Fard v Shields
[2022] VSC 809
•19 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 04037
| HAMID FARD | Plaintiff |
| v | |
| DR ROBERT SHIELDS AND OTHERS (ACCORDING TO THE ATTACHED SCHEDULE) | Defendants |
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JUDGE: | Tsalamandris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 November 2022 |
DATE OF JUDGMENT: | 19 December 2022 |
CASE MAY BE CITED AS: | Fard v Shields & Ors |
MEDIUM NEUTRAL CITATION: | [2022] VSC 809 |
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ADMINISTRATIVE LAW – Judicial review – Medical Panel – Whether Medical Panel committed a jurisdictional error – Whether medical panel failed to have regard to relevant matters – Whether medical panel failed to provide adequate reasons – Minister forAboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 – Gruma Oceania v Bakar [2014] VSCA 252 – Richter v Driscoll (2016) 51 VR 95 – Bainbridge v Westside Meats Pty Ltd [2021] VSC 320 – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | C Hangay with S Fernando | Zaparas Lawyers |
| For the First – Fourth Defendants | No appearance | DLA Piper Australia |
| For the Fifth Defendant | R Kaye SC with A Macaskill | Hall & Wilcox |
HER HONOUR:
Background
This is a judicial review of a medical panel decision in respect of a worker’s capacity for suitable employment. The worker, Mr Fard is a 39-year-old labourer who suffered injury to his left eye during the course of his employment with EFE Kitchen Pty Ltd. On 17 May 2017, Mr Fard was unpacking a parcel of wooden boards held together by metallic straps, when one of the straps struck his left eye (the incident). The incident caused a laceration to Mr Fard’s left cornea with prolapse of the iris tissue. Mr Fard attended the Royal Victorian Eye and Ear Hospital where he underwent emergency repair surgery, followed by two further surgical procedures in 2017 and 2018.
On 11 November 2019, Mr Fard applied under s 325(2)(e) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the Act) for leave to issue proceedings in the County Court seeking recovery of damages for injuries suffered in the incident. Mr Fard’s application was for both pain and suffering, and pecuniary loss damages.
On 10 December 2020, at the request of the fifth defendant, a judge of the County Court referred 10 questions relevant to the determination of Mr Fard’s serious injury application to a medical panel.[1] The referral included a number of documents in a schedule of attachments, including a joint statement,[2] written submissions from Mr Fard and the fifth defendant, affidavit material,[3] reports of treating practitioners, medico-legal opinions, and rehabilitation and vocational material obtained by both Mr Fard and the fifth defendant (the referral).
[1]Pursuant to s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the Act).
[2]Pursuant to s 304 of the Act.
[3]Such material included Mr Fard’s serious injury affidavits dated 19 June 2019 and 2 November 2020, an affidavit of Mr Fard’s wife dated 3 November 2020, and the affidavit of Mr Amir Rostami dated 2 November 2020, with whom he briefly attempted a return to work in May 2019.
A four member medical panel was convened, and was composed of psychiatrists Dr Robert Shields and Associate Professor Alexander Holmes, consultant ophthalmologist Dr Robert Nave, and occupational and environmental physician Professor Malcom Sim (the Panel). These medical practitioners are the respective first to fourth defendants to the proceeding. As is the usual arrangement, pursuant to the principles in Hardiman,[4] they did not take an active role in the proceedings and indicated by way of correspondence that they would abide by the decision of the court.
[4]R v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35.
The Panel examined Mr Fard on 23 April, 11 May, and 13 May 2021.
On 30 August 2021, the Panel delivered its Certificate of Opinion (Opinion) and written statement of Reasons (Reasons). The Panel concluded that, in its opinion, Mr Fard suffers mild continuing dysfunction of the left eye following a penetrating injury, and a chronic adjustment disorder with mixed anxiety and depressed mood as a consequence of the incident. The Panel determined that Mr Fard has a current work capacity for his pre-injury duties as a labourer. The Panel also determined that Mr Fard has the capacity to work for four hours a day, five days a week, with a gradual return to full time hours as a labourer, as well as a handyman, product assembler, sandwich hand, kitchen hand or auto repair assistant. The consequence of the Opinion is that Mr Fard will be prohibited from recovering any pecuniary loss damages in respect of injuries suffered by him in the incident.
On 27 October 2021, Mr Fard filed an originating motion seeking judicial review in the nature of certiorari to quash the Opinion of the Panel, and an order in the nature of mandamus to remit the questions to a differently constituted panel.
