Menzies Aviation Group (Australian) Pty Ltd v Vegter
[2018] VSC 130
•28 March 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 2527
BETWEEN
| MENZIES AVIATION GROUP (AUSTRALIA) PTY LTD | Plaintiff |
| and | |
| BRENDAN FRANCIS VEGTER AND OTHERS (ACCORDING TO THE ATTACHED SCHEDULE) | Defendants |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 March 2018 |
DATE OF JUDGMENT: | 28 March 2018 |
CASE MAY BE CITED AS: | Menzies Aviation Group (Australian) Pty Ltd v Vegter |
MEDIUM NEUTRAL CITATION: | [2018] VSC 130 |
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ADMINISTRATIVE LAW – Judicial review – Medical panel – Determination by medical panel that the worker had no post-injury work capacity, which was likely to last indefinitely – Whether medical panel made jurisdictional error in its consideration of motivation of worker to return to work – Whether medical panel took into account irrelevant consideration – No error – Whether medical panel’s reasons for opinion were adequate – Reasons not inadequate – Proceeding dismissed – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 – Workplace Injury Rehabilitation & Compensation Act 2013 (Vic), ss 3, 313 – Accident Compensation Act 1985 (Vic), ss 93, 5(2)(a), 134AB, 200, 201, 205.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M F Fleming QC with Ms F C Spencer | IDP Lawyers |
| For the First Defendant | Mr J Gorton QC with Mr L Allan | Slater & Gordon |
| For the Second to Sixth Defendants | No appearance | DLA Piper |
HIS HONOUR:
The plaintiff, by originating motion, seeks an order, in the nature of certiorari, quashing the opinion of a medical panel (‘the Panel’) dated 5 May 2017, and a consequential order in the nature of mandamus remitting the medical questions, considered by the Panel, to be reconsidered by a differently constituted medical panel.
Background
The first defendant is 56 years of age. He commenced employment with the plaintiff as a warehouse administrator on 19 January 1998, and he remained in that employment until 2015. His duties included the use of forklifts, lifting, packing and undertaking of pre-import and export activities for the plaintiff.
In the course of his employment, in particular in 2012, the first defendant began to experience sharp pain in his left elbow that was provoked by operating a forklift truck, which constituted his principal duties with the plaintiff. On 20 November 2012, the first defendant consulted Dr Singh, who referred him for an ultrasound of the left elbow. The results of that examination confirmed a diagnosis of moderate to severe lateral epicondylitis with a common extensor tendon tear. On 26 November 2012, he consulted with Dr Stuart Coull, a general practitioner, who advised him to take two weeks off work.
On 29 November 2012, the first defendant lodged a Worker’s Injury Claim Form claiming that he had sustained injuries described as ‘lateral epicondylitis, left elbow’. The claim form stated that those injuries were sustained over a period of five years or more due to repetitive forklift operation and lifting. The claim was accepted, and the first defendant was paid weekly payments of compensation, and medical and like expenses.
In early 2013, the first defendant commenced physiotherapy treatment overseen by Mr Brendan Soo, an orthopaedic surgeon. In May 2013, Mr Soo performed an open operation, in which Mr Soo performed the release of the left common extensor origin and a lateral epicondylectomy. The first defendant initially responded well to treatment, although he did continue to have ongoing pain at the operation site. However, approximately six months after the surgery, his symptoms returned on the lateral side of the elbow, consistent with a recurrence of his lateral epicondylitis. He also had symptoms on the medial side of the elbow, consistent with ulnar nerve compression.
On 29 August 2013, the first defendant underwent an ultrasound of his left elbow. It demonstrated diffusely thickened common extensor origin tendon with associated calcification. In October 2013, he consulted with Mr Jason Harvey, on referral by Dr Coull. Mr Harvey did not suggest any further surgery, but he recommended that the first defendant should cease physiotherapy.
Subsequently, in December 2013, Mr Soo advised the first defendant that he might require a left ulnar nerve transplant in the future as a consequence of his work injury. On 1 October 2014, a further ultrasound study was undertaken, the results of which replicated the results of the previous ultrasound.
The first defendant had returned to work with the plaintiff on modified duties for a period of two weeks between 11 July and 25 July 2013, but he has not worked since. He continued to complain of pain and disability to his left elbow and left shoulder. To assist with his rehabilitation, the plaintiff’s insurer instructed Recovre to assist him through its New Employer Services (NES) Program. The first defendant commenced that program with Recovre on 6 March 2014, and completed 26 weeks’ participation in it in September 2014. Subsequently, the insurer approved a further twelve week refresher program to assist him to obtain suitable employment.
By notice dated 6 February 2015, the plaintiff’s insurer’s authorised agent advised the first defendant of its decision to terminate his entitlement to weekly payments from 23 May 2015, on the basis that weekly payments had been paid, or were payable, to the first defendant for a total of 130 weeks, and that the first defendant had a current work capacity, or alternatively, while he had no current work capacity, it was not likely to continue indefinitely.
In response, the first defendant issued a proceeding in the Magistrates’ Court seeking resumption of weekly payments of compensation. On 24 February 2017, the Court made an order, pursuant to s 274 of the Workplace Injury Rehabilitation & Compensation Act 2013 (Vic) (‘the Workplace Injury Act’) referring medical questions to a medical panel on behalf of the first defendant.
A medical panel, comprising the second to sixth defendants, was convened to give its opinion in connection with the referred medical questions. The Panel issued a certificate of opinion dated 5 May 2017, providing a response to six questions put to it, which may be summarised as follows:
·The first defendant was suffering from residual left elbow symptoms following substantially resolved common extensor origin tendinopathy (surgically treated) and common flexor origin tendinopathy, together with an exacerbation of a pre-existing adjustment disorder with depressed and anxious mood.
·Those injuries resulted from, and were materially contributed to by, the injuries alleged by the first defendant in his statement of claim in the Magistrates’ Court.
·The first defendant had no current work capacity in the period 23 May 2015 to the date of the Panel’s examination, and his incapacity was likely to last indefinitely.
·The incapacity resulted from, and was materially contributed to by, the left elbow injury.
·The first defendant had no current work capacity, which was likely to last indefinitely.
