Lang v Spendless Shoes Pty Ltd
[2019] VSC 376
•7 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 00965
| DEBORAH LANG | Plaintiff |
| v | |
| SPENDLESS SHOES PTY LTD & ORS (according to the attached Schedule) | Defendant |
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JUDGE: | Cavanough J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 May 2019 |
DATE OF JUDGMENT: | 7 June 2019 |
CASE MAY BE CITED AS: | Lang v Spendless Shoes Pty Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2019] VSC 376 First Revision: 17 June 2019 |
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ADMINISTRATIVE LAW – Judicial review – Workers’ compensation – Termination of weekly payments - Medical questions referred by Magistrates’ Court to Medical Panel – Application to quash certified opinion of Medical Panel – Failure to take into account pre-existing medical condition of opioid dependence in assessing work capacity – Failure to consider entirety of injured worker’s relevant personal circumstances – Errors of law on the face of the record – Certified opinion quashed - Questions referred to differently constituted Medical Panel - Accident Compensation Act 1985 ss 4A, 5(2), 82, 93, 93C(1) - Workplace Injury Rehabilitation and Compensation Act 2013 s 3 (definitions of ‘no current work capacity’ and ‘suitable employment’) – Richter v Driscoll (2016) 51 VR 95.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | A G Uren QC with L Allan | Arnold Thomas & Becker |
| For the Defendant | J P Gorton QC with R Kaye | Minter Ellison |
HIS HONOUR:
Overview
In 2018, in answer to certain medical questions referred by the Magistrates’ Court, a Medical Panel issued a certified opinion that stands in the way of the reinstatement of weekly payments of workers’ compensation to the plaintiff, Ms Lang. The plaintiff now challenges the Medical Panel’s opinion on several points. One of the plaintiff’s points – a point relating to the concept of employability in connection with the assessment of work capacity – raises a controversial legal issue that is of potential significance for other cases. However, in the end, that issue need not and will not be decided in this case, because the Panel’s opinion is affected by other vitiating errors that do not involve an issue of that kind. The opinion will be quashed on the basis of those other errors, and the medical questions will be remitted for reconsideration by a Medical Panel differently constituted.
The factual background, the referral to the Panel and the issues
The plaintiff was born in June 1965. In January 2004, when she was 39 years old, the plaintiff was engaged by the first defendant as a sales assistant/manager of a shoe shop. On 24 August 2004, in the course of that employment, the plaintiff ‘rolled’ her right foot and thereby injured it. She ceased work for two weeks from 1 September 2004, prior to returning to work on restricted duties and reduced hours on 17 September 2004. On 21 September 2004 she claimed workers’ compensation under the Accident Compensation Act 1985 (‘the ACA’) for a ‘broken foot’, and liability was accepted. The plaintiff ceased work completely on 4 November 2004. Thereafter, she did not re-join the workforce in any capacity. She remained on weekly payments of workers compensation.
In February 2016, the plaintiff applied for WorkCover approval to consult a medical specialist in relation to carpal tunnel syndrome in her upper limbs, which she claimed to be an indirect consequence of the workplace injury. In or about March 2016 WorkCover refused the application.
At about the same time, after a review, WorkCover decided to terminate the plaintiff’s weekly payments as from 25 June 2016, purporting to apply s 93C of the ACA, on the basis that the plaintiff did not have, or no longer had, ‘no current work capacity’ (as defined – see below).
Those two decisions were challenged by the plaintiff by a proceeding in the Magistrates’ Court. At the request of the first defendant, that Court, under s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the WIRCA Act’), referred six medical questions concerning the matter to a Medical Panel.
The Medical Panel had six members, comprising two psychiatrists, a rheumatologist, an orthopaedic surgeon, a vascular surgeon and an occupational physician. The Panel gave its opinion, under s 313 of the WIRCA, on 27 June 2018. By then, the plaintiff had been out of the workforce for about 13½ years.
Medical question 6 and the Panel’s answer to it relate to the plaintiff’s application for funding to consult a carpal tunnel specialist. The Panel’s reasoning and conclusions that are specifically directed to that matter are not challenged by the plaintiff. However, the Panel’s answer to question 6 was premised on its findings as to the plaintiff’s compensable injury and as to her consequent current medical conditions.
Within its answers to medical questions 1 and 2 (as confirmed by its statement of reasons) the Panel determined, among other things, that at the time of its examination of the plaintiff (April/May 2018) she was suffering from three conditions that were attributable to a compensable injury (being her right foot injury), namely:
(a) right ring trigger finger;
(b) asymptomatic radiological evidence of an un-united fracture of the right fifth metatarsal; and
(c) aggravation of a somatic symptom disorder with persistent pain.
Somewhat different language was used by the Panel in its answer to medical question 6 to refer to the plaintiff’s current medical conditions attributable to her compensable injury. Those conditions were there referred to as ‘a chronic pain syndrome following an inversion injury to the right foot complicated by a now-resolved complex regional pain syndrome type 1, and right ring trigger finger’. In the end, nothing turns on that.
The Panel found that the plaintiff had certain other current medical conditions as well, namely:
(i) right common peroneal nerve palsy;
(ii) bilateral varicose veins;
(iii) radiological evidence of osteoarthritis in the left and right foot;
(iv)degenerative changes in the talonavicular and naviculocuneiform joints;
(v) radiological evidence of plantar fasciitis of the left heel; and
(vi)opiate dependence.
However, the Panel determined that none of those six conditions was attributable to the compensable injury, and decided that it was required to disregard them in assessing the plaintiff’s claimed incapacity for work.
The plaintiff had claimed before the Panel to have several additional conditions which she attributed to the right foot injury. However, the Panel found that the plaintiff did not, or did not any longer, have any of those alleged additional conditions at all.
Scattered through its statement of reasons, the Panel noted various other things about the plaintiff, including that she had put on a great deal of weight in the years following her foot injury; that she attributed this to her foot injury; and that she claimed that, as a result of her weight gain, her mobility had been restricted for many years. The Panel noted that the plaintiff was ‘morbidly obese’ at the time of the Panel’s examination and that she had certain other ‘presentational issues’ at that time. The Panel also noted claims made by the plaintiff to the effect that a long series of highly unfortunate non–medical events and circumstances had befallen her and her family, especially in recent years.
Further, the plaintiff told the Panel, and the Panel apparently accepted, that the plaintiff had had a serious fall in November 2017. The plaintiff told the Panel that the fall was due to or involved ‘hypoxic brain damage’ on her part. However that may be, the fall apparently led to the plaintiff staying for several months in hospital or rehabilitation facilities. She developed foot drop. As a result, during (at least) the period between the fall of November 2017 and the Panel’s examination in April/May 2018, the plaintiff’s mobility was apparently reduced (or further reduced), such that (at least at times) she was using a four–wheeled walker.
So far as relevant and applicable to the plaintiff, s 93C(1) of the ACA has the effect that her entitlement to compensation in the form of weekly payments ceased after two years of payments unless she was assessed ‘as having no current work capacity and likely to continue indefinitely to have no current work capacity’. For the purposes of s 93C of the ACA,[1] the expression ‘no current work capacity’ is defined in s 3 of the WIRCA as follows:
[1]See Accident Compensation Act 1985 (‘the ACA’) s 5(2), read with ACA s 4A. See also ACA ss 82 and 93.
