Mule v Victorian WorkCover Authority

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 03603

ANTONINO MULE	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	First Defendant
PAUL CHAMPION DE CRESPIGNY	Second Defendant
STEVEN LEITL	Third Defendant
ROBERT PIANTA	Fourth Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2022
DATE OF JUDGMENT:	3 November 2022
CASE MAY BE CITED AS:	Mule v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VSC 664

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ADMINISTRATIVE LAW — Judicial review — Medical Panel — Workplace injury — Assessment of worker’s medical condition and work capacity — Termination of weekly compensation payments — Jurisdictional error — Adequacy of reasons — Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	F Spencer	Slater & Gordon
For the First Defendant	M Fleming KC with R Kumar	Russell Kennedy Lawyers
For the Second to Fourth Defendants	No appearance

HIS HONOUR:

The plaintiff, Antonino Mule, was employed by Skilltrack Pty Ltd (‘Skilltrack’) as a truck driver and machine operator. In July 2012, Mule was injured when he twisted his right ankle and foot at work.

A claim for compensation made by Mule in November 2012 under the Accident Compensation Act 1985 (Vic) was accepted, and weekly compensation payments were made.

In May 2015, an agent authorised by the first defendant, Victorian WorkCover Authority (‘VWA’) notified Mule of its decision to terminate his entitlement to weekly compensation payments from 24 October 2015 on the grounds that payments had been paid or were payable for 130 weeks and Mule had a current work capacity, or alternatively that his incapacity was not likely to continue indefinitely. Mule disputed the decision and following unsuccessful conciliation of the dispute issued a proceeding in the Magistrates’ Court of Victoria claiming ongoing weekly payments of compensation. VWA was named as defendant to the Magistrates’ Court proceeding because Skilltrack had been deregistered by that time. In the Magistrates’ Court statement of claim, in addition to the right foot and ankle injury, Mule pleaded as a particular of injury stress, anxiety and depression.

At the request of VWA, medical questions relevant to the claim by Mule in the Magistrates’ Court proceeding were referred to a Medical Panel (‘Panel’) for an opinion pursuant to s 274(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRC Act’). The notice of request prepared by VWA in accordance with s 274(1)(b), and a document given to the Panel convener pursuant to s 304 specifying the injury to which the medical questions related, referred only to the right foot/ankle injury. Neither document mentioned the alleged psychological sequelae particularised in the statement of claim.

The Panel assessed Mule and gave its opinion in answer to the questions only in respect of the physical injury to the right foot and ankle, and did not assess the alleged psychological injury. The Panel’s opinion was that Mule had no current work capacity from 24 October 2015 to the date of the Panel’s examination of him. However, the effect of the Panel’s decision on Mule’s entitlement to weekly payments of compensation in that period is uncertain. The Panel’s opinion was that as at the date of its examination Mule had a current work capacity, and work as a machine operator, product assembler and medical assembler constituted suitable employment within the meaning of the WIRC Act. The effect of the Panel’s opinion is that Mule has no entitlement to weekly payments of compensation from the date he was examined into the future.

Mule seeks to review the Panel’s opinion on grounds that can be summarised as follows. First, by not considering the psychological sequelae of Mule’s right foot and ankle injury the Panel failed to discharge its statutory task in relation to the questions put to it, and failed to have regard to a mandatory consideration. Second, the Panel failed to genuinely consider factual evidence material to the opinion that Mule had a capacity to return to work in employment. Alternatively, the Panel’s reasons lack an evident and intelligible justification for its opinion as to Mule’s current capacity for work. Third, the Panel did not answer the question of whether, at any point in the period from October 2015 to the date of its examination, the incapacity for employment which it found to exist, was likely to continue indefinitely. Mule argued the Panel’s opinion did not answer the question asked of it, or was unintelligible, and should be quashed.

The second to fourth defendants are the Panel.

For the reasons that follow, Mule’s grounds are made out.

Background

Mule is now 53 years old. He has a long-term history of epileptic seizures, for which he is prescribed Tegretol. He left school in year 9 and has a history of employment as a poultry worker for 25 years and a process worker for a year or two before commencing work with Skilltrack.

Mule began work for Skilltrack as a full-time truck driver and machine operator in February 2011.

Mule sustained a twisting injury to the right ankle and foot in the course of his employment with Skilltrack in July 2012. He suffered persistent pain and stiffness associated with the injury. Ultrasound examinations were performed on Mule’s right foot and Achilles tendon, and he was referred to orthopaedic surgeons, first Mr Byrne, then Mr Jacobsen.

Mule made a claim for compensation in November 2012. The claim form records injury to the right ankle caused by twisting his foot at work. The authorised agent accepted the claim for medical and like expenses in the same month. It appears that he ceased work with Skilltrack as a result of the injury in about May 2013.

In September 2014, Mr Jacobsen performed a right Achilles tendon debridement and repair and right ankle arthroscopic debridement and microfracture of a talar osteo-chondral defect. Mr Jacobsen said he expected Mule could return to seated light duties in early 2015 and heavy duties including crouching/lifting in the middle of that year.

A 130-week vocational assessment report prepared by WorkFocus Australia in December 2014 identified machine operator, forklift driver and product assembler as suitable employment options. The described job duties were obtained from a generic internet search. The author noted the medical opinion relied on predated the surgery performed by Mr Jacobsen. A further report from the same organisation in January 2015 included assessment of suitability for further generically described job options. The assessor administered a congruence occupational reading test (‘CORT’), and scored Mule 9/48 for word recognition skills and 10/18 for ability to evaluate and interpret, and on that basis concluded his ability to read work-related words fell in the well-below average range. The assessor concluded the results indicated Mule may have difficulty constructively using information from work documents for work purposes.

In February 2015, Mule’s treating general practitioner Dr Ng completed a questionnaire relating to capacity and treatment in which he said: ‘While the patient has difficulty with walking, especially in his work boots, he certainly has full capacity with use of his upper limbs and back.’ Dr Ng recommended a prompt return to suitable duties and a podiatrist assessment of modified/tailor-made work boots.

In March 2015, Mule was assessed at the request of the authorised agent by psychologist Dr Kennedy who concluded there was no evidence of a formal psychological disorder.

On 7 May 2015, the authorised agent wrote to Mule communicating its decision that from 24 October 2015 he was no longer entitled to weekly payments because:

Weekly payments have been paid or payable to you for a total of 130 weeks (whether consecutive or not), and:
• you have a current work capacity
• alternatively, you have no current work capacity but it is not likely to continue indefinitely.

In making this decision the agent relied on medical material, including the opinions of Dr Ng, Mr Jacobsen and Dr Kennedy.

When he reviewed Mule in November 2015 Mr Jacobsen said: ‘Currently he has a reduced ability to work and an inability to wear shoe wear and I have given him a Centrelink certificate to this effect.’

In early 2016, Mr Jacobsen referred Mule for pain management regarding his experience of right dorsal foot pain. In June of that year Mr Jacobsen said:

Regarding his ability to work I would expect that he will continue to find it difficult performing an occupation that demands wearing work boots. I do feel that he has some capacity to work in an administrative or deskwork role and for light activities. A further occupational review may be of benefit to determine the limits of his current capacity.
He is likely to find activities that involve excessive or repetitive ankle dorsi- or plantar-flexion difficult (i.e. stair climbing, ladders, crouching). While supportive work boots may help him with these activities his nerve symptoms make wearing these boots difficult.

In November 2016, orthopaedic surgeon Mr Boys examined Mule at the request of the authorised agent and found 3cm of wasting of the right calf muscle. Mr Boys noted Mule was ‘not restricted at home or in performing duties round the property’, and said that Mule was capable of employment, although a degree of heel strain could be expected with ambulatory employment.