The Panel’s reasons
Pursuant to s 313(3) of the Workplace Injury Act, the Panel provided written reasons for the opinion contained in its certificate.
The Panel commenced its reasons by outlining the documentation and materials that had been provided to it, and summarising the first defendant’s history of complaint of injury to his elbow, and his work history. The reasons then outlined the Panel’s findings on both physical and psychiatric examination of the first defendant.
The Panel concluded that the first defendant was suffering from residual left elbow symptoms following substantially resolved common extensor origin tendinopathy (surgically treated) and common flexor origin tendinopathy. It also concluded that the first defendant was suffering from an exacerbation of a pre-existing adjustment disorder with depressed and anxious mood. The Panel considered that the first defendant was not capable of undertaking his pre-injury employment duties as a cargo operator due to his left elbow condition. It considered that, based on the clinical history provided by the first defendant, his inability to undertake pre-injury employment had persisted to the present time without remission. The Panel therefore concluded that the first defendant was not, in the period 23 May 2015 to the date of the Panel’s examination, able to return to his pre-injury employment as a cargo operator.
The Panel then considered whether the first defendant had (in the period from 23 May 2015) a current work capacity or no current work capacity. It referred to the opinions and reports of a number of doctors, who had treated and examined the first defendant, and it also noted the Vocational Assessment by Recovre dated 22 September 2014 and the Refresher Assessment by Recovre dated 18 February 2015. It noted that those assessments had identified potential suitable employment options to include office based sales assistant, inbound call centre operator, bank worker (teller), general clerk, dispatch and logistics clerk (warehousing), and weighbridge operator, based on an assessment of the first defendant’s transferrable skills and ability. The Panel noted that the Refresher Assessment Report of Recovre dated 18 February 2015 contained a recommendation that the first defendant receive training in computer and customer service short courses to assist in each of those employment options, and it noted that the first defendant had confirmed that he had not undertaken any vocational retraining in those areas to date.
The Panel reasons then concluded as follows:
The Panel considered all aspects of the definition of ‘suitable employment’, ‘current work capacity’ and ‘no current work capacity’ contained in the Act, including:
•the nature and extent of the Plaintiff’s residual left elbow symptoms, which the Panel considers precludes the Plaintiff from undertaking any employment that requires repetitive activities or heavy lifting using his left arm, but would not preclude office based sales, call centre operator, clerical or weighbridge operator roles from a physical standpoint;
•the nature and severity of the Plaintiff’s exacerbation in a pre-existing adjustment disorder with depressed and anxious mood, which would not limit his employment prospects and further would not preclude the Plaintiff from undertaking relevant vocational retraining to improve his transferable skills,
•the Plaintiff’s age of 56 years, which would limit potential employment opportunities,
•his place of residence in regional Victoria with access to public transport to Ballarat, which places him within reach of potential employment in a large regional centre,
•the absence of any vocational retraining in customer sales, computers, or certification for weighbridge operator or clerical duties for warehousing, combined with the Plaintiff’s self-reported basic computer skills, which currently limits the Plaintiff’s transferable skills for any potential non-labouring employment role,
•his formal training and education and previous work experience across a range of occupations, which the Panel considers provides him with a range of transferable skills for labouring type employment options only in the absence of any vocational retraining in customer sales, computers, or other certification,
•his duration our (sic) of the workforce for over three years, which in the absence of any vocational retraining would limit his employment opportunities for a return to work, and
• the opinions of the Plaintiff’s treating medical practitioners.
When determining whether the Plaintiff has a current work capacity or no current work capacity the Panel did not consider any incapacity arising from any medical condition other than the Plaintiff’s workplace injuries that created an entitlement under the Victorian Workers Compensation Legislation.
Based upon its analysis of the criteria for suitable employment as outlined above, and its own experience and expertise, the Panel considers there has been, and currently there is, no work for which the Plaintiff is currently suited and which he would be able to consistently and reliably undertake.
Accordingly, the Panel concluded that the Plaintiff had, in the period 23 May 2015 and the date of the Panel’s examination, and currently has, no current work capacity, which resulted/results from and was/is still materially contributed to by the alleged left elbow injury.
The Panel considers that the Plaintiff’s potential for a return to suitable employment is contingent upon some completed vocational retraining, such as in the identified areas of customer sales, computers, or weighbridge certification, and that with such vocational retraining it is feasible that the Plaintiff will be able to undertake suitable employment. However, the Panel is not certain as to when or if any such vocational retraining may occur, and based on the lack of success to engage the Plaintiff in vocational retraining to date it is not likely to occur in the foreseeable future The Panel therefore concluded that in the period 23 May 2015 and the date of the Panel’s examination, and currently, the Plaintiff was and is likely to continue indefinitely to have no current work capacity.
Grounds of judicial review
The originating motion contains three grounds of review, namely:
(1)In arriving at its opinion that the first defendant had no current work capacity that was likely to last indefinitely, the Panel asked itself the wrong question and identified the wrong issue. In particular, the Panel incorrectly approached the question of the first defendant’s future capacity to return to employment on the basis of his motivation to undertake vocational retraining.
(2)In arriving at its opinion that the first defendant had no current work capacity that was likely to last indefinitely, the Panel took into account an irrelevant consideration, namely, the first defendant’s motivation to undertake relevant retraining.
(3)The Panel erred by failing to give an adequate statement of its reasons for its opinion.
Statutory provisions
Before turning to the submissions made by the parties, it is convenient, first, to set out the statutory provisions which are relevant to this case.
Section 93 of the Accident Compensation Act 1985 (‘the Accident Compensation Act’) provides that if a worker’s ‘incapacity for work’ results from, or is materially contributed to by, an injury, which entitles the worker to compensation, the compensation shall be in the form of weekly payments in accordance with Part 4 of the Act. Section 91 provides for compensation payments to be made for the ‘first entitlement period’, which, in the case of the first defendant, comprised the period of 13 weeks in respect of which compensation was payable, and also for the ‘second entitlement period’, which, in the case of the first defendant, comprised an aggregate period of 117 weeks after the expiry of the first entitlement period.
