North v Homolka

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEAL LIST

SCI 2013 04649

DAVID NORTH	Plaintiff
v
HOMOLKA, DR SUZANNE AND ORS	Defendants

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JUDGE	ASHLEY JA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 June 2014
DATE OF JUDGMENT	2 October 2014
CASE MAY BE CITED AS	North v Homolka
MEDIUM NEUTRAL CITATION	[2014] VSC 478

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Practice and Procedure – Proceeding pursuant to O 56 of Chapter I of the Rules – Commencement of proceeding out of time – Application for extension of time – Whether special circumstances.

Accident Compensation – Medical Panel – Current work capacity – Suitable employment – Whether Panel’s reasoning illogical – Whether no evidence of matter relied upon by Panel as showing improvement in plaintiff’s condition – Whether Panel’s reasons failed to disclose if necessary finding made – Whether Panel failed to consider component of plaintiff’s disability when concluding that plaintiff fit for suitable work – Whether Panel’s reasons sufficient to disclose if Panel did not consider component of plaintiff’s disability when concluding plaintiff fit for suitable work – Conclusion by Panel that plaintiff had current work capacity for certain jobs in reliance upon Panel’s own expertise – Whether denial of procedural fairness by Panel’s failure to give plaintiff opportunity of answering Panel’s provisional opinion that plaintiff had capacity for those jobs – Decision of Panel quashed – Medical questions referred for reconsideration and determination by differently constituted panel.

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Appearances:	Counsel	Solicitors
For the Plaintiff	Ms M Hartley QC with J Valiotis	Ryan Carlisle Thomas
For the Sixth Defendant	Mr M Fleming QC	Minter Ellison
Consenting Appearances for First to Fifth Defendants

ASHLEY JA:

Overview

David North is the plaintiff in a proceeding commenced by originating motion on 6 September 2013. There are six defendants. The first five are members of a Medical Panel (‘the Panel’) which gave a certificate of opinion adverse to the plaintiff on 5 July 2013.[1] The sixth defendant, and contradictor, is the Victorian WorkCover Authority (‘VWA’, or, for sake of convenience, ‘the defendant’). By the proceeding, the plaintiff seeks an order in the nature of certiorari quashing the decision of the Panel; and the remitter of questions submitted for the opinion of the Panel for reconsideration and determination by a differently constituted panel.
[1]As is customary, they have indicated that they will abide the determination of the Court; and have taken no part in the proceeding.

By its opinion, the Panel determined that the plaintiff continued to suffer from compensable incapacity attributable to injury to his lower back and left ankle, together with a related psychological/psychiatric condition; that he was unfit for his pre-injury work as a truck driver; but that he had current work capacity. It set out a number of occupations each of which, it considered, constituted what the Accident Compensation Act1985 (‘the Act’) calls ‘suitable employment’.

The consequence of the Panel’s opinion was that the plaintiff must inevitably fail in a proceeding which he had commenced in the Magistrates’ Court, in March 2012, seeking reinstatement of weekly payments which had been terminated as from 26 January 2012 in reliance upon a notice dated 27 October 2011. By that notice, VWA had asserted that the plaintiff was no longer incapacitated for work and had current work capacity.

The Panel had responded to questions referred to it by the order of a Magistrate dated 7 May 2013 in that proceeding. The questions had been framed by the solicitors for VWA. The questions and answers were as follows:

Question 1:What now is the nature of the Plaintiff’s medical condition relevant to:
(a)the admitted injury to the low back?
(b)the injury to the lower left leg as determined by a Medical Panel in its Certificate of Opinion dated 8 August 2007?
(c)the alleged psychological/psychiatric reaction?

Answer:(a) In the Panel’s opinion the Plaintiff is currently suffering from an aggravation of lumbar disc degeneration with referred symptoms to the left leg but without radiculopathy, relevant to the admitted injury to the low back.
(b)In the Panel’s opinion the Plaintiff is currently suffering from a residual dysfunction of the left ankle following a calcaneal fracture treated surgically with multiple operations, relevant to the injury to the lower left leg as determined by a Medical Panel in its Certificate of Opinion dated 8 August 2007.
(c)In the Panel’s opinion the Plaintiff is currently suffering from a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, relevant to the alleged psychological/psychiatric reaction.