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 expression ‘suitable employment’ which appears in the definition of ‘no current work capacity’ is also defined in s 3 of the WIRCA. So far as presently relevant, that definition reads:
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;
…
Question 3 of the referred medical questions was as follows:
Question 3: In any, and if so what, period from 25 June 2016 up to and including the date of the Medical Panel examination, did the Plaintiff have ‘no current work capacity’?
The Panel’s answer to Question 3 was as follows:
Answer: The Panel is of the opinion that in the period from 25 June 2016 to the date of the Panel’s examination the Plaintiff had no inability, arising from an injury, such that she was unable to perform the full occupation duties and hours of work of her pre–injury employment as a shop assistant/manager with the Defendant.
The Panel apparently took the view that this answer amounted to a negative answer to question 3. That is confirmed by the Panel’s answer to question 4, being a question that was premised on a positive answer to question 3. The Panel answered question 4 by saying ‘Not applicable’. Nothing further needs to be set out from the text of the medical questions and answers.
The Panel’s statement of reasons is detailed. It is 25 pages long. For the first 22½ pages it records matters of the plaintiff’s medical history, employment history and personal circumstances, and also the Panel’s findings on examination (both physical and mental) and the Panel’s conclusions as to the plaintiff’s compensable injury and related conditions. The statement of reasons then proceeds as follows:
The Panel considered the nature, extent and severity of the Plaintiff’s current physical and psychiatric medical condition of a right ring trigger finger and asymptomatic radiological evidence of an un-united fracture of the right fifth metatarsal and aggravation of a somatic symptom disorder with persistent pain in relation to her pre-injury duties as a shop assistant/manager in a shoe shop, which involved sustained weight-bearing activity and occasional heavy manual handling, and which she performed on a full time basis.
In accordance with the decision of Minter Ellison v Darbyshire and Ors [2012], when determining whether the Plaintiff has no current work capacity the Panel did not consider any incapacity arising from any medical condition other than the Plaintiff’s workplace injury that creates an entitlement under the Act.
The Panel considered the Plaintiff [sic] history of opioid dependence, which pre-dates the incident in August 2004, the concurrent presentations to multiple medical practitioners and various discrepancies in the statements which she has made to those practitioners, as documented in the available clinical records referred to above, and the surveillance material, which depicts the Plaintiff using a walking aid while attending a claim-related appointment but subsequently ambulating unaided while shopping on the same day.[2]
[2]I note that this surveillance material related to an occasion preceding the plaintiff’s reported fall of November 2017.
The Panel also considered its physical examination, which did not reveal any clinical findings that would support, or account for, the Plaintiff’s claim of widespread persistent pain, and its psychiatric examination findings, which indicated that the Plaintiff’s current psychiatric medical condition of somatic symptom disorder is mild and does not affect her functional capacity in any way.
The Panel considered that it could not entirely rely on the Plaintiff [sic] description of the severity of her pain and resultant incapacity and the Panel concluded that the Plaintiff’s current physical and psychiatric medical condition would not preclude her from performing the full duties and hours of her pre-injury employment with the Defendant, and the Panel also considered that this has been the case during the period 25 June 2016 to the date of the Panel’s assessment.
Based on its consideration of the same factors, the Panel also considered that the nature of the Plaintiff’s pre-injury duties as a shop assistant/manager in a shoe shop would not exacerbate, aggravate, accelerate, or result in any deterioration or recurrence of her current physical and psychiatric medical condition in any way, and the Panel further considered that this has been the case during the period 25 June 2016 to the date of the Panel’s assessment.
The Panel therefore concluded that in the period from 25 June 2016 to the date of the Panel’s examination the Plaintiff had no inability, arising from an injury, such that she was unable to perform the full duties and hours of work of her pre-injury employment as a shop assistant/manager in a shoe shop with the Defendant.
In the next three paragraphs of its statement of reasons, the Panel explains why it considers that the proposed consultation with a carpal tunnel specialist is inappropriate. As indicated above, that particular aspect of the matter need not be examined. Then, finally, the Panel says:
The Panel noted, and considered, the opinion of Dr Robyn Horsley, occupational physician who examined the Plaintiff at the request of her legal advisors, as expressed in her report dated 19 June 2017, which was included with the Referral material. The Panel noted that Dr Horsley was of the view that the Plaintiff “presents with no realistic capacity for work” but considered that her “prognosis is really based on her psychiatric presentation”. The Panel noted that Dr Horsley did not have the benefit of a psychiatric opinion when assessing the Plaintiff’s current work capacity, and the Panel formed a different opinion for the reasons above. (emphasis in original)
The Panel also noted, and considered, the opinions of the Plaintiff’s current treating general practitioner, Dr Xiao Nan Wang, her treating vascular physician, Dr Peter A Blombery, and her previously treating psychiatrist, Dr Geoffrey Hogan, expressed in their most recent reports, dated 9 August 2017, 23 May 2017 and 21 May 2017 respectively, which were included with the Referral material and wherein all [three] practitioners expressed the view that the Plaintiff had no current work capacity. Based on its own physical and psychiatric examination of the worker, the Panel formed a different opinion for the reasons above.
The Panel noted the submissions of the Plaintiff and the Defendant and considers that the issues raised in their submissions have been addressed appropriately in the Panel’s Reasons for Opinion. The Panel noted, and considered, the issues raised in the “Plaintiff’s Submissions to the Medical Panel”, dated 30 January 2018. The Panel does not accept the Plaintiff’s submissions, and the Panel considered that its reasons herein clearly explain the pathway of reasoning and the basis on which the Panel formed its opinion.
The plaintiff’s application to this Court is made by originating motion under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. In effect, the plaintiff advances seven contentions, or sets of contentions, each said to raise error of law on the face of the record or jurisdictional error. Two of them, which I have labelled below as contentions (1) and (2) respectively, were not raised in the originating motion or in the plaintiff’s written submissions. They were only raised orally, during the submissions of senior counsel for the plaintiff at the hearing. They were by no means at the forefront of those submissions. However, I will deal with them before the other contentions, because they are largely of a preliminary and factual nature. Very fairly, the first defendant did not submit that, because of the pleadings (or otherwise), contentions (1) and (2) should not be considered at all.
Thus, the plaintiff’s seven contentions are:
(1)The Panel should have found that the plaintiff’s obesity, her mobility issues and her opioid dependency were caused by the compensable injury to her right foot.
(2)Of the three medical conditions that were found by the Panel to be attributable to the compensable injury, the Panel only took into account one, namely the condition of the plaintiff’s right foot.
(3)Account must be taken of any medical condition of the worker which existed before the compensable injury was suffered and which continues to exist and which, in conjunction with the work-related injury and its consequences, might be contributing to incapacity, even if the pre-existing medical condition itself is not work-related. The plaintiff’s opioid dependence was a pre-existing condition and might, in conjunction with the plaintiff’s work-related condition, be contributing to current incapacity. The Medical Panel wrongly excluded it from consideration on the basis that it was not caused by a compensable injury. The Panel misunderstood or misapplied the Minter Ellison case in this regard.