Section 93C(1)(a) governs a worker’s entitlement to weekly payments after the expiration of the second entitlement period. It provides that, subject to s 93CD, a worker’s entitlement to compensation in the form of weekly payments ceases upon the expiry of the second entitlement period, unless the worker is assessed by the Authority or self-insurer as ‘… having no current work capacity and likely to continue indefinitely to have no current work capacity’.
Section 5(2)(a) of the Accident Compensation Act expressly incorporates, into that Act, the definitions of words and expressions contained in s 3 of the Workplace Injury Act. The phrases ‘current work capacity’, and ‘no current work capacity’, are defined by s 3 of the Workplace Injury Act as follows:
‘Current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment’;
…
‘No current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment’.
Both definitions employ the term ‘suitable employment’ which is defined, by s 3, as follows:
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to the following—
(i)the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker's pre-injury employment;
(iii)the worker’s age, education, skills and work experience;
(iv) the worker’s place of residence;
(v)any plan or document prepared as part of the return to work planning process;
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b) regardless of whether—
(i) the work or the employment is available; or
(ii)the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—
(c)employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
(d)employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e)suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education;
Grounds 1 and 2 — submissions
Grounds 1 and 2, of the originating motion, are directed to the same point. In essence, senior counsel for the plaintiff submitted that the Panel misconceived its task, and took into account an irrelevant consideration, when it addressed the question whether vocational retraining was likely to occur, by reference to the lack of success in engaging the first defendant in such training by the time of his examination. As the first premise to that contention, counsel submitted that the Panel concluded that the first defendant was not likely to engage in vocational training in the future, because he lacked the motivation to undergo such training. As the second premise to his submission, counsel submitted that a lack of motivation, or unwillingness, of a worker to engage in retraining is not a relevant matter to take into account in determining the capacity of a worker to return to work in suitable employment as defined by the Workplace Injury Act.
In advancing those submissions, senior counsel for the plaintiff accepted that the basal, and essential, premise, to ground 1 and ground 2, is the proposition that the Panel based its conclusion, that the first defendant was unlikely to engage in vocational retraining in the foreseeable future, on its finding that the first defendant lacked motivation to undertake such retraining. In oral submissions, counsel for the plaintiff made it clear that he was not submitting that the Panel’s conclusion, that at the time of the assessment, the first defendant then had no current work capacity, was based on, or involved, a finding that he then, or in the past, lacked motivation to undertake appropriate vocational retraining. Rather, counsel submitted that it was implicit in the reasons of the Panel that it found that the first defendant was likely to continue to have no current work capacity, because he lacked the motivation or willingness to engage, in the future, in appropriate vocational retraining that would enable him to undertake ‘suitable employment’. Thus, the submissions advanced on behalf of the plaintiff were confined to a submission that the Panel found that the first defendant was likely to continue to have no current work capacity, because the Panel concluded that he then lacked the motivation to undertake vocational retraining.
In support of that submission, senior counsel for the plaintiff acknowledged that the Panel did not, in specific terms, make a finding that the first defendant lacked such motivation. However, he contended that, in the context of the materials before the Panel, and other findings by the Panel, the statement by the Panel, as to the ‘lack of success to engage the (first defendant) in vocational retraining’, should be understood as a finding by it as to a lack of motivation by the first defendant to undertake vocational retraining’.
The material, relied on by counsel, included a number of passages from Independent Job Seeker Plans developed by Recovre, and from medical reports. In particular, it included: evidence that the first defendant stated that he only participated in occupational rehabilitation because he was required to ‘jump through’ another ‘hoop’; that the first defendant had expressed frustration about being required to participate in occupational rehabilitation stating that it was a waste of time, he would not get a job, and that he wanted to gain employment that he wanted to do, not one that he had been told to do. It also included evidence that the first defendant was unhappy that the insurer had sent him to a vocational assessor, who, in the opinion of the first defendant, made ‘trivial suggestions’, such as being employed in the security industry. In addition, the first defendant had decided not to attend a pain management program, that was recommended to him, because he did not think it was appropriate for him, and he was ‘fed up’ with seeing various assessors.
In that context, counsel for the plaintiff also referred to material that suggested that the first defendant did not wish to pursue retraining and employment options that had been suggested by the vocational advisor. For example, he did not want to pursue the retraining that was recommended by the vocational advisor in warehousing operations, because he preferred a ‘hands on role’ as a gun or tool technician. Similarly, he stated that he disliked the idea of being a weighbridge operator, because it would be ‘boring’ and would not do his psychological condition any good. He did not wish to perform sales work, because he felt he would lose patience too quickly if he was under pressure. The first defendant declined to undertake computer training, because he did not feel it was necessary as he could operate a computer sufficiently and that he had sufficient computer skills.
Senior counsel for the plaintiff contended that, in that context, the Panel made a number of findings, which have been set out above, and which included that the first defendant had a ‘tendency to decline specific offers and assistance, as evidenced by his failure to engage in a multidisciplinary pain program, despite his expressions of significant pain’; that he ‘viewed himself as suffering from a depressive illness, but had not availed himself of any counselling’; and that he had ‘fail[ed] to engage in psychological treatment, despite his expressions of apparent distress’.
Counsel submitted that, in the context of its earlier findings, and the material that was before the Panel, the conclusion by the Panel, as to a lack of success to engage the first defendant in vocational retraining, must be understood as being based on, or involving, a finding that the plaintiff was likely to lack sufficient motivation or willingness to undertake the vocational training necessary to enable him to return to suitable employment.
Thus, it was contended, the Panel took into account an irrelevant factor, and asked itself the incorrect question, by determining that the first defendant’s lack of motivation to undertake retraining had the effect that his incapacity for suitable employment was likely to continue indefinitely.
In response, senior counsel for the first defendant submitted that the Panel did not ask itself the wrong question, and that it did not take into account an irrelevant consideration, in determining that the first defendant’s incapacity to engage in employment was likely to continue indefinitely.
Counsel noted that, in determining whether a worker has a ‘current work capacity’, the legislation requires the Panel to focus on the present, actual situation of the worker, rather than what the situation might have been, or ought to be in the future, if circumstances were different. Thus, it was contended, it would have been incorrect for the Panel to have regard to what occupational services the first defendant might undergo in the future, or ought to undergo in the future. In particular, it was submitted, in determining whether a worker’s ‘no current work capacity’ was likely to continue indefinitely, the Panel was constrained to consider what was in fact likely to happen in the foreseeable future. It would be wrong, it was argued, for the Panel to have regard to what it thought should happen, but probably would not happen.
