Lianos v Inner & Eastern Health Care Network
[1999] VSC 307
•27 August 1999
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION Do not Send for Reporting Not Restricted
No. 7379 of 1998
| JOHN LIANOS | Appellant |
| v. | |
| INNER & EASTERN HEALTH CARE NETWORK | Respondent |
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JUDGE: | TEAGUE J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 JUNE 1999 | |
DATE OF JUDGMENT: | 27 AUGUST 1999 | |
CASE MAY BE CITED AS: | LIANOS v. INNER & EASTERN HEALTH CARE NETWORK | |
MEDIA NEUTRAL CITATION: | [1999] VSC 307 | |
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CATCHWORDS: Accident Compensation Act 1985 – Medical Panel opinion – Total and partial incapacity – Admissibility of reasons - Odd lot doctrine.
Masters v McCubbery and Others (No 2) [1996] 1 V.R. 635.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr. M. O’Loghlen QC Mr. Sala | Zaparis & Dandanis |
| For the Respondent | Mr. M. Fleming | Purves Clarke Richards |
HIS HONOUR:
I have before me an appeal under s. 109 of the Magistrates Court Act 1989 against orders made by Magistrate O’Dwyer in the Melbourne Magistrates Court on 16 September 1998. Those orders dismissed the appellant’s complaint against the respondent. The appellant seeks that the matter be sent back to the Magistrates’ Court differently constituted for a rehearing de novo under s. 109(6) of that Act.
The original complaint, No. K01348329, was filed in the Melbourne Magistrates’ Court on 4 June 1997. In short, the appellant’s claim was that the respondent, as his employer, was liable to pay him weekly payments as compensation for injury sustained in the course of his employment, on the grounds that the appellant had a serious injury and/or was totally and permanently incapacitated within the terms of the Accident Compensation Act 1985 (“the main Act”). Under s. 43 of the main Act the Magistrates’ Court was the relevant jurisdiction.
The appellant, John Lianos worked as an orderly/cleaner for the respondent, the Inner & Eastern Health Care Network. In or around December 1987, while attempting to pick up a large and heavy container of liquid soap, the appellant suffered injury to his back. As a result the appellant found it difficult to work and developed a severe anxiety and depressive state.
The appellant ‘s claim is that he was then incapacitated for work for various periods known to the respondent, such incapacity resulting from or materially contributed to by the injury. The appellant submitted a claim for weekly payments of compensation and medical and like expenses upon the respondent in respect of the injury and the respondent accepted the claim and admitted liability to make weekly payments of compensation and to pay medical and like expenses on the appellant’s behalf.
It was common ground between the parties that pursuant to provisions of the Accident Compensation (Workcover Insurance) Act 1993 and through its insurance agent FAI Workers Compensation (Vic) Pty Ltd the respondent was liable to pay compensation pursuant to the main Act in respect of its employees.
In February 1997 the respondent’s authorised insurer advised the appellant by formal notice under s. 114 of the main Act that his claim for weekly compensation payments would be terminated as from 31 March 1997. The notice stated that, under s. 114(2)(b) of the main Act, the appellant had received an aggregate period of 104 weeks or more of weekly payments, and hence was not entitled to further weekly payments as he had not sustained a serious injury and was not totally and permanently incapacitated for work.
In the Statement of Claim dated 4 June 1997 the appellant claimed that as a result of the injury he was totally and permanently incapacitated and/or seriously injured within the meaning of the main Act. He sought reinstatement of weekly payments of compensation at the rate of 90% of pre-injury average weekly earnings, or alternatively, 70% of pre-injury average weekly earnings.
On or about 31 July 1997 the respondent filed a Notice of Defence to the Complaint.
On or about 14 July 1997 the respondent served on the appellant’s solicitors a document entitled Notice of Referral to Medical Panel Pursuant to s. 45(1)(b) dated 14 July 1997. Under that provision:
"(b)If a party to the proceedings so requests, the Court must refer a medical question to a Medical Panel for an opinion;"
On 26 September 1997 the appellant’s complaint was listed for hearing in the Magistrates’ Court and came before Magistrate Spillane. The appellant was represented by Mr Sala of counsel and the respondent by Mr Chamings of counsel. Mr Chamings requested the Magistrates’ Court to refer medical questions to a Medical Panel for an opinion. The learned magistrate agreed in principle to this request, asked the parties to provide to the court copies of the documents to go to the Medical Panel, and adjourned the proceedings to 3 October 1997.
On or about 14 October 1997 the Magistrates’ Court made an order referring medical questions to a Medical Panel with the following documents:
(i)Statement of Claim;
(ii)Notice of Defence;
(iii)Notice under s. 114 advising Mr Lianos of termination of weekly payments;
(iv)Medical reports as follows:
· Mr James Rowe dated 18 March 1993
· Mr T. Malios dated 19 March 1993
· Mr J.T. Cummins dated 28 June 1993
· Dr John Drago dated 21 April 1995
· Dr Steven Kalfas dated 25 May 1996
· Mr Peter N. Mangos dated 17 September 1997
· Dr Steven Kalfas dated 18 September 1997
· Dr Michael V. Piperoglou dated 19 September 1997
· Mr Andrew H. Kaye dated 10 August 1990
· Mr John F. O’Brien dated 5 March 1997
· Dr Stephen Stern dated 27 November 1996
· Dr John F. Garland dated 10 April 1995
· Dr Stephen Stern dated 5 May 1997
· Mr Keith H. Elsner dated 30 April 1996
· Mr Neil G. Cullen dated 2 May 1995
The questions referred to the Medical Panel by the Magistrates’ Court were:
1.Is the Plaintiff totally incapacitated as that term is defined in the Accident Compensation Act?
2.Is the Plaintiff partially incapacitated as that term is defined in the Accident Compensation Act?
3.What is or was the probable duration of the Plaintiff’s medical condition relevant to each of the alleged injuries alleged in paragraph 4 of the Statement of Claim?
4.What is the level of impairment assessed in accordance with the American Medical Association’s Guides to the Evaluation of Permanent impairment (2nd edition) having regard to s.91 of the Accident Compensation Act?
A Certificate of Opinion Pursuant to s 45 of the Accident Compensation Act 1985 was prepared and dated 9 December 1997. Attached to the Certificate was a Medical Panel Opinion dated 15 December 1997. It appears that the Certificate and attachment were received on or about 6 January 1998 by the appellant’s solicitors.
The presiding Member of the Medical Panel stated that he had “discussed the answers herein with the other Medical Panel members and this is the consensus view formed”:
1.In the Panel’s opinion the Plaintiff is not totally incapacitated.
2.In the Panel’s opinion the Plaintiff is partially incapacitated.
3.The medical condition appears to specifically date from the episode occurring in 1987.