(4)More broadly, the decision of the Court of Appeal in Richter v Driscoll[3] requires that, in assessing work capacity, all of the worker’s current personal circumstances must be taken into account, including even injuries and medical conditions (and their consequences) occurring or arising after, and independently of, any compensable injury. The Medical Panel wrongly excluded some of the plaintiff’s current medical conditions (and their effects on her work capacity) on the basis that they arose after, and independently of, her compensable foot injury.
(5)Alternatively, Richter v Driscoll requires, at least, that there be a consideration of whether there is an injury–caused inability to return to work in employment, ie as a settled or established member of the wage–earning workforce, which in turn requires more than a physical and psychiatric capacity to engage in a particular task or tasks that constitute that employment. Further, regard must be had to the entirety of the worker’s relevant personal circumstances, including both the injury–caused incapacity and other circumstances personal to the worker bearing on his or her ability to work in the particular form of employment as a settled member of the workforce. The relevant personal circumstances of the worker (other than any which must by law be disregarded) should be comprehensively brought to account on the question of incapacity. In Richter v Driscoll, the Court of Appeal quashed the opinion that had been given by the Medical Panel in that case, because the Panel had not taken the required approach. Likewise, in the present case, the Medical Panel did not take the required approach. It did not ask itself whether the plaintiff had an inability to return to work as a settled or established member of the wage–earning workforce. Further, the Panel wrongly restricted itself to the plaintiff’s compensable physical and psychiatric medical conditions and failed to take into account her relevant personal circumstances, including, in particular, her age, the length of time she had been out of the work force, the fact that she had been receiving workers compensation payments for 13½ years, her opioid dependence, her mobility issues and her presentational issues.
(6) In addition, Richter v Driscoll imposes an ‘employability’ test for incapacity, being a test which requires consideration of, among other things, whether the worker (as a result of a compensable injury) is unable to regain the worker’s former employment and unable to obtain any other (suitable) employment, not merely whether the worker is able or unable to perform the duties and hours of relevant employment. The Panel did not apply such a test.
(7)Further or alternatively, the Panel’s statement of reasons is inadequate.
[3](2016) 51 VR 95.
The plaintiff’s contentions are resisted by the first defendant. The other defendants, comprising the members of the Medical Panel, have chosen to abide the decision of this Court in the usual way.
For reasons I will explain, I do not accept the plaintiff’s contentions (1), (2) or (4); I need not and will not decide whether to accept contention (6) or contention (7); but I accept contention (3) and, to a substantial extent, contention (5). The Medical Panel’s opinion should be quashed, and the medical questions should be re-answered, according to law, by a differently constituted Panel.
The plaintiff’s first contention: consequences of the foot injury
The plaintiff’s first contention was hardly pressed. It is without substance.
The plaintiff has not demonstrated that the Panel erred - much less that it erred in law or committed a jurisdictional error – in omitting to find that the plaintiff’s obesity or her mobility issues or her opioid dependence was caused or contributed to by the compensable injury to her right foot. To succeed on this point, the plaintiff would have had to show that, on all of the material before the Panel, or on the Panel’s own primary findings of fact, or on both, no other conclusion was open to the Panel.[4] However, the plaintiff, by its legal representatives, expressly chose to exclude from the material on which she relied before this Court, the medical reports and related medical material (as well as most of the other documents) that had been included in the referral to the Panel.[5] Nor was the plaintiff able to point to any primary findings of fact or anything else in the Panel’s statement of reasons that would have compelled the Panel to attribute the plaintiff’s obesity or her mobility issues or her opioid dependency to the compensable injury to her right foot.
[4]See and compare S v Crimes Compensation Tribunal [1998] 1 VR 83, esp at 89-93 (Phillips JA); Ericsson (Australia) Pty Ltd v Popovski (2000) 1 VR 260 esp at 265 [14] (Brooking JA); Stojilkovic v Romas [2017] VSC 49 [32]-[43] (Keogh J).
[5]All of the material that was sent to the Panel was included in exhibits to the affidavits that were filed on behalf of the plaintiff in this proceeding. However, the plaintiff chose to exclude most of that material from the court book. Shortly before the hearing, her legal representatives confirmed that she would not be relying on the excluded material.
The plaintiff’s first contention is rejected.
The plaintiff’s second contention: that the Panel considered the foot condition only
Like the plaintiff’s first contention, her second contention is without substance.
The plaintiff fastened upon the exact words of the second of the paragraphs that are set out above from the Panel’s statement of reasons, to wit:
In accordance with the decision of Minter Ellison v Darbyshire and Ors [2012], when determining whether the Plaintiff has no current work capacity the Panel did not consider any incapacity arising from any medical condition other than the Plaintiff’s workplace injury that creates an entitlement under the Act.
The plaintiff argued that that sentence indicates that the Panel considered that the condition of the plaintiff’s right foot was the only medical condition that it needed to take into account on the question of incapacity. Thus, according to the plaintiff, the Panel excluded both the ‘right ring trigger finger’ and the ‘aggravation of a somatic symptom disorder with persistent pain’ from its assessment of the plaintiff’s capacity or incapacity.
The Panel’s certified opinion and statement of reasons, read together, and read fairly, simply cannot be understood in the manner now suggested by the plaintiff. As indicated above, the Panel’s answers to medical questions 1 and 2 show that the Panel found that there were three current medical conditions, not just one, that were attributable to the right foot injury. In addition, as a matter of language, it can be seen from the above–quoted paragraph of the statement of reasons which immediately precedes the one in question (these two paragraphs occurring at the important point in the statement of reasons where the Panel begins to express its ultimate conclusions) that the Panel used the singular expression ‘medical condition’ to refer to and cover the three distinct medical conditions which the Panel had already identified as being attributable to the plaintiff’s right foot injury and which the Panel then expressly listed, by name, again. That list included the plaintiff’s psychiatric condition. Similarly, the plaintiff’s suggested interpretation of the Panel’s statement of reasons cannot stand with what the Panel said in the paragraph set out above as the third paragraph after the one in question, namely:
… the Panel concluded that the plaintiff’s current physical and psychiatric medical condition would not preclude her from performing the full duties and hours of her pre–injury employment…[6]
Plainly, the Panel took into account not only the condition of the plaintiff’s right foot, but also the condition of her mind, because they expressly referred to it at this critical point in their statement of reasons. Further, the Panel was plainly using the word ‘condition’ in a compendious sense, as it had done before, to cover all three of the plaintiff’s relevant medical conditions, including her somatic symptom disorder and her right ring trigger finger.
[6]My emphasis.
In this case, it is hardly necessary to refer to the long established principle that the reasons of a Medical Panel are not to be read ‘minutely and finely with an eye keenly attuned to the perception of error’.[7]
[7]Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45, 48–50 [8]–[20], esp at [9]–[20].
The plaintiff’s second contention cannot be accepted.