Mr Fard seeks judicial review of the Panel’s decision on a number of grounds. Mr Fard alleges that the Panel was erroneous in failing to properly carry out its statutory function by not giving proper, genuine and realistic consideration to the evidence before it[5] and/or that the Panel’s Reasons did not adequately disclose its path of reasoning.[6]
[5]See grounds (i)-(v) set out at [40] below.
[6]See ground (vi) set out at [46] below.
For the reasons that follow, I dismiss Mr Fard’s application.
Medical Panel Opinion
The parts of the Opinion relevant to this application are as follows:
Question 1 What is the nature of the medical condition of the Plaintiff’s:
(a) left eye; and
(b) mind?
Answer: In the Panel’s opinion, the Plaintiff is suffering from:
(a)mild continuing dysfunction of the left eye following a penetrating injury with prolapse and loss of iris tissue, a traumatic cataract, and subsequent repair of the injury with excision of prolapsed iris tissue, excision of vitreous, removal of the traumatic cataract and its replacement with an artificial intraocular lens, and the implantation of artificial iris tissue, and chronic macular oedema, and
(b)a chronic adjustment disorder with mixed anxiety and depressed mood.
Question 2 Is any medical condition of the Plaintiff’s:
(a) left eye; or
(b) mind –
as identified by the Medical Panel permanent?
Answer: In the Panel’s opinion, the Plaintiff’s:
(a)mild continuing dysfunction of the left eye is permanent.
(b) chronic adjustment disorder with mixed anxiety and depressed mood is permanent.
Question 3 Is the Plaintiff incapacitated for work as a labourer?
Answer: In the Panel’s opinion, the Plaintiff is not incapacitated for work as a labourer.
Question 4 If “yes” to Question 3, does such incapacity result from or is it materially contributed to by any and if so which medical condition of the Plaintiff’s:
(a) left eye; or
(b) mind?
Answer: Not applicable.
Question 5Does the Plaintiff’s left eye condition (excluding the psychological or psychiatric consequences of that condition) result in or materially contribute to him having:
(a)a “current work capacity” within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”); or
(b)“no current work capacity” within the meaning of the Act?
Answer:In the Panel’s opinion, the Plaintiff’s left eye condition (excluding the psychological or psychiatric consequences of that condition) results in and materially contributes to him having a “current work capacity” within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013.
Question 6 If “yes” to question 5(a) hereof:
(a)What employment would constitute suitable employment within the meaning of the Act?
(b)In relation to any suitable employment identified by the Medical Panel in answer to Question 6(a), for how many hours and days per week does the Plaintiff have capacity for work?
(c) Does employment as a:
i. Handyman/Labourer;
ii. Product Assembler;
iii. Delivery Driver;
iv. Sandwich Hand;
v. Kitchen Hand;
vi. Delivery Driver/Courier; or
vii. Auto Repair Assistant -
constitute suitable employment with the meaning of the Act and, if so, for how many hours and days per week?
(d) Is any capacity for suitable employment identified in response to question 6(b) or (c) “permanent” meaning likely to last for, during or through the foreseeable future?
Answer: In the Panel’s opinion, based on his left eye condition alone:
(a)Working in his pre-injury duties as a labourer would constitute suitable employment within the meaning of the Act.
(b)The Plaintiff has the capacity to work initially for four hours a day for five days a week with a gradual return to full time hours as a labourer.
(c)Employment as a:
i. Handyman/Labourer;
ii. Product Assembler;
iii. Sandwich Hand;
v. Kitchen Hand;
v. Auto Repair Assistant -
all constitute suitable employment within the meaning of the Act and the Plaintiff has the capacity to work initially for four hours a day for five days a week with a gradual return to full time hours in these jobs.
The Panel is of the opinion that working as a delivery driver/courier involving long periods of driving over long distances would not constitute suitable employment.
(d)The Plaintiff’s capacity for suitable employment identified in response to questions 6(b) and (c) are permanent.
Question 7 If “yes” to question 5(b), is this “permanent” meaning “likely to last for, during or through the foreseeable future”?
Answer: Not applicable.
The Panel’s determination in respect of Mr Fard’s psychiatric condition is not the subject of this review, and therefore I have not detailed the Panel’s Opinion in respect of it.
Medical Panel Reasons
The Panel stated that it had formed its Opinion with regard to:
(a) the documents it had been provided;
(b) the history provided by Mr Fard;
(c) its examination findings; and
(d) the guidance of the consultant, Dr Nave.