In 2017, questions were put to a Medical Panel relevant to a proposed right Achilles reconstruction procedure. In September 2017, the Medical Panel concluded Mule was suffering from persistent right ankle and hind foot dysfunction following an Achilles tendon tear which had been treated surgically. On examination the Medical Panel noted Mule demonstrated an antalgic stiff right foot limp and made findings including marked wasting of the right calf, lack of definition of the right Achilles tendon with prominence and tenderness at the insertion of the tendo-Achilles, mild crepitus in the posteromedial aspect of the right ankle joint. The Medical Panel noted findings from an MRI in August 2015 that demonstrated the following:

intact but very thin ATFL in keeping with prior injury. Abnormal sub chondral signal in the talar dome, more so on the posteromedial corner with a lesser amount seen on the anterolateral corner. … Strikingly abnormal Achilles tendon being rounded in cross-section heterogenous in signal with intrasubstance multidirectional hyper intense bands representing either postsurgical change, mucoid degeneration or intrasubstance tearing.

The Medical Panel concluded:
The Panel considered the nature of the requested surgery and considers that further reconstruction surgery with the production of further Achilles tendon scarring is highly unlikely to improve the worker’s current symptoms or function in the right foot and ankle, and therefore is unlikely to be of any benefit to the worker.

Dr Ng reported in July 2018 that the combined results of repeat MRI scans and a recent SPECT scan indicated a chronic Achilles tendon injury and a small cartilage and bone defect of the subtalar joint of the right ankle. Dr Ng said:

His mood has been negatively affected since he lost his job due to the work-injury. He attempted suicide in December 2017 when he put himself on a train track. He was treated at the Latrobe Regional Hospital and subsequently presented to Dandenong Hospital in April this year when he suffered from an alcohol abuse, post-seizure induced psychosis. Mr Mule has been prescribed medications to treat his seizure and psychosis.
The best outcome for Mr Mule is to finalised his Work Cover case and move on to some form of disability pension according to the corresponding Centre Link provisions applicable to his circumstances when the time comes. Mr Mule[‘s] residual symptoms of the right ankle will persist and he nevertheless should be able to pursue a reasonably normal, independent lifestyle.

Dr Ng’s clinical records reveal that Mule continued to regularly complain of and receive treatment for psychological symptoms. This included:

(a) preparation of a mental health care plan,

(b) referral for psychological treatment and prescription of mood disorder medication in April 2018,

(c) referral to a psychiatrist for disability support pension assessment in November 2018,

(d) reference in September 2018 to depression and ongoing low mood with a note ‘seeing psychologists, psychiatry’,

(e) completion of a further mental health care plan and psychiatric referral in October 2019, and

(f) further prescription of mood disorder medication from time to time.

The copy of the notes provided to the Panel stops in mid-2020.

In October 2020, VWA’s solicitors arranged to obtain a vocational report from a physiotherapist at Nabenet Integrated Workplace Health Services (‘Nabenet report’). The examiner noted Mule required additional explanation of terms during questioning and simplification of sentence structure. On questioning Mule rated his numeracy, reading and writing skills as basic, and said he could not use a computer even for basic tasks. The examiner described three employment options, namely medical assembler, pathology courier, and process work at a cosmetic and personal care manufacturing plant. The author said a ‘worksite assessment’ was conducted of the medical assembler job via phone conference with the employer. On that basis the following job tasks were identified:

•    Picking stock
•    Counting stock
•    Self-paced manual assembly of fittings, including rubber seals and nuts onto plastic tubing and assembly of drapes
•    Sealing of bags
•    Wrapping packs and gowns
•    Labelling and placing stickers and adhesive tape onto drapes and green ‘medis’
•    Record keeping e.g. time taken per job, completing work orders date, time, name

The physical job demands of the position were described as:
•    Frequent standing (with ability to regularly alternate with seated tasks)
•    Frequent sitting on chair or stool whilst completing some tasks (with ability to regularly alternate with standing tasks)
•    Frequent walking
•    Frequent reaching forward and repetitive arm/hand movements
•    Frequent lifting —up to 1kg
•    Occasional lifting up to 2kg
•    Occasional bilateral carrying up to 2kg
•    Rare bending

In November 2020, VWA arranged for Mule to be reviewed by occupational physician Dr Wyatt and orthopaedic surgeon Mr Dooley. On examination Dr Wyatt found substantial wasting of the right calf, mild swelling over the medial aspect of the right ankle, and minor limitation of dorsiflexion. She noted Mule was using an elbow crutch to ambulate, and stood with weight on the outer aspect of his right foot, naturally holding the medial arch elevated and big toe off the ground. Dr Wyatt reviewed Mule’s clinical records, and said:

Mr Mule’s clinical picture at this review was similar to that noted by others in years gone by, with notable calf wasting in the right calf. The relevance of this is whatever the diagnosis (Achilles tendon problems, talar dome lesion, ligament injury), it is consistent with a significant problem at the ankle and an ongoing regular limp.

In relation to work history Dr Wyatt noted:
His work was as a delivery driver and his previous work had been on a poultry farm and when that closed, he worked at a stock feed company owned by the people who ran the poultry farm.

Commenting on capacity, Dr Wyatt said Mule was unfit to return to his pre-injury duties, or for work activities requiring him to be on his feet for more than an hour a day, to walk significant distances, kneel, squat or do manual handling. She noted footwear was a significant difficulty — Mule was unable to wear safety boots, and closed shoes posed problems. Dr Wyatt referred to the Nabenet report and concluded the suggested job options of medical assembler, pathology courier and process worker were not realistic for Mule:
They require him to wear closed shoes and he would need to be mobile without relying on the elbow crutch.
If specialised and soft footwear could be arranged the process work or medical assembly roles may be possible, but this would require the footwear to be arranged and trialled as a first step.
In short, he does not present [as] fit for suitable employment and the prospects for this seem slim without a material change in his condition or significant retraining to allow him to do a sedentary role in which he has the freedom to choose his footwear.

Dr Wyatt concluded Mule would require rehabilitation to enable him to return to work, and that his length of time out of the workforce made it harder for him to re-engage.

Mr Dooley noted that Mule ‘walks with an awkward gait and uses a single point stick in his right hand. There is a restriction in active range of motion of the right ankle and hindfoot greater than what one would expect to see. There is definite calf wasting …’. Mr Dooley considered the constancy and intensity of the pain alleged and the level of disability described ‘are greater than one would expect to see for his organic condition’ and that Mule had had a psychological reaction to his situation which ‘significantly influences his ongoing symptoms’. Mr Dooley said Mule was not fit for his pre-injury work, and from an orthopaedic point of view only had a physical capacity to carry out light work and clerical duties. Mr Dooley said ‘[h]e would have the potential to work as a product assembler and/or machine operator.’

In December 2020, Mule was assessed at the request of his solicitors by orthopaedic surgeon Mr O’Brien who concluded that Mule ‘now presents with chronic non-specific ankle and hindfoot pain, there being some signs to suggest this is being compounded by non-organic factors’.

Magistrates’ Court proceeding

In August 2020, Mule commenced a proceeding in the Magistrates’ Court seeking reinstatement of weekly payments of compensation from 24 October 2015 and continuing into the future.

In May 2021, VWA made a request pursuant to s 274(1)(b) of the WIRC Act to refer questions to a Medical Panel for its opinion. The questions were in the same form as those ultimately answered by the Panel.

A document which purported to satisfy s 304(a) of the WIRC Act was prepared by the lawyers for VWA. The document was signed by lawyers for Mule. It read in part:

Injuries to be assessed
1. Right ankle/foot
Agreed facts
…
6. The Plaintiff alleges having sustained in the course of his employment with the Defendant on 21 July 2012 as follows:
• Injury to the right ankle

Among the documents provided to the Panel were Mule’s further amended statement of claim in the Magistrates’ Court proceeding and submissions to the Panel from both parties.