The plaintiff’s third contention: opioid dependence
The plaintiff’s third contention is, in short, that the Panel wrongly understood that it was bound by law to disregard her current opioid dependence altogether. She submits that the Panel should have asked itself whether her work-related injury and its consequences, in the setting of her opioid dependence, resulted in an inability to return to work.
As I read the Medical Panel’s opinion and reasons, its approach to the matter of the plaintiff’s opioid dependence involved the following findings and steps of reasoning. The Panel found that the plaintiff currently had opioid dependence. The Panel regarded opioid dependence as a medical condition. The Panel found that the plaintiff had had opioid dependence before the workplace accident of August 2004. The Panel found that the plaintiff’s opioid dependence was substantially the same at all relevant times and continued to exist. The Panel considered that, because the plaintiff’s opioid dependence had existed before the workplace injury, the Panel was required by law to disregard the plaintiff’s current opioid dependence in assessing her work capacity. The Panel did so disregard it. As indicated below, the first defendant may quibble with the proposition that the Panel found that the plaintiff’s opioid dependence was substantially the same at all relevant times and continued to exist, but otherwise the first defendant does not, I believe, dispute this description of the Panel’s approach.
It is common ground that the case that the Medical Panel refers to in this connection as Minter Ellison v Darbyshire [2012] is the case more correctly cited as Minter Ellison Services Pty Ltd v Kotzman (‘Minter Ellison’).[8]
[8][2012] VSC 375.
The plaintiff submits that pre-existing injuries or medical conditions that continue to affect the worker may, at least in some cases, be taken into account in assessing whether, currently, the worker has an incapacity for work. For that proposition, the plaintiff cites Murugesu v Ruban Pty Ltd (‘Murugesu’).[9]That case certainly supports the view that it is wrong to disregard, in every case, any and all pre-existing injuries or medical conditions. On the other hand, Murugesu is not, itself, authority for the view that pre-existing injuries and conditions that are not work-related can be taken into account. In Murugesu, the Court did not go into this question. The parties in that case were agreed that the Medical Panel had erred in law. The parties had submitted a joint memorandum to the Court in which they said that ‘at least work-related prior conditions’ should be considered,[10] citing Ward v Corrimal-Balgownie Collieries Ltd (‘Ward’)[11] and Walsh v Department of Human Services (‘Walsh’).[12] Apparently, the acceptance on all sides of that proposition was enough to lead to the quashing, by consent, of the Medical Panel’s decision in Murugesu. However, in my view, the case of Ward mentioned in Murugesu goes further. It demonstrates that prior injuries and medical conditions may need to be considered whether or not they are work-related. Indeed, in the present case, the first defendant does not argue to the contrary. The first defendant, correctly, accepts that the relevant principle appears from the following passage in the judgment of Latham CJ in Ward,[13] as cited by Judd J in Minter Ellison:[14]
In determining whether incapacity results from an injury the law necessarily adopts an idea of causation which, in a sense, isolates the injury as a causative element from other elements which are taken for granted or ignored. If the addition of the injury to other concurrently existing facts brings about the incapacity, then the incapacity is regarded as resulting from the injury, although in fact it results from the injury taken together with the other circumstances.
The legal doctrine may be illustrated by considering the case of a worker who has a condition of heart disease which is not an injury within the meaning of the Act and which has not produced any incapacity. Although the worker has heart disease, he is able to earn full wages, and, as his earning capacity is not diminished, he is suffering from no incapacity within the meaning of the Act (Wicks v Union Steamship Co of New Zealand Ltd). If such a worker then receives an injury within the meaning of the Act and suffers incapacity as the consequence of the injury added to his heart disease, then the incapacity (total or partial as the case may be) in those circumstances results from the injury. The injury is an element which only completes the tale of circumstances which constitutes the cause of the incapacity in the non-legal sense: but in the legal sense it is itself the cause of the incapacity which therefore is said to ‘result’ from it (See Clover, Clayton & Co Ltd v Hughes; Partridge Jones and John Paton Ltd. v James – cases on ‘arising out of the employment’). If an employer employs a man who suffers from some defect, though the defect produces no incapacity, the employer runs the risk that incapacity may more readily result from an injury to such a man than from an injury to a man who does not suffer from any such defect.
[9][2018] VSC 276.
[10]Ibid [11]. My emphasis.
[11](1938) 61 CLR 120.
[12](2014) 44 VR 244.
[13](1938) 61 CLR 120, 129-130 (citation omitted).
[14][2018] VSC 276 [37] (‘Minter Ellison’) (emphasis as in the judgment of Judd J in Minter Ellison).
The first defendant seeks to meet the plaintiff’s present contention at a factual level. The first defendant notes that the Panel found that the plaintiff’s opioid dependence pre-existed her compensable injury and was not affected by the compensable injury in any way. Thus, according to the first defendant, the Panel was aware of the plaintiff’s opioid condition. The first defendant submits that the condition did not incapacitate the plaintiff, as she had been able to engage in a number of employments, including employment by the first defendant, before injuring her foot, as the Panel’s reasons indicate. There is simply no basis, the first defendant submits, to conclude that the plaintiff’s opioid dependence caused or causes an incapacity for employment.
Further, the first defendant notes that the plaintiff told the Panel that she had ceased taking the drug OxyContin (an opioid) in late 2016 - early 2017 as she was ‘sick of being clouded in the head all the time’. The first defendant notes that the relevant medical questions enquired about work capacity from 25 June 2016 up to the date of the Panel’s examination (April – May 2018). Accordingly, the first defendant submits, for the majority of the period considered by the Panel the plaintiff did not appear to be taking the medication OxyContin.
In my view, the first defendant’s submissions do not sufficiently meet the plaintiff’s case in the present respect. The mere fact that the plaintiff was able to engage in various employments prior to the work injury despite her opioid dependence does not establish that a combination of opioid dependence and the current consequences of the work injury would not incapacitate the plaintiff for work – all the more so because one of those consequences, as found, was psychiatric, namely the aggravation of a somatic symptom disorder with persistent pain. Further, although the plaintiff told the Panel that she had ceased taking OxyContin in late 2016 – early 2017, she also told the Panel, and the Panel seems to have accepted, that the plaintiff continued thereafter to seek multiple prescriptions for another opioid, namely Endone. In any event, the Panel expressly found that the plaintiff currently had an opioid dependence, which the Panel treated as both a pre-existing and current medical condition. It was not because the plaintiff was able to work prior to the incident of August 2004 despite her then opioid dependence that the Panel disregarded her current opioid dependence. Rather, the Panel disregarded her current opioid dependence for the abovementioned reason that the Panel believed, wrongly, that it was bound by law to do so.
I am not satisfied by the abovementioned submissions of the first defendant that the error of law made by the Panel could have made no difference. In my view, that error of law is sufficient to warrant the quashing of the Panel’s opinion.[15]
[15]Further, when this ground is viewed in conjunction with the matters the subject of the plaintiff’s fifth contention (see below), the appropriateness of intervention by this Court becomes all the clearer.