The Panel detailed Mr Fard’s occupational history, the history of the incident, and the treatment he subsequently received. The Panel then noted that:
Despite these three surgical procedures, the Plaintiff felt that he had only regained 5% of his original vision in his left eye. He stated that he still has constant blurred vision in his left eye, episodes of pain in his left eye about three times a week and he feels that the eye is photophobic. He also has occipital headaches about three times per week, usually at night. He can sometimes feel dizzy after driving for longer than an hour or watching television for a prolonged period. There has been little change in his symptoms for at least a year.
The Plaintiff is not currently using any regular medication or having any other type of treatment for his left eye. He sometimes takes Norgesic or Nurofen for his headaches and left eye pain. He has been prescribed corrective glasses, but rarely wears them. He is no longer under the care of an ophthalmologist.
The Plaintiff lives with a friend. He helps out around the house, including cooking, and there are no household activities which he is unable to do, but he feels he has low energy. He drives a car up to about one hour, when he needs to stop, usually due to his headache or blurred vision. He goes shopping, but feels that he tires easily. There are no restrictions on sitting, standing or walking. He uses a laptop computer.
The Panel outlined Mr Fard’s attempted return to work installing kitchen cabinets in May 2019, in the employ of his friend, Mr Rostami. The Panel reported that Mr Fard:
found that he made mistakes and only did this work for 2-3 days before ceasing this work. He has not returned to any other form of work since that time. He wore goggles while doing this work, but he was still worried about getting dust in his left eye. He was also concerned about his safety while operating mechanical tools in that job.
The Panel also noted that Mr Fard felt he could not safely climb ladders or recognise depth.
In respect of Mr Fard’s current symptoms, the Panel noted:
The Plaintiff reported ongoing intermittent pain in his left eye and the left side of his head lasting several hours up to 4 times per week of maximum intensity between 6 and 10 out of 10, where zero is least and 10 is most severe pain. He said that these episodes of pain were unpredictable. He said that he was currently taking analgesic medications in the form of Norgesic and Nurofen, but had ceased Tramadol due to side-effects.
On Mr Fard’s capacity for work, the Panel said:
The Panel took note of the Plaintiff’s duties in his pre-injury employment as a labourer, the mild residual reduced vision in his left eye and associated minor limitations, the normal vision in his right eye and the mild severity of his chronic adjustment disorder with mixed anxiety and depressed mood, and concluded that the Plaintiff is not incapacitated for his pre-injury work as a labourer.
The Panel stated that it took into account the following factors in its determination of Mr Fard’s current work capacity:
i. his young age of 37 years, which the Panel considers would not limit his employment options,
ii. his place of residence in a suburb of Melbourne, which the Panel considers would not limit his employment options,
iii. that English is not his first language, but he has been in Australia for about eight years, has worked in several jobs where English proficiency has not been a limiting factor and he has completed a short English language course in 2019, which the Panel considers may limit some employment options,
iv. his completion of secondary education to year 10 and his completion of a food handlers’ course, which the Panel considers may limit some employment options, but demonstrates an ability to undergo further training,
v. his range of previous employment in Iran and Australia in a wide variety of unskilled jobs, which the Panel considers has given him several transferable skills, but would likely limit some employment options,
vi. the fact that it is four years since he was in any form of regular employment and there has been one unsupervised return to work attempt, which was not successful, which the Panel considers may limit his employment options,
vii. that he had no other medical conditions which would affect his ability to undertake suitable employment,
viii. the fact that he is not currently undertaking a rehabilitation program and there is no current return to work plan. which the Panel considers would likely limit his employment options, and
ix. that his local doctor was certifying him as not fit for any employment from 9 July 2020 to 8 October 2020 in the most recent certificate of capacity supplied to the Panel. The Panel also noted in this certificate that his doctor did not specify any physical restrictions related to his left eye or elsewhere in the body, but specified that attention/concentration and memory were affected due to “AnxietyIDepression (sic) feeling sad but a little better”.
The Panel noted that it had considered the proposed suitable employment options outlined in the vocational reports, and asked Mr Fard about each of these options. The Panel stated Mr Fard responded that:
he thought he would not be able to cope with these jobs because of low energy, feeling tired, difficulties with driving for more than an hour in the courier and delivery jobs and concerns about the impact of headaches. The Plaintiff did not raise any barriers to employment specifically related to his left eye condition.