In support of that submission, senior counsel for the first defendant noted that Division 3 of Part VIIB of the Accident Compensation Act specifies the obligations of workers to participate in particular return to work programs. For example, s 200 requires a worker, who has an incapacity to work, to make reasonable efforts to participate actively, and to cooperate, in planning for the worker to return to work. Similarly, s 201 requires a worker, who has an incapacity for work, to actively use an occupational rehabilitation service that is provided, and to cooperate with the provider of that service, to the extent that it is reasonable to do so. Significantly, s 205 of the Act specifies the procedure to be adopted by the Authority or self-insurer, if a worker does not comply with an obligation imposed under Division 3. In particular, 14 days’ notice must be given of an intention to suspend payments unless the worker complies with the obligations. If the worker fails to comply, the Authority or self-insurer may suspend payment of weekly payments for a period of 28 days. If the worker has still not complied by the end of that 28 day period, the Authority or self-insurer may, on proper notice, terminate the worker’s entitlement to weekly payments.
Counsel also referred to s 134AB(38)(g) of the Accident Compensation Act, which, in effect, requires the Court to take into account (inter alia) the reasonableness of a worker’s attempts to participate in rehabilitation or retraining, when determining whether the worker has established the requisite loss of earning capacity for the purposes of the serious injury regime established under s 134AB.
Counsel for the first defendant submitted that the legislature has, by those provisions, turned its mind to the issue of workers not properly engaging in occupational rehabilitation services. In particular, by the provisions in Part VIIB of the Act, it has specified a detailed process to be followed if the worker is to have his or her weekly payments terminated for that reason. Counsel contended that the existence of that process reinforces the proposition that, as a matter of proper statutory construction, where the Authority or self-insurer has not availed itself of the process to terminate payments, a worker, who is not properly engaging in occupational rehabilitation processes, might in the meantime continue to have, and be likely to continue to have, ‘no current work capacity’, and thus be entitled to continued receipt of weekly payments.
Finally, senior counsel for the first defendant submitted that, in any event, the Panel did not make a finding that the first defendant had a lack of motivation for retraining. Rather, the Panel found that there had been a ‘lack of success to engage the worker’ in retraining. That finding, by the Panel, did not relate to any action by, or omission or state of mind of, the first defendant himself. In particular, it was submitted, the Panel did not attribute the lack of success of engaging the worker, to any lack of motivation on his part.
In support of that submission, counsel referred to the detailed reports and documentation provided by Recovre between June 2013 and February 2015, which, he submitted, demonstrated that the first defendant had been cooperating with Recovre, and doing his best to try to return to work, initially in his former employment, and, subsequently, in other alternative occupations which might be suitable for him. In that connection, counsel referred to a series of reports, which recorded that the first defendant had completed a number of tasks allocated to him that were directed to gaining alternative employment, and to undergoing appropriate training for that employment. He submitted that the documentation demonstrated that the first defendant had engaged proactively in the rehabilitation process with Recovre. In particular, he submitted that, when the documentation is considered as a whole, it is not a sound basis from which to imply a finding by the Panel, as contended for by the plaintiff, that the first defendant’s lack of current work capacity was likely to continue indefinitely, because he was not motivated or willing to undergo appropriate rehabilitation training.
Grounds 1 and 2 — analysis and conclusion
The competing submissions, in respect of grounds 1 and 2, raise two principal questions, namely, first, whether the Panel did determine the question of the first defendant’s future capacity to return to employment, on the basis of the first defendant’s motivation (or lack of motivation) to undertake vocational retraining, and, secondly, if so, whether in doing so, the Panel asked itself the wrong question or took into account an irrelevant consideration.
In considering the first question, it is important to bear in mind that the function of a medical panel is to form and give its own opinion on the medical question or questions referred to it for its opinion. In performing that function, the Panel is not performing an arbitral or adjudicative role. Rather, its role is to form, and express, its own views on the medical question.[1] As the Panel is an expert tribunal, whose members are chosen for their expertise and experience, its findings need to be understood and interpreted in that light.[2] The reasons of such a Panel are not to be construed minutely and finely, with an eye keenly directed to the perception of error.[3] The reasons of the Panel are to be read in context, taking into account the background of the case, the material provided to the Panel and the issues on which the Panel is required to express its opinion.[4]
[1]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 498 [47] (French CJ, Crennan, Bell, Gageler and Keane JJA).
[2]Cf Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1, 11 (Stephen J).
[3]Compare Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271–2 (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ); Clarke v National Mutual Life Insurance Ltd [2007] VSC 341, [43] (J Forrest J); Bregu v Brydon [2010] VSC 417, [17] (Beach J).
[4]George v Nisselle [2005] VSC 177, [56], [61]–[62] (Gillard J); Clarke v National Mutual Life Insurance Ltd, [43] (J Forrest J); Bregu v Brydon, [17] (Beach J); Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [28]–[29] (Neave, Santamaria and Kyrou JJA).
Bearing in mind those principles, it is necessary, then, to consider just what was decided by the Panel on the issue in question.
As a starting point, the Panel did not, in express terms, make a finding that the first defendant was not, or would not be, motivated to undertake vocational retraining. Nor did the Panel, in express terms, state that the first defendant was likely to continue to have no current work capacity, because he was not motivated to undertake relevant vocational retraining. Rather, the Panel stated that the first defendant’s capability of returning to suitable employment was contingent upon him completing vocational training, but that the Panel was not certain when or if that retraining might occur, and ‘… based on the lack of success to engage the [first defendant] in vocational retraining to date it is not likely to occur in the foreseeable future’.