The submissions to the Panel on behalf of Mule included that ‘by reason of the plaintiff’s ongoing work-related physical and psychiatric conditions, the plaintiff has no current work capacity and this incapacity is likely to continue indefinitely’. Mule submitted that as a result of the right ankle and foot injury he had developed a psychiatric condition in the form of stress, anxiety and depression and that ‘the plaintiff has been rendered unfit for all forms of employment due to the combined consequences of his injuries’. Mule’s submissions included:

14. At the present time the plaintiff presents as a man with mobility restrictions. The plaintiff regularly uses a crutch and or single point stick to enable him to walk around and get through the day. This restriction of use of the right leg greatly impacts on the plaintiff’s capacity to perform work duties and all suitable employment duties. The plaintiff’s medical condition is chronic and not likely to change in the future.

…
17. The plaintiff’s medical condition prevents him from wearing foot wear. The plaintiff cannot wear protective work boots or shoes. This renders the plaintiff unemployable in the open labour market.

VWA’s submissions to the Panel relied principally on the opinion of Mr Dooley. It asked the Panel to note that a number of doctors had recorded a history that Mule does not in fact use a crutch at home. In relation to footwear VWA submitted the process worker role allowed workers to sit or stand when performing tasks, and:

In this respect the defendant submits the Medical Panel may use its collective knowledge, experience and expertise and should find it is common for persons with medical conditions and/or disabilities to maintain employment with tailored and/or modified clothing, footwear or other equipment as the case may be. The Panel will note the evidence that the plaintiff has not effectively trialled the use of appropriate footwear/heel raise and podiatric support.

In relation to the claimed psychological sequelae, VWA relied on the report of Mr Kennedy, and submitted that ‘the plaintiff does not have an injury-caused psychological inhibition for work in employment and, in this respect, relies on the opinion of Simon Kennedy referred to above.’

In June 2021, the parties were advised that Mule would be examined by a Panel constituted by the second defendant, who is a physician, and the third and fourth defendants, who are orthopaedic surgeons.

Panel opinion and reasons

The questions referred to the Panel, and its answers given on 3 August 2021, are as follows:

Current Diagnosis
Question 1.What is the nature of the plaintiffs current medical condition, if any, of the right foot/ankle (the alleged injury)?
Answer: The Panel is of the opinion that the plaintiff is suffering from residual right hindfoot dysfunction following an Achilles tendon tear, treated surgically.
Incapacity (Alleged injuries)
Question 2.In any, and if so what, period from 24 October 2015 up to, and as at the date of, the Medical Panel’s examination, has the plaintiff had:
a. a ‘current work capacity’
b. ‘no current work capacity’

Answer: The Panel is of the opinion that from 24 October 2015 up to the date of the Medical Panel’s examination, the plaintiff had no current work capacity; the answer is no.
The Panel is of the opinion that as at the date of the Medical Panel’s examination, the plaintiff had a current work capacity; the answer is yes.

Question 3.If yes to question 2(a) would employment as a:
a. Delivery Driver
b. Store person
c. Handyperson
d. Machine operator
e. Product assembler
And/or
f. Medical assembler
g. Pathology courier
h. Process worker
constitute suitable employment within the meaning of the Act?

Answer:The Panel is of the opinion that employment as a:
a. Machine operator
b. Product assembler
And/or
c. Medical assembler
would constitute suitable employment within the meaning of the Act.

Question 4.In respect of any period identified by the Medical Panel in answer to question 2(b):
a. Did/does that incapacity result from, or was/is it materially contributed to by, the alleged injury?
b. Was/is the plaintiff likely to continue indefinitely to have no current work capacity?

Answer:The Panel is of the opinion that in respect of any period identified by the Medical Panel in answer to question 2(b):
a. the incapacity of the plaintiff resulted from, and was materially contributed to by, the alleged injury.
b. the incapacity of the plaintiff is not likely to continue indefinitely to have no current work capacity?

The Panel’s reasons for opinion show that Mule was examined jointly by the second, third and fourth defendants on 1 July 2021. The reasons record:

The Panel noted from the Further Amended Statement of Claim that on or about 21 July 2012 the Plaintiff, Mr Mule, suffered a twisted right ankle and right foot sustaining:
(i) Injury to the right foot and right ankle;
(ii) Injury to the right ankle Achilles and tendon;
(iii) Surgery to the right ankle and right Achilles tendon;
(iv) Right ankle Achilles tendinopathy;
(v) Right Talus osteo-chondral defect to the right foot;
(vi) Soft tissue injury to the right foot and ankle;
(vii) Stress, Anxiety and Depression.

The Panel recorded relevant aspects of Mule’s background, medical history and employment tasks. Under ‘Medical History’, the Panel recorded being told matters by Mule which included:

(a) He suffers discomfort over the top of his right foot, a vibration like feeling over the dorsum of his foot, knifelike pain in the back of his right heel and pain in his right ankle;

(b) Walking exacerbates the discomfort over the top of his right foot and the furthest he walks is to the supermarket;

(c) He cannot tolerate putting a boot on his right foot because of the hypersensitivity;

(d) He recently wore ‘going out shoes’ to funerals that he attended but had to leave early because of pain on the top and side of his right foot;

(e) Driving a car causes right foot pain;

(f) He has been treated with medication, physiotherapy, the use of insoles in his right shoe and a right ankle brace. Mule described no benefit from these treatments;

(g) He currently sees no healthcare workers for treatment of his right foot and does no particular exercises, though he gets on the exercise bike every morning wearing thongs, and in summer exercises by walking in an in-ground swimming pool;

(h) There had been no significant change in his right foot symptoms over the 12 months prior to the Panel examination.

As to the employment options described in the Nabenet report, the Panel recorded Mule saying he:

(a) Would not be able to bend to the ground;

(b) Cannot lift anything ‘too heavy’ because of his right foot injuries;

(c) Is an excellent driver;

(d) Does not have good reading and writing skills;

(e) Cannot walk significant distances;

(f) Can sit for around 20–30 minutes and stand for about the same length of time;

(g) Would not be able to drive a forklift because it is ‘too high’ off the ground and would be difficult for him to access due to his right foot injury.

The Panel recorded the following findings on physical examination:

On physical examination of Mr Mule, the Panel noted he was walking with a stick in his right hand. He said he does not use the stick to walk around the kitchen where there were benches on which he could lean nor in the bedroom where there were walls and cupboards for support. He said when he walks to the shed in the back garden or outside the house, he always used a stick.
The Panel noted that Mr Mule walked with his right foot partially inverted and had a stiff ankle gait, avoiding transferred weight though the first ray of the right foot. The Panel noted marked right calf wasting.
Mr Mule’s feet appeared symmetrical with symmetrical callous formation on the right and left foot. Both feet were symmetrical in terms of colour and temperature. A 7 cm scar was noted over the posterolateral aspect of the right tendo-Achilles which was well healed, faded, not adherent to deep structures, was described as mildly tender on palpation with some described discomfort on palpation of the musculotendinous junction of the Achilles tendon and over the calcaneal insertion of the Achilles tendon.
The Panel noted reduced right foot subtalar movement and stiffness on active and passive movement with normal ankle and midfoot movement. There was minimal active inversion and eversion of the right foot. Plantar flexion of the right foot appeared initially reduced which the Panel considered was a voluntary response with better plantar flexion against resistance. There was greater right ankle dorsiflexion compared with the left ankle. A right sided Thompson’s test was positive; the foot did not go into plantar flexion. The Panel however carefully palpated the tendo-Achillies which was intact. The Panel therefore considered that the right greater than left dorsiflexion of the right ankle and the positive Thompson’s test were consistent with an intact right tendo-Achillies but the clinical signs were consistent with a lengthened right tendo-Achillies. The right Achillies tendon bulk was reduced. Mr Mule described tenderness on palpation of the right Achillies tendon including over its distal insertion. Palpation of the midtarsal joints was associated with described discomfort. There was no right ankle audible or palpable joint crepitus.
Pinprick sensation was normal. Light touch was reported as normal and symmetrical. Rubbing the foot when distracted did not result in described hyperalgesia although at other times Mr Mule described discomfort on palpation of the dorsum of the right foot.