4.His current level of impairment is 17% whole person impairment in regard to the lower back.
On 13 January 1998, the appellant’s solicitors wrote to the Convenor of Medical Panels to request a copy of the Medical Panel’s reasons for the opinion regarding the appellant. On 13 March 1998, the Convenor of Medical Panels sent to the appellant’s solicitors a letter that stated that “The statement of reasons for the Panel’s opinion is enclosed as requested in accordance with the Administrative Law Act.” The eight pages accompanying the letter were made up of one page titled “REASONS FOR MEDICAL PANEL OPINION”, two pages titled “REASONS FOR DECISION”, and two appendices. One appendix was of three pages consisting of the histories taken from the appellant, and the other was of two pages listing the documents that the Medical Panel stated that it had available to it and took into consideration in forming its opinion. I make the comment that, although the materials were put together in a somewhat unorthodox way, the result seemed quite appropriate given the logistical difficulties involved.
On 10 June 1998 at the Melbourne Magistrates Court, the appellant’s claim was called on for hearing before Magistrate McLeod. The appellant was represented by Mr O’Loghlen QC and Mr Sala of counsel, and the respondent by Mr Fleming and Mr Walsh of counsel. Oral and written submissions were made to the learned magistrate by each party concerning the effect of the Medical Panel’s opinion and reasons for the opinion, both of which were tendered in evidence. The proceedings were adjourned. On 11 August a further hearing took place before Magistrate McLeod. The appellant was represented by Mr Sala of counsel, and the respondent by Mr Walsh of counsel. The appellant gave oral evidence and was cross-examined. The learned magistrate adjourned the proceedings until 12 August, for further argument. On 12 August the appellant was represented by Mr O’Loghlen QC and Mr Sala of counsel, and the respondent by Mr Fleming and Mr Walsh of counsel. In the course of submissions, when counsel for the appellant sought to rely upon what was contained in medical reports available to the Medical Panel, it was pointed out that the appellant had closed its case without tendering any medical reports. Magistrate McLeod ordered that the proceedings so far heard be aborted, that costs be reserved, that the proceedings recommence afresh before a Magistrates’ Court differently constituted, and that the proceedings be adjourned to a day to be fixed with leave to the parties to call evidence as they see fit.
On 16 September 1998 at the Melbourne Magistrates Court the appellant’s claim was called on for hearing before Magistrate O’Dwyer. The appellant was represented by Mr Sala of counsel, and the respondent by Mr Dyer of counsel. Mr Sala addressed the learned magistrate, referred to the history of the proceedings and said that the appellant intended to call evidence from the appellant and from medical expert witnesses.
The learned magistrate queried whether he should hear evidence, in the light of the referral to the Medical Panel, and the Medical Panel’s opinion.
At this point Mr Dyer for the respondent addressed the Court. He referred to s.68(4) of the main Act and submitted that it was not the function of the Magistrates’ Court to review the Medical Panel’s opinion. He submitted that the Magistrates’ Court had no jurisdiction to hear further evidence and should not hear further evidence. He submitted that the appellant’s proceeding was concluded by the Medical Panel’s opinion and that the proper course was for the magistrate to dismiss the appellant’s complaint.
Mr Sala then addressed Magistrate O’Dwyer. He said that the appellant wished to tender the Medical Panel’s reasons. Mr Dyer objected to the tender, and submitted that the learned magistrate should not look at the Medical Panel’s reasons. The magistrate asked Mr Sala to give reasons to justify the admission of the Medical Panel’s reasons. Mr Sala submitted that there were a number of reasons for doing so. He said that the reasons clarified the answers the Medical Panel gave in their opinion. He said that the reasons showed that the Medical Panel’s opinion did not deal with the “odd lot” issue, to which issue I will turn later. He said that the reasons showed that the Medical Panel’s opinion on the question of level of incapacity was based only upon the appellant’s physical injuries and took no account of the behavioural illness or psychological impairment to which the Medical Panel had referred in both the opinion and the reasons.
The learned magistrate said he would not rule at that stage on whether he would accept the tender of the Medical Panel’s reasons, but invited Mr Sala to continue his submissions.
Mr Sala submitted that the court should hear evidence and should determine whether the appellant was totally and permanently incapacitated. He submitted that although the Magistrates’ Court was bound by the Medical Panel’s opinion to find that the appellant was not totally but partially incapacitated by reason of his physical injuries, the Court was not otherwise bound. In particular, Mr Sala submitted, it was open to the Court after hearing evidence and looking at the Medical Panel’s reasons to find that the appellant was totally incapacitated, taking into account not only his physical injuries but also his psychiatric illness and impairment. He further submitted that it was open to the Court to find after hearing evidence that the appellant was totally incapacitated by reference to the “odd lot” principles developed by the courts.
Magistrate O’Dwyer said that in his opinion he was being asked to review the Medical Panel’s opinion and that he was not going to do that. He said that although the issue of “odd lot” may have some merit, the Magistrates’ Court was not the proper court in which to explore the issue, as the Medical Panel’s opinion could only be judicially reviewed in the Supreme Court.
The learned magistrate ordered that the appellant’s complaint be dismissed and made various orders as to costs including an order that the appellant pay the respondent’s costs. He did not give written reasons for his decision, but no issue as to his not having done so has been taken.
On 8 October 1998 the appellant’s appeal against the orders made by Magistrate O’Dwyer came before Master Wheeler. Master Wheeler ordered that the questions to be determined on Appeal be:
(i)Whether the Magistrate erred:
(a)in failing to admit as evidence the reasons of the Medical Panel’s opinion given pursuant to s.45 of the Accident Compensation Act 1985.
(b)in failing to permit the appellant to call evidence that he was an “odd lot” notwithstanding the opinion of the Medical Panel.
(ii)Whether the certificate of the Medical Panel was valid as it was given without the advantage of having the sworn evidence of the appellant before it.
Counsel before me took no issue with the form of the questions as put. The appellant did not pursue question (ii) before me, and submitted only that the magistrate erred in the sense outlined in questions (i)(a) and (i)(b) above. Hence it is the answers to questions (i)(a) and (i)(b) with which I am here concerned.
Prior to examining the submissions put to me, I will deal with some matters which are not the subject of dispute.
Counsel before me accepted that, subject to specific transitional provisions, the legislative scheme applicable to the appellant’s claim is the main Act as it stood in Reprint Number 7 which incorporates amendments as at 20 March 1997. It was accepted that the cornerstone provision for compensation under the main Act is s.82(1). There was no issue relative to the appellant of whether his occupation was a significant contributing factor to his injury, and nothing turns on the defined terms of “worker” or “injury”. The appellant’s case is solely concerned with the termination of weekly payments.