Question 2:Is the Plaintiff incapacitated for his pre-injury employment as a truck driver?
Answer:Yes.
Question 3:If yes to question 2 hereof, does the incapacity now result from or be materially contributed to by:
(a) the admitted low back injury; and/or
(b) the determined left leg injury; and/or
(c)the alleged psychological/psychiatric reaction condition?

Answer:The Panel is of the opinion that the Plaintiff’s current incapacity for work results from, and is materially contributed to by, the admitted low back injury, and the determined left leg injury, and the alleged psychological/psychiatric reaction condition.
Question 4:(a) Does the plaintiff have a current work capacity?
(b)If no to part (a) hereof, is it likely that the plaintiff’s “no current work capacity” will continue indefinitely?

Answer:(a) Yes.
(b) Not applicable.

Question 5:If yes to question 4(a) hereof, what duties constitute suitable employment?
Answer:The Panel is of the opinion that the duties of a car rental clerk, an inquiry clerk, a transport and despatch clerk, a purchasing and supply logistics clerk, a weigh bridge operator, a car park attendant and a tourist information officer would constitute suitable employment for the plaintiff.

The Panel, it is convenient to note, comprised Dr Susanne Homolka, occupational physician; Mr Andrew Hardidge, orthopaedic surgeon; Mr Myron Rogers, neurosurgeon; Dr Matthew Tagkalidis, psychiatrist; and Dr Susan Brann, psychiatrist. It is also convenient to note that Dr Homolka and Messrs Hardidge and Rogers examined the applicant jointly on 21 June 2013; and that Drs Tagkalidis and Brann jointly examined the plaintiff on that same day.

The Panel’s opinion was not founded solely upon the history provided by the plaintiff and examination findings elicited by its members. It also had regard to a body of written material provided by the plaintiff and VWA.

I have concluded, for the reasons which follow, that the plaintiff is entitled to the relief which he seeks.

The circumstances generally described

Many of the circumstances are set out in the Panel’s reasons, to which I will later refer. But it is convenient to now set out some basic, and uncontroversial, matters.

In 2003, the plaintiff was a truck driver employed by Aroz Pty Ltd. He suffered compensable injury to his back. The injury was an aggravation of lumbar disc degeneration, productive of referred symptoms to the left leg and foot. In October 2006, the plaintiff had a fall, which he attributed to suffering a back spasm which caused him to lose balance. He suffered a fracture of his left calcaneum. Apart from the physical injuries, a psychiatric reaction ensued.

The plaintiff claimed, and was paid, compensation at the outset. He resumed other work for a period between 2004 and 2006, but could not carry on. Weekly payments were resumed. It was during the second period of incapacity that he suffered the ankle injury.

Weekly payments were terminated in January 2007. In August that year, however, a medical panel determined that the ankle injury was compensable, and another panel determined that by reason of his back and ankle injuries the plaintiff had no current work capacity and that this situation was likely to continue indefinitely. Although psychiatric injury was determined to be present, it was not said (by a third panel) to add to the plaintiff’s overall impairment.

The plaintiff’s payments were reinstated, and the plaintiff continued on weekly payments until, as I have noted earlier, they were terminated in January 2012 in reliance upon a notice dated 27 October 2011. In the period between resumption of payments in 2007 and their termination in January 2012, the plaintiff underwent repeated surgery to his left ankle.

Extension of time

The Certificate of Opinion and accompanying reasons were dated 5 July 2013. They were forwarded to the plaintiff’s solicitors under cover of a letter dated 11 July 2013, and were received by the solicitors on 12 July 2013. The originating motion, as I have said, was filed on 6 September 2013.

By r 56.02(1) of ch 1 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’), a proceeding under O 56 must be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.

By r 56.02(2):

Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.

By r 56.02(3):

The Court shall not extend the time fixed by paragraph (1) except in special circumstances.

The better view has been said to be, in the case of an O 56 proceeding brought in respect of the opinion of a medical panel, that the period of 60 days commences on the date that the Certificate of Opinion is given, regardless when it is communicated to the parties.[2] So understood, the proceeding was commenced three days out of time.
[2]

This matter was drawn to the attention of the plaintiff’s solicitors by the solicitors for VWA in November 2013. They responded that it was their contention that the plaintiff had 60 days from ‘notice of the decision’. Shaun Marcus, the solicitor handling the matter for the plaintiff, has deposed by affidavit sworn 10 June 2014 that such was indeed his understanding at the time.