In determining the meaning of that conclusion by the Panel, it is necessary to bear in mind its context. As I have already noted, in considering the question of the first defendant’s work capacity, the Panel referred to the opinions and reports of a number of doctors who had treated the first defendant, and the assessments by Recovre dated 22 September 2014 and 18 February 2015. Having set out the potential suitable employment options that had been identified by Recovre, the Panel, in its reasons, stated:
The Panel asked the (first defendant) whether he considered he would be able to undertake any of the potential suitable employment options identified. He said that he would potentially be able to work in a office based sales assistant or call centre operator role, but was concerned that he would have no patience for such office work such that it ‘would do my head in’, noting that he had always been a manual worker and had no office or sales experience. He said that he would cope with the role of weighbridge operator, but was not sure that he would cope ‘mentally’.
The Panel noted from the Refresher Assessment Report and Plan from Recovre dated 18 February 3015 that there was a recommendation for training in computer and customer service short courses to assist each of the employment options, or completion of weighbridge operator certification to improve employment prospects in that field. The (first defendant) confirmed to the Panel that he had not undertaken any vocational retraining in those areas to date.
As recorded in the fifth dot point in the passage of its reasons of the Panel, quoted earlier,[5] the Panel acknowledged that the absence of any vocational retraining of the first defendant in customer sales, computers or certification for weighbridge operator or clerical duties, combined with the first defendant’s self-reported basic computer skills, limited his transferrable skills for any potential non-labouring employment role.
[5]Above, para [17].
Pausing there, those passages, on their own, do not reflect any finding by the Panel as to any motivation, or lack of motivation, by the first defendant to undertake vocational training. Rather, the Panel noted the need for the first defendant to undertake such training, and also recorded the first defendant’s views as to whether he considered he would be able to undertake the forms of employment recommended by Recovre.
In this connection, the plaintiff relies on the earlier observation by the Panel, in its reasons, that the first defendant had a tendency to decline specific offers and assistance, as evidenced by his failure to engage in a multidisciplinary pain program, and his failure to engage in psychological treatment. That passage did not express, or contain, any view by the Panel as to the first defendant’s motivation, or otherwise, to undertake vocational retraining. Rather, in that part of its reasons, the Panel was referring to the fact that the first defendant had not engaged in treatment for his psychological issues. That finding, by the Panel, was relevant to its assessment that, while the first defendant had suffered an exacerbation in a pre-existing adjustment disorder with depressed and anxious mood, that condition did not, of itself, greatly impact on the first defendant’s work capacity.
As mentioned, in its reasons, the Panel specifically referred to the Recovre Assessments dated 22 September 2014 and 18 February 2015. I do not consider that the reference to those assessments, nor the contents of them, are such that the Panel’s reasons should be construed as including a finding that the first defendant lacked motivation to undertake vocational training, or that its conclusion was based, materially, on any such finding.
In the report dated 22 September 2014, Recovre noted that the first defendant was currently participating in its vocational assessment program. It recorded that, at that stage, the first defendant had expressed frustration with the WorkCover process, that he considered it to be a waste of time, that it would not provide him with employment, and that he was capable of obtaining employment on his own. On the other hand, it also recorded that the first defendant stated that he was interested in the occupation of a train/tram driver and that, notwithstanding reservations by Recovre based on his medical restrictions, the first defendant believed that he would be able to perform the role.
In its report dated 18 February 2015, Recovre noted that the first defendant’s preferred employment options were as a train driver and a tour guide. He did not prefer the employment option suggested to him as a weighbridge operator. In the section of the report entitled ‘Perception of Returning to Work’, the report noted that the first defendant was concerned about his ability to return to work. In particular, he was concerned about his injury and his age as being a significant barrier, and he would like a role that does not involve crowds and is outdoors. He also stated that, if he was required to deal with the public, he would prefer to do so on a one on one basis. The report further noted that under the heading ‘Motivation Regarding RTW’ the first defendant stated that he was ‘happy to return to work’ if a suitable role could be found. He again repeated that he experienced difficulty dealing with crowds and dealing with a lot of people.
The contents of those two reports, that I have referred to, would indicate that the first defendant had firm views about the type of work that he wanted to perform, and the circumstances in which he desired to perform that work. However, the contents of those reports did not in any way indicate, or necessarily import, a finding by the Panel that the first defendant lacked motivation to undergo appropriate vocational retraining.
The same conclusion may be derived from earlier reports of Recovre, that were also in the documentation provided to the Panel. Senior counsel for the first defendant referred to that documentation, in some detail, in oral submissions before me. For present purposes, it is only necessary to summarise it in relatively brief terms.
The documentation clearly illustrates that, when he initially engaged with Recovre in December 2013 and following, the first defendant was perceived to be particularly motivated to be able to return to work. In its report dated 4 December 2013, Recovre noted that the first defendant reported to be agreeable to participate in an occupational rehabilitation program, and that he would like to explore alternative vocational training and career options. In a subsequent report dated 11 February 2014, it was noted that the first defendant had participated in, and contributed to, all aspects of the vocational assessment undertaken with him, and that he reported that he was intrinsically motivated to return to some form of suitable employment as soon as possible. The report further recorded that the first defendant had proactively contributed to the interview, that he expressed an interest in pursuing employment as a train or tram driver, and that he also considered other job alternatives such as sales assistant or welder.
In a report dated 24 April 2014, Recovre recorded that the first defendant had completed a number of tasks, that had been allocated to him, and that were directed to applying for and obtaining alternative employment. The report noted that the first defendant had attended seven out of the last eight NES sessions, and that he was unable to attend the last one because of vehicle problems. The report concluded that the first defendant’s attitude towards the job seeking process had dramatically improved, and that he presented as being engaged and motivated to obtain suitable employment.
In its next report, dated 30 May 2014, Recovre noted that the first defendant had applied for a number of theatre technician roles, and that he was keen and confident that he could secure that form of employment. The report noted that the first defendant was happy to participate in retraining, for that occupation, with Victoria University. However, in a subsequent report dated 3 July 2014, Recovre noted that the worker’s compensation insurer had rejected the proposal that the first defendant undergo that re-education. The report also noted that the first defendant had continued to fulfil the tasks allocated to him, that he had been active with his job seeking activities, and that he himself had applied for a theatre technician role. The consultant, who compiled the report, stated that the first defendant had been consistent with his attendances, that he provided evidence of applications for two or three positions each week, and that his overall attitude to the job seeking process had dramatically improved.