The Panel expressed the following conclusion:
The Panel considered the ongoing mild symptoms and limitations of the Plaintiff’s left eye condition and after excluding the psychological or psychiatric consequences of that condition and taking note of the above factors, in particular his young age and level of transferable skills, concluded that the Plaintiff’s left eye condition (excluding the psychological or psychiatric consequences of that condition) results in and materially contributes to him having a “current work capacity” within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013.
In particular, the Panel concluded that working in his pre-injury duties as a labourer would constitute suitable employment within the meaning of the Act.
The Panel took note of the fact that the Plaintiff has been out of work for four years and considered that a graduated return to work, based on his left eye condition alone, would be most suitable for the Plaintiff. Therefore, the Panel concluded that the Plaintiff had the capacity to work initially for four hours a day for five days a week with a gradual return to full time hours as a labourer.
On the basis of his left eye condition alone, the Panel considered the following suitable Employment as a Handyman/Labourer; Product Assembler; Sandwich Hand; Kitchen Hand; and Auto Repair Assistant all constitute suitable employment within the meaning of the Act and the Plaintiff has the capacity to work initially for four hours a day for five days a week with a gradual return to full time hours in these jobs.
The Panel took note of the limitations of long periods of driving due to his persisting left eye condition and concluded that working as a delivery driver/courier involving long periods of driving over long distances would not constitute suitable employment.
The Panel stated that it had considered previous medical opinions regarding Mr Fard’s capacity for work. Where those medical opinions expressed a contrary view to that of the Panel, it explained why it did not agree with the relevant medical practitioner.
By way of example, the Panel noted the opinion of pain physician Dr Meena Mittal in her report dated 13 October 2020. Dr Mittal concluded that Mr Fard would have difficulty engaging in any role (whether sedentary or laborious) reliably and consistently due to the unpredictable nature of his headaches. The Panel noted Dr Mittal reported that, in between his episodes of headaches, Mr Fard did not have any significant functional limitation. Further, the Panel noted Dr Mittal acknowledged that she was unable to comment on the specific injury-related functional limitations associated with the visual changes in Mr Fard’s left eye. The Panel stated that, based on its conclusions about the current nature of Mr Fard’s headaches, it did not agree with Dr Mittal’s opinion.
The Panel also acknowledged two vocational assessment reports of Ms Diane Prattley, occupational therapist, of Evidex. The Panel noted that in the later Exidex report, Ms Prattley concluded:
…the functional restrictions of Mr Fard’s left eye injury and his additional functional restrictions as a consequence of his subsequent psychological injury precluded him from undertaking any recognised occupation in the open labour market on a consistent and reliable basis for the foreseeable future.
In respect of the opinion of Ms Prattley, the Panel stated that it came to a different conclusion ‘based on its own examination findings and its combined experience and expertise’.
Finally, the Panel noted that it considered it had addressed the issues set out in the submissions of Mr Fard and the fifth defendant.
Relevant statutory provisions
In reaching its Opinion, the Panel acknowledged that it was required to consider the following definitions: ‘current work capacity’, ‘no work capacity’, and ‘suitable employment’.
These terms are defined in s 3 of the Act as follows:
current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment;
…
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre‑injury employment or in suitable employment;
…
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to the following—
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii)the nature of the worker’s pre-injury employment;
(iii)the worker’s age, education, skills and work experience;
(iv)the worker’s place of residence;
(v)any plan or document prepared as part of the return to work planning process;
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b) regardless of whether—
(i) the work or the employment is available; or
(ii)the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—
(c)employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
(d)employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e)suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education;
…
In Richter v Driscoll (Richter),[7] Ashley and Kaye JJA (with whom Osborne JA agreed) said of these definitions:
…we agree with the applicant’s submission that return to work in employment, so understood, requires more than that a physical capacity to engage in a task or tasks. That is because there is more to an ability to work in employment — ‘ability’ being converse of ‘inability’, which appears in the definitions of ‘no current work capacity’ and ‘current work capacity’ — than the ability to perform a task that happens to be required in that employment. The definition of ‘suitable employment’, which falls for consideration in the context of ‘no current work capacity’, plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise, paragraphs (a)(ii), (iii) and (iv) would have no work to do.[8]
…whether a worker has ‘no current work capacity’, according to the definition, depends in the first place upon whether the worker has an inability to work in his or her pre-injury employment. It would be contradictory if, in determining that question, one was confined to an examination of the worker’s physical capacity to perform a particular task or tasks in that employment. For if it was concluded that there was such capacity in a particular case, one would never get to the question whether the worker was able to return to work in ‘suitable employment’, which specifically requires consideration of matters travelling beyond physical capacity to perform a task.[9]
[7](2016) 51 VR 95 (Richter).