The Panel said that it reviewed all available radiological investigations and the surgical report of Mr Jacobsen.

Under ‘Diagnosis and Discussion’, the Panel referred to the findings and opinion of the earlier Medical Panel, and concluded that in the three and a half years since examination the features of right ankle pathology had resolved and the range of motion of the right ankle had improved, but that there had been progression of the physical signs at the subtalar joint. The Panel recorded:

The Panel concluded that Mr Mule is suffering from residual right hindfoot dysfunction following an Achilles tendon tear, treated surgically.
The Panel further concluded that Mr Mule, in the period from 24 October 2015 up to, and as at the date of, the Medical Panel’s examination, had no current work capacity. The Panel concluded, on the basis of the history obtained from Mr Mule, the Panel’s examination and review of the investigations and reports, that as at the date of the Panel’s examination, Mr Mule has a current work capacity.
The Panel considered that whilst various reports have described an ability to return to work, the Panel considered the history obtained from Mr Mule, noted he had suffered a significant injury but considered as the Panel did not examine Mr Mule prior to July 2021, the Panel could not reasonably give a date as to when, prior to the Panel’s examination, that he was able to return to work on a reliable and consistent basis. The Panel considered that there was no documentation over the months and years prior to the Panel’s examination that enabled the Panel to identify a specific date or time when Mr Mule had a work capacity.
The Panel concluded Mr Mule could currently perform the job options of a machine operator, product assembler and/or medical assembler on a consistent and reliable basis. The Panel considered that he would be unable to wear steel capped work boots but could wear shoes required to work in the roles of machine operator, product assembler and/or medical assembler.
The Panel further concluded that in respect of the period 24 October 2015 to the date of the Medical Panel’s examination, the incapacity of Mr Mule resulted from, and was materially contributed to by, the alleged injury. The Panel noted Mr Mule suffered ongoing right foot symptoms and had previously used an elbow crutch. The Panel further concluded that the incapacity of Mr Mule is not likely to continue indefinitely and in fact does not continue as of the time of the Panel’s examination. The Panel concluded that Mr Mule has a current work capacity.

Ground 1

The Panel failed to properly discharge its statutory task and failed to have regard to a mandatory consideration by not considering sequelae of Mule’s right foot/ankle injury, in particular whether Mule had a compensable secondary psychological/psychiatric injury and the effects of such injury on his capacity to return to work.

Submissions
Plaintiff

When assessing what incapacity results from a compensable injury to a worker, any sequelae of the compensable injury should be considered.[1] The compensable injuries Mule relied upon to establish his entitlement to ongoing weekly payments included consequential psychiatric injuries. The material provided to the Panel and the submissions of the parties put in issue whether Mule had any injury-related psychiatric condition, and the relevance of that condition to his capacity for employment. In the circumstances of this case, in assessing Mule’s current work capacity, the Panel should have expressed findings on, and had regard to, the nature of his secondary psychiatric condition. The Panel’s failure to do so was an error of law.
[1]Ward v Corrimal-Balgownie Collieries (1938) 61 CLR 120 (‘Ward’); Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 106 CLR 522, 529 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ) (‘Mahony’); Kidman v Sefa [1996] 1 VR 86 (‘Kidman’); Dunin v Harrison Limited (2002) 8 VR 596 (‘Dunin’); Bluescope Steel v Burford [2011] VSC 64, [46] (Macaulay J) (‘Bluescope’); Murugesu v Ruban Pty Ltd [2018] VSC 276, [11] (Keogh J).

First Defendant

The material before the Panel as to the potential presence of a psychiatric/psychological condition or symptoms did not mandate consideration of such a condition by the Panel for the purposes of answering the referred medical questions.

Pursuant to s 304(a) of the WIRC Act, the referral documents provided to the Panel, which were signed by Mule’s legal representatives, identified a single injury for assessment namely ‘right ankle/foot’. No secondary psychiatric injury was included. The agreed facts further confirmed that insofar as Mule alleged compensable injury, for the purposes of the referral it was limited to ‘injury to the right ankle’. The medical questions themselves also made no reference to any alleged secondary psychiatric condition.

The Panel’s statutory function was to form and give its opinion on medical questions referred to it. It was not the Panel’s function to pre-empt medical questions which might have been asked of it, or the injuries in respect of which those questions might have been asked. The Panel may have fallen into jurisdictional error if it had assessed any secondary psychiatric conditions, and had regard to it for the purposes of answering the referred questions.

The Panel did not include a psychiatrist. Mule’s legal representatives were notified by the Convenor of the makeup of the Panel on 10 June 2021. That decision of the Convenor, a statutory officer, was capable of being objected to by Mule prior to the Panel convening.

In these circumstances, Mule should be understood to have acquiesced to the approach followed by the Panel, namely assessment of the alleged right foot/ankle injury only.

Analysis

The referral of medical questions to the Panel was made by the Magistrates’ Court under to s 274(1) of the WIRC Act as a result of a request by VWA.

The function of a Medical Panel is set out in s 302 of the WIRC Act:

(1) The function of a Medical Panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment referred by ACCS, the court, VCAT, the Authority or a self-insurer.
(2) A Medical Panel must give its opinion on a medical question in accordance with this Division.

A Medical Panel is not bound by the rules of evidence, but may inform itself in any manner it thinks fit,[2] and must act informally without regard to technicalities or legal forms.[3]

[2]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 303(1) (‘WIRC Act’).

[3]Ibid s 303(2).

Section 304 of the WIRC Act provides:

A person or body referring a medical question to a Medical Panel must give the Convenor–
(a) a document specifying–
(i) the injury or alleged injury to, or in respect of, which the medical question relates; and
(ii) the facts or questions of fact relevant to the medical question that the person or body is satisfied have been agreed and those facts or questions that are in dispute; and

(b) copies of all documents relating to the medical question in the possession of that person or body.

The issue in dispute between the parties was whether on the facts and circumstances relevant to the injury sustained, assessed in accordance with the provisions of the WIRC Act, Mule was entitled to weekly payments of compensation from 24 October 2015 and continuing into the future. The Act empowered the Panel to make a binding decision in respect of the issues referred to it. The Panel was engaged in a practical exercise that required it to consider and determine the facts of the case in accordance with the relevant statutory definitions and requirements. The answer given by a Panel must serve the purpose for which the referral was made.[4]
[4]Kachoui Didani v Downes-Brydon & Ors [2021] VSC 27, [53] (Keogh J).