The appellant’s injury occurred prior to major legislative changes introduced in 1992. However, those legislative changes impact on his claim. Section 93C of the main Act contains transitional provisions which apply to the appellant. Section 93A deals with entitlement to weekly payments within the first 26 weeks of incapacity for work. Section 93B deals with entitlement to weekly payments after the first twenty six weeks. The entitlement differs according to whether (a) the worker has a serious injury or, (b) the worker does not have a serious injury but is totally incapacitated or (c) the worker does not have a serious injury but is partially incapacitated. Under s.93B(3) the worker’s entitlement to weekly payments ceases after an aggregate period of 104 weeks (whether consecutive or not) in respect of which a weekly payment has been paid or is payable to the worker unless the worker-
(a)has a serious injury; or
(b)is totally and permanently incapacitated.
The appellant’s weekly payments were terminated on the grounds that he did not fit either of these categories, that is that he did not have a serious injury, and was not totally and permanently incapacitated for work.
The appellant did not directly challenge before me, given the assessment of the Medical Panel in accordance with s. 91 of the main Act of a level of 17% whole person impairment, that he did not have a serious injury as defined in s 93B(5). The appellant clearly wished to directly challenge the Medical Panel’s opinion that the appellant was not totally incapacitated for work. There does not seem to be an issue between the parties regarding the permanency of the appellant’s injury, at least in the sense that it was treated as likely to persist indefinitely.
Medical Panels are established under s. 63 of the main Act, and their procedures and powers are outlined in ss. 64-67. The procedure for the giving of the opinion is governed by s. 68. No issue was taken with the procedure which had been adopted in this case.
Medical questions are defined in s. 5(1). The paragraphs in the definition relevant to the questions referred to the Medical Panel in the case before me were accepted as being:
Medical question means-
(ab)a question as to the existence, extent or permanency of any incapacity of a worker for work or suitable employment and the question whether a worker is partially or totally incapacitated; or
(d)a question as to the level of impairment of a worker including a question of the degree of impairment of a worker assessed in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Second Edition or a subsequent subscribed edition); or
(e)a question as to the probable duration of any physical or mental condition resulting from or materially contributed to by the injury.
In their submissions, counsel for the appellant concentrated on para. (ab) of the definition, as relevant to questions (1) and (2) before the Medical Panel.
The submissions of Mr O’Loghlen for the appellant can be divided into three areas. The first was directed to what followed if the decision of the Medical Panel had to be taken to be as contained in the certificate of opinion only? He submitted that even so restricted, the odd lot doctrine had to be brought into play, and the learned magistrate should have heard evidence as he had been asked to do. In the second area, he addressed the question of why the learned magistrate should have admitted the reasons into evidence? In short, he submitted that the ways in which the Medical Panel had misdirected itself were only revealed in the written reasons for the opinion, and not on the face of the opinion itself. In the third area, he addressed the question of what, if the magistrate had admitted the reasons into evidence, they would have revealed regarding the opinion of the Medical Panel? I will deal with these latter two questions before moving to the first question and the subject of the odd lot doctrine.
It was established by the Court of Appeal in Masters v McCubbery and Others (No.2) [1996] 1 V.R. 635 that a Medical Panel is a tribunal for the purposes of the Administrative Law Act 1978 (“the ALA”), that the opinion of the Medical Panel is a decision under the ALA, and that under s.8 of the ALA the Medical Panel must provide reasons for its decisions.
Under s.10 of the ALA, reasons for a decision form part of the decision.
Mr O’Loghlen relied on this section to support his submission that the Medical Panel’s reasons were part of the certified opinion under the main Act and as such should have been admitted into evidence. He relied as well on s. 48 of the main Act which states:
48. Admissibility of certificates and reports of Medical Panels
(1)A certificate or report given by a Medical Panel is admissible in evidence in any proceedings under this Act.
Mr Fleming for the respondent submitted that the intent of s. 10 of the ALA is to incorporate reasons into the record for the purposes of judicial review proceedings. However it does not mean that in all contexts and for all purposes reasons form part of a decision. On the contrary, he submitted, the only function for reasons under the ALA is that described in Masters. That function is to show whether the opinion was administratively regular and lawful. Reasons thus have a role in the supervisory review of administrative decisions, but not in the type of proceeding that was before Magistrate O’Dwyer. He submitted that there is nothing in s.45 or elsewhere in the provisions in the main Act dealing with the referral of questions for an opinion that give any indication that anything other than the certificate is to be taken as the opinion for the purposes of the main Act. Mr Fleming submitted that what was said by Smith J. in McDonald’s case (Gadsden Pty Ltd and MMI Workers Compensation (Victoria) Pty Ltd v Bruce McDonald, unreported, 3 June 1999) confirmed this construction. Smith J., citing Masters as authority, said at p.13:
“There is no place under the statutory scheme for the opinion to be reconsidered by the magistrate in the light of any reasons. The Act makes it clear he is to act upon the opinions expressed. If there is any error of law contained in such an opinion which is revealed by the reasons, that is a matter to be taken up in a superior court where application might be made to set aside the opinion.”
Mr Fleming further submitted that whatever the meaning of "report" in s.48 is, or however widely it is to be construed, it is not an apt description of written reasons for a decision.
In my opinion neither of the legislative provisions on which Mr O’Loghlen sought to rely carries the argument very far. The language and concepts in the ALA are tailored to certiorari proceedings. The intent of the provision of reasons under the ALA, as evidenced by the wording of s 8(4) of that Act, is
“to enable a Court to see whether the decision does or does not involve any error of law”.
This accords with the statements in Masters of Winneke P:
“A medical panel is not required to do more than provide sufficient reasons to enable it to be seen by the court and the parties that it has arrived at its decision in accordance with its statutory functions.”
(at 650).“…, they are not obliged to overwhelm themselves with the provision of elaborate reasons.” (at 651)
and Callaway J.A.:
“It may be conceded the Parliament did not require the opinion given to take the form of a judgment but that does not mean that it did not consider it appropriate that, when asked, such panels should not give sufficient explanation of their reasoning as to enable a review thereof by the Supreme Court either under the Administrative Law Act or otherwise by judicial review.” (at 653)
It is clear from the judgments in Masters and of Smith J. in McDonald’s case that a balance must be achieved in applying the provisions of the main Act between the legislative intention to create a speedy, efficient method of resolving disputes, and allowing fairness to the parties and a meaningful examination of the issues between them. Reasons must be provided, in order that a decision is subject to review. The aim of the provisions is to provide substantial fairness, not perfection, or as close to perfection as is reasonably possible. If the decision is sufficiently clear from the certificate of opinion itself, there is no power to go beyond that certificate to look at the reasons. A final determination that is as prompt and fair as is reasonably possible is the clear legislative intent of the main Act.