[8]Ibid 114 [76].
[9]Ibid 114-5 [77].
Further, it was stated that:
…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.[10]
[10]Ibid 120 [95].
The definitions of ‘current work capacity’ and ‘no work capacity’, were subsequently considered in Bainbridge v Westside Meats Pty Ltd (Bainbridge).[11] In Bainbridge, Gorton J summarised the principles in Richter as follows:
… the fact that both these definitions embrace the concept of returning to work in employment conveys an intention to maintain the established notion that the mere fact that a worker is able to perform work duties does not mean that they have a work capacity. Rather, the issue is whether they have the capacity to return to work, in the sense of having something to sell in the market for labour.[12]
[11][2021] VSC 320 (Bainbridge).
[12]Ibid [24].
On the distinction between a capacity to perform work duties and a capacity to return to work in employment, Gorton J went on to say:
… a capacity to perform work duties will, in many circumstances, correspond with a capacity to return to work in employment. There would have to be some feature of the individual worker arising from the relevant injury that justifies the distinction being drawn. One example is a worker being disfigured, such that they are not able to sell their labour in certain areas of work where disfigurement is in reality a disqualification from employment, notwithstanding an ability to perform the actual work duties. Another example would be a worker who has a variable medical condition, such as a worker with a back injury, who would be able to perform work duties for the most part, but who suffers from periodic exacerbations that would prevent him or her from attending work with sufficient regularity to be able to obtain or maintain employment. Another might be a person who has developed a psychiatric reaction that, for practical purposes, would make that person unable to attend job interviews, or cause that person to present so badly that their labour is not, in fact, merchantable, despite their ability to perform the work if given the chance. Yet another might be someone who can perform the work duties, but those duties would unacceptably aggravate his or her injury, or involve an unacceptable level of pain or discomfort in their performance. However, these cases would be the exception, rather than the rule. It is only when features of this type are present that the distinction between a capacity to perform work duties and a capacity to return to work in employment would matter.[13]
[13]Ibid [25]. The Court of Appeal subsequently endorsed these comments in Sidiqi v Kotsios [2021] VSCA 187, [87] (Sidiqi)
General principles relevant to this judicial review
As I have previously noted,[14] in considering this application I am bound by the following principles:
[14]Dodds v Atcorp [2022] VSC 392, [73].
(i) this is a matter of judicial review, and not merits review;[15]
[15]Sidiqi (n 13), [30].
(ii) the statutory function of the medical panel is an essential consideration in conducting the review. That function is to form an opinion in respect of questions referred to it, and to state the reasons for its answers to those questions.[16]
[16]Ibid [32].
(iii) a medical panel will make a jurisdictional error if it identifies the wrong issue, asks itself the wrong question, or fails to take into account relevant material.[17]
[17]Craig v South Australia (1995) 184 CLR 163, 179.
(iv) the Court should be mindful that each medical panel is comprised of medically qualified professionals, not lawyers or judges;[18]
[18]Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17, [109] (Ryan).
(v) the Court should not be overly zealous in considering the Reasons of the Panel;[19]
[19]Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, 271; Dundar v Bas [2019] VSCA 315, [51].
(vi) the Reasons of the Panel should be given a beneficial construction;[20]
(vii) it will be difficult to conclude that an opinion was not open to a medical panel if that opinion was materially informed by the expertise of that medical panel, in terms of both general and specialist medical expertise;[21] and
(viii) there are often differing and sometimes opposing medical opinions contained within the material before a medical panel, and reasonable minds may differ about the answers to medical questions.[22]
[20]Gruma Oceania Pty Ltd v Bakar & Ors [2014] VSCA 252, [29] (Gruma); Ryan (n 18), [109].
[21]Sidiqi (n 13), [37].
[22]Ibid [58]-[59].
Also of relevance to this application, is the High Court’s description of the medical panel’s statutory function in Wingfoot Australia Partners Pty Ltd v Kocak (Wingfoot):[23]
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[24]
[23](2013) 252 CLR 480 (Wingfoot).
[24]Ibid 498–9 [47] (citations omitted).