The question whether the proceeding had been regularly initiated was raised again by the defendant’s side a few days before the hearing. That prompted the plaintiff’s advisers to make application for extension of time. They now accepted that the proceeding had not been initiated within the 60 day period.

In substance, the plaintiff relied upon the following matters to constitute, considered together, special circumstances:

· the quite short period by which the proceeding had been commenced out of time;

· the solicitor’s mistaken belief;

· the fact that the grounds relied upon turn, in part, upon the Panel’s reasons, the content of which was unknown to the plaintiff’s solicitors until 12 July 2013;

· the circumstances that, after timely instructions had been given to junior counsel to prepare documents for the purposes of this proceeding, counsel asked to be provided with a number of attachments to documents referred to by the Panel in its reasons. The solicitor searched, but could not find copies of them. Ultimately, he instructed counsel to go ahead and prepare initiating documents. But by the time the initiating documents were received, the 60 day time limit had expired;

· the contention that the proceeding raises arguable errors on the part of the Panel. The plaintiff will be irrevocably prejudiced if they cannot be agitated;

· subject to the desirability of finality of litigation, the absence of evident prejudice to the defendant if extension of time be granted.

At a level of generality, the judgment of Hansen AJA[3] in Mann v Medical Practitioners Board of Australia[4] is illuminating. In particular, his Honour observed that, according to authority, ‘what is special is that which is not general in character’. His Honour then, by reference to authority, characterised the words ‘special circumstances’ as being ‘wide, comprehensive, and flexible’ and such that a court ‘ought [not] lay down any exhaustive definition of them’.[5] He also observed that, nonetheless, the dictionary meaning of the word ‘special’ — ‘[o]f such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality, or degree’ was useful so long as it was not employed to limit the flexibility to which he had earlier adverted.
[3]With whom Chernov and Nettle JJA agreed.
[4](2004) 21 VAR 429, 449-51 ([68]-[71]).
[5]Ibid [68], quoting Re Norman (1886) 16 (Q)BD 637, 677.

In cases such as the present, it has been said that the length and reason for delay, ‘any prejudice to the defendant(s), whether the plaintiff has an arguable case, and the public interest in the finality of litigation’ are pertinent.[6]
[6]See Goodman v Victorian Civil & Administrative Tribunal [2011] VSC 35 (21 February 2011) [29] (Habersberger J). See also Treacy v Newlands [2007] VSC 224 (4 June 2007) [12] (Osborn J) and Sodexho Australia Pty Ltd v Rowe [2008] VSC 570 (17 December 2008) [20] (Williams J).

It has been held also that where a ground of relief fastens upon the reasons of a panel, it will be relevant that the reasons were not provided to the parties on the date of the certification of opinion. That was the situation in Treacy v Newlands.[7] There, as the legislation then stood, reasons were not provided at the date of certification of opinion; but later on, in response to a request. That is not this case, but the practical consequence of the opinion and reasons being posted to the plaintiff’s solicitors is no different. That is, the reasons did not come to the attention of the plaintiff’s solicitors for about a week after the date upon which the Certificate of Opinion and reasons were respectively signed.
[7][2007] VSC 224 (4 June 2007).

The identification of matters which are likely to be relevant to an assessment of special circumstances does not deny the width, comprehensiveness and flexibility to which Hansen AJA referred. As Osborn J said at first instance in Mann v Medical Practitioners Board of Victoria:

Whether special circumstances exist is a question to be determined by reference to the whole of the circumstances of a particular case. It is essentially a question of characterisation of the particular case.[8]

[8][2002] VSC 256 (18 June 2002) [19].

Approaching the matter in the manner commended by [21]-[24] above, I consider that the circumstances relied upon by the plaintiff, in combination, constitute special circumstances.[9]
[9]I put to one side the solicitor’s mistaken belief.

