Gruma Oceania Pty Ltd v Bakar

[2014] VSCA 252

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0058

GRUMA OCEANIA PTY LTD	Appellant
v
SEHRIBAN BAKAR	First Respondent
and
SUSANNE HOMOLKA	Second Respondent
and
JENNIFER HARMER	Third Respondent
and
PAUL KIERCE	Fourth Respondent
and
PETER DOHERTY	Fifth Respondent

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JUDGES:	NEAVE, SANTAMARIA and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 October 2014
DATE OF JUDGMENT:	16 October 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 252
JUDGMENT APPEALED FROM:	Bakar v Gruma Oceania Pty Ltd [2014] VSC 206 (Williams J)

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Adequacy of reasons – Accident Compensation Act 1985 s 68(2) – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64 – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M F Fleming QC with	Minter Ellison
Ms F C Spencer
For the First Respondent	Dr K P Hanscombe QC with	Shine Lawyers
Ms K Bowshell
For the Second to  Fifth Respondents	No appearance

NEAVE JA
SANTAMARIA JA
KYROU JA:

Introduction and summary

1. This is an appeal from an order of a judge in the Trial Division which set aside an opinion of a medical panel comprising the second to fifth respondents (‘Panel’) on the ground that the Panel’s reasons for the opinion were inadequate.

1. The appellant, Gruma Oceania Pty Ltd (‘Gruma’), was the employer of the first respondent (‘Ms Bakar’).  Ms Bakar commenced full-time work as a process worker at Gruma’s bread manufacturing factory on 21 January 2009.  On 23 October 2010 she lodged a claim for compensation under the Accident Compensation Act 1985 (‘Act’) in respect of an injury to her left shoulder.  The claim was accepted and weekly compensation payments commenced.  Subsequently, liability was also accepted for a bilateral shoulder injury.

1. On 29 November 2012, the compensation payments were terminated by the workers’ compensation claims agent with effect from 9 March 2013 on the basis that Ms Bakar had a current work capacity, or if she had no current work capacity, the incapacity was not likely to be indefinite.  Ms Bakar disputed this decision, and the dispute was referred to the Accident Compensation Conciliation Service (‘ACCS’).

1. The ACCS referred two medical questions to the Panel, which was convened under s 63(4)(a) of the Act. The Panel gave a Certificate of Opinion (‘Opinion’) and written reasons for the Opinion (‘Reasons’) on 24 June 2013.

1. The two medical questions and the Panel’s answers to those questions as set out in its Opinion were as follows:

Question 1.What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?

Answer:In the Panel’s opinion the worker is currently suffering from a residual left shoulder dysfunction following a rotator cuff injury, surgically treated, and from a rotator cuff dysfunction of the right shoulder, relevant to the claimed left shoulder injury.

Question 2.Does the worker have no current work capacity?  If so, is this situation likely to continue indefinitely?

Answer:In the Panel’s opinion the worker has a current work capacity.

1. Ms Bakar sought judicial review of the Opinion under O 56 of the Supreme Court (General Civil Procedure) Rules 2005. She relied on several grounds, including that the Reasons were inadequate and did not comply with s 68(2) of the Act. That section provides that a medical panel ‘must give a certificate as to its opinion and a written statement of reasons for that opinion.’

1. The judge who heard the application for judicial review upheld it solely on the ground that the Reasons were inadequate.[1]  On 9 May 2014, her Honour ordered that the Opinion be set aside and that the medical questions be determined by a differently constituted medical panel (‘Order’).

   [1]Bakar v Gruma Oceania Pty Ltd [2014] VSC 206 (‘Primary Decision’).

1. Gruma has appealed against the Order on the basis that the judge failed to properly apply the relevant legal principles as recently articulated by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak.[2]

   [2](2013) 303 ALR 64 (‘Wingfoot’).

1. For the reasons that follow, we have concluded that the judge correctly applied the principles in Wingfoot and that the appeal should be dismissed.

Panel’s Reasons

1. In answering the medical questions referred to it, the Panel was required to apply the following definitions in s 5(1) of the Act:

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—

(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; and

(ii)the nature of the worker’s pre‑injury employment; and

(iii)the worker’s age, education, skills and work experience; and

(iv)the worker’s place of residence; and

(v)any plan or document prepared as part of the return to work planning process; and

(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker; and

(b)regardless of whether—

(i)the work or the employment is available; and

(ii)the work or the employment is of a type or nature that is generally available in the employment market.