In its report dated 22 September 2014 (that was referred to by the Panel in its reasons), Recovre again noted that the first defendant was interested in becoming a train driver or a tram driver. The report noted, however, that medical evidence would be required to determine whether such employment would be suitable. Subsequently, in a report dated 1 October 2014, Recovre again noted that the first defendant had completed the tasks allocated to him. It was in that report that he was recorded as expressing frustration with the WorkCover process, stating that it was a waste of time and that he would not get a job. He said that he was capable of getting a job of his own. The report further noted that the first defendant had applied for vacancies to meet the job seeking tasks set for him by Recovre.
That material, referred to by counsel for the first defendant, is a relevant context to the decision of the Panel and the reasons provided by it. Certainly, and contrary to the submissions made on behalf of the plaintiff, it does not demonstrate a context in which the first defendant had evinced an intention not to engage in the rehabilitative process or programs available to him. Nor did it provide a context from which the Panel must have, or would have, concluded that the first defendant was not motivated to engage in appropriate vocational retraining. Accordingly, I do not accept the submission that, given the context in which the Panel expressed its opinion, it should be inferred that the Panel acted on a finding that the first defendant lacked motivation to undertake vocational training, when it concluded that ‘based on the lack of success to engage the (first defendant) in vocational training to date it is not likely to occur in the foreseeable future’.
No doubt as a consequence of that material, senior counsel for the plaintiff did not contend that the Panel, in its reasons, made a finding that the lack of success to engage the first defendant in retraining to date had been due to a lack of motivation by the first defendant to undertake such retraining. For that reason, counsel accepted that the Panel did not err in reaching its conclusion that, in the period between 23 May 2015 and the date of the Panel’s assessment, the plaintiff had no current working capacity. Rather, as set out above, the plaintiff’s submissions were directed, solely, to the conclusion by the Panel that the plaintiff was likely to continue indefinitely to have no current work capacity.
The concession by counsel for the plaintiff, that the Panel did not err in reaching the conclusion that at the date of assessment the first defendant had no current work capacity, was properly made. However, that concession reveals a real difficulty in the first, and critical, premise that underlies grounds 1 and 2 of the originating motion. Put simply, it is not evident, by any means, how the Panel’s conclusion could be construed or understood as involving a finding of a lack of motivation by the first defendant to undertake vocational retraining for the future, when the same conclusion did not involve or include a finding, by the Panel, of a lack of motivation by the first defendant to undergo such retraining to the date of assessment. There is nothing in the text of the Panel’s reasons, or the materials considered by it, that could support such a seemingly incongruous finding by the Panel.
Taking those matters together, contrary to the submissions of the plaintiff, I do not consider that the Panel made a finding, either express or implied, that the first defendant was not motivated to undertake appropriate vocational retraining that might be made available to him in the future. The Panel went no further than finding that it was not certain when, or if, vocational retraining might occur, and that, based on the lack of success of engaging the first defendant in vocational retraining to date, it was not likely to occur in the foreseeable future. The finding by the Panel, that based on the lack of success to engage the first defendant in vocational retraining ‘to date’, it was not likely to occur in the foreseeable future, was not equivalent to, or to be construed as, a finding that the first defendant was not motivated to, or interested in, undertaking appropriate vocational retraining.
It follows that the plaintiff has failed to make good the first, and basal, premise in its submissions in support of grounds 1 and 2. Accordingly, it is not necessary for me to express a conclusion as to the second premise in those submissions, namely, whether, if (contrary to my conclusion) the Panel had determined the question of the first defendant’s future incapacity to return to employment on the basis of his lack of motivation to undertake vocational retraining, it asked itself the wrong question or took into account an irrelevant consideration. However, in deference to the submissions made by each side, I proffer the following observations.
If it had been necessary to consider that question, it would, first, have been important to form a more specific view as to precisely what finding was made by the Panel as to the motivation (or lack of motivation) on the part of the first defendant. The proposition, relied on by the plaintiff, that the Panel based its finding on a want of motivation by the first defendant to undergo vocational retraining, lacked a degree of precision and indeed illumination. There is a significant difference between, on the one hand, an injured worker rejecting a suggestion that he undertake a particular form, or forms, of rehabilitation retraining because of a genuine concern as to his capacity to sustain employment that retraining would be directed to, and, on the other hand, a worker simply refusing to cooperate, in any manner at all, with any form of suggested rehabilitation, because that worker had no desire to return to the workforce. The submissions, made on behalf of the plaintiff, in respect of the first premise, did not elucidate precisely what finding, it was contended, the Panel made in relation to the first defendant’s motivation, or lack thereof, to undergo appropriate rehabilitative training.
I would apprehend that, if it had been necessary for me to address the second premise to the submissions advanced by the plaintiff, it would have been important to address that issue, and to form a conclusion as to precisely what finding, as to lack of motivation, had been made by the Panel. That is so because of the terms in which the concepts of ‘current work capacity’, ‘no current work capacity’ and ‘suitable employment’, are defined in the Workplace Injury Act. In particular, the definitions of those terms make it clear that, while the particular incapacity must result from a workplace injury, the capacity of a worker, to be engaged in suitable employment, involves considerations that are not confined to a mere capacity by the worker to execute specific tasks that may constitute a particular form of employment.
Those definitions were considered, in some detail, in the recent decision of the Court of Appeal in Richter v Driscoll.[6] It is not necessary for me to rehearse the whole of the principles enunciated by the Court in that case. However, four propositions were stated by the Court in that case, which would have been relevant to the issues raised by the second premise of the plaintiff’s argument. Those propositions are:
(1)As a matter of statutory construction, the definition of ‘no current work capacity’ requires that there be an injury-caused inability to return to work in employment — whether that be the worker’s pre-injury employment or suitable employment.[7]
(2)However, the definition does not postulate simply an ability to ‘return to work’; rather, and importantly, it involves a capacity to return to work ‘in employment’, namely, to return to work as a settled or established member of the wage earning workforce.[8]
(3)A return to work in employment requires more than a physical capacity to engage in a particular task or tasks that constitute that employment. There is more to an ability to work in ‘employment’, than a physical capacity to perform the tasks required in the employment.[9]
(4)Thus, the question, whether a worker has ‘no current work capacity’, requires a consideration of the worker’s ability to work in employment having regard to the entirety of that worker’s personal circumstances, including both the injury-caused capacity 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.[10]
[6][2016] VSCA 142.