I add this: I mentioned earlier the plaintiff’s reliance upon what was said to be, in effect, the inability of his solicitor to provide counsel with certain documents referred to by the Panel in its reasons. The solicitor handling the matter for VWA, Ms Shelley Werner, has deposed by affidavit sworn 12 June 2014 that the documents provided to the Panel were the outcome of a process between counsel by which documents were agreed and listed in a schedule; the consequence being that both sides knew which documents had been provided. The central question, however, is not whether the parties had agreed upon the documents to be provided, but whether the plaintiff’s solicitor was in possession, or perhaps should have been in possession, of copies of particular documents when counsel requested them. He has averred, in substance, that he was not then in possession of any such copies. The documents themselves would have been provided to VWA or its agent by their authors. There is no reason why the solicitor’s statement on oath should not be accepted. Indeed, Ms Werner does not challenge that statement. She has instead deposed that the documents were ‘in the effective possession of the plaintiff’ or ‘would have been supplied’ had a request been made. I do not think that the concept of constructive possession adds to the defendant’s position. Further, whilst there is no reason to doubt Ms Werner’s averment that the documents would have been provided, if requested, and whilst in the calm light of day the plaintiff’s solicitor can be criticised for not making such a request when he could not locate copies of the documents, I consider that the circumstance under discussion adds a little to the matters which tend, globally considered, in the plaintiff’s favour.

Grounds

The originating motion groups the plaintiff’s complaints under the headings, ‘Jurisdictional error’ and ‘Adequacy of reasons’. Under the first heading, four matters are identified, two of which were abandoned at trial. That left standing grounds 2 and 4, which read as follows:

2.In determining its opinion upon Question 4, the Medical Panel fell into jurisdictional error by failing to take into account relevant considerations that it was bound to have regard to.
PARTICULARS
In rejecting the proposition advanced by the Defendant that the medical conditions resulted from the 2 incidents “should now be categorised as being transient exacerbations of an underlying medical condition and that the Plaintiff has a current work capacity for suitable employment”[, t]he Panel erred in law in forming its own opinion as to the employment in work for which the Plaintiff is currently suited, thereby misconstruing or misapplying the terms “current work capacity” and “no current work capacity”, defined in s 5 of the Act.

4.The conclusion reached by the Medical Panel that the jobs which it referred to were suitable for the Plaintiff required an examination of the actual work actions required to be done for each job, and an assessment of the Plaintiff’s ability to do them with severe back and leg pain, left foot pain or constantly sitting, standing and walking. The Medical Panel did not make such an examination or assessment, and thus did not perform the task required of it by the Act. Further, there was no evidence before the Medical Panel on which it was open to it to conclude that such was the case.

Under the heading ‘Adequacy of reasons’ — the heading is inapt, for what it complained of is inadequacy of reasons, and some of the matters raised do not address reasons at all — the plaintiff relies upon five grounds, as follows:

1.The Medical Panel failed to give an adequate statement of reasons sufficient to comply with section 68(2) of the Act.
2.In determining its opinion upon Question 4, and confirming that the Plaintiff continues to suffer from an incapacity to undertake his pre-accident employment, suffers from a chronic adjustment disorder with mixed anxiety and depressed mood relevant to the alleged Psychological/psychiatric condition:
(a)determined its opinion and formed its conclusion without any or any adequate consideration of relevant written material comprising medical reports as to the Plaintiff’s clinical state and need for ongoing medical supervision, treatment and management following multiple surgical procedures since the previous Medical Panel opinion dated August 2007 since 30 April 2012;
(b)determined its opinion and formed its conclusion without explanation as to why before the surgery of 30 April 2012, and thereafter the Plaintiff had a current work capacity when relevant written material prior to and after this date declared the Plaintiff had no current work capacity and required ongoing medical supervision and treatment;
(c)in determining its opinion and forming its conclusion, the Medical Panel failed to provide any reasons or explanation as to the Plaintiff having no current work capacity as at January 26, 2012 and not thereafter and did so without any or any [sic] or any adequate consideration of and explanation of the relevant written material, including medical reports.

3.The Reasons of the Medical Panel’s [sic] do not contain any reasons, or adequate reasons, as how it came to its conclusion that the Plaintiff had a current work capacity at the end of January 2012, when he had none in [sic] prior to this date and prior to the final operation on 30 April 2012 his condition had not improved, and his ability to work had not improved.
4.The reasons of the Medical Panel do not contain any reasons, or any adequate reasons
(a)as to why, at the date of its determination in 2013, the Plaintiff was suited to any of the jobs which were identified in 2011, given his disabilities and physical limitations,
(b)for concluding that there were such jobs in existence for a person with the Plaintiff’s disabilities and limitations, at the date of the Medical Panel’s Certificate, or at any other time.