On behalf of the appellant, it was submitted that the certificate of opinion was indeed ambiguous, such that it was necessary to look at the reasons to clarify the decision. Mr O’Loghlen relied on a line of English authority including Penrikyber Navigation Colliery v Edwards [1933] AC 28 in support. He sought to distinguish McDonald’s case from the present case, noting that Smith J. had said that, if the magistrate had looked at the reasons it would have made no difference as they added nothing to the opinion. He submitted that in this case it was necessary to look at the reasons to find out what the Medical Panel’s exact opinion was.
The respondent submitted that although it was conceded that a court can always seek clarification, there was no ambiguity on the face of the opinion of the Medical Panel, and hence under the main Act no motive to go to the reasons for clarification. The ambiguity could not be created by consideration of the reasons, but must exist prior to their examination. In the absence of ambiguity on the face of the opinion, the magistrate was obliged to apply the unambiguous opinion of the Medical Panel.
Mr O’Loghlen cited earlier authority for the proposition that “medical questions” such as were potentially referable to a Medical Panel are to be taken to deal with incapacity in the medical sense, and not for all and every purpose. For example, in Commonwealth of Australia v Mifsud (1965) 114 C.L.R. 505 at 515, Windeyer J. said:
“The statutory provision that a certificate is to be conclusive makes it imperative that its effect be kept within narrow bounds and that it be strictly construed. The purpose of the statutory provision is to make medical men the final judges of medical facts.”
Mr O’Loghlen submitted that in this case, as was the case in Masters, the Medical Panel might have been asked a question that related specifically to “suitable employment”, but the Medical Panel was not asked such a question. Hence, he argued, the answers are ambiguous as to whether the Medical Panel had addressed the factual issues attendant upon answering such a question, or had confined itself to medical matters in the narrow sense. He argued that the answers were similarly ambiguous as to whether or not the Medical Panel had addressed the odd lot principle. The appellant submitted that although finality was an aim of the legislation, the court retained the power to mould procedures to see that justice is done. That point, he noted, had been made by Bryne J. in Austin v Amcor Ltd & Magistrates’ Court of Victoria (unreported, 26 February 1998) and by Hedigan J. in HIH Winterarthur Workers Compensation (Vic.) Ltd v Greeves (unreported, 2 October 1998).
Alternatively, he submitted, relying on Morgan & Co. v. Thomas [1938] 1 All Eng LR 696, an opinion can be so ambiguous that it certifies nothing. In such a case it cannot be understood, or applied. Mr O’Loghlen submitted that it was necessary to look at the reasons to see the true nature of the decision as a pre-condition of determining how to give effect to it.
The approach adopted by the Court of Appeal in Morgan & Co. v Thomas stands in contrast to that adopted by the Court of Appeal in Towler v British Dye Stuffs Corporation (Blackley) Ltd. (1921) BWCC 34, and by the House of Lords in each of Connor v Cadzow Coal Co. Ltd. [1932] A.C. 1, and Penrikyber. The approach in Towler, Connor and Penrikyber was predicated on the desirability of seeking clarification and explanation of what was unclear in the certificate, as a preferred course to reviewing what attitude had been adopted to applying the certificate. In Morgan & Co. v Thomas, there was an acknowledgment that County Court judges, the Court of Appeal and the House of Lords had properly at different times sent back matters to medical referees for explanation. But the Court of Appeal concluded that there was no duty to seek explanation, as in circumstances where the certificate was found to be inadequate and meaningless.
My review of Towler, Connor and Penrikyber has served to foster a preference for seeing legal decision-makers adopt a “practical” clarification approach rather than a “technical” review approach when dealing with concerns as to the meaning of certificates provided by medical opinion-givers. Broadly speaking, in Towler, Connor and Penrikyber a lower court or tribunal had responded over-technically to a possible instance of ambiguity. The reaction of the higher court was to look not to see whether the technically more correct answer had been given, but to what would be the most practical course for dealing with the ambiguity. That practical course was to go back to the certifying doctor to obtain clarification.
In Fletcher v Douglas [1934] Workers Compensation Reports 88, the New South Wales Supreme Court adopted a different approach to the certificate of a medical board as to a worker’s capacity for work. There, it was said that, for the purposes of the relevant legislative provision, it did not follow that, because doctors certified that a worker was fit for some work from a medical point of view, he should be seen to be disabled from a practical point of view. The emphasis is mine.
In that case, and indeed in the other cases just referred to, which were decided over 60 years ago, the courts were required to consider statutes that were drafted differently from the main Act. In the main Act, “medical question” is widely defined. The older cases make no reference to anything comparable in the statutes with which the courts were then concerned.
The decision in Masters has emphasised the desirability of preferring practical sufficiency to technical perfection. Further, the nature of the amendments to the Act since Masters has been a clear indication that the approach of the Court of Appeal in Masters accorded with what Parliament intended.
It seems as obvious to me as it seemed obvious to the higher courts in Towler, Connor and Penrikyber, that the practical and most appropriate approach to any concern as to lack of clarity in the certificate of a Medical Panel is to seek clarification from the Medical Panel. I am troubled about an approach which contemplates that it is preferable to challenge a certificate for lack of clarity than to ask the Medical Panel for clarification. I say that after noting, and reflecting upon the alternative approaches taken in Morgan & Co v Thomas and in Fletcher.
I do not think that it could be said that the main Act provides, or that the scheme of the main Act contemplates, that seeking clarification is inappropriate and so forbidden. It seems to me that the position is to the contrary. The main Act is not silent as to courses that might be followed when there are concerns as to the meaning of a certificate. Section 45 provides one option. The Court can be asked again to put to the Medical Panel a medical question that was not put in the first instance. Section 48(2) points up another option. It is the option of requesting a member of a Medical Panel to give evidence as to matters in the certificate. I recognise that there is a reservation within the sub-section. A member of a Medical Panel is competent, but cannot be compelled to give evidence. However, to focus on the reservation is to look at the hole, not the doughnut. Until a member of a Medical Panel chose to rely upon the shield of non-compellability it would, in my opinion, be appropriate to assume that the member would not do so. A simple option open to a party with a concern as to one or more matters certified to would be to contact the convenor of Medical Panels. The convenor could be told the nature of the concern, and asked whether the members would be willing to provide a report clarifying the matter, or whether the members or any member would be prepared to give evidence, or both.
During submissions, I canvassed with Mr O’Loghlen aspects of the preparation of the questions for the Medical Panel. He made the point that, in this case, the questions referred to the Medical Panel were questions of the Court, framed after a request made by the respondent. Thus, they could not be considered to be the questions of the appellant. On the other hand, he accepted that a worker could make his or her own request for an order, and be heard in the formulation of the medical question or questions for reference to a Medical Panel pursuant to such a request. Further, a worker could be heard regarding the questions referred pursuant to the request of the respondent. The worker in this case had that opportunity. Further, a worker has the opportunity to place reports, medical or otherwise, as was the position in the instant case, before the Medical Panel, which is obliged to consider such reports.