The plaintiff’s fourth contention: subsequent injuries and medical conditions
The plaintiff’s fourth contention travels well beyond her third contention. It involves the proposition that a due assessment of work capacity must take into account each and every extant injury or medical condition of the worker, including those incurred or arising subsequent to, and independently of, the relevant workplace incident.
The plaintiff submits that so much may be derived from the fairly recent judgment of the Court of Appeal in Richter v Driscoll.[16] The statutory provisions under consideration in Richter v Driscoll were the same as those that apply in the present case. Further, so far as relevant, the facts in Richter v Driscoll were quite comparable. The plaintiff relies in particular on a statement by Ashley and Kaye JJA in Richter v Driscoll to the effect that regard must be had to ‘the entirety of the worker’s personal circumstances’.[17] She also relies on other statements made by their Honours using comparable language[18] and on the statement by Osborn JA in the same case to the effect that regard must be had to the ‘personal characteristics’ of the worker.[19]
[16](2016) 51 VR 95.
[17]Ibid 120 [95].
[18]Ibid 121 [97], 123 [103], 124 [106].
[19]Ibid 135 [143].
It is true that Ashley and Kaye JJA referred several times to the ‘entirety’ of the worker’s personal circumstances, without much in the way of qualification or limitation. When their Honours first mentioned this concept, they described it as 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’. That description seems to be what Ashley and Kaye JJA were later referring to when, at paragraph [97], they spoke of ‘the entirety of the circumstances personal to the worker, as outlined in these reasons.’[20] In several later paragraphs of the judgment, their Honours refer to the ‘relevant’ personal circumstances of the worker.[21] However, presumably, the ‘relevant’ personal circumstances are merely those which their Honours had earlier described. That description did not, in terms, exclude personal circumstances that consist of injuries or medical conditions that arise subsequently to, and independently of, the work-related injury.
[20]My emphasis.
[21]Ibid 123 [103], 124 [106].
Nevertheless, in my view, neither the statements made by Ashley and Kaye JJ nor the corresponding statement of Osborn JA should be read as involving any departure from the long–established principle of workers’ compensation law that an employer is not to be held responsible in any way for injuries that occur, or medical conditions that arise, independently of the employment and subsequent to the relevant workplace incident. The continuing strength and applicability of that principle was recognised in Murugesu,[22] which was decided in 2018, ie after Richter v Driscoll, albeit without reference to that case. Earlier cases in which the principle was stated or applied are legion. They include the two abovementioned cases that were referred to in Murugesu, namely Ward[23] and Walsh[24], and also the abovementioned case of Minter Ellison[25]. Ward is a judgment of the High Court that has stood since 1938, and Walsh is a relatively recent decision of the Victorian Court of Appeal itself.
[22][2018] VSC 276 [11].
[23](1938) 61 CLR 120.
[24](2014) 44 VR 244.
[25][2012] VSC 375 (Judd J), esp at [28]-[31].
In Richter v Driscoll, no mention was made of this long standing principle. It is not to be thought that, merely by the use of general expressions such as ‘the entirety of the worker’s personal circumstances’, the Court intended to depart from well–known previous law without specific mention of it.
Accordingly, I do not accept the plaintiff’s fourth contention.
The plaintiff’s fifth contention: non-medical personal circumstances
The plaintiff’s fifth contention is summarised in some detail at [19(5)] above, beginning with an account of certain principles relating to the assessment of work capacity derived from Richter v Driscoll.[26] As I have already said (and see further below), the plaintiff asserts that Richter v Driscoll also stands for an additional, wider, related principle concerning the concept of employability. However, for present purposes, the plaintiff confines herself to the narrower account of the Richter v Driscoll principles set out at [19(5)]. That account accords with the subsequent identification, by Kaye JA himself, in Menzies Aviation Group (Australian) Pty Ltd v Vegter (‘Menzies Aviation Group’),[27] of four propositions for which Richter v Driscoll is authority.
[26](2016) 51 VR 95.
[27][2018] VSC 130, [62].
The first defendant does not dispute the statement of the Richter v Driscoll principles set out at [19(5)]. However, the first defendant submits that the Medical Panel took into consideration everything it was required to take into consideration in accordance with the principles so stated. In its written submissions the first defendant elaborated on this point as follows.[28]
[28]See first defendant’s outline of submissions dated 1 March 2019 [8]-[14].
The first defendant accepts that the Medical Panel was required to have regard to the plaintiff’s age, skills and experience and prior employment history. On the other hand, it submits that whether a Medical Panel is required to consider a period away from work may depend on the particular case. It says that there is no reason to think that the Medical Panel was required to have regard to the period away from work in this case, as there was no basis to consider that it made the plaintiff unsuitable for employment. Nor does the first defendant accept that the Medical Panel was required to take into account the plaintiff’s reliance at times on walking aids, or any mental disorder of the plaintiff. In any event it is clear, the first defendant submits, that the Medical Panel was well aware of those matters.
The first defendant submits that the reasoning of the Medical Panel should not be construed narrowly as comprising only the discussion on pages 23 and 24 of its reasons for opinion. Rather, it says, the reasons should be read as a whole, so as to discern the ‘process of reasoning’ leading to the Panel’s ultimate opinion. A Medical Panel’s reasons are not judicial reasons.[29] The reasons of a Medical Panel are required to be given a ‘beneficial’ construction.[30] This Court should treat the Panel’s ‘process of reasoning’ as comprising the totality of the matters to which it referred.[31]
[29]Wingfoot Australia Partners Pty Ltdv Kocak (2013) 252 CLR 480, 502 [56] (‘Wingfoot’).
[30]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2; Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [23]-[30].
[31]Wingfoot (2013) 252 CLR 480, 503 [59].
According to the first defendant, the Panel’s statement of reasons shows that the Panel did have regard to all required matters, as follows:
(a) Age – at page 21 the Panel noted that the plaintiff was 52 years old.
(b) Transferrable skills and experience – at page 17 the Panel set out the plaintiff’s prior employment history, which included factory work, sandwich making, reception work and work in retail customer service/management prior to her employment with the first defendant.
(c) Prior employment history – as in (b) above. The fact that the Panel concluded that the plaintiff was not precluded from performing the full duties and hours of her pre–injury employment with the first defendant (pages 23–24) compels a conclusion that it had regard to her prior employment history.
(d) 14 year absence from the workforce – the Panel was well aware of this. At page 6 it noted the agreed fact that the plaintiff had ceased work on 4 November 2004 and had not returned to the workforce in any capacity since that time. Further, this was a matter referred to in the plaintiff’s submissions to the Panel, and the Panel explicitly confirmed that it had noted and considered the issues raised in the plaintiff’s submissions. (Reasons p 25)
In any event, the first defendant submits, these factors are of lesser significance in a case such as this where the Panel found a capacity to return to pre–injury work. Absence from the workplace and limited transferrable skills might assume considerable significance where a Panel opines that there is an incapacity for pre–injury work and therefore has to consider whether there is capacity for alternative suitable employment (as was the case in Richter v Driscoll) that might require retraining and movement into a new industry. Here, the first defendant says, the Panel concluded that the (largely recovered) compensable injury did not preclude the plaintiff from her pre–injury employment in the defendant’s shoe store, and there is no rational reason to think that such employment might be unsuitable because the plaintiff was 52 years old and had not worked for some time.