5.There was no evidence before the Medical Panel on which it could conclude that
(a)at the date of its determination in 2013, the Plaintiff was suited to any of the jobs identified in 2011, given his disabilities and physical limitations,
(b)there were such jobs in existence for a person with the Plaintiff’s disabilities and limitations, at the date of the Medical panel’s Certificate, or at any other time.

At the hearing, plaintiff’s counsel applied for leave to add a further ground, namely:

6.The plaintiff was denied procedural fairness on the following grounds:
a.He was denied opportunity to answer questions about whether he was capable of performing the duties of a
·     car-park attendant
·     car rental clerk
·     ticket seller
·     tourist information officer
b.He was not given any opportunity to put forward any material of a vocational, medical or rehabilitation nature as to his capacity on the merits of the identified jobs.

Senior Counsel for VWA did not consent to the plaintiff’s application to rely upon this particular ground, but did not advance arguments against grant of leave. I granted the leave sought.

Counsel for VWA complained with justification that the matters orally agitated for the plaintiff, including the new ground, departed not only from the grounds set out in the originating motion, but also from the written argument for the plaintiff dated 9 December 2013. It is quite unsatisfactory for a party to have to meet new or substantially revised arguments at trial. It is doubly unsatisfactory where, as in my opinion was the situation in this case, the arguments remained less than entirely clear at the conclusion of the hearing.

Despite those problems, however, the matters which were particularly agitated for the plaintiff turned on a few identified passages in the Panel’s reasons; and, in the case of the added ground, the fact that the Panel concluded that certain occupations constituted suitable employment when (1) those occupations had not been mentioned anywhere in the body of material submitted to the Panel; and (2) the Panel did not give the plaintiff the opportunity of addressing this specific and potentially adverse conclusion. Further, and most importantly, counsel for VWA had no evident difficulty in addressing the case which plaintiff’s counsel articulated.

The 2007 determinations

In August 2007, three panels (the ‘first’, ‘second’ and ‘third’ panels) made determinations of opinion. I have already briefly summarised the determinations made, but it is desirable to set out the questions submitted to the panels, and their answers, in full.

The first panel’s opinion was by way of answers to two questions:

Question 1:What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
Answer:In the Panel’s opinion the worker is suffering from an aggravation of lumbar disc degeneration with referred symptoms to the left leg but without radiculopathy and residual symptoms of a left calcaneal fracture with mild sural nerve deficit and relevant to the claimed injuries.
Question 2:Does the worker have no current work capacity? If so, is this situation likely to continue indefinitely?
Answer:In the Panel’s opinion the worker has no current work capacity and this situation is likely to continue indefinitely.

The second panel’s opinion was by way of answer to a single question. Thus:

Question 1:Was the employment a significant contributing factor to the injury to the worker’s L foot and/or L finger (including any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease) claimed as a consequence of the injury to his lower back?
Answer:In the Panel’s opinion the worker’s employment was in fact a significant contributing factor to an injury to the worker’s left foot and to a now resolved injury to the left small finger, as a consequence of the injury to his lower back.

The third panel’s opinion, which addressed a possible serious injury application, referred, inter alia, to ‘an accepted psychiatric injury’. It was that panel’s opinion that this added nothing to a 27% whole person impairment deriving from the back and left foot injuries.

The Panel’s reasons

The Panel had before it the 2007 determinations, and the reasons for opinion then provided. According to the Panel’s reasons, it ‘confirmed with the plaintiff the accuracy of the history outlined in the reasons of the first panel’.

The Panel also had before it evidence that the plaintiff had undergone a series of operations since the panel determinations of 2007. They were —

(1)a valgus lateral closing wedge osteotomy of the calcaneum performed on 18 August 2008;

(2) a left-sided sural neurolysis and division performed on 23 August 2010; and
(3)debridement of the left Achilles with excision of a large bursa and bony spur on 30 April 2012, together with an arthroscopy of the left ankle which showed areas of chondral loss and an anterior impingement spur which was also excised during this procedure.