Before turning to another matter, I note that there was here the judicial review option, as well as the clarification options. Instead of asking the magistrate to go behind the certificate of the Medical Panel, the appellant had, but chose not to exercise, the option of applying to this Court for relief by way of certiorari to have the decision of the Medical Panel quashed. That was the course adopted in Masters.
Before the learned magistrate neither of the parties proposed obtaining clarification of what was being certified to by the Medical Panel. The position of the employer was, in short, that it was inappropriate to go behind the certificate at all. The position of the worker was, in short, that if it could be shown that there was a limitation in what was certified to in the certificate, it was appropriate to go behind it.
If the worker had, prior to or at the hearing, taken steps to seek clarification of what was certified to, along the lines indicated above by me, but the magistrate had rejected clarification as inappropriate, the magistrate would, it seems to me, clearly have erred. The fact is that the worker chose not to seek clarification, neither prior to nor at the hearing. He opted to press the learned magistrate to receive evidence directed at overcoming the purported limitations in the certificate. The circumstances are similar in many respects to those that applied in Towler, Connor and Penrikyber. In each of those cases the lower court or tribunal was faced with a certificate which had a claimed deficiency. The lower court or tribunal opted not to seek clarification, but to act on the certificate despite the claimed deficiency. The course followed by the appellate court was to seek clarification itself.
If I considered the course of seeking clarification an appropriate course, is it one which I should follow? Neither party urged me to do so. Nor did either party urge me to refer the matter back to the learned magistrate who made the order so that he could seek clarification. The appellant wanted the matter referred back to a different magistrate for a further hearing of evidence, or with a direction that the reasons of the Medical Panel be admitted into evidence. The respondent wanted the appeal dismissed. I have considered carefully the adoption of the course of myself seeking clarification. I have ultimately concluded that I should not take that course. I will explain the reasons below.
I turn next to the subject of what were arguably deficiencies in the certificate of the Medical Panel. There were claimed, or at least noted, to be three arguable deficiencies or at least areas of concern as to matters in the certificate. One was apparent on the face of the certificate. Two others were as to claimed omissions. The one that was apparent was not treated by the parties as being of consequence. I refer to the answer given by the Medical Panel to question 3. The question was as to the duration of any incapacity, and it seemed to me that it called for an answer that defined duration by its start and finish date. The answer in the certificate provided the start but not the finish of the duration. No issue having been taken as to that matter, I turn to the two where issue was taken.
The certificate did not specifically address two matters. One was whether the Medical Panel had specifically considered the question of whether Mr Lianos was fit for suitable employment. The other was whether the Medical Panel had specifically considered the question of whether both the physical and the psychological element had been taken into account in the Medical Panel giving the answer that Mr Lianos is not totally incapacitated. The two alleged omissions are somewhat different in character.
I go first to the alleged deficiency that the answer to Question 1 as to total incapacity contains no indication whether the members recognised the important difference provided for in the Act as between the assessment of incapacity and the assessment of impairment. That difference is as to how the psychological component is to be dealt with. There is a specific reference in the certificate to how the Medical Panel addressed the psychological component for the purpose of assessing impairment. There is nothing in the certificate that indicates that the psychological component either was or was not treated in the same way for assessing incapacity as for assessing impairment. There was patently a need for such a specific reference in the context of impairment. There was no necessity for any reference in the context of incapacity. A reference might have been desirable.
I go then to the other alleged deficiency. On one view, it arises from the circumstance that the answer to Question 1 contains no indication as to whether, and if so how, the members of the Medical Panel had dealt with the matters of “suitable employment” and the application of the odd lot doctrine. To the extent that there was no reference to “suitable employment” in the certificate, the position is closely comparable to the position that there is no reference to the psychological component. It was not necessary that there should be any reference to suitable employment. It would have been necessary if the Medical Panel had been asked the medical question as to whether the worker was incapacitated for suitable employment. That is one of the questions falling within the definition of “medical question” in s. 5 of the main Act. It was a question specifically put to the Medical Panel in Masters. Reference to the reasons of the Medical Panel would have thrown some, but not much, light on the subject of how the issue of whether the worker was incapacitated for suitable employment was addressed. The members of the Medical Panel did state in their reasons that the members had had regard to the provisions of the Act, and specifically to the definition of suitable employment.
The position as to the absence of any reference in the certificate to the odd lot doctrine requires a consideration of a number of different matters. Those matters are further discussed below.
I turn to the submissions of Mr O’Loghlen as to what difference it would have made had the learned magistrate admitted the reasons of the Medical Panel into evidence. He submitted that what looking at the reasons reveals is that the Medical Panel restricted its assessment of incapacity for work to an assessment based on the appellant’s physical injury alone. He argued that this restriction opened up the question for the court to answer whether the assessment of the psychiatric injury should be added to the assessment of the appellant’s physical impairment to arrive at a different overall assessment of the appellant’s level of incapacity for work.
In both the Medical Panel’s opinion, and in the reasons for opinion, the psychiatric impairment is specifically referred to. It is relevant here to refer to s.91(2) of the main Act.
91. Assessment of impairment
(2)In assessing a degree of impairment under sub-section (1), regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.
In reply to Question 4 regarding the appellant’s level of impairment under s. 91, the Medical Panel’s opinion states:
His current level of impairment is 17% whole person impairment in regard to the lower back.
There is a psychiatric impairment which has been assessed at a 15% psychiatric impairment but that is secondary to his physical symptoms and not a primary psychiatric impairment and is thus not additional to that impairment.
The level of impairment as thus assessed is a 17% whole person impairment
In Paragraph 5 of the reasons for the opinion the Medical Panel states:
There is no reason to believe that he had any significant illness prior to his back injury following which he developed some depression and abnormal illness behaviour. Using the methods in Chapter 12 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Second Edition) the claimant had a 17% whole person psychiatric impairment. There is no evidence that this was directly a result of his injury but clearly secondary to his physical symptoms and the effect they had on his life.
In assessing the level of impairment, the Medical Panel, which consisted of an orthopaedic surgeon and a psychiatrist, assessed the psychiatric impairment as secondary to the physical injury and therefore, in conformity with the Act, did not include it in the assessment of the overall level of impairment. The appellant’s argument is that in response to question 3 the Medical Panel was quite correct in this approach, but not in response to questions 1 and 2.