In respect of a decision maker’s obligation to take into account relevant considerations, the High Court in Minister forAboriginal Affairs v Peko-Wallsend[25] held that in the absence of a statute expressing mandatory considerations, it is for the decision maker to determine what is relevant, based on the subject matter, scope, and purpose of the relevant Act.[26] Further, it is generally for the decision maker to decide the weight to be given to such considerations.[27]
[25](1986) 162 CLR 24 (Peko-Wallsend).
[26]Ibid 39-40.
[27]Ibid 41.
In respect of a medical panel’s statutory obligation to give reasons for a referral made under the Act, s 313(2) provides that ‘[t]he Medical Panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion.’
This obligation was explained by the High Court in Wingfoot:
The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the Medical Panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain.
The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act[28] can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.[29]
[29]Wingfoot (n 23), 501 [54]-[55].
In providing its reasons, a medical panel is under no obligation to explain why it did not reach an opinion it did not form, or why it rejected or preferred any expert medical opinion provided to it.[30] Further, the High Court stated that the function of a medical panel forming its opinion on a medical question is not analogous to the function of a judge deciding the same medical question.[31]
[30]Ibid 501-2 [56].
[31]Ibid.
However, the comments by the High Court in Wingfoot referred to above, came with the following caveat:
The nature of the question referred to a Medical Panel, and the way that question was addressed by other medical practitioners in opinions supplied to a Medical Panel, might allow an inference to be drawn, on the balance of probabilities in a particular case, that the reasoning in fact adopted by a Medical Panel in arriving at its own differing opinion is not adequately reflected in its written statement of reasons. An inference might be drawn, for example, that the reasoning involved one or more steps not reflected in the written statement of reasons either at all or in sufficient detail to allow a court to see whether a Medical Panel made an error of law in those steps….[32]
[32]Ibid 502 [57].
In Gruma Oceania v Bakar (Gruma),[33] the Court of Appeal said of the principles from Wingfoot in the following way:
In Wingfoot, the High Court emphasised that the adequacy of a medical panel’s reasons must be assessed by reference to the opinion that the panel formed rather than by reference to an opinion it did not form. This means that, in considering the adequacy of particular reasons, the Court must have regard to the approach that the panel adopted in answering a medical question rather than an alternative approach that was open to it but which it did not adopt. It is important to bear in mind that the question for the Court when considering whether a medical panel’s reasons are adequate is not whether the reasons positively disclose that the panel erred in law, but whether the reasons are sufficient to enable the Court to determine whether the panel’s opinion does or does not involve any error of law. If 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…..[34]
[33]Gruma (n 20).
[34]Ibid [46]-[47] (citations omitted).
Mr Fard’s submissions as to why the Panel failed to have regard to relevant matters
In his originating motion dated 27 October 2021, Mr Fard alleged the Panel fell into jurisdictional error on the following 5 grounds:
(i) First, in forming its Opinion as to his left eye pain and its effects, the Panel did not take into account relevant material, including material provided by Mr Fard at his examination, affidavit material, and a medical report of Dr Mittal dated 13 October 2020.
(ii) Second, the Panel did not take into account Mr Fard’s capacity to work in employment as a settled member of the workforce, as required by Richter, and that the Panel misapplied, or failed to apply, the correct definition of ‘no current work capacity’ as defined in s 3 of the Act.
(iii) Third, the Panel did not give proper, genuine or realistic consideration to Mr Fard’s left eye pain and its effects on his capacity to work as a settled member of the workforce.
(iv) Fourth, the Panel considered Mr Fard’s left eye mechanical function only, without giving any, or any proper, regard in its reasoning to his left eye pain and headaches (and associated effects) caused by the claimed injury.
(v) Fifth, the Panel did not give proper, genuine or realistic consideration to Mr Fard’s left eye pain and its effects, and to his headaches and their effects on his capacity for employment or employment in the occupations identified in its Reasons.
Mr Fard stated these grounds were ‘interrelated’ as each allege a failure by the Panel to properly carry out its statutory function by not giving proper, genuine and realistic consideration to the evidence before it.
Mr Fard submitted that the Panel failed to properly consider evidence of his experience of pain and headaches set out in affidavit material included in the referral. Mr Fard acknowledged that a complaint founded on a mere failure by the Panel to refer to the affidavit material in its Reasons would be inconsequential if it could be shown the Panel had regard to the matters contained therein. However, he submitted that, on a plain reading of the Panel’s Reasons, this was not such a case. In particular, Mr Fard alleged that there was a disconnect between the Panel’s statement that he had not raised ‘any barriers to employment specifically related to his left eye condition’ at his examination, and the reservations he expressed in his affidavit as to the suitability of the specific job roles considered by the Panel.
