]-[11]; City of Melbourne v Neppessen [2019] VSC 84, [64]-[68].
As to the claim that the Panel’s conclusions were illogical, irrational or unreasonable on the ‘no evidence’ basis, the plaintiff submitted that there was no material before the Panel to have enabled it to have found that the plaintiff was capable of performing any of the 14 skills and duties which comprise the Estimator Duties and Skills. This submission is rejected for the following reasons. First, it appears to proceed from the misconception that the Panel was required to have regard to each and every duty and skill which comprise the Estimator Duties and Skills.[47] Such a view is erroneous and was not pressed by counsel for the plaintiff as I have explained in paragraphs [58] and [61] above. Secondly, and in any event, it ignores the material and information which was before the Panel and which is referred to in paragraph [44] above. All of that material and information was relevant to the Panel’s task of assessing whether the job of Estimator was suitable employment for the plaintiff, including in relation to a variety of the 14 skills and duties which comprise the Estimator Duties and Skills.
[47]See [37].
The second way in which the plaintiff contended that the Opinion was legally unreasonable or illogical fixed upon the Panel’s conclusion. It was submitted that the conclusion that the job of Estimator was suitable employment for the plaintiff was perverse because it was the most sophisticated of the employment options outlined in the Vocational Assessment Report, involving communication and computer skills, in contrast to the other employment options which involved driving, manual and process work, none of which were found to be suitable for the plaintiff.
There is nothing perverse, irrational or illogical in this result given:
(a) that the Panel concluded that the plaintiff had neither the physical capacity nor necessary skills to undertake six of the other employment options;
(b) the relatively minor nature of the plaintiff’s physical and psychiatric injuries;
(c) that the plaintiff thought he could work as an Estimator;
(d) that the Panel did not share Dr Baglar’s concerns in relation to the plaintiff’s English skills;[48] and
(e) that the plaintiff had transferrable skills in ‘working unsupervised, communicating, teamwork, managing time and the ability to work to deadlines’.[49]
[48]In the context of the various materials before the Panel referred to in paragraph [44(d)(ii)] above.
[49]As set out in the Vocational Assessment Report.
Ground 3 is accordingly not made out.
Conclusion
For the above reasons the application should be dismissed as none of the grounds have been made out. I shall hear from the parties on the form of orders and on the question of costs.
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