Even if, contrary to the above, the Panel was required to have regard to the plaintiff’s adverse personal presentation associated with her various unrelated medical conditions and the mental disorder, the Panel in fact did, according to the first defendant, have regard to those matters:
(a) Adverse personal circumstances – The Panel noted at page 10 the plaintiff’s history to it that she had previously been able to ambulate using a stick or even independently, but now required a four–wheeled walker. At page 23 the Panel noted that in the surveillance material the plaintiff was depicted using a walking aid while attending a claim–related appointment but subsequently was seen ambulating unaided when shopping on the same day.[32] It had doubts about the plaintiff’s reliability as to the extent of her ongoing problems (page 23).
(b) Mental disorder – This was expressly considered by the Panel. It found no evidence of a psychotic illness, major depressive disorder, anxiety disorder or Benzodiazepine abuse. It did find an aggravation of somatic symptom disorder with persistent pain and an unrelated opioid dependence (page 20 and pages 22–23). Its specifically stated that the plaintiff’s ‘current medical condition of somatic symptom disorder is mild and does not affect her functional capacity in any way’ (page 23).[33]
[32]I would interpolate that, as mentioned above in footnote 2, the surveillance material related to a period prior to the plaintiff’s fall of November 2017.
[33]First defendant’s written submissions [12(b)]. Emphasis in original.
According to the first defendant, the Panel ultimately concluded, as it was entitled to conclude, that the plaintiff’s ‘current physical and psychiatric condition would not preclude her from performing the full duties and hours of her pre–injury employment’ (page 23–24).[34]
[34]First defendant’s written submissions [13]. Emphasis in original.
The first defendant says that the Panel’s conclusion as to work capacity was correct in light of the diagnosis it reached. But in any event, the first defendant submits, this proceeding is concerned with the lawfulness of the Panel’s decision and is not a merits review, and so the weight the Panel chose to give to these various considerations was a matter for it in the exercise of its own judgement. During oral submissions, senior counsel for the first defendant noted, in this regard, that the Medical Panel included an occupational physician (Dr Susan Homolka).
To the limited extent indicated in the next two paragraphs, but only to that extent, I accept the submissions made by the first defendant in response to the plaintiff’s fifth contention.
I accept, in accordance with my reasoning in connection with the plaintiff’s fourth contention, that the Panel was not bound to take into account any of the injuries or medical conditions that befell the plaintiff for the first time only after the time of the compensable injury of August 2004, except those medical conditions that were found by the Panel to be consequential upon that compensable injury; and therefore I accept that the Panel was not bound to take into account the plaintiff’s obesity, her mobility issues or her ‘presentational issues’. Each of those things was either an ‘unrelated’ medical condition or a consequence of an ‘unrelated’ medical condition. On the other hand, the plaintiff’s opioid dependence was not in that category. For the reasons I have already stated in relation to the plaintiff’s third contention, and even apart from anything said in Richter v Driscoll, the Panel erred in law by directing itself that it was precluded from taking the opioid dependence into account.
I accept that the statement of reasons of the Medical Panel must be read as a whole and that the statement is entitled to a beneficial construction. However, it does not necessarily avail a party seeking to defend the opinion of a Medical Panel to say that, somewhere in its statement of reasons, it has made mention of each matter that it was required to take into account. As was said by the Full Court of the Federal Court in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts,[35] the obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration.[36] And that consideration must be appropriately directed. It is axiomatic that a Medical Panel (like many other statutory decision makers) must be aware of, and must properly understand, any relevant and applicable legal principles, and must in fact apply those principles to the medical and other facts it finds. If a Medical Panel fails to do so, it will usually have erred in law. If the error of law is material and the error appears on the face of the record or amounts to a jurisdictional error, then, as the law of Victoria presently stands, and subject to any relevant discretionary considerations, the Panel’s opinion is liable to be quashed by certiorari.[37]
[35](2011) 180 LGERA 99, 112 [44] (citations omitted).
[36]See also Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [71] (Neave JA); Sensis Pty Ltd v Jones [2018] VSC 754, [63] (Ginnane J). Compare my judgment in Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [79].
[37]Wingfoot (2013) 252 CLR 480, esp at 492–493 [26]–[27], 501 [54].
In the present case, the Medical Panel was required by law to apply at least the abovementioned narrower version of the Richter v Driscoll principles to the facts it found. However, in my view, it did not do so.
Indeed, in my view, the Medical Panel did not appreciate that the Richter v Driscoll principles stated above were relevant at all. In the plaintiff’s written submissions to the Panel dated 30 January 2018, which had been prepared and signed by her solicitors, the plaintiff had cited Richter v Driscoll and had squarely and heavily relied on it.[38] Yet the Panel did not even mention the case in its reasons. Moreover, the Panel said (in the last paragraph of its reasons) that, while it had noted and considered the issues raised in the plaintiff’s submissions, it did not accept those submissions. It seems that the Panel considered that Richter v Driscoll was irrelevant. Perhaps the Panel formed that view because it determined that Ms Lang’s compensable medical conditions would not preclude her from performing the duties of her pre–injury employment. Perhaps the Panel thought that that absolved it from taking into account (on the question of work capacity) the non–medical considerations listed in the statutory definition of ‘suitable employment’ and from taking into account any comparable non–medical considerations. Of course, if the Panel did reason in that way, it was in error. In Richter v Driscoll, at [74], Ashley and Kaye JJA say that there must be a focus on the injured worker’s inability to return to work ‘in employment’, regardless of ‘whether that be the worker’s pre–injury employment or suitable employment’. At [75], their Honours explain that the word ‘employment’ carries with it the idea of return to work as a ‘settled or established member of the wage–earning workforce.’ Consistently with this, the first defendant concedes, as indicated above, that the Panel was ‘required’ to have regard, in this case, to certain ‘factors’ that the first defendant itself identifies, being the worker’s age, her transferrable skills and experience, her prior employment history and her 14 year absence from the workforce.[39]
[38]Plaintiff’s written submissions to the Medical Panel dated 30 January 2018 [13]–[20].
[39]First defendant’s written submissions dated 1 March 2019 [10].
The first defendant goes on to submit, in effect, that, implicitly, the Medical Panel did focus on whether the plaintiff was able to return to work ‘in employment’, and that therefore the Panel in fact complied with Richter v Driscoll. As indicated above, the first defendant endeavours to support that submission by pointing to the places in the Panel’s reasons where the ‘factors’ it nominates were mentioned. At the same time, the first defendant seeks to excuse the Panel’s own lightness of touch in that regard by inviting this Court to accept that those ‘factors’ were of little significance in the particular circumstances of this worker, because the Panel found that her compensable medical conditions did not preclude her from performing the work of her old employment.
The first defendant’s submissions along those lines cannot be accepted.
Consistently with the Panel’s apparent view that Richter v Driscoll was irrelevant, at no stage in its reasons did the Panel use the expression ‘settled or established member of the wage–earning workforce’ or any like expression. The Panel did refer to the performing of the ‘full duties and hours’ of the plaintiff’s pre–injury employment,[40] but, in my view, that is by no means the same concept.