1. The Panel comprised an occupational physician, a rheumatologist, an orthopaedic surgeon and a psychiatrist.

1. The material before the Panel included a vocational assessment report prepared by Nabenet (‘Nabenet Vocational Assessment Report’) and a number of medical reports.  One of the medical reports was prepared by an occupational physician, Dr Michael Bowles, who acted as an independent medical examiner (‘Dr Bowles’ Report’).  The Panel examined Ms Bakar on 13 May 2013.

1. In its Reasons, the Panel recorded that Ms Bakar had told it that her English communication skills are reasonable and that her level of comprehension enables her to understand television programs but not the contents of newspapers and that talking could ‘sometimes be a problem’.  Ms Bakar told the Panel that her numeracy skills are good but that she cannot use a computer.  She had applied unsuccessfully for positions as a school crossing supervisor and in a coffee shop, and considered herself unable to work until her shoulder condition improved.

1. The Panel concluded that Ms Bakar’s medical condition was such that she was not capable of returning to her pre-injury employment, which involved sustained, fast-paced and repetitive use of her hands and occasional heavy lifting.

1. The Reasons state that the Panel considered all aspects of the definitions of ‘suitable employment’, ‘current work capacity’ and ‘no current work capacity’ in s 5(1) of the Act. The Reasons set out seven matters which the Panel stated it had particularly considered. Two of those matters were:

·     The nature, extent and severity of [Ms Bakar’s] physical medical condition and its effect on her physical capacity to cope with employment duties and to attend a workplace on a consistent basis;  …

·     [Ms Bakar’s] transferable skills, which include a favourable personal presentation, reasonable English communication and literacy skills, good numeracy skills, but no computer skills, and extensive occupational experience in the food manufacturing industry.

1. The Panel took into account the Nabenet Vocational Assessment Report, which outlined the employment options of school crossing supervisor, car park attendant, retail sales assistant, packer, process worker (plastic) and mail sorter.  The Panel also took into account Dr Bowles’ Report.  Dr Bowles was of the view that Ms Bakar could not perform the duties of a process worker or mail sorter but that she could perform the duties of a school crossing supervisor, car park attendant, retail sales assistant, packer, call centre operator, gate house attendant or CCTV monitoring.  The Panel agreed with Dr Bowles’ opinion that Ms Bakar could perform suitable alternative duties with specified restrictions including ‘no repetitive forceful use of either arm, no use of either arm above horizontal and working with elbows by the sides’ for limited hours and days per week.

1. The Panel then stated that it considered the options of retail sales assistant and mail sorter would not constitute suitable employment for Ms Bakar as they would require her to work with her arms elevated at times and potentially undertake some heavy lifting.  The Panel considered that the duties of a packer or process worker (plastic) would not allow Ms Bakar to work with her arms below horizontal and with her elbows by her sides.  The Panel stated that the duties of a car park attendant in some car parks would require computer skills and English communication skills at a level not possessed by Ms Bakar.

1. The Panel went on to state:

Based on its collective knowledge, experience and expertise, and its clinical findings in the course of its physical examination of [Ms Bakar] on 13 May 2013 the Panel considered that [Ms Bakar] has transferable skills which are sufficient to secure employment in a range of suitable vocational options including, but not limited to, work as a school crossing supervisor, as identified in the [Nabenet] Vocational Assessment Report.  Based on its own knowledge and experience of industry the Panel considered that [Ms Bakar] would also be capable of engaging in a range of other occupations, including work as a small product assembler, as a ticket seller, and as a sandwich maker, amongst others.

1. The Panel considered that there is a range of vocational options which would be suitable for Ms Bakar’s physical medical condition and which she could perform on a reliable and consistent basis, and therefore concluded that she had a current work capacity.

Primary Decision

1. The judge decided that the Reasons were inadequate and made the Order for the following reasons:

[T]he Panel has failed to provide adequate reasons for its conclusions that, on the one hand, [Ms Bakar] had limitations both physical and linguistic which would prevent her from doing specified work and, on the other, that she could do specified different work notwithstanding those limitations.  The Panel did not stop … after identifying her limitations.  It went on to effectively raise the issue of the differences between the nature of the work it thought she was capable of and what she could not do.  Reference to its own experience, knowledge and expertise did not suffice to cure the failure of the reasons to explain its reasoning process in the manner described by the High Court in Wingfoot.[3]

[3]Primary Decision [38] (citations omitted).

Notice of appeal

1. The ground on which Gruma relies in its notice of appeal is as follows:

1.The primary judge erred at [38] of her reasons for judgment in holding that the Medical Panel had failed to provide adequate reasons such that the application for certiorari relief ought to succeed. In particular:-

1.1the primary judge erred in the application of the test for adequacy of written reasons given pursuant to s 68(2) of the [Act] as expounded in Wingfoot … at [55] and [65], (‘the test in Wingfoot’);

1.2the test in Wingfoot did not require the Medical Panel to give further and fuller reasons in connection with its ‘conclusions’ that the worker had limitations both physical and linguistic which would prevent her from doing certain specified work, on the one hand, whilst she could do specified different work, on the other;

1.3the test in Wingfoot required only that the Medical Panel’s statement of reasons explain the actual path of reasoning for its certified opinion given pursuant to s 68, and in sufficient detail to enable a court to see whether the Panel’s certified opinion did or did not involve any error of law, but:-

1.3.1the Medical Panel gave written reasons in connection with the respective findings constituting the Panel’s ‘conclusions’ referred to by the primary judge at [38] of her reasons for judgment in sufficient detail to show that those findings did not involve any reviewable error in the formation and giving of its certified opinion, and

1.3.2the imputed deficit in the Panel’s reasons identified by the primary judge at [38] of her reasons for judgment did not, and could not have, disguised a reviewable error of law.[4]

[4]At the hearing of the appeal, the appellant abandoned an additional paragraph in the notice of appeal which sought to impugn the judge’s exercise of her discretion to make an order in the nature of certiorari.

Principles relating to reasons for a medical panel’s opinion

1. The principles for determining whether reasons provided by a medical panel under s 68(2) of the Act are adequate were discussed in Ryan v The Grange at Wodonga Pty Ltd.[5]  The following summary has been adapted from that case.

   [5][2014] VSC 135, [159]–[165], [171] (‘Ryan’).

1. In Wingfoot,[6] the High Court held that a medical panel which gives reasons that are inadequate to meet the standard required of a written statement of reasons under s 68(2) of the Act fails to comply with the legal duty imposed on it by that section and thereby makes an error of law. As a panel’s reasons form part of the record of its opinion pursuant to s 10 of the Administrative Law Act 1978, inadequacy of reasons will inevitably be an error of law on the face of the record.  It follows that certiorari is available to remove the legal consequences of an opinion for which non‑compliant reasons have been given.[7]

   [6](2013) 303 ALR 64.

   [7]Wingfoot (2013) 303 ALR 64, 73 [28].

1. The Court stated that the duty of a medical panel to give reasons for its opinion on a question referred to it is no more and no less than the statutory duty imposed by s 68(2) of the Act itself. In the absence of express statutory prescription, the standard which written reasons must meet can be determined only by a process of implication.[8]

   [8]Wingfoot (2013) 303 ALR 64, 76 [43]–[44].

1. The Court stated that the function of a medical panel in forming its own opinion is of particular significance in determining by implication the standard of the reasons it must provide.[9]  While a medical panel may be supplied with the opinions of other medical practitioners, and may choose to place weight on a particular opinion, it ‘goes too far … to conceive of the function of the panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions.’[10]  The function of a medical panel is neither arbitral nor adjudicative and therefore it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on the medical question referred to it.  Rather, the function of the panel is to give its own opinion on the medical question referred by applying its own medical experience and expertise.[11]

   [9]Wingfoot (2013) 303 ALR 64, 77 [46].

   [10]Wingfoot (2013) 303 ALR 64, 77 [47].

   [11]Wingfoot (2013) 303 ALR 64, 77 [47].

1. The objective of s 68(2) of the Act, within the context of the scheme of the Act as a whole, is that persons affected by an 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.[12]  The Court held that the standard required of a written statement of reasons given by a medical panel can 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.[13]

[12]Wingfoot (2013) 303 ALR 64, 79 [54].

[13]Wingfoot (2013) 303 ALR 64, 79 [55].

1. The High Court rejected the proposition that it is incumbent on a medical panel to provide a comprehensible explanation for rejecting any expert medical opinion provided to it or for preferring one such opinion over another.  A medical panel explaining the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.[14]

   [14]Wingfoot (2013) 303 ALR 64, 80 [56].

1. However, the Court accepted that the nature of the question referred to a medical panel and the way that question was addressed by other medical practitioners in opinions provided 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.[15]

   [15]Wingfoot (2013) 303 ALR 64, 80 [57].

1. As a medical panel is an administrative tribunal whose members are not lawyers, its reasons are entitled to a ‘beneficial construction’ in the sense that they should ‘not … be scrutinised … over-zealous[ly] … by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.’[16]  In Gamble v Emerald Hill Electrical Pty Ltd,[17] this Court reaffirmed the following principles that apply to judicial review of a medical panel’s reasons:

The court on judicial review should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker, and should not construe the reasons for decision ‘minutely and finely with an eye keenly attuned to the perception of error’.

…

[A] court hearing a judicial review application in relation to a Victorian medical panel will ordinarily view with disfavour grounds of review which rely on mere looseness in the language or unhappy phrasing in the Panel’s reasons.  Such grounds usually fail, and their inclusion tends to suggest that the judicial review application as a whole lacks legal merit.[18]

[16]Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, 271–2 (citations omitted). See also SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, 617 [25]; Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175, [36]; Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322, [9] (‘Gamble’).

[17][2012] VSCA 322.

[18]Gamble [2012] VSCA 322, [9], [20] (citations omitted).

1. In considering whether a medical panel’s reasons are inadequate, it is important to distinguish between the panel’s opinion and the reasons for the opinion. The opinion comprises the panel’s answers to the medical questions referred to it. The panel’s findings and the other matters set out in the panel’s reasons constitute its reasons for the answers to the medical questions. Compliance with s 68(2) of the Act depends on the adequacy of the panel’s reasoning for arriving at the answers to the medical questions.

Parties’ submissions

1. Gruma submitted that the Reasons were not inadequate because all that Wingfoot requires is that the Reasons show the Panel’s path of reasoning as to how it arrived at its conclusion regarding Ms Bakar’s current work capacity.  The Panel was not required to provide an opinion as to what jobs Ms Bakar could undertake[19] or to provide reasons for an opinion it did not form.

   [19]Gruma relied on Calleja v Franet Pty Ltd [2000] VSC 339, [52]–[55] (‘Calleja’).

1. The Panel’s findings were said to leave open a ‘fairly extensive area of employability’ such that the Panel was entitled to be satisfied that work fitting the parameters it set did exist.  According to Gruma, the Wingfoot standard did not require the Panel to analyse in its Reasons the tasks involved in each of the jobs under consideration.  As the Panel found that Ms Bakar had reasonable English communication skills and literacy, it was not apparent why any of the jobs that the Panel considered were suitable would have required greater than reasonable English communication or literacy skills.

1. Gruma further submitted that Ms Bakar’s challenge to the Reasons seeks to do what the High Court has said should not occur — that is to submit them to over‑zealous scrutiny to try to glean some inadequacy from the way in which they are expressed.

1. Ms Bakar’s submissions focused on the Panel’s reliance in its Reasons on its own ‘knowledge and experience of industry’ and its ‘collective knowledge, experience and expertise.’  She submitted that, in order to understand why the Panel reached the conclusion it did, it would be necessary to know what the Panel understood each of the suitable and the unsuitable jobs required by way of linguistic and physical capabilities.  In the absence of any such analysis, the reliance in the Reasons on the Panel’s own expertise and experience renders the Reasons incomprehensible.  The inadequacy of the Reasons was said to be squarely within the test in Wingfoot.

1. Ms Bakar accepted that the reasons of an administrative decision-maker are not to be scrutinised over-zealously, but submitted that what was complained of in this case was not mere ‘looseness’ of the language used in the Reasons but the absence of a comprehensible explanation.  As the Panel had chosen to answer the second medical question by reference to suitable jobs for Ms Bakar, the Panel was obliged to ensure that the explanation provided in the Reasons concerning those jobs satisfied the test in Wingfoot.

Decision on the adequacy of the Panel’s Reasons

1. In our opinion, the judge’s conclusion that the Reasons were inadequate was correct.  Far from setting out the Panel’s path of reasoning for its Opinion regarding Ms Bakar’s current work capacity, the Reasons merely set out conclusions of a general nature without any meaningful reasons.

1. The Panel’s conclusions about Ms Bakar’s capacity to perform particular jobs and its reasons for those conclusions may be summarised as follows:

Job	Capacity to perform	Reasons
Retail sales assistant	Incapable	Ms Bakar is physically unable to work with arms elevated or to undertake heavy lifting.
Mail sorter	Incapable	As above.
Packer	Incapable	Job will not allow Ms Bakar to work with her arms below horizontal and with her elbows by her sides.
Process worker (plastic)	Incapable	As above.
Car park attendant	Incapable	Job requires computer skills and English communication skills not possessed by Ms Bakar.
School crossing supervisor	Capable	Based on the Panel’s collective knowledge, experience and expertise and its clinical findings on examination of Ms Bakar, the Panel concluded that she has sufficient transferable skills for the job.
Small product assembler	Capable	Assessment based on the Panel’s knowledge and experience of industry.
Ticket seller	Capable	As above.
Sandwich maker	Capable	As above.

1. We will refer to the first to fifth jobs at [37] above as the ‘Incapable Jobs’ and the sixth to ninth jobs as the ‘Capable Jobs’.

1. It is apparent from the summary at [37] above that, while the Panel explained why Ms Bakar was not capable of performing the Incapable Jobs by reference to her medical condition and linguistic skills, a similar explanation was not provided for the Panel’s conclusion that she was capable of performing the Capable Jobs and other unidentified jobs. Instead, the Panel simply relied on sweeping generalisations. In the case of the job ‘school crossing supervisor’, the Panel’s generalisation related to its collective knowledge, experience and expertise, its clinical findings and Ms Bakar’s transferable skills, without any reference to any particular aspect of her medical condition or transferable skill. In the case of the jobs ‘small product assembler’, ‘ticket seller’ and ‘sandwich maker’, the generalisation was at an even higher level of abstraction, namely the Panel’s ‘knowledge and experience of industry’.

1. By not linking its conclusion about Ms Bakar’s capacity to perform the Capable Jobs to any aspect of her medical condition, the Panel has failed to explain the relationship between the medical condition set out in the answer to the first medical question and the conclusion about Ms Bakar’s current work capacity that is set out in the answer to the second medical question.  The absence of such an explanation means that the Panel has failed to provide a path of reasoning that explains the two answers.

1. The consequence is that the Reasons are insufficient to enable the Court to determine whether the Opinion does or does not involve any error of law. Accordingly, the Panel has failed to meet the test for adequate reasons under s 68(2) of the Act, as set out in Wingfoot.[20]

   [20]See [26] above.

1. The decision in Calleja v Franet Pty Ltd[21] upon which Gruma relied does not assist it. That case dealt with whether a medical panel had erred in law in deciding that the plaintiff was partially — but not totally — incapacitated. In arriving at that decision, the medical panel had to consider the definitions of ‘total incapacity’, ‘partial incapacity’ and ‘suitable employment’ in s 5(1) of the Act. Ashley J held that in applying these definitions to a particular worker, a medical panel could be satisfied that work that was compatible with the worker’s medical condition did exist without having to ‘define particular jobs that the [worker] could undertake.’[22] Unsurprisingly, his Honour emphasised that what is sufficient to discharge a medical panel’s functions under the Act will vary from case to case.[23]

   [21][2000] VSC 339.

   [22]Calleja [2000] VSC 339, [55].

   [23]Calleja [2000] VSC 339, [40], [52]–[55].

1. The Act does not prescribe any reasoning process by which a medical panel may answer the question of whether a worker satisfies the definition of ‘no current work capacity’ set out at [10] above. However, the Act does require that this question be answered by reference to whether the worker is able to return to work either in the worker’s pre-injury employment or in ‘suitable employment’. In considering suitable employment, the medical panel must apply the criteria set out in the definition of ‘suitable employment’, including the worker’s medical condition and skills.

1. In the present case, the Panel may have been able to answer the second medical question in a range of ways provided that its findings about Ms Bakar’s work capacity were explained by reference to the Panel’s findings about her medical condition and skills. The Panel decided to answer the second medical question by reference to Ms Bakar’s ability to perform the Capable Jobs. Having done so, the Panel was required by s 68(2) of the Act to set out its path of reasoning for answering the question in this manner, and to do so with sufficient detail to enable the Court to see whether the answer does or does not involve any error of law. The Panel was required to explain, by reference to Ms Bakar’s medical condition and skills and the Capable Jobs, how she is ‘able to return to work in suitable employment’. The Panel failed to provide such an explanation.

1. Gruma also submitted that, as the medical questions referred to the Panel did not include a specific question about what employment would or would not constitute suitable employment for Ms Bakar, the Panel was not required to explain in its reasons why she was able to perform particular jobs. Gruma relied on the reference to ‘what employment would or would not constitute suitable employment’ in the definition of ‘medical question’ in s 5(1) of the Act. This submission must be rejected. As already discussed, in the light of the manner in which the Panel answered the second medical question, its Reasons are incomprehensible without an explanation of why Ms Bakar’s medical condition and skills, as found by the Panel, did not prevent her from performing the Capable Jobs.

1. 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.[24]  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.

   [24]Wingfoot (2013) 303 ALR 64, 80 [56].

1. 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. Such a doubt exists in the present case.

1. The Panel is a specialist medical body with a statutory duty to answer medical questions.  In making medical assessments, the Panel can draw on the medical experience and expertise of its members.[25] In doing so, the Panel does not have to explain the experience and expertise of each member and how their experience and expertise have been employed in making medical assessments within the members’ areas of expertise.  That is because the matters falling within the members’ expertise will be readily apparent from their areas of specialisation.

   [25]Victorian WorkCover Authority v Del Borgo (2004) 9 VR 470, 493 [84]; Wingfoot (2013) 303 ALR 64, 77 [47].

1. On the other hand, the Panel is not a specialist employment agency or industry body and therefore it is not self-evident what ‘knowledge and experience of industry’ its members have either individually or collectively.  This is particularly so because the Panel did not explain what it meant by ‘industry’.  It is not clear whether the Panel meant the employment market generally or a particular unidentified industry.  Contrary to Gruma’s submission, the fact that one of the members of the Panel was an occupational physician does not assist in understanding this aspect of the Reasons.

1. The Panel adopted a markedly different approach in explaining why Ms Bakar was capable of performing the Capable Jobs and not capable of performing the Incapable Jobs.  In relation to the latter jobs, the Panel explained its conclusion by reference to Ms Bakar’s medical condition and skills whereas in relation to the former jobs, the Panel did not specifically refer to Ms Bakar’s medical condition or any specific skill as distinct from general ‘transferable skills’.  In particular, although the Panel agreed with Dr Bowles’ assessment that Ms Bakar should not use her arms above horizontal and should work with her elbows by her sides, it did not refer to these physical restrictions in determining her capacity to perform the Capable Jobs as distinct from the Incapable Jobs.

1. On first impression, some of the jobs in the two distinct categories are similar.  For example, the job ‘process worker (plastic)’ appears to be similar to the job ‘small product assembler’.  Likewise, a ‘sandwich maker’ may need the same arm flexibility as a ‘retail sales assistant’, depending on the nature of the retail establishment and the specific tasks to be performed within it.  Although the jobs ‘car park attendant’ and ‘school crossing supervisor’ are different in nature, they may well require similar English language skills.  A school crossing supervisor is responsible for the safety of children and may need to communicate clearly with children, parents, and school authorities.  The supervisor may also need to communicate clearly with police and ambulance services in the case of an accident.  Further, some ‘ticket seller’ jobs may require the same computer skills as some ‘car park attendant’ jobs.  In the case of the job ‘school crossing supervisor’, the Panel did not discuss whether, in performing that job, Ms Bakar would be required to raise her arms or to carry any flags or signs. 

1. By relating the Panel’s conclusion that Ms Bakar was not capable of performing the Incapable Jobs due to her medical condition and linguistic skills and by failing to do so in relation to the Capable Jobs, the Panel has failed to meet the test for adequate reasons. This is because it is not possible for the Court to be satisfied that the Panel took into account all the relevant considerations it was obliged to consider in concluding that Ms Bakar had a current work capacity. More specifically, the Court cannot be satisfied that the Panel properly took into account ‘the nature of [Ms Bakar’s] incapacity’ and her ‘education [and] skills’ in relation to the Capable Jobs, as required by paras (a)(i) and (iii) of the definition of ‘suitable employment’ in s 5(1) of the Act.[26]  Although the Panel stated in its Reasons that it had taken those matters into account, there is some doubt whether it did so for the Capable Jobs as distinct from the Incapable Jobs.

   [26]See [10] above.

1. The approach adopted by the Reasons, as set out at [51] above, also gives rise to questions as to whether the Panel relied upon arbitrary distinctions which have no legal foundation.

1. Due to the deficiencies discussed above, the Reasons fail to set out the Panel’s path of reasoning for its answer to the second medical question, namely, that Ms Bakar ‘has a current work capacity’ within the definitions set out at [10] above. This failure constitutes a breach of s 68(2) of the Act which in turn constitutes an error of law on the face of the record.

1. It follows that the ground of appeal is not made out.

Conclusion

1. For the above reasons, we would dismiss the appeal.

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