Mr Fard also submitted that the Panel’s Reasons failed to properly consider the expert evidence of Dr Mittal. Mr Fard submitted that the Panel referred ‘selectively’ to the material, and failed to have proper regard to the expert evidence in its entirety in respect of Mr Fard’s pain and headaches, including details as to the unpredictable nature of his headaches.
Further, Mr Fard asserted that, as the Panel did not mention Ms Prattley’s report and findings in the section of its Reasons dealing with capacity (but did refer to the vocational reports relied upon by the fifth defendant), an inference could be drawn that the Panel failed to properly take this evidence into account. Mr Fard said the Panel’s ‘bald statement’ that it had formed a different conclusion to Ms Prattley based on ‘its own examination and its combined experience and expertise’ was ‘insufficient to demonstrate an intelligible justification for any conclusion’ that the Panel had considered Ms Prattley’s evidence.
Mr Fard submitted that it was clear from the Panel’s characterisation of his symptoms as ‘mild’ that the Panel had disregarded his complaints of pain, including evidence of his treatment for pain, such as his daily consumption of strong painkilling medication. Mr Fard contended that Richter was authority for the proposition that ‘the statutory tests focus on an injured worker’s inability to engage in employment’, where ‘employment’ means to return to work ‘as a settled or established member of the wage earning workforce’. As such, the Panel was required to consider the evidence of Mr Fard’s experience of pain in his left eye and headaches in order to properly carry out its statutory function under the Act. Mr Fard submitted that the Panel failed to do so and therefore fell into jurisdictional error.
Mr Fard’s submissions as to why the Panel did not provide adequate Reasons
In ground 6 of his originating motion, Mr Fard alleged that if the Panel did take into account (or have regard to) his left eye pain and his headaches, its Reasons were inadequate.
Mr Fard submitted that the Panel’s Reasons were insufficient to enable a court to understand its path of reasoning and therefore, it had fallen into jurisdictional error.
Mr Fard relied on Richter (at [28]-[29] above), in support of the proposition that the Panel was required to show that it had given consideration to his capacity to return to work in employment in a ‘meaningful way’, as ‘a settled and established member of the workforce’, which involved ‘more than the physical capacity to perform tasks.’[35] He submitted that, as pain is a common cause of incapacity, and the Panel had material before it as to the effect of pain on Mr Fard’s work capacity (which it did not reject), it was not possible to ascertain from the Reasons why his pain and headaches did not affect his capacity to work as a labourer, or the other suitable employment occupations.
[35]Richter (n 7), 114 [76].
In addition, Mr Fard alleged that the Panel’s rejection of Ms Prattley’s evidence on the basis of its ‘collective expertise and experience’ was a ‘sweeping generalisation’ and did not adequately disclose its path of reasoning.
Analysis
Why the Panel did not err in respect of its consideration of relevant matters
Mr Fard did not contend that the contents of the affidavit material and the Panel’s Reasons were inconsistent. This, in part, rebuts any allegation that the Panel did not consider such material.
I note that the Panel expressly stated that it had considered all of the material before it, including the submissions provided by the parties and the issues contained therein. There is nothing before me to support a contention that the Panel was disingenuous in making such a statement.[36]
[36]Vellios Electrical Contactors Pty Ltd v Barton [2014] VSC 664, [83].
It is apparent from the totality of its Reasons that the Panel did take into account the matters Mr Fard alleged it did not have regard to. Notwithstanding his acknowledgement that a Panel is not required to cite every piece of evidence and every contention of a party, the substance of Mr Fard’s complaint appears to be that the Panel failed to do so.
The Panel’s Reasons demonstrate that it was aware of:
(a) Mr Fard’s complaints of left eye pain and headaches;
(b) the medication Mr Fard took for his pain and headaches;
(c) Mr Fard’s unsuccessful attempt to return to work in May 2019;
(d) Mr Fard’s driving limitations due to his headaches and blurred vision;
(e) Mr Fard’s concern that his headaches may impact his ability to return to work; and
(f) the varying medical and vocational opinions provided in respect of Mr Fard’s work capacity.
Having acknowledged those matters in its Reasons, I do not consider that there is any substance to Mr Fard’s allegation that the Panel failed to take such matters into account. Further, it was for the Panel, using its collective expertise and experience,to consider the appropriate weight to be given to such matters.