VWA relied heavily on the decision in Silver Top Taxi Service Ltd v Fish (‘Silver Top’),[5] which concerned a claim by the worker for compensation for injuries suffered in the course of her employment with the plaintiff. The worker’s weekly payments and medical and like expenses were terminated by the insurer and she issued a Magistrates’ Court proceeding seeking reinstatement. The first question referred to the Medical Panel enquired about the worker’s medical condition relevant to specified injuries to her cervical spine and right shoulder. The Medical Panel’s opinion responding to that question was that the worker was suffering a psychological condition that had arisen in part as a consequence of the now resolved right shoulder injury. Question 3 enquired whether any incapacity of the worker resulted from or was materially contributed to by any injury mentioned in question 1. The Medical Panel answered with the opinion that any incapacity for work was materially contributed to by the psychiatric sequelae of the right shoulder injury. Warren CJ concluded that to the extent the Medical Panel answered a question not asked of it, it acted outside its jurisdiction.[6] Her Honour found that by considering the sequelae that were causatively relevant to the worker’s injuries under question 1, the Medical Panel had not exceeded its jurisdiction. Her Honour came to a different conclusion in relation to question 3 because that question confined the Medical Panel’s consideration to the physical injury to the right shoulder, and said:

The Panel’s opinion that ‘any incapacity for work of the worker is materially contributed to by the psychiatric sequelae of the alleged right shoulder injury’ recognises the conceptual difference between the right shoulder injury and its psychological sequelae. …[7]

[5][2006] VSC 448.

[6]Silver Top (n 5) [25].

[7]Ibid [36].

It appears from her Honour’s reasons that the following circumstances of the case were important to the outcome in relation to question 3. First, in the Magistrates’ Court pleading the worker only particularised physical injury to the cervical spine and right shoulder. There was no reference to an alleged secondary psychiatric condition. Second, the worker had not been examined by a psychiatrist or psychologist, and, with a few exceptions, there was no reference to her condition being psychological or psychiatric in nature. It was in that context that the question going to incapacity expressly confined the Medical Panel’s consideration to the described physical injuries.

A later case of Qantas Airways Ltd v Malios & Ors (‘Qantas’)[8] concerned an application to review a Medical Panel decision for jurisdictional error on grounds that it assessed impairment relating to an injury that was not within the question referred for its opinion. The Medical Panel was asked to assess impairment resulting from accepted injuries to the left shoulder, neck and anxiety and depression. Answering that question the Medical Panel allowed an impairment of 1% for post-surgical scarring to the left shoulder. Beach J said:

The proposition that the left shoulder surgical scar is not part of the left shoulder accepted injury must be rejected. There is no basis for limiting the assessment of the accepted left shoulder injury to some left shoulder injury unaffected by necessary or relevant surgery; and then to somehow contend that the scarring caused by treating surgery is a separate injury, not to be assessed as part of an “accepted left shoulder injury”.[9]

… Further, as in Western Health v Gallichio, a fair reading of the referral document on its own or in the context of all of the materials available to the Medical Panel required the Medical Panel to assess the surgical scarring as part of the impairment resulting from the accepted left shoulder injury.[10]

Further, Beach J concluded there was no denial of procedural fairness to Qantas because it was always aware of surgery to the worker’s left shoulder, and was thus on notice of the left shoulder scar.

[8][2012] VSC 218.

[9]Ibid [11]. In support of that conclusion, Beach J referred to Mahony (n 1) and Western Health v Dr Gallichio & Ors [2009] VSC 134, [13].

[10]Qantas (n 8) [13] (citation omitted).

As the above decisions show, the issues for consideration by a Medical Panel are not determined by a fine textual analysis of the medical questions disregarding the context of the purpose for which the referral was made as demonstrated by the referral documents, the submissions of the parties and the materials provided to the Medical Panel.

Question 1 was addressed to the current medical condition of the right foot/ankle, referred to as the alleged injury. The remaining three questions sat beneath a heading ‘Incapacity (Alleged Injuries)’, suggesting the issue of incapacity was to be assessed by reference to all of the alleged injuries that the Panel found to be relevant, and was not restricted to consideration of the current physical condition of the right foot/ankle injury. Questions 2 and 3 required the Panel to consider ‘current work capacity’, ‘no current work capacity’ and ‘suitable employment’ relevant to Mule’s alleged injuries. There was nothing in the text of those questions that restricted the Panel’s consideration to the current physical condition of the right foot and ankle injury. There is ambiguity in question 4(a) which asked whether any period of incapacity resulted from or was materially contributed to by the alleged injury. While the term ‘the alleged injury’ was used in question 1 to mean the right foot/ankle injury, question 4(a) enquires about any period of incapacity found in question 2(a). Question 4(a) does not refer to question 1, and does not confine the Panel’s consideration to the injury alleged in that question. That construction is supported by question 4(b) which contains no mention of ‘the alleged injury’ in question 1.

The purpose of questions 2, 3 and 4 was to determine whether Mule satisfied the test for entitlement to weekly payments of compensation after the first 130-day period. To address that purpose it was necessary that the Panel consider Mule’s current condition relevant to the alleged injuries. Injury includes any sequelae of that injury.[11]
[11]Ward (n 1); Mahony (n 1) 529; Kidman (n 1); Dunin (n 1); Bluescope (n 1) [46] (Macaulay J).

The circumstances of this case are clearly distinguishable from those considered by Warren CJ in Silver Top. In that case the Medical Panel materials and the worker’s pleading in the Magistrates’ Court did not disclose that there was an alleged secondary psychiatric injury or that reliance was being placed on that sequelae as a foundation for the claim of ongoing incapacity. The text of the medical question directed to the issue of incapacity reflected those circumstances, and confined the Medical Panel to consideration of the identified physical injuries to the neck and shoulder.

In this case the documents provided to the Panel clearly disclosed evidence supporting the existence of a significant and potentially material psychiatric reaction. Mule relied on that evidence in his Magistrates’ Court pleading and in his submissions to the Panel. VWA squarely engaged with that aspect of Mule’s case. Whether Mule suffered psychiatric sequelae, and if he did how that impacted his capacity for employment, was in issue between the parties. Questions 2, 3 and 4 required the Panel to consider whether Mule suffered psychiatric sequelae to the physical injury, and in the context of the physical injury and psychiatric sequalae so found, the issues of ‘current work capacity’, ‘no current work capacity’ and ‘suitable employment’.

Reference to alleged injuries in the heading to questions 2, 3 and 4 and the open-ended way in which the questions were framed, supports that conclusion. The possible ambiguity created by the reference in question 4(a) to ‘the alleged injury’ should not be resolved as contended by VWA. To do so would be inconsistent with the purpose for the referral and context established by the documents provided to the Panel that included evidence of significant and potentially material psychiatric sequelae, Mule’s pleading in the Magistrates’ Court proceeding and the parties’ submissions to the Panel.

I reject VWA’s submission that it was not mandatory for the Panel to consider whether there were psychiatric sequelae to the physical injury suffered by Mule that were material to his capacity for employment. That submission is contrary to authority directed to what constitutes compensable injury.[12] Further, Mule expressly raised the existence of psychiatric sequalae and its impact on his capacity for employment in evidence, submissions and pleadings for the Panel’s consideration. The Panel was obliged to engage with Mule’s case on the issues it was to determine.
[12]Ibid.

Finally, I reject VWA’s submission that Mule should not be granted relief in the nature of certiorari on the basis that he acquiesced to the Panel only considering capacity by reference to the current condition of the right foot/ankle injury. The referral documents, which did not mention psychiatric sequelae, were prepared by VWA’s lawyers. I accept the evidence of Mule’s lawyers that any failure to identify and draw attention to the alleged psychiatric sequelae when signing and returning the documents on Mule’s behalf was the result of oversight. That explanation is consistent with Mule’s lawyers subsequently expressly raising the issue of psychiatric sequelae in submissions to the Panel. VWA argued there was a further opportunity for Mule to raise the issue when he was informed of the identity and specialities of the Panel members. I accept Mule’s submission that his lawyers were not to know, simply by being informed about the Panel composition, whether the issue of secondary psychiatric sequelae was to be considered. It is possible one or more of the Panel members may have had relevant expertise. Further, the powers of the Panel include seeking information from or having treating doctors attend with them,[13] and informing itself in any manner it thinks fit. The composition of the Panel did not determine whether the alleged psychiatric sequalae would be considered by it. Even if that conclusion is wrong, the fact that his lawyers, having been informed of the composition of the Panel, did not again raise the need for it to consider the alleged psychiatric sequelae was not an act of acquiescence by Mule that tells against the grant of relief. The Panel’s materials, the pleadings and the submissions made it clear that the psychiatric sequelae were at all times part of the case advanced by Mule to justify ongoing payments of compensation.
[13]WIRC Act (n 2) s 311.