If there is any basis for such a challenge to the certificate taken with the reasons for the certificate, it is a basis that it would be appropriate to raise on an application for certiorari on the basis of error of law on the face of the record. As noted earlier, it is established by Masters that the Medical Panel is an administrative tribunal and that the opinion is a reviewable decision of that tribunal. If the Medical Panel has misdirected itself in not considering the psychological impairment together with the physical impairment when assessing the worker’s level of incapacity for work, the appropriate manner of seeking relief would be to make application to the Supreme Court for judicial review. It is not for the Magistrates’ Court on the hearing of proceedings under the Act to be reviewing as upon an application for judicial review the reasons for the decision of a Medical Panel. In this regard I am satisfied that the learned magistrate was correct in deciding not to admit the reasons into evidence and to examine them.
It was also submitted that what an examination of the reasons reveals is that there is nothing in the reasons to indicate that the Medical Panel took into account the various factual matters listed in s.5(1) of the main Act as relevant under “suitable employment” when assessing the appellant’s level of capacity for work. In reply to questions (1) and (2) the Medical Panel stated the opinion that the worker was not totally incapacitated, but was partially incapacitated.
At the relevant time these terms were defined in s.5(1) of the main Act as follows:
“partial incapacity” in relation to a worker, means an 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.
“total incapacity” in relation to a worker means an 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 was defined in s. 5(1) of the main Act:
“suitable employment”, in relation to a worker, means employment in work for which the worker is suited (whether or not that work is available), having regard to the following –
(a)the nature of the worker’s incapacity and pre-injury employment
(b)the worker’s age, education, skills and work experience
(c)the worker’s place of residence
(d)the details given in medical information including the medical certificate supplied by the worker;
(e)the worker’s return to work plan, if any;
(f)if any occupational rehabilitation services are being provided to or for the worker
As noted above, a medical question can be asked as to level of capacity, It is:
(ab)a question as to the existence, extent or permanency of any incapacity of a worker for work or suitable employment and the question whether a worker is partially or totally incapacitated.
It contemplates the consideration of the factors listed under the definition of “suitable employment”.
In Masters, Winneke P. said at 643:
“Its ultimate determination that the worker was 'fit for suitable employment';
that he was 'partially' but not 'totally' incapacitated for employment … must necessarily have involved the panel in making a number of findings as to what it regarded as 'suitable employment'; and as to what meanings it gave to the various defined concepts expressed in the Act.”
Just because the certificate of the Medical Panel in this case does not specifically mention “suitable employment” or the relevant factors that they had considered, cannot be taken to show that the Medical Panel had not in fact considered those matters at all and hence fallen into error. The members of the Medical Panel had been asked to assess incapacity. Incapacity is defined in the Act. They can be presumed to be aware of the relevant definitions in s.5(1). Further, and as noted above, in the reasons of the Medical Panel it is stated that the Medical Panel did consider definitions in s.5 of the Act, including the definition of suitable employment.
In this regard, I am satisfied that that the learned magistrate was justified in not looking at the reasons.
I turn now to the question of whether the magistrate, having accepted the opinion of the Medical Panel as to the partial incapacity of the appellant, should have heard evidence of a total incapacity based on the applicability of the common law “odd lot” doctrine.
As outlined above, this appeal ground did not depend on the admission of the reasons of the Medical Panel into evidence before the learned magistrate. It was submitted by Mr O’Loghlen that even if the magistrate did not look at the reasons, and even if the opinion of the Medical Panel that the appellant was partially incapacitated was accepted, the learned magistrate should have admitted evidence as to whether the worker was “legally totally incapacitated” under the odd lot doctrine. It was submitted that on this separate ground alone the matter should be sent back to the Magistrates’ Court for a hearing de novo.
Mr Fleming relied on what was said in Master . He argued that under s.45(1)(c) of the main Act the answers given by the Medical Panel to the medical questions were such as to determine the proceedings so that the learned magistrate had no further role than to apply the answers given by the Medical Panel.
I note here that I was told that, when argument proceeded before the learned magistrates on all occasions, s.68(4) of the main Act as it now stands was treated by all counsel as the applicable provision with regard to the adoption of the opinion of the Medical Panel. Before this Court some doubt was raised on this point by all counsel, who now treated the earlier provision in s.45(1)(c) of the main Act as being the applicable provision, rather than the later and more strongly expressed s.68(4), and accepted that I should do likewise. It is still appropriate that I should note the two provisions, with first the old s.45 (1)(c):
45. Medical questions
(1)Where the County Court exercises jurisdiction
under this part-
(c)the opinion of the Panel on that question
shall, subject to this section, be adopted by
the Court as the answer to that question.
Sub-section 68(4), which was inserted by Act No. 107 of 1997, provides:
68. Opinions
(4)For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.
In Masters, referring to the scheme under the older s 45(1)(c) provision, Winneke P. said at 642:
“Although these critical issues are referred to the medical panel couched in terms of 'medical questions' and the responses of the panel to them are couched in terms of 'opinions', such legislative terminology cannot obscure the fact that the panel is being called upon to decide matters of mixed law and fact which decisions operate by virtue of the provisions of the Act to bind the court and thus to effectively dispose of the issues which have been raised by the worker and placed by him before the court for its determination.”
The appellant has been certified to be partially incapacitated. It is in cases of partial incapacity that the odd lot doctrine has been applied by the courts. Bavcevic v The Commonwealth [1957] 98 C.L.R. 296 is the most authoritative example. The origins of the doctrine lie in certain English cases. One is Cardiff Corporation v Hall (1911) 1 K.B. 1009, in which the expression “odd lot” was first used by Fletcher-Moulton LJ. Another is Ball v Hunt [1912] A.C. 496.
That it is part of Australian law is established by the High Court in Bavcevic, a decision which deals with the provisions of the Commonwealth Employees’ Compensation Act 1930-1954. Mr O’Loghlen relied on Bavcevic as encapsulating the appellant’s submission before this Court. Under s.19(4) of the Act before the court in Bavcevic, the medical board was required to “give a certificate of the condition of the employee and his fitness for employment, specifying, where necessary, the kind of employment for which he is fit and any such further information as the Commissioner requires. Any such certificate given by a medical board shall be conclusive evidence as to the matters so certified.” The board certified that Bavcevic at that time was incapacitated by injury to the extent of 70% of total incapacity at his employment at the date of the injury, and 70% of total incapacity in the general labour market. The board further certified that Bavcevic was fit to undertake work not involving heavy lifting or much stooping. The Commonwealth claimed, based on s.19(4), that the question was settled by the medical certificate. For Bavcevic, it was argued that the certificate was final only “as to the matters so certified”, but that there were other non-medical matters that contributed to make him totally incapacitated, such as that he was a labouring man and had no special capacities for any other work.