On the basis of its discussions with Mr Fard, the Panel noted that ‘[he] did not raise any barriers to employment specifically related to his left eye condition,’ and his concern about his headaches. These notes are not incongruous with the reservations raised by Mr Fard in respect of his capacity for work as outlined in his affidavit. They reflect the material the Panel considered in answering the questions referred to it. Therefore, Mr Fard’s assertion that because the Panel did not conclude that he was ‘at the very least’ incapacitated for his pre-injury employment, it misconstrued or failed to properly consider the referral material before it, is baseless.
In listing the factors relevant to its consideration of what constituted suitable employment, it was not necessary for the Panel to also include its medical findings or Mr Fard’s limitations arising from his left eye injury, including pain and associated headaches. In reaching its conclusion as to Mr Fard’s current capacity for suitable employment, the Panel noted that it considered the factors of suitable employment as articulated in s 3 of the Act, the job descriptions provided by the vocational assessors, Mr Fard’s views on the proposed jobs, his symptoms and limitations, young age and level of transferable skills. It is clear that the Panel was suitably focused on the question of Mr Fard’s ability to work in employment as a settled or established member of the wage earning work force. The Panel’s path of reasoning to its conclusion is clear, and discloses no error of law.
Further, Mr Fard’s attempts to insinuate that the Panel’s description of his ongoing left eye symptoms as ‘mild’ evinced that it did not take into account his reports of pain is an overt attempt at merits review. There is no basis upon which to draw such an inference given the numerous references to pain and headaches contained within the Reasons.
The Panel’s finding that courier driving was not suitable for Mr Fard due to his persisting left eye condition is an example of its consideration and acceptance of the Mr Fard’s complaints as to the limitations arising from his eye injury. In addition, the Panel’s finding that after being out of work for four years Mr Fard would be most suited to a graduated return to work, demonstrates its understanding both of its statutory function and the matters relevant to its consideration of his capacity for work.
Further, in my opinion, there is no substance to Mr Fard’s complaints that the Panel did not have regard to Dr Mittal and Ms Prattley’s opinions, was selective in its reference to these reports, and that such disregard constituted an error of law. The Panel was not obliged to identify and expressly analyse each piece of material it considered in reaching its decision. However, having referred to both opinions (one being medical and the other vocational), and after distinguishing those opinions from their own, it cannot be contended that the Panel did not genuinely consider them in reaching its Opinion.
For these reasons, I am satisfied that in answering the questions referred to it, the Panel gave proper, genuine and realistic consideration to the material before it, and grounds 1-5 of Mr Fard’s originating motion must fail.
Why the Panel’s reasons are adequate
When read as a whole, and without an overzealous eye for error,[37] the Panel’s Reasons are sufficient to understand why it determined that, notwithstanding Mr Fard’s reports of pain and headaches, he is capable of performing suitable employment.
[37]See (n 19); Gruma (n 20), [29] (citations omitted).
The Panel’s path of reasoning complies with the standard required of a panel of medical experts explaining its opinion. I am satisfied the Reasons are sufficient to enable me to determine whether the Opinion does or does not involve an error of law.
When the Reasons are read as a whole, I have no doubt that the Panel correctly performed its statutory function.
The Panel was not required to express an opinion or explain a path of reasoning in respect of why it rejected some o opinions as to Mr Fard’s work capacity.[38] Therefore, Mr Fard’s separate criticism that the Panel’s rejection of Ms Prattley’s opinion was a ‘sweeping generalisation’, which did not disclose a path of reasoning, is also without merit.
[38]Wingfoot (n 23), 501 [55].
For the aforementioned reasons, I also reject ground 6.
Concluding remarks
As I am not satisfied the Panel fell into jurisdictional error, I dismiss Mr Fard’s application.
I will hear from the parties as to the precise form of orders to give effect to these reasons, and as to costs.
SCHEDULE OF PARTIES
S ECI 2021 04037
| HAMID FARD | Plaintiff |
| -and- | |
| DR ROBERT SHIELDS | First Defendant |
| -and- | |
| ASSOCIATE PROFESSOR ALEXANDER HOLMES | Second Defendant |
| -and- | |
| DR ROBERT NAVE | Third Defendant |
| -and- | |
| PROFESSOR MALCOLM SIM | Fourth Defendant |
| -and- | |
| VICTORIAN WORKCOVER AUTHORITY | Fifth Defendant |
[28] The predecessor to s 313(2) of the Act was s 68(2) of the Accident Compensation Act 1985 (Vic).
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