I uphold ground 1, and on that basis would quash the Panel’s opinion.

Grounds 2, 3 and 6

It is convenient to deal with grounds 2, 3 and 6 together.

Ground 2

The Panel’s opinions as to Mule’s current capacity for work lack an evident and intelligible justification or are otherwise legally unreasonable.

Ground 3

The Panel failed to give genuine consideration to mandatory considerations and relevant factual evidence that was material to its decision, namely: (a) the entirety of Mule’s personal circumstances including his year 8 education, poor English literacy and numeracy skills, limited work experience and skills, lack of computer skills and extended time out of the workforce; and (b) his ability to realistically return to work and to consistently and reliably perform the duties of the suggested employments.

Ground 6

The Panel erred in law by failing to give a proper and adequate written statement of reasons for its opinion in respect of the referred medical questions in accordance with s 313(2) of the WIRC Act.

Submissions
Plaintiff

The Panel was required to give genuine consideration to the entirety of Mule’s relevant personal circumstances and whether they would be likely to have a compounding effect resulting in a situation where Mule had nothing to attract an employer in an open and competitive labour market.[14] The reasons show that the Panel addressed the question of whether Mule had a current work capacity, by finding he had the physical capacity to perform the job options, and that it failed to consider the extent to which his other personal circumstances including his age, use of a walking stick, very limited education, poor literacy skills, extended time out of the workforce and lack of any vocational rehabilitation assistance or retraining, presented a barrier to his successful re-entry to the workforce, particularly when coupled with his injury-caused functional restrictions. This was a case in which it could readily be accepted that Mule’s personal circumstances would have a compounding effect on his likely attractiveness to a new employer.
[14]Richter v Driscoll (2016) 51 VR 95, 114–24 [72]–[106] (Ashley and Kaye JJA) (‘Richter’).

The Panel also failed to consider whether returning to work in the jobs it identified would aggravate Mule’s condition. This issue was raised by Mule’s answers to the Panel in which he advised his right foot pain significantly worsened when he wore shoes and when walking, by the Panel’s physical examination findings including Mule’s abnormal gait and calf wasting, and by the material before the Panel indicating Mule had difficulty weight bearing on his right foot due to pain.

Alternatively, the Panel’s reasons fail to explain what it determined on the question of capacity or why. The Panel’s reasons do not identify what functional restrictions it considered flowed from Mule’s persisting physical injury, or attempt to reconcile those restrictions with the physical demands of jobs it concluded were suitable. There are no findings about Mule’s ability to stand, walk, sit, lift or carry, or consideration of how those findings would translate into a physical capacity to perform the duties required. Although the Panel relied on the fact that Mule was not using an elbow crutch at the time of its examination, it failed to refer to the fact that he was walking with a stick or to make any findings as to whether this would have any impact on his ability to undertake the jobs.

In circumstances where there was only a generic computer-generated description of the types of activities that may be involved in different jobs as a machine operator and product assembler, the Panel was required to explain what the roles it found Mule could perform required, so that its path of reasoning to its conclusion that he was physically able to perform the duties was explained and capable of being tested.

First defendant

The Panel’s reasons demonstrate that they understood how Mule’s position was being advanced. In relation to footwear, the Panel concluded that he could wear shoes required to work in the roles of machine operator, product assembler and/or medical assembler. In addressing the opinion of Dr Wyatt in respect of mobility, the Panel referred to its physical examination of Mule during which he did not use an elbow crutch and on the Panel’s examination his foot was no longer excessively sensitive.

The Panel’s reasons to some extent observe Mule’s relevant personal circumstances. It could not be said that there was a failure by the Panel to have regard to any relevant consideration.[15] The conclusion reached by it, of a residual capacity for work, was by way of an ‘evaluative synthesis’ necessarily conducted in the context of the matters observed in the reasons.[16]
[15]Chang v Neill (2019) 62 VR 174.
[16]See Sidiqi v Kotsios [2021] VSCA 187, [97], [101]–[102] (Beach, Kaye and Osborn JJA) (‘Sidiqi’).

The Panel concluded that, notwithstanding Mule’s residual hindfoot dysfunction, and in the context of his personal circumstances, there were nonetheless positions which he could fulfill in a reliable and consistent manner. It was not legally necessary, in order for the Panel to comply with its statutory obligation to provide a statement of reasons in respect of the opinion it reached, to provide additional detail.

The reasons make clear that the primary issues which would potentially incapacitate Mule were his ability to wear appropriate footwear for any identified role, and an ability to change posture as required. It was open to the Panel to conclude, on the basis of its experience and expertise, that there were machine operator and product assembler roles which existed, and from which Mule was not precluded. Further, no criticism could be made of the Panel’s conclusion in respect of the medical assembler employment option.

The Panel’s conclusion did not turn on any qualitative assessment of the duties in a vocational assessment report, but rather on specific concerns which it identified (consistently with the way in which Mule’s case was advanced) and whether they could be accommodated. The reasons make clear that the Panel was satisfied that they could be, in the ‘suitable employment’ options approved by it.

Analysis

Under these grounds, Mule effectively made two complaints. First, that the Panel failed to consider his functional restrictions and personal circumstances, including whether his condition might be aggravated to a return to work duties, when assessing his capacity to work in employment. Second, if it did consider those matters, the Panel failed to give a statement of reasons sufficient to explain its path of reasoning to the conclusion it reached about Mule’s capacity to work in employment.

The definitions of ‘current work capacity’, ‘no current work capacity’ and ‘suitable employment’ were relevant to the Panel’s consideration and the issues raised by Mule:[17]
[17]WIRC Act (n 2) s 3.

“current work capacity”, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment;
“no current work capacity”, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre‑injury employment or in suitable employment;
“suitable employment”, in relation to a worker, means employment in work for which the worker is currently suited—
(a)having regard to 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;

In Sidiqi v Kotsios (‘Sidiqi’), the Court of Appeal explained:

As this Court held in Richter v Driscoll, the concept of return to work conveys an intention that the mere fact that a worker is able to physically perform work duties does not necessarily mean that the worker has the ability to undertake work in employment. The relevant definitions require consideration of the entirety of the worker’s personal circumstances.[18]

[18]Sidiqi (n 16) [85] (Beach, Kaye and Osborn JJA).

The principles stated by the Court in Richter v Driscoll in relation to the concept of work in employment included the following. First, what is relevant is the worker’s ability to return to work in employment ‘as a settled or established member of the wage earning workforce’.[19]
[19]Richter (n 14) 114, [75] (Ashley and Kaye JJA).

Second, employment is a contractual relationship. A worker will be unable to return to work in employment if, having regard to the injuries and the entirety of their personal circumstances, they have nothing to sell.[20]
[20]Ibid 121 [97]; Bainbridge v Westside Meats Pty Ltd [2021] VSC 320, [24], [25], [28], [32] (Gorton J) (‘Bainbridge’); Zapparoni v Victorian WorkCover Authority [2022] VSC 463, [127] (Croucher J).