Dixon, C.J. and Kitto J. held that the medical certificate under s.19(4):
“did not necessarily conclude the issue as to whether B. was totally incapacitated for work, an issue which had to be decided upon a review of the concomitant circumstances in which B. might exercise his residual capacity.” (at 297)
“For such a provision as s.19(4) is strictly construed. But, seeing that the purpose is to leave medical questions to the determination of medical men, what is fairly involved in such a determination must come within its conclusive effect: cf Smith v Mann (1932) 47 CLR 426 at 451.” (at 302)
This same approach was taken by the Supreme Court of New South Wales in Fletcher. The Court was asked if, in view of the finding on the medical board that the applicant was fit for “light, selected work” was the Commission bound, in law, to find that the applicant was not permanently and totally disabled for work. Jordan C.J. said:
“In my opinion it does not follow, as a matter of law, that because he is, from a medical point of view, fit for light, selected work, as he has been certified to be in this case, he is not totally and permanently disabled within the meaning of s.9(3); that is to say, it does not follow that he is not totally and permanently disabled from a practical point of view, having regard to his physical condition and to the relation of that condition to the condition of the labour market as existing in New South Wales. In some cases capacity to do light, selected work may have the result, when taken into consideration with all the rest of the facts of the case, that the worker is not permanently and totally disabled - it depends on the facts.” (at 97)
From the English and Australian authorities the “odd lot” doctrine has come to mean that even where a worker is medically certified to be partially incapacitated, there is an evidentiary onus on the employer to show that the worker’s residual capacities are meaningfully saleable in the market place, failing which the worker is to be treated as totally incapacitated.
Mr O’Loghlen’s submitted that as, at law, total incapacity could depend on facts going beyond what was medically certified, the learned magistrate should have admitted evidence as to those facts. He submitted that the presence in the definition of “suitable employment” of the words “whether or not the work is available” was an indication that “suitable employment” only covered an assessment of the worker’s capacity to work, and that his or her capacity for work remains to be decided by further factual considerations not covered by that concept. The distinction between capacity to work and capacity for work was made in Ball.
The role for the applicability of the odd lot doctrine arose from the circumstance that under older forms of legislation the standing seen to be appropriate to give to the opinion of a medical referee was not high. It was then considered that there were non-medical aspects of a worker’s incapacity for work as to which a medical referee could not be seen to be an appropriate final arbiter. Accordingly, although a medical referee might assess the level of physical incapacity as “partial”, the Court was prepared to intrude to conclude that, despite the medical position, the worker may for practical purposes be totally incapacitated for work because of factual, non-medical factors to do with the nature of the work force.
As is apparent from Masters, the Victorian legislation has introduced concepts not present in the older acts. It has changed the role of the Medical Panel from that previously performed, such that the Medical Panel “is being called upon to decide matters of mixed law and fact”. It will be apparent from my comments that I am satisfied that there is in Masters a number of indicators as to the appropriate form of approaching the scheme of the Medical Panel provisions in the Act. I accept that it would be inappropriate to treat statements by members of the Court of Appeal as if they were akin to legislation. Nevertheless, what was said is at least highly persuasive as to the approach to be adopted to the provisions in question. The scheme contemplates that a particularly high status be accorded to certificates of a Medical Panel. Changes made to the legislation after the decision in Masters are such as to confirm rather than detract from an assessment that Parliament supported the approach.
Mr Fleming relied on what was said in Masters, and submitted, more particularly, that the odd lot cases fell to be dealt with under legislation which did not have the quite precisely defined subjects of "medical question", "incapacity", and "suitable employment" as they stood in the Victorian scheme at the relevant time. He argued that, given the system in the main Act based around these subjects, there was no longer any scope for non-medical considerations to exist outside the sphere of the Medical Panel opinion.
The contrast between the older appropriate and the present appropriate approach can be seen by comparing what was said by Winneke P. in Masters at page 642 and quoted above, with the following paragraph taken from the headnote in The Commonwealth of Australia v Mifsud [1965] 114 C.L.R. 505:
“It is not open to the Commissioner for Employees’ Compensation by seeking information on non-medical questions to obtain by means of a certificate under s.19(4) evidence which will be conclusive as to those questions.”
As Winneke P. makes clear, the Victorian law now makes the Medical Panel the final arbiter of questions of fact which previously the courts may have considered "non-medical questions". It is clear from the extended definition in s.5(1) that the factors listed under the definition of “suitable employment” are to be taken into account by the Medical Panel in answering the medical question about total or partial incapacity.
Mr O’Loghlen submitted that the odd lot doctrine had not been replaced by the Victorian legislation, but was intended by the Parliament to sit alongside it. He said that the factors listed under the definition of “suitable employment” were just some of those falling within the scope of the odd lot doctrine, but not all of them. He said that a Medical Panel was not asked, and should not and could not have been asked, to consider the legal question of whether the appellant came under the odd lot doctrine. He submitted that as the Medical Panel could not have addressed, and did not address, the issue of the application of the doctrine, and that as the learned magistrate would not have been bound by the opinion on those matters anyway, he could have and should have addressed them himself.
Mr Fleming submitted that the definition of “suitable employment” so nearly or completely overlapped the odd lot doctrine as to be a substitute for it, and that the matter of “suitable employment” was intended to, and did now, cover the field.
He submitted, that under the main Act, with its emphasis on finality, the Medical Panel was indeed asked to be the final arbiter of all issues concerning the work capacity of the appellant. He argued that within that field, the same issues that would have been dealt with by the application of the odd lot doctrine under former legislation had to be dealt with by the Medical Panel, as required by the main Act. Those issues having been decided in this case by the Medical Panel, he put to me that there was no further role for the learned magistrate, who was correct to refuse to hear evidence on the issue. He further submitted that recent amendments to the main Act had strengthened that position. They were the amendments that repealed the definitions of "total incapacity" and "partial incapacity" and replaced them with "current work capacity". He argued that they made the original intention of the legislation not to restrict the Medical Panel to an assessment of incapacity in the narrow "medical" or "physical" sense even more patent.
Whether or not the odd lot doctrine has survived the enactment of the Victorian legislation has been the subject of discussion in both this Court and in the County Court. Hansen J. in Harris v QBE Workers’ Compensation (Vic) Ltd and Browning-Ferris Pty Ltd (unreported, 11 October 1994) and Ashley J. in Dumancic v GIO Workers’ Compensation (Victoria) Ltd & JLW Pty Ltd (unreported, 4 March 1998) considered whether the “odd lot” doctrine has survived the main Act. Neither found it necessary to decide the issue.
The opinion of Judge Higgins in Meehan v Victorian Workcover Authorities and Anor. (12 August 1996) was that the “odd lot doctrine” and “suitable employment” arrived by separate means at the same conclusion.