[40]Reasons pp 23–24.
In Richter v Driscoll, Ashley and Kaye JJA say at [95] 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’.[41] On its face, that statement applies whether or not the focus is on a return to pre–injury employment or on ‘suitable employment’. Their Honours’ abovementioned prior observation at [74] strongly supports the view that this is indeed what their Honours meant. In those circumstances, I consider that their Honours were also speaking generally when, at [103], they said that ‘all aspects’ of the then applicant’s relevant personal circumstances were required to be ‘comprehensively brought to account’.[42]
[41](2016) 51 VR 95, 120 [95]. My emphasis.
[42]Ibid 123 [103]. See also 124 [106].
It simply cannot be said, in the present case, that the Medical Panel ‘comprehensively brought to account’ all aspects of Ms Lang’s relevant personal circumstances in assessing her work capacity or incapacity. Richter v Driscoll indicates that, at least in most cases, this assessment should be done quite intensively. In Richter v Driscoll, the Medical Panel had actually given a substantial amount of attention to Ms Richter’s non–medical circumstances in assessing her work capacity. Yet the Court of Appeal held that the level of attention given was far from enough.[43] By comparison, in the present case, the Medical Panel made no attempt at all to consider the corresponding matters in the relevant context. Much less did the Panel bring those matters ‘comprehensively to account’. Rather, the Panel did no more than make passing reference to some of the relevant matters, and then only in other contexts. Nowhere at all did the Panel identify Ms Lang’s level of education. Nowhere at all did the Panel consider whether, as a result of technological changes during her 13½ years of absence, or for other reasons, the requirements of Ms Lang’s pre–injury job may have relevantly changed. In any event, the Panel’s critical conclusion was expressed in terms which left no room for the non–medical personal circumstances of Ms Lang to have any influence on the conclusion. The Panel said that it had ‘concluded that the plaintiff’s current physical and psychiatric medical condition would not preclude her from performing the full duties and hours of her pre–injury employment with the defendant…’[44]
[43]Ibid 123 -124 [102]-[107]. See also - in relation to the adequacy of the Panel’s statement of reasons in connection with the corresponding subject matter - at 129-133 [120]-[132]. See, in addition, and compare, North v Homolka [2014] VSC 478, [95]–[98] (Ashley JA)
[44]Reasons pp 23–24. My emphasis.
If, on the question of work capacity, the Medical Panel had comprehensively brought to account Ms Lang’s compensable medical conditions, her age, her educational background, her prior employment history, her opioid dependency and the length of time she had been out of the workforce on weekly payments,[45] its decision might, I suppose, still have been the same. In effect, the first defendant invites this Court to hold that the Panel’s decision would still have been the same. But so to hold would be to descend into the merits, to speculate and to intrude on the proper function of the Medical Panel itself. It would not be a proper approach for this Court to take.
[45]In Richter v Driscoll, the Court of Appeal gave great weight to the fact that Ms Richter had been out of the workforce on weekly payments for some 20 years: see Richter v Driscoll (2016) 51 VR 95, 123-124 [104].
Accordingly, I find that the Medical Panel made a material error of law by failing to assess the plaintiff’s level of incapacity in accordance with the principles stated in Richter v Driscoll, as described above in relation to the plaintiff’s fifth contention. That error of law appears on the face of the record. It may also amount to a jurisdictional error, but that need not be decided. Accordingly, to this extent, I uphold the plaintiff’s fifth contention. The Panel’s error in this regard, by itself, and all the more so in combination with the error identified above in connection with the plaintiff’s third contention, is sufficient to warrant the quashing of the Panel’s opinion.
The plaintiff’s sixth contention: the concept of employability
The plaintiff’s sixth contention is to the effect that, under the definition of ‘no current work capacity’, consideration must be given to the effects of a worker’s compensable injury in relation to the worker’s ‘employability’, in the sense of the worker’s ability or inability to regain the worker’s former employment or to obtain other ‘suitable employment’. The plaintiff submits that Richter v Driscoll confirms or establishes a principle to this effect, and that the Medical Panel wrongly failed to apply the principle.
The first defendant submits that no principle of the kind suggested by the plaintiff is required to be applied under the definition of ‘no current work capacity’, and that Richter v Driscoll should not be read in such a fashion. If wrong about that, the first defendant would concede that the Medical Panel failed to apply the suggested principle.
As mentioned above, I consider that I need not, and should not, attempt to resolve this controversy. The issue raised is a potentially important legal issue of general application, whereas the opinion of the Medical Panel in this case falls to be quashed in any event.
However, in deference to the submissions I have heard, I make the following observations.
In Richter v Driscoll, Ashley and Kaye JJA said that the applicant’s submissions as to the correct meaning of the definition of ‘no current work capacity’ should generally be accepted.[46] Those submissions included the propositions that:
[46]Ibid 114 [72]-[73]. See also 115 [78] (second sentence).
(vii) The ‘conception was one of return to employment in the workforce, which was to be contrasted with an ability to perform a task or tasks’;[47]
[47]Ibid 109 [70(2)].
(viii) The worker’s capacity to ‘obtain’ employment (or re-employment) needed to be evaluated;[48]
[48]Ibid 110 [70(6) and (7)].
(ix) The worker’s ‘attractiveness to an employer’ needed to be considered;[49]
[49]Ibid 111 [70(9)].
(x) It is not appropriate to say that a Medical Panel dealing with a matter of this kind should not be required to assess a worker’s ‘employability’;[50]
(xi) A Panel must take into account a worker’s capacity to be accepted back into the workforce.[51]
[50]Ibid 112, [70(11)].
[51]Ibid 112 [70] (last sentence).
More directly, Ashley and Kaye JJA (under the heading ‘Analysis’) made or approved statements as follows or to the following effect (some of which have already been noticed above in other contexts):
(xii) The conception is of return to work in employment. ‘The focus is thus upon an injured worker’s inability to engage in employment’;[52]
[52]Ibid 114 [74].
(xiii) The word ‘employment’ carries with it the idea of return to work ‘as a settled or established member of the wage earning workforce’. There must be return to employment in a meaningful way, ‘so as to obliterate a continuing need for weekly payments of compensation’;[53]
[53]Ibid 114 [75].
(xiv) Return to work in employment ‘requires more than … a physical capacity to engage in a task or tasks’;[54]
[54]Ibid 114 [76].
(xv) In workers’ compensation law, from the earliest times, the conception of ‘incapacity for work’ was not confined simply to physical incapacity;[55]
[55]Ibid 119 [88]-[89].
(xvi) The current definitions trace from, and are informed by, the fact that physical capacity alone was never considered to be the be all and end all of determination of incapacity for work;[56]
[56]Ibid 119-120 [90]-[92].
(xvii) In this context, Medical Panels are required to consider matters travelling beyond bare medical expertise;[57]
[57]Ibid 120 [94].
(xviii) Regard must be had 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’;[58]
[58]Ibid 120 [95].