The plaintiff described his current symptoms, as noted in the Panel’s reasons, this way:

The plaintiff currently complains of constant lower back pain of variable severity which is increased by repetitive bending, by sitting for longer than 30 minutes, by standing and walking for longer than ten minutes, by coughing and sneezing, and by climactic [sic] changes. He described intermittent associated radiation of pain into his left lower limb, as far as the ankle, and less frequently also into his right lower limb, as far as the knee, and he told the Panel that occasionally he experiences “pins and needles” and numbness which affects the whole of his left foot.

and:
With respect to his left ankle and foot the plaintiff currently complains of a constant dull ache which is increased by weight bearing activity and by cold weather. He described intermittent associated swelling, and he told the Panel that as a result of stiffness in the left ankle he is unable to run and squat and has difficulty with kneeling and with negotiating stairs and sloping ground, particularly, when descending. He told the Panel that he does not experience any instability in his left ankle, but he described how his left leg still “collapses” under him in association with episodic “spasms” in his lower back.

The plaintiff also told the Panel, as recorded in its reasons, that —

(1)because of lower back pain he could not drive for longer than about 20 minutes;
(2)he remained in the care of his general practitioner;
(3)he continued to do exercises most days for his back, but no longer had formal physiotherapy;
(4)he continued to take narcotic analgesia;
(5)he wore an ankle support and orthotics in both shoes, and occasionally a back brace; and
(6)he regularly applied heat packs to his lower back and left ankle for additional pain relief.

The Panel’s examination findings were as follows:

On physical examination the Panel noted that the Plaintiff wore sandals fitted with bilateral full-foot orthoses and utilised a single point walking stick to help him ambulate. He was able to walk without assistance but demonstrated an antalgic gait, walking on the lateral border of his left foot and limping on his left leg. He was able to toe walk without difficulty. Standing posture revealed equal body weight distribution to both lower limbs, a mild varus deformity of the left ankle, and the left big toe held in extension, raised slightly off the ground. There was some flattening of the lumbar lordotic curve without any associated paraspinal muscle spasm, and localised tenderness to palpation was not elicited. Range of motion of the thoracolumbar spine was globally and variably grossly limited during formal assessment, with a substantially greater range of movement demonstrated at other times during the consultation. Examination of the left lower limb revealed a well healed, curvilinear, 19 cm surgical scar over the anterolateral aspect of the left foot, ankle and distal calf which was slightly tethered in the region of the calcaneum. Range of motion of the left ankle demonstrated ankylosis of the subtalar joint and mild restriction of flexion and extension. Sensory testing revealed altered sensation in the left sural nerve distribution. There was no other abnormality of the lower limbs. In particular, there was no evidence of muscle wasting or atrophy, and no loss of power or dermatomal sensory loss were demonstrated. Deep tendon reflexes were present and symmetrical and the plantar response was down-going bilaterally. Ranges of motion of the left and right hips and knees were pain free and unrestricted.

As to radiological imaging, the Panel said this in its reasons:

The Panel reviewed radiological imaging, including two MRI scans of the lumbar spine, dated 24 November 2003 and 16 September 2004 respectively, both of which showed L4/5 and L5/S1 disc degeneration with loss of disc height and associated left paracentral annular bulges encroaching on the left S1 nerve root sheath, without any interval disease progression; plain Xrays and a CT scan of the left calcaneum, dated 16 August 2007, which demonstrated a persistent non-union of a calcaneal fracture involving the talocalcaneal joint, early osteoarthritis of this joint, and osteopaenia of the calcaneum; two sets of plain Xrays of the left ankle, dated 4 January 2008 and 4 April 2008 respectively, both of which demonstrated internal fixation with a screw of the posterior calcaneus to the talus in good position and with evidence of progressive bony union, a corkscrew tendon repair, and minor osteophytosis of the anterior and medial ankle joint; and additional plain Xrays of the left ankle, dated 30 October 2008, which showed changes consistent with a lateral closing wedge osteotomy of the calcaneum, with two cannulated screws in situ and removal of the talocalcaneal screw and of the small corkscrew.

With respect to any change in the plaintiff’s physical condition between 2007 and 2013, the Panel first said this in its reasons:

The Panel noted, and considered, the opinion of the first Panel, expressed in the Certificate of Opinion dated 8 August 2007, that the Plaintiff is suffering from ‘an aggravation of lumbar disc degeneration with referred symptoms to the left leg but without radiculopathy and residual symptoms of a left calcaneal fracture with mild sural nerve deficit’. The current Panel noted that since the first Panel’s assessment the Plaintiff had undergone