[7]Ibid [74].
[8]Ibid [75].
[9]Ibid [76]–[77], [92].
[10]Ibid [95].
The lack of specificity about the finding of a lack of motivation by the first defendant, that the plaintiff has contended the Panel made as the basis for its decision, would have created difficulties in applying those principles in order to determine the question as to the validity of the second premise contended for by the plaintiff, if I had in fact accepted the first premise of the plaintiff’s submissions.
In addition, a further complexity would need to be addressed. It arises from the submissions by senior counsel for the first defendant as to the interpretation of the statutory provisions that were central to the issues considered by the Panel.
As counsel contended, the concepts of ‘current work capacity’ and ‘no current work capacity’ are defined by reference to the present circumstances of the injured worker. Section 93C(1)(a) of the Accident Compensation Act is concerned with an assessment of the worker as ‘having no current work capacity’ and being ‘likely to continue indefinitely to have no current work capacity’. The definition of the phrase — ‘no current work capacity’ — includes a ‘present inability arising from an injury … to return to work … in suitable employment’. In turn, the definition of the phrase ‘suitable employment’ is also couched in the present tense, and subparagraph (a)(vi) requires regard to be had to occupational rehabilitation services that ‘are being, or have been, provided to or for the worker’. Those definitions would have required further analysis in analysing the second premise to the plaintiff’s argument, if, as contended by the plaintiff as its first premise to grounds 1 and 2, the Panel did not make any finding about the first defendant’s past motivation (or lack of motivation) to undertake vocational retraining, but did in some way make some finding as to the first defendant’s motivation to undertake future or further vocational retraining.
As I stated, it is not necessary for me to resolve any of those issues. It is sufficient to identify them, in order to record that, if it had been necessary to determine the second premise to the plaintiff’s submissions, those issues would have required some detailed consideration.
However, as I have rejected the first, and basal, premise to the submissions made by the plaintiff in support of grounds 1 and 2, it follows that both of those grounds must fail.
Ground 3
By ground 3 of the originating motion, the plaintiff contends that the Panel erred in law by failing to give an adequate written statement of its reasons for its opinion in respect of the medical questions referred to it.
In support of that ground, senior counsel for the plaintiff contended that the Panel’s reasons are inadequate, because they fail to explain whether, and if so how, the Panel considered whether, apart from the particular employment options identified in the Recovre Vocational Assessments dated 22 September 2014 and 18 February 2015, any other employment options constituted suitable employment for the first defendant. In particular, it was submitted, the Panel failed to refer to the following employment options, identified in the materials, or to explain whether, and if so why, they did not constitute suitable employment for the first defendant, namely: registered builder, train driver and structural steel/welding trades worker.
In that respect, counsel referred to a passage from the reasons of the Panel which noted that the first defendant had some previous experience in welding and as an apprentice train driver. Counsel also noted that, in its vocational assessment report dated 11 February 2014, Recovre referred to the job option of structural steel and welding trades worker as suitable for the first defendant. In the case of potential employment as a registered builder, counsel noted that the first defendant had told the Panel (as recorded in its reasons) that he had done ‘2-3 months of a building course’, but the Panel did not otherwise refer to that training, or explain whether or why such an option was not suitable for the first defendant.
Senior counsel for the plaintiff accepted, as correct, the principle stated by Cavanough J in Vellios Electrical Contractors Pty Ltd & Anor v Barton,[11] that the requirement, that the Panel give adequate reasons, does not mean that the Panel must address each and every matter that is contained in the materials or put to it in submissions. Counsel contended that the complaint, made under ground 3, is not that the Panel failed to address every matter contained in the materials before it. Rather, he submitted that, in the context of the referral, and the question of the first defendant’s capacity for suitable employment, the Panel was required to, but did not, refer to a fundamental issue, namely, whether potential employment options, identified as appropriate for the first defendant, actually constituted suitable employment.
[11][2014] VSC 664, [79].
In response, senior counsel for the first defendant submitted that the Panel’s reasons satisfied the requirement, specified by the High Court in Wingfoot v Kocak,[12] that a medical panel must describe the path by which it reasoned to its conclusion. Counsel submitted that, in performing that task, the Panel was not required to refer to all the non-labouring jobs referred to from time to time in the material, or before the Panel, such as work as a builder, train driver or structural steel/welding trades worker. In particular, counsel noted the statement by the High Court, in Wingfoot, that the Panel’s role is neither adjudicative nor arbitral, but, rather, to express its own view and conclusions. In any event, counsel noted that the Panel specifically stated that it had noted the other opinions and reports contained in the material, together with the submissions made on behalf of the parties.
[12](2013) 252 CLR 480.
I have, earlier in these reasons, described the functions of the Panel, as established in the cases. The principles, relating to the adequacy of reasons provided by a medical panel for its opinion, were definitively stated by the High Court in Wingfoot.[13] As noted earlier in these reasons, the High Court, in Wingfoot, described the function of a medical panel as ‘neither arbitral nor adjudicative’; rather, its function is to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[14] The Court stated that the principle, that the medical panel give adequate reasons for its opinion, required a panel to describe the ‘actual path of reasoning’ by which the panel arrived at its opinion.[15] Accordingly, the Court stated:
The standard required of a written statement of reasons given by a medical panel … can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a Court to see whether the opinion does or does not involve an error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.[16]
[13]Wingfoot, 493–4 [29]–[30].
[14]Ibid, 499 [47].
[15]Ibid, 499 [48].
[16]Ibid, 501 [55].
As mentioned earlier, in determining whether a medical panel has complied with that requirement, it is important to bear in mind that such a panel is an expert tribunal, whose members are selected for their expertise and experience. Thus, the reasons of such a panel are not to be construed minutely and finely, with an eye keenly attuned to the perception of error.
In particular, it is not necessary that a medical panel explain why it did not reach a particular opinion, which might be contained in the material before it.[17] In an appropriate case, where the reasons are not explicit on a particular point, an inference may be drawn, based on the materials before the Panel, as to the reasoning adopted by a medical panel in arriving at its particular opinion.[18]
[17]Wingfoot, 502 [56].