Depending on the circumstances of the case, it may be necessary for a Medical Panel to consider whether performing the duties of an identified job option will aggravate the worker’s compensable condition, and whether, for that reason, the job option is not suitable employment.[21]
[21]Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [70] (Neave JA); Stojilkovic v Romas [2017] VSC 49, [30]; Bainbridge (n 20) [25] (Gorton J).

It is necessary to keep in mind, when considering assessment by a Medical Panel of a worker’s capacity to work in employment, that the court is not undertaking a merits review.[22]
[22]Sidiqi (n 16) [30] (Beach, Kaye and Osborn JJA).

Judicial review must begin with a consideration of a Medical Panel’s statutory function.[23] In this case, that involved the Panel forming its own opinion as to the nature of Mule’s injuries, his current condition relevant to the injuries, the resulting functional restrictions, and his personal circumstances, and in light of those matters to assess his capacity to return to work in employment. Resolution of factual issues relevant to questions directed to capacity involve a Medical Panel applying its own medical expertise and experience. Jurisdictional error will be made out if a Medical Panel has failed to give genuine consideration to the matters relevant to the ability of a worker to return to work in employment as a settled member of the workforce.[24]
[23]Ibid [32].
[24]Ibid [61].

In Dundar v Bas, the Court of Appeal summarised the principles governing assessment of the adequacy of a Medical Panel’s reasons:

It is worthwhile stating principles to do with a Panel’s reasons.
First, the standard is that required by Wingfoot. A statement of reasons must be sufficient to explain the Panel’s path of reasoning, and to enable a court to see whether the Panel’s opinion involved any error of law.
Second, the standard of reasons required of a medical panel is not to be equated with the standards of reasons that would be required of a judge giving reasons for a final judgment after the trial of an action in a court.
Third, as a corollary —
a Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.

Fourth, the function of a medical panel is neither arbitral nor adjudicative. Its function in every case is to form and give its own opinion on the medical questions referred to it by applying its own medical experience and its own medical expertise.
Fifth, a panel’s reasons must be read fairly, as a whole and in context, and should not be subjected to overly zealous judicial review.[25]

[25][2019] VSCA 315, [46]–[51] (Beach, McLeish and Ashley JJA) (citations omitted).

In this case the Panel’s findings on examination included:

•Discomfort over the superior aspect, and the lateral and medial aspect of the dorsum of the right foot. The plaintiff described discomfort on palpation of the dorsum of the right foot.

•Pain at the back of the right heel at the distal insertion of the right tendo-achilles, with discomfort described on palpation.
•…walked with his right foot partially inverted, had a stiff ankle gait, and avoided transferring weight through the first ray of the right foot.
•Marked right calf wasting.
•Walks with a walking stick in his right hand.
•Reduced and stiff right foot subtalar movement.

The Panel concluded Mule could currently perform the job options of a machine operator, product assembler, and/or medical assembler on a consistent and reliable basis. Only one of those jobs, medical assembler, was included in the options in the Nabenet report. There is no indication the Panel discussed with Mule work as a machine operator or product assembler.

The job tasks and physical job demands of the medical assembler job option were set out in the Nabenet report. The earlier vocational assessments only recorded computer generated descriptions of the machine operator and product assembler options. The Panel’s reasons to not record what the Panel understood to be the required tasks and physical job demands of the job options considered by it to be suitable.

There was no discussion in the Panel’s reasons of Mule’s education and skills, other than reference to leaving school following year 8 and holding car and forklift licences. The reasons do not refer to Mule’s complete lack of computer skills or his basic reading, writing and numeracy skills. While the reasons record that Mule had not worked since 2015, that matter was not referred to or discussed as part of the Panel’s consideration of Mule’s capacity to return to work in employment. Relevantly, these matters were discussed as barriers to employment in the Nabenet report.

There is no path of reasoning from the physical impairments and personal circumstances found by the Panel to the conclusion that Mule could currently perform the job options. For example, on examination the Panel found that Mule relied on a stick to walk, walked with a significantly altered gait, had marked right calf wasting, a positive right-sided Thompson’s test and discomfort in the Achilles, dorsum and mid-tarsal joints of the right foot. However the Panel did not explain how those physical impairments would allow Mule to work as a medical assembler, a job that involved frequent standing and walking, occasional bilateral carrying and rare bending, on a consistent and reliable basis. Nor did the Panel say how Mule’s relevant personal circumstances suited him to a job that involved counting stock, labelling and placing stickers and adhesive tape onto items, and completing work orders.

The Panel’s reasons were framed in terms of Mule being physically able to currently perform the identified job options. When considering the opinion of Dr Wyatt, the Panel focused exclusively on the impact of Mule’s physical impairments on his capacity to perform work. Read as a whole, the Panel’s reasons support an inference that the Panel did not engage in any meaningful way with Mule’s relevant personal circumstances, including his very limited literacy and numeracy, and long period out of work.

After recording part of the opinion of Dr Wyatt, the Panel said:

The Panel considered Mr Mule was not using an elbow crutch at the time of his examination, that his foot no longer was excessively sensitive on the Panel’s examination and that whilst he may need to change posture, there are positions which he could fulfil in a reliable and consistent manner. The Panel came to a different conclusion to Dr Wyatt based on the history obtained, the Panel’s examination of Mr Mule, review of the investigations and reports and the Panel’s experience and expertise.

In fact, the relevant history recorded by Dr Wyatt was:
Mr Mule described having constant aching and soreness at the inner aspect of the right ankle and extending back to the Achilles tendon. This worsens with sitting for long periods, standing for long periods and being active. He can walk a “fair way” using a walking stick but after 20 to 30 minutes will have to walk slowly. Squatting is problematic, as is walking over uneven ground. He is more comfortable wearing thongs as he finds wearing shoes to be painful due to pressure on the affected area, and he cannot wear work boots.

While Dr Wyatt did mention an elbow crutch in her report , the history she obtained was of Mule using a stick in order to walk. Dr Wyatt did not take a history of ‘excessive sensitivity’ or hypersensitivity, but of aching and soreness in similar areas described by Mule and found by the Panel on examination. The Panel did not expressly engage with the impact of Mule’s reliance on a walking stick, significantly altered gait, tenderness found on examination, or the history given by Mule of increased pain caused by walking and footwear, supported by the opinion of Dr Wyatt.

Mule’s circumstances are very different to those of the worker in Sidiqi. In that case, the Medical Panel concluded the worker had suffered a soft tissue injury to his lumbar spine that had resolved by the time of its examination, as a consequence of which he had developed a chronic pain syndrome which was still extant. The Medical Panel made clear that it accepted the worker’s pain symptoms and ‘expressed their conclusions by reference to, and despite, that factor.’[26] The Medical Panel concluded the worker was able to return to pre-injury employment that involved heavy manual handling and sustained weight bearing activity. Based on those findings the Court said: ‘In many cases … the capacity to undertake physical work will demonstrate a capacity to return to work.’[27]
[26]Sidiqi (n 16) [88] (Beach, Kaye and Osborn JJA).
[27]Ibid [87].

In relation to the adequacy of the Medical Panel’s reasons, the Court said:

The Panel’s opinion was squarely based on its assessment of the effects of the applicant’s chronic pain syndrome having regard to the evidence as a whole, and in particular, its view of the nature, extent and severity of the applicant’s then current chronic pain syndrome, the nature of his pre-injury duties, its clinical examination of him, the evidence of medical imaging and the history and range of medical opinions before it. As we read the Panel’s reasons, its conclusions explain that it arrived at its opinion after an evaluative synthesis of these matters. In our view, the reasons do not leave any gap requiring speculation as to the basis of the Panel’s opinion.[28]

[28]Ibid [102].