(xix) Physical capacity is not necessarily alone to be considered. In some employment, personal disfigurement may preclude employment when physical capacity is just as good as before. In such case, personal disfigurement is an element to be taken into consideration. The circumstances under which labour can command employment in the market being all taken into consideration, ‘the question is whether the accident has produced in the workman some incapacity for work personal to himself which prevents his obtaining employment’;[59]
[59]Ibid 120 [95]. My emphasis.
(xx) Another way of putting the matter is to ask whether a worker’s incapacity is such as to destroy or impair his or her ‘powers of labour as a merchantable article’;[60]
[60]Ibid 121 [96].
(xxi) None of this means that an employer guarantees the state of the labour market, nor that the situation is covered in which ‘an employer will not take on a worker only because the latter has been off-work and in receipt compensation payments’.[61] However, there must be an assessment of the inhibitions which exist upon the worker’s ability to work in employment. ‘’Employment’ is a relationship in which a prospective employee must have something – a capacity to work in employment – to sell. A prospective employer will not buy if the entirety of the circumstances personal to the worker, as outlined in these reasons, lead the employer to conclude that the worker has nothing to sell’;[62]
(xxii) To say that a Panel is not required to determine whether an injured worker would be successful in obtaining employment is true so far as it is a statement only directed to inability to obtain employment by reason of the state of the labour market. Such a statement could not be carried further. In particular, it would not be correct if it meant that a Panel is not required to consider whether the entirety of an injured worker’s personal circumstances – including the worker’s injury–caused incapacity and other relevant personal circumstances – meant that the worker ‘would likely be unsuccessful in obtaining employment because [the worker] had nothing to sell’.[63]
[61]Ibid 121 [97]. My emphasis.
[62]Ibid 121 [97].
[63]Ibid 124 [106]. My emphasis.
Likewise, Osborn JA said:[64]
Ability to return to work in employment is not simply dependent upon capacity to physically undertake particular tasks. The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. The object of containment of cost is not intended to prevent this from being achieved.
A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.
[64]Ibid 135 [143]-[145]. My emphasis.
Further, the plaintiff submits that the effects of a compensable injury on the injured person’s ability to obtain employment or re-employment has long been recognised as relevant in workers’ compensation cases and in comparable contexts, relying on the frequently cited decision of the Commonwealth AAT in Re Panke and Director-General of Social Services[65] and on the judgement of the Full Court of the Federal Court in Cole v Minister for Immigration and Border Protection.[66]
[65](1981) 4 ALD 179, esp at 181 (Davies J, President) (‘Panke’). See also the cases cited by Davies J at 180-181 and by Senior Member Hall and Member Glick at 192-194, they being mainly workers’ compensation cases.
[66][2018] FCAFC 66, [58]-[70]. See also the other cases cited therein and note the several references to Panke.
On the other hand, the first defendant submits that Ashley and Kaye JJA also said,[67] in effect, that their Honours saw no disharmony between their construction of ‘no current work capacity’ and the judgment of the Court of Appeal in Barwon Spinners v Podolak (‘Barwon Spinners’).[68] The first defendant further submits that in Barwon Spinners, for the purposes of the then provisions of the ACA that governed applications for leave to commence common law proceedings for industrial accidents, the Court of Appeal treated the definition of ‘suitable employment’ (as it then stood) as excluding a concept of employability, in the sense of a likelihood of obtaining employment. Whether, in Richter v Driscoll, Ashley and Kaye JJA read Barwon Spinners in that way may be another question.[69]
[67](2016) 51 VR 95, 115-117 [78]-[80].
[68](2005) 14 VR 622.
[69]See (2016) 51 VR 95, 117 [80]. See, further, Harris v DJD Earthmoving [2016] VSCA 188, [49] and footnote 59 to that judgment.
As mentioned above, in Menzies Aviation Group,[70] Kaye JA extracted from Richter v Driscoll four propositions relevant to the question that arose in Menzies Aviation Group as to whether the Medical Panel had misdirected itself in the course of analysing the relevant worker’s incapacity. In stating those four propositions, Kaye JA made no express reference to the concept of employability or to the matter of obtaining employment or re-employment. On the other hand, Kaye JA introduced his four propositions by saying that it was unnecessary to rehearse the whole of the principles enunciated by the Court in Richter v Driscoll.
[70][2018] VSC 130, [62].
The controversial legal issues involved in the plaintiff’s sixth contention should await determination in a case where they will be decisive.
The plaintiff’s seventh contention: adequacy of the Panel’s statement of reasons
Having regard to the adverse findings that were made by Ashley JA as to the adequacy of the Medical Panel’s statement of reasons in the comparable case of North v Homolka,[71] and to the similar adverse findings made by the Court of Appeal in relation to the corresponding document in Richter v Driscoll, there is something to be said for the proposition that the Medical Panel’s statement of reasons in the present case should likewise be found to be inadequate.
[71][2014] VSC 478.
However, I would not finally determine that question. The abovementioned critical passage of the Panel’s statement of reasons – where the Panel ‘concluded that the Plaintiff’s current physical and psychiatric medical condition would not preclude her from performing the full duties and hours of her pre-injury employment’[72] – demonstrates clearly that the Panel adopted a particular path of reasoning on a crucial matter, and that that path of reasoning was erroneous in law, warranting the intervention of this Court, as explained above. It would be superfluous to examine the adequacy or otherwise of the Panel’s statement of reasons in other respects.
[72]Reasons page 23.
Appropriate relief
Strictly speaking, the Panel’s reviewable errors relate only to its answer to medical question 3 and to its consequential answers to medical questions 4 and 5. However, the first defendant did not submit that, in the event of such an outcome, the Panel’s other answers or any of them should be preserved. It accepted that it would be appropriate, in such circumstances, for the entirety of the opinion to be quashed.
I share that view. The nature of the error made by the Panel and the tenor of its statement of reasons are such as to indicate that the re-determination of medical questions 3, 4 and 5, at least, should be remitted to a differently constituted Panel.[73] On current understandings, that Panel would not be bound by any of the other answers given by the present Panel, even if those answers were not quashed.[74] Thus the whole matter, including the primary issues as to injury, medical conditions and causation that were the subject of medical questions 1 and 2, and including the subject matter of medical question 6, would fall for reconsideration afresh on updated material, and for re-determination by the new Panel, in any event.[75]
[73]Morrison v Melbourne Pathology Pty Ltd [2018] VSC 477, [52]-[57] (Richards J) and cases therein cited.
[74]McVey v GJ & LJ Smith Pty Ltd [2014] VSCA 293 [60]; St Joseph’s Regional College v Longham [2017] VSC 657 [79].
[75]See previous footnote.
Accordingly, the whole of the Medical Panel’s opinion will be quashed.
Proposed orders
The Court will order that:
(1)There be an order in the nature of certiorari quashing the certified opinion of the Medical Panel comprised of the second to seventh defendants dated 27 June 2018.
(2)There be an order in the nature of mandamus requiring that the medical questions in respect of which the opinion was given be remitted to a differently constituted Medical Panel to be reconsidered in accordance with law.
I will hear the parties as to costs.
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