[18]Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [28] (Neave, Santamaria and Kyrou JJA).
As counsel for the plaintiff noted, in Vellios Electrical Contractors Pty Ltd v Barton,[19] Cavanough J addressed the issue as to whether a Panel is required to expressly address each part of the submissions made to it, or the materials put before it. His Honour stated:
In my view, the fact that, normally, the written submissions of the parties to the Medical Panel are included in the bundle of documents submitted to the Panel by the person or body referring the medical question pursuant to s 65(6B) of the Act does not, of itself, mean that every such submission, much less every part of every such submission, must be dealt with in the Medical Panel’s statement of reasons in such a way as to show that the decision-maker has engaged in an ‘active intellectual process’ in relation to the submission or part. The requirement to engage in an ‘active intellectual process’ is a requirement that applies only in relation to mandatorily relevant matters, factors or considerations. The identification of mandatorily relevant considerations for a statutory decision-maker depends on the terms of the relevant statute, not on the terms of whatever submission happens to be made to the decision-maker. Section 65(6B) of the Act does not make every submission, much less every part of every submission, a mandatorily relevant consideration for a Panel regardless of the terms of the submission. Further, as Wingfoot emphasises, it is not the function of a Medical Panel to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. Rather:
The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[20]
[19][2014] VSC 664.
[20]Ibid, [79] (citation omitted); see also Alcoa of Australia Limited v Edwards [2016] VSC 630, [23] (McDonald J); Combined Enterprises Pty Ltd v Brister [2016] VSC 807, [26] (Keogh J); Stojilkovic v Romas [2017] VSC 49, [19] (Keogh J).
Consistent with the principles that I have outlined, I do not consider that the obligation of the Panel, to give reasons for its opinion, required it to address, in express terms, the three potential employment options raised by the submissions of the plaintiff in this case, namely, that of a builder, a structural steel welder or an apprentice train driver.
As mentioned, the materials before the Panel included a series of rehabilitation reports prepared by Recovre. In those reports, Recovre referred to a number of potential employment options, some of which were subsequently discarded. Having undertaken that process, Recovre, in its last two reports dated 22 September 2014 and 18 February 2015, expressed its views as to the possible employment options available for the first defendant. Clearly, it was those options that were relevant for the consideration of the Panel. The Panel expressly referred to those two assessment reports, and, in particular, it expressly specified the suitable employment options identified by Recovre in those reports. In that context, it was not necessary for the Panel to express its view on other possible alternative options, either mentioned by the first defendant when examined by the Panel, or mentioned earlier or at other stages in the Recovre reports.
Further, it is quite clear, from the Recovre reports and other materials before the Panel, why the Panel did not see fit to mention, in express terms, the three alternative employment options now relied on by the plaintiff.
The only reference, in the materials, to the possibility of the first defendant being employed in the building industry, was a comment, in the Panel’s reasons, that the first defendant had told the Panel he had never undertaken any vocational retraining following the incident other than ‘2-3 months of a builder’s course’. That comment, by the Panel, does not disclose that the first defendant had completed that course, or the nature of the course. That sole reference, in the reasons of the Panel, did not, in my view, oblige the Panel to expressly consider the first defendant’s qualities and suitability for work as a builder, particularly given his physical limitations. There was no reference, in the Recovre reports, to employment as a builder as a potential alternative suitable occupation for the first defendant. It might therefore be readily inferred that the Panel did not consider that that option was feasible, in light of the lack of any assessment of the first defendant’s suitability for it.
The only reference, to the potential of the first employment to be employed as a structural steel worker, was contained in an early Recovre New Employment Service Vocational Assessment Report dated 11 February 2014. That report noted that one of the identified ‘suitable employment options’ for the first defendant was as a ‘structural steel and welding trades worker’. In that connection, the Panel recorded that the first defendant had worked in a variety of labouring roles, including as a welder. At page 7 of the report of Recovre, it was noted that ‘further medical evidence would be required to determine the suitability of the employment options identified’. In submissions before me, counsel for the plaintiff did not refer me to any medical assessment undertaken on behalf of the plaintiff of the first defendant for his suitability for employment as a welder.
In its reasons, the Panel noted that the first defendant had left school, during Form 5 (Year 11) to undertake a train driver apprenticeship for one year. However, there was no other reference in the materials to him having any other previous employment as a train driver. At the time of the assessment he was 56 years of age. In its report dated 11 February 2014, Recovre noted, as one of the identified suitable employment options, that of a train driver or tram driver. In its subsequent reports dated 22 September 2014 and 18 February 2015, Recovre noted that the first defendant was still interested in such an occupation. However, in the latter report (18 February 2015), Recovre also noted that, although the first defendant had a specific interest in that role, it may be a ‘very difficult role’ for him to secure, because Metro Trains’ operation utilises levers, rather than buttons, which would not accommodate the first defendant’s medical restrictions and could potentially aggravate his condition.
The reasons of the medical panel are to be read in the context of the materials to which I have just referred. Taken in that context, I do not consider that the medical panel was required to refer expressly to, and make findings about, the potential suitability of either the roles of builder, structural steel welder or tram and train driver. It was implicit, from the matters that I have just discussed, that the Panel did not regard any of those roles as being suitable, for the reasons contained in the materials to which I have referred.
For those reasons, I am not persuaded that the Panel failed to give an adequate written statement of its reasons of opinion in respect of the medical questions referred to it. Accordingly, ground 3 must fail.
Conclusions
For the reasons that I have outlined above, the plaintiff has failed to establish any of grounds 1, 2 or 3 contained in the originating motion. It follows that the proceeding must be dismissed.
SCHEDULE OF PARTIES
| MENZIES AVIATION GROUP (AUSTRALIA) PTY LTD | Plaintiff |
| - and - | |
| BRENDAN FRANCIS VEGTER | First Defendant |
| ASSOC PROF DAVID ERNEST | Second Defendant |
| DR BRANDAN HAYMAM | Third Defendant |
| DR EDMOND VAN AMMERS | Fourth Defendant |
| DR RICHARD TRAVERS | Fifth Defendant |
| MR JOHN BOURKE | Sixth Defendant |
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