An evaluative synthesis leading to an ultimate conclusion about capacity to work in employment must be based on an active intellectual engagement with mandatory considerations. What is required will depend on the circumstances of the case and the submissions of the parties. In this case the Panel found Mule continued to suffer right hind foot dysfunction with associated physical impairments to the subtalar joint, Achilles and right calf, resulting in, amongst other things, tenderness, an altered gait and reliance on a walking aid. It was implicit that together those physical impairments resulted in functional restrictions that were relevant to Mule’s capacity to return to work. The Panel found those matters contributed to past incapacity for suitable employment that was continuous from October 2015 to the date it examined Mule. It was therefore necessary that the Panel consider how it was that Mule had a capacity to work in suitable employment, in light of those continuing impairments, which may impact relevant functions including walking and standing and raised the prospect of an increase in symptoms associated with performing work functions, and in light of all of his personal circumstances. Further, it was necessary for the Panel to consider whether Mule’s condition would be aggravated by returning to work in the identified jobs or the implications that could have for his capacity to continue to perform the work duties.

The reasons do not disclose the Panel’s path of reasoning about these matters to the conclusion it reached. Nor does the Panel’s conclusion about capacity for suitable employment arise as a necessary inference from the reasons when read as a whole. I conclude that the Panel’s reasons did not reach the requisite standard. On that basis, grounds 2 and 6 are made out.

I conclude that the Panel did not actively engage in an intellectual consideration of Mule’s physical impairments and personal circumstances relevant to the question of whether he was able to work in employment in the identified job options. Ground 3 is made out.

Grounds 4 and 5

The Panel failed to answer, or to provide an intelligible and logically justified opinion in answer to referred question 4(b). Alternatively, the Panel asked itself the wrong question or addressed itself to the wrong issue in connection with referred question 4(b), by purporting to determine the question of whether Mule’s past incapacity dating back to 24 October 2015 was likely to continue indefinitely based on the situation as found by the Panel at the time of its examination in July 2021, instead of determining that issue prospectively at the time of the relevant past incapacity.

Submissions
Plaintiff

The Panel’s answer to question 4(b) was in the form of a question (as it ended with a question mark) rather than an answer. It does not make any logical sense. Notwithstanding the Panel determined that Mule has no current work capacity on and from 24 October 2015, the answer appears to be solely directed to the situation at the time of the Panel’s examinations insofar as it uses only the present tense.

A finding that Mule’s incapacity at the time of the Panel’s examination was not likely to continue indefinitely was not an answer to the question. Question 4(b) required the Panel to determine whether starting with 24 October 2015, Mule’s incapacity to work was at that time likely to continue indefinitely. The Panel’s reasons did not address or answer that question, and instead addressed the wrong issue.

First defendant

The Panel’s answer to question 4(b) is grammatically incorrect. However, the question can readily be understood to have been answered by the Panel in the negative; i.e. for the period ‘from 24 October 2015 up to the date of the Medical Panel’s examination’, Mule ‘was/is’ not likely to continue indefinitely to have no current work capacity’. It goes too far to ascribe error on the basis of what amounts to no more than looseness in language or unhappy phrasing.[29]
[29]Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45, 48 [9] (Maxwell P and Cavanough AJA).

The Panel specifically identified the relevant period of incapacity as being from 24 October 2015 to the date of its examination. The Panel’s subsequent statement, about the persistence of incapacity, could only relate to the period as identified. The potentially confusing use of the present tense is understandable given the duration of the period of incapacity, which continued up to (but not as at) the date of the Panel’s examination.

That the Panel did not fall into error is also apparent from its comparison between the finding of Mule’s incapacity not being likely to continue indefinitely and the finding that he had a ‘current work capacity’. In other words, the Panel’s conclusion that Mule now had a ‘current work capacity’ was consistent with — rather than being the basis for — its finding that the previous incapacity was not likely to continue indefinitely.

Further, the Panel’s conclusion is consistent with the right ankle improvement identified by the Panel over time (such that at the time of the Panel’s opinion, the ankle injury had clinically resolved).

Analysis

Question 4 was based on the Panel’s answer to Question 2(b), which enquired whether Mule had ‘no current work capacity’ from 24 October 2015 to the date of the Panel’s examination.

Question 4(b) was, in effect, two questions. The first question asked by 4(b) enquired whether for any past period during which the Panel found Mule had no current work capacity, Mule was likely to continue indefinitely to have no current work capacity. The answer to question 2(b) meant it was necessary that the Panel answer question 4(b) for the period from 24 October 2015 to the day of examination on 1 July 2021. It was possible that there would be a different answer to that question for late 2015 than early 2021.

The second question, ‘Is the plaintiff likely to continue indefinitely to have no current work capacity?’, required the Panel to consider whether any incapacity it found to exist on the day of examination was likely to continue indefinitely. Having determined that at the date of its examination Mule had a current work capacity, it was unnecessary for the Panel to answer question 4(b) in respect of the period that was the day of its examination.

The Panel gave a single answer to the two questions in question 4(b). The answer is expressed in the present tense. It might be accepted that the answer meant it was the Panel’s opinion that at the date of examination Mule is not likely to continue indefinitely to have no current work capacity. However, as I have already observed, the Panel’s opinion about capacity on the day of examination meant it was unnecessary to consider future incapacity. Critically, the text of the Panel’s answer does not indicate that it considered whether for any, and if so what, part of the past period of no current work capacity Mule was not likely to continue indefinitely to have no current work capacity.

Uncertainty is created about the meaning of the Panel’s answer by the form it takes and the question mark that appears at the end. It is unclear whether the Panel meant to say that ‘[t]he incapacity of the plaintiff is not likely to continue indefinitely …’ or ‘… the plaintiff is not likely to continue indefinitely to have no current work capacity?’ Both alternatives leave redundant words, making the search for meaning difficult. However, both options are expressed in the present tense indicating the Panel’s answer is directed to consideration of Mule’s future work capacity from the perspective of the day of examination.

On the plain words of the answer, the Panel has simply failed to address the first question posed by 4(b).

There may be circumstances where there is uncertainty or ambiguity in a certificate of opinion that can be resolved by context provided by the Panel’s reasons.[30] However, the text of the Panel’s answer to question 4(b) shows that it simply did not address the question of whether at any time, throughout the period of incapacity from 24 October 2015 to the date of examination, Mule was likely to continue indefinitely to have no current work capacity. It is not necessary to resort to the reasons to understand the Panel’s answer.
[30]Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545, 564–5 [58] (Priest, Beach and Niall JJA).

In any event, consideration of the reasons takes the matter no further. The reasons show the Panel concluded there had been some changes to Mule’s condition over the period in question. Implicit in the Panel’s finding of no current work capacity up to the date of examination and current work capacity on that day is that there had been a material change in Mule’s capacity for work over time. It is not a necessary inference from the Panel’s conclusion that Mule had a current work capacity on the day of examination, that he was not likely at all times from 24 October 2015 to continue indefinitely to have no current work capacity. While a conclusion of current work capacity was consistent with a finding that the previous incapacity was not likely to continue indefinitely, the period of time over which incapacity was found to have persisted and the material change in Mule’s condition meant the former finding did not necessarily lead to the latter.

In relation to question 4(b) I conclude that the Panel asked itself the wrong question or addressed itself to the wrong issue. Ground 5 is made out, but ground 4 is not. Had this been the only basis on which Mule succeeded, the appropriate relief would have been to quash the opinion given on question 4(b) only, and remit that question to the original Panel for redetermination.

Conclusion

I have found for Mule on grounds 1, 2, 3, 5 and 6. An order will be made quashing the Panel’s opinion and remitting the matter to a differently constituted Panel for redetermination.

I will hear from the parties as to any consequential orders.

[2022] VSC 664

3 November 2022