“The concept of suitable employment is not easy to grasp, particularly where it involves work that may not be available. This makes the task difficult, but it has been one which has been decided by Courts for a very long time. However, for the first time in this State Parliament has seen fit to define both the concept of total incapacity and suitable employment. Previously it was the responsibility of the Court to determine incapacity for work unaided by any statutory provisions.
In determining if a worker is suited to employment a number of matters are required to be considered. In my opinion the reference to each of the matters in paragraphs (a) to (e) are designed to achieve a degree of reality when considering whether work can be described as 'suited' to the worker. For example to suggest that a middle aged unskilled labourer with poor communication skills could perform clerical work and so is not totally incapacitated, would probably fail because it is not work to which the worker is suited. In my view the reference in the definition to matters such as the nature of the incapacity together with the age, education, skills, work experience and place of residence are designed to achieve not only a degree of reality but also a degree of fairness and common sense when a Court is required to consider suitability for work.
However, if the Court has taken account of all the matters referred to in the definition and a view is formed that the worker could perform a particular type of work, then any claim for incapacity must fail despite the fact that such work in not available either because of the state of the labour market or for any other reason.
The issue of whether the odd lot doctrine has survived the amendments does not require a decision in this case. As was suggested by Hansen J. in Harris it may well be that it has not survived and that the definition of suitable employment covers the field in so far as incapacity is concerned. However I do not believe that this would radically alter the position of a worker who would have fallen within the odd lot doctrine, because when account is taken of the matters referred to in the definition of suitable employment, the likelihood is that there will be no suitable employment for such a person.”
Judge Rendit in McCubbin v MMI Workers Compensation (Vic) Ltd (7 November 1997) expressed the opinion that the odd lot principles are not excluded by the definition of suitable employment, but that in the end -
“suitable employment as defined and the odd lot principles come down to very much the same thing, the only difference being the route each takes to arrive at the common destination.” (at 73)
Judge G.D Lewis in Rayson v Mercantile Mutual Worksure Ltd ( 26 June 1998) said:
“Here, the factors in the sub-headings under the definition of 'suitable employment' in s.5 do no more that set out the appropriate concomitant circumstances that have to be considered – concomitant circumstances that one would have had regard to in any event when considering the 'odd lot' argument. Accordingly, I see no reason to depart from the view taken by a number of Judges of the County Court in this jurisdiction that the relevant provisions of the Act do not show any intention to overthrow the pre-existing common law in this area, but in fact largely reiterate and enshrine the pre-existing principles.” (at 25)
From these authorities a number of positions seem open. One is that the main Act defined a concept of suitable employment, which was intentionally designed to supplant the odd lot doctrine. Another is that the Act defined a concept of suitable employment, which was intended to sit symmetrically beside the odd lot doctrine. Another is that the Act defined a concept of suitable employment so similar in effect to the odd lot doctrine that there would be no practical difference in any particular case. Another is that the Act defined a concept of suitable employment similar to the odd lot doctrine, but with some differences so that it was intended that the doctrine should survive the Act, and distinctively so.
Not without reservations, I favour the third position, and consider that under the main Act there is now a substantially similar system in place to that which would be there if the odd lot doctrine had to be applied. On that view, it is the regime under the main Act that should alone be applied.
In Masters, Winneke P. at 643 states:
“In my view it can be seen that the legislature did intend to create the medical panels as an alternative method of dispute resolution to the court.”
I believe that the application of the legislative scheme alone does not deny fairness to those workers who would once have benefited from the application of the odd lot doctrine by being found totally incapacitated for work, despite not being medically found to be totally incapacitated. I agree with the comments of Judge Higgins in Meehan quoted above, and Judge Rendit in the County Court who also said in McCubbin:
“In my opinion there is no conflict between the requirements set out in the definition of suitable employment and the 'odd lot' principles, as the type of work covered by the odd lot principles is unlikely to be work to which the worker is suited when regard is had to sub-clauses (a) and (e) of the definition.” (at 73)
Judge Rendit also commented that it was not the intention of the Act to reduce the answer to the question of whether a job is suitable to a theoretical one. The job said to be fitting to the worker must be a real one normally found in the labour market, even if not available, and not merely some form of activity.
It is not clear to me whether counsel for the appellant ever put to any of the learned magistrates before whom this matter came on for hearing any factors about the appellant which should be taken into account under the “odd lot” doctrine but which were not covered by the definition of "suitable employment".
What is clear is that the appellant was not denied the opportunity to put before the Medical Panel information regarding the appellant’s level of education, potential for retraining, and any other matters of a non-medical character linked to “suitable employment” that the appellant’s representatives thought relevant.
There are two matters I wish to refer to before ending. Mr O’Loghlen put to me that I need not decide the question of whether or not the “odd lot” doctrine had survived the introduction of the current legislation. He put to me that that could remain merely a hypothetical question unless and until there was a ruling by a magistrate on whether or not on the facts the appellant was a person to whom the odd lot doctrine applied. He argued that it would only be if and when a ruling was made that the appellant was an “odd lot” and that ruling was appealed, that this Court would be in a position to properly decide the question. He relied on a decision of this court in Schnabel v. A. Gange Pty Ltd [1974] V.R. 286 as authority. I am not prepared to follow that course and to send the matter back to a magistrate to decide on the facts. I would add that on the evidence before me, including all the material submitted to the Medical Panel, it was difficult for me to see on what basis the appellant could be seen to be a suitable subject for the application of the "odd lot" doctrine. That is not to say that other evidence could not be produced. I was not able to discern any indication of what that evidence might be.
I noted above that I had considered the option of seeking clarification of matters claimed not to be clear in the certificate of the Medical Panel. I rejected that option and for more than one reason. Perhaps the least important reason is that I had regard to the calibre of the legal representation of the appellant. He has been well represented and it is unlikely that any option would not have been considered thoroughly. Another reason was that I had regard to the character and other aspects of the claimed deficiencies in the certificate. They could not be characterised as ambiguities in the sense used in cases like Towler, Connor and Penrikyber . Another reason arises from my having read most of the papers that were before the members of the Medical Panel. I had a significant albeit incomplete awareness of matters of history known to the Medical Panel which were potentially relevant to both the matters of suitable employment and the application of the odd lot doctrine. As noted in the previous paragraph, I had difficulty discerning what evidence there might be that might warrant a concern to see whether the odd lot doctrine could be applied. Finally, I looked at the material before me to discern what evidence those representing the appellant led or sought to lead before Magistrates McLeod and O’Dwyer. It appeared that the appellant was called to give evidence before Magistrate McLeod, but there was no transcript or summary before me as to what he said.
I answer both question (i)(a) and question (i)(b) in the negative. The appeal is dismissed with costs. If any more precise order as to costs or otherwise is called for, I will hear counsel as to that.
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