Hawthorn v PA Contracting Group Pty Ltd
[2022] VSC 433
•4 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 02431
| PETER HAWTHORN | Plaintiff |
| v | |
| PA CONTRACTING GROUP PTY LTD & ORS (according to the attached schedule) | Defendants |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 August 2022 |
DATE OF JUDGMENT: | 4 August 2022 |
CASE MAY BE CITED AS: | Hawthorn v PA Contracting Group Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2022] VSC 433 |
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ADMINISTRATIVE LAW — Judicial review — Opinion of medical panel — Function of a medical panel to provide an ‘opinion on’ a question — Where the medical panel was of the opinion that a condition for a ‘current work capacity’ and ‘no current work capacity’ was not satisfied — Whether the medical panel was required to give a ‘yes’ or ‘no’ answer — Whether the medical panel answered or misunderstood the referred questions — Whether the medical panel failed to have regard to the mandatory relevant consideration of the availability of suitable employment — No finding that the medical panel fell into jurisdictional error — Application dismissed — Workplace Rehabilitation and Compensation Act 2013 (Vic) s 302.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allan | Zaparas Lawyers |
| For the First Defendant | Mr M Fleming QC and Ms S Gold | Wisewould Mahony |
| For the Second to Sixth Defendants | No appearance | Victorian Government Solicitor’s Office |
HIS HONOUR:
A. Background
Mr Hawthorn, the plaintiff, suffered injury arising out of or in the course of his employment with PA Contracting Group Pty Ltd, the first defendant. He made a claim for no-fault benefits under the Workplace Injury Rehabilitation and Compensation Act 2013 (the ‘Act’). His claim was accepted and he began receiving weekly payments of compensation under the Act. An agent for the Victorian WorkCover Authority later terminated his weekly payments, by which point he had received payments for more than 130 weeks. Mr Hawthorn commenced proceedings in the Magistrates’ Court of Victoria seeking the reinstatement of his weekly payments of compensation. That Court referred medical questions to a medical panel established under the Act (the ‘Panel’).[1]
[1]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) pt 12 div 2 (the ‘Act’).
One of the questions asked of the Panel, and its response, was as follows:[2]
[2]Question 4 was in the same form but started with ‘as at the date of the Medical Panel’s examination, does …’, rather than ‘from 26 October 2017 to the date of the Medical Panel’s examination, did …’. The response was, save for minor changes to accommodate the different framing of the question, in identical form. The same analysis and conclusion applies to both questions.
Question 3.From 26 October 2017 to the date of the Medical Panel’s examination, did the Plaintiff have:
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:a. and b. The Panel is of the opinion that in the period from 26 October 2017 to the date of the Panel’s examination the Plaintiff had no present inability, arising from an injury, such that he was unable to perform the full duties of his pre-injury employment with the Defendant.
In the course of its reasons, the Panel stated:
The Panel considered that … the Plaintiff’s … current medical condition … would not preclude him from performing the full duties of his pre-injury employment with the Defendant on a consistent and reliable basis as a settled member of the wage-earning workforce … The Panel also considered that the Plaintiff’s current medical condition would not be aggravated, exacerbated, accelerated or deteriorated in any way by a return to his pre-injury employment duties with the Defendant.
Mr Hawthorn has sought judicial review of the Panel’s decision. His contention is that the Panel failed to answer or misunderstood the questions, or misdirected itself as to the meanings of the relevant terms, or failed to have regard to the mandatory consideration as to the availability of ‘suitable employment’. The members of the Panel are the second to sixth defendants. They did not appear, but indicated that they would abide the ruling of the Court.[3]
B. The entitlement to weekly payments ‘after the second entitlement period’
[3]In accordance with R v The Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, they advised the Court that they did not wish to appear or to be represented at the hearing, unless costs were sought against them, and that they would submit to such orders as were made.
If a worker has an ‘incapacity for work’ that is materially contributed to by a compensable injury, then the worker is entitled to compensation in the form of weekly payments ‘subject to and in accordance with’ the Act.[4] The phrase ‘incapacity for work’ is not a defined term in the Act,[5] but it includes someone who has some degree of incapacity for some forms of employment; it is not to be identified with a requirement that the worker have a total incapacity for all employment. Different (additional) criteria then apply for the ‘first entitlement period’, the ‘second entitlement period’ and for the period ‘after the second entitlement period’.[6] This proceeding concerns Mr Hawthorn’s entitlement to compensation in the period ‘after the second entitlement period’.
[4]The Act, s 160.
[5]The word ‘incapacity’ is defined to include a disfigurement that is sufficient to affect a worker’s earning capacity and, in relation to deafness, to include an inability to engage in employment because of the risk of increasing the industrial deafness to a level of material disability.
[6]These phrases are defined in s 152 of the Act. The first entitlement period is 13 weeks and the second entitlement period is 117 weeks.
Section 163 of the Act, under the heading ‘[w]eekly payments after the second entitlement period’, provides that:
a worker’s entitlement to compensation in the form of weekly payments … ceases upon the expiry of the second entitlement period unless the worker is assessed by the Authority … as having no current work capacity and likely to continue indefinitely to have no current work capacity.[7]
[7]The section commences with the words ‘[s]ubject to section 165’. Section 165 of the Act provides an exception if a worker ‘has a current work capacity’ and other criteria are met. The other criteria are not met. Accordingly, s 165, and the proviso in s 163, may be ignored.
Accordingly, Mr Hawthorn has no further entitlement to weekly payments unless he is assessed as having ‘no current work capacity’ and as ‘likely to continue indefinitely to have no current work capacity’. He is seeking in the Magistrates’ Court proceeding a finding of that Court, sitting in review of the Victorian WorkCover Authority’s decision to the contrary, that he has ‘no current work capacity’ and is ‘likely to continue indefinitely to have no current work capacity’. That is the context in which the questions were referred to the Panel. As will appear, this case turns on the first issue, that is, whether Mr Hawthorn has ‘no current work capacity’, rather than whether, if he does, he is likely to continue indefinitely having ‘no current work capacity’.
C. Did the Panel err in the exercise of its jurisdiction?
The phrase ‘current work capacity’ is defined, somewhat counterintuitively, 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 …
The phrase ‘no current work capacity’ is defined as follows:
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 …
The definition of ‘current work capacity’ is somewhat counterintuitive because it applies only to someone who cannot engage in their pre-injury work but who can engage in other employment. Together, the two definitions apply to someone who cannot engage in their pre-injury work, but either can engage in other suitable employment (in which case they have a ‘current work capacity’), or cannot engage in other suitable employment (in which case they have ‘no current work capacity’). If someone can engage in their pre-injury employment, then they have neither a ‘current work capacity’ nor ‘no current work capacity’; they sit outside each definition. Such a person, because they do not have ‘no current work capacity’, is not entitled to weekly payments beyond the expiration of the second entitlement period.
Mr Hawthorn did not challenge the Panel’s finding set out in paragraph 3 above, which was echoed in the response given to question 3, that he is able to perform his pre-injury employment. Mr Hawthorn contended, though, that the Panel erred in its legal obligations because it did not answer the question that was asked of it. He accepted that the Panel would have been entitled to answer each part of the question ‘no’, but observed that it failed to do so.[8] It has, he contended, answered a different question.
[8]On one reading of Mr Hawthorn’s written submissions, it was contended that the Panel was required to select between the two alternatives; that is, that it had to answer yes to either 3(a) or 3(b). But it was clarified in oral submissions that he accepted that the Panel would have been entitled to answer ‘no’ to both questions 3(a) and 3(b). I should add that if such an argument had been pursued, I would not have interpreted the form of the question as compelling a ‘yes’ to either 3(a) or 3(b). There would be no basis to impose such a constraint on a body of experts required to form its own opinion on the questions asked. It might be different if an answer of ‘no’ to both was said to have ‘come out of the blue’ and in that sense resulted in a breach of procedural fairness (as to which see, eg, Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248, [48] (Cavanough J)). But that was not this case.
I am satisfied that the Panel did in fact form the view that the ‘answer’ to each of questions 3(a) and 3(b) was ‘no’. I have arrived at this state of satisfaction because:
(a) That is the only conclusion that is logically open in light of the Panel’s response to question 3 and its finding expressed in paragraph 3 above that Mr Hawthorn was able to return to his pre-injury employment. That finding compels a conclusion that Mr Hawthorn does not meet the statutory definitions of ‘current work capacity’ or ‘no current work capacity’. It can be assumed that the Panel was aware of the relevant definitions both from its own knowledge and experience and because each of Mr Hawthorn and PA Contracting Group Pty Ltd referred to the definitions in their submissions to it;
(b) The Panel answered both 3(a) and 3(b) together, indicating it had the same view in relation to each. It would not be logically possible to answer both questions ‘yes’, but it would be logically possible to answer both questions ‘no’;
(c) Question 5 and its response were as follows:
Question 5. If the Plaintiff had or has no current work capacity
a. Is such incapacity likely to continue indefinitely;
b. Does such incapacity result from or is it materially contributed to by any, and if so which, of the claimed injuries, as assessed by the Medical Panel?
Answer: a. and b. Not applicable.
Question five was only ‘not applicable’ if the Panel had concluded that the plaintiff did not have, or had not had, ‘no current work capacity’; and
(d) The Panel did not in its reasons consider whether other employment options referred to in the material before it would constitute ‘suitable employment’. Each question may be answered ‘no’ without consideration having to be given to the concept of ‘suitable employment’, but neither may be answered ‘yes’ without doing so.
This, in turn, compels a conclusion that Mr Hawthorn cannot satisfy a necessary condition contained in s 163 of the Act for him to have an entitlement to weekly payments after the second entitlement period.
However, Mr Hawthorn contended that the Panel here has answered a different question to that which was asked. He submitted that it is not sufficient that what would be a responsive answer to a question may be derived by a series of deductions from an unresponsive answer, even if read with the Panel’s reasons. His argument, in substance, as I understood it, was that because the process is designed to provide answers or opinions to questions that are binding on the court, the answers must be responsive and clear in their meaning, without the need for further analysis or possible argument as to their actual meaning or effect: if the Panel had thought the answer was ‘no’, then that is what they were obliged to say.
The issue, ultimately, is whether the Panel has complied with its statutory obligations. The Act empowers a court to refer a ‘medical question’ to a medical panel.[9] ‘Medical question’ is a defined term, and in accordance with the definition, a ‘medical question’ must be, as the name would suggest, an actual question. However, the function of the medical panel is not to ‘answer’ the question. Rather, the function of the medical panel is to ‘give its opinion on’ that medical question.[10] The medical panel is required to give the court ‘a certificate as to its opinion and a written statement of reasons for that opinion’.[11] The court is then obliged, ‘for the purposes of determining any question or matter’, to ‘adopt’ and ‘apply’ that ‘opinion’. The obligations on the Panel must be ascertained in that context.[12]
[9]The Act s 274.
[10]Ibid s 302.
[11]Ibid ss 313(2), 313(3).
[12]See, eg, Didani v Downes-Brydon [2021] VSCA 281, [46] (Beach , Emerton JJA and Macaulay AJA).
In my view, the response given by the Panel that Mr Hawthorn ‘had no present inability, arising from an injury, such that he was unable to perform the full duties of his pre-injury employment with the Defendant’ is an ‘opinion on’ the medical question that was asked of the Panel. It is an opinion squarely directed at part of the necessary criteria contained in the definition of the term that the Panel was asked to consider. It is a response that, in a real and practical sense, answers the question asked and is capable of being adopted and applied by a court. The fact that the Panel responded by expressing an opinion that was dispositive of the question, rather than simply by saying ‘no’, does not amount to an error in the exercise of its jurisdiction.[13]
[13]See, eg, Kakae v Wetspot Consolidated (Vic) Pty Ltd [2016] VSC 271, [52] (Zammit J, as her Honour was then known).
There may be circumstances in which an opinion provided is so incomplete that it can be concluded that a medical panel has failed to comply with its statutory task. This may be the situation if the opinion is so incomplete that the referring court cannot sensibly ‘adopt’ or ‘apply’ it. In those circumstances, an issue may arise as to whether the opinion should be quashed, or whether the matter may be returned to the medical panel for a further opinion. I do not need to consider this issue here, because I am satisfied that the response provided in the circumstances of this case is sufficient to comply with the statutory obligation on the Panel. Not only is it, as noted above, an opinion squarely directed at part of the criteria contained in the definition of the statutory term it was asked to consider, but, if there be such an additional requirement, it is entirely dispositive of the question and may easily be adopted and applied by the referring court.
Mr Hawthorn relied on authorities that establish that a medical panel acts outside its power if it provides a response that goes beyond the scope of the question[14] or a response in which it reframes the question.[15] However, I do not consider that the Panel has done either of those things here. The opinion provided was directed at part of the definitions that it was asked to consider, and the opinion made any further consideration unnecessary. Accordingly, the opinion given was within the scope of the question, and did not involve any reframing of it.
[14]See, eg, Silver Top Taxi Service Ltd v Fish (2006) VAR 326, 335 [36] (Warren CJ).
[15]Johnston v Department of Health and Human Services [2019] VSC 431, [43] (Moore J).
The failure to preface the opinion provided with the word ‘no’ is in some ways surprising. It may be, as PA Contracting Group Pty Ltd suggested, that it was in order to avoid any ambiguity that might arrive from the use of a double negative. Responses in this form, or in essentially this form, have been made in the past,[16] seemingly without having been subjected to the criticisms that have been made in this case. That, perhaps, indicates that responses in this form have not created difficulties in practice when the referring court has come to adopt and to apply them. These matters were raised in oral argument. But they are all ultimately speculation and they have not influenced my decision in this case.
[16]See, eg, Akers v Namatjira Trading Pty Ltd [2021] VSC 856, [18] (Forbes J) and Jones v Fish [2020] VSC 542, [15] (Kaye JA). In Didani v Downes-Brydon [2021] VSCA 281the medical panel’s response was extended to suitable employment but, again, did not say ‘yes’ or ‘no’: at [5] (Beach, Emerton JJA and Macaulay AJA).
D. Other arguments
The above analysis responds to what I understood to be Mr Hawthorn’s central point. However, he also contended that the Panel:
(a) misunderstood the questions;
(b) misunderstood, mistook and/or misapplied the terms ‘current work capacity’ and ‘no current work capacity’; and
(c) failed to have regard to the mandatory requirement of the availability of ‘suitable employment’.
There is no basis for concluding that the Panel misunderstood the questions or the relevant defined terms. In my view, it is apparent that the Panel did understand the questions, did understand the defined terms, and responded to the questions the way it did because it formed the view that the first, and a necessary, requirement of each definition was not met in this case. Having concluded that, it was not necessary for it to go on to consider whether Mr Hawthorn, if he could not return to work in his pre-injury employment, otherwise had a capacity for ‘suitable employment’. Accordingly, I do not accept these submissions.
E. Disposition
The proceeding should be dismissed. I will hear the parties on the question of costs.
SCHEDULE OF PARTIES
S ECI 2021 02431
| PETER HAWTHORN | Plaintiff |
| -and- | |
| PA CONTRACTING GROUP PTY LTD | First Defendant |
| ASSOCIATE PROFESSOR PETER GIBBONS AS THE CONVENOR OF MEDICAL PANELS | Second Defendant |
| JOHN G KING | Third Defendant |
| SUSANNE HOMOLKA | Fourth Defendant |
| PETER WILDE | Fifth Defendant |
| AMIN DRNDA | Sixth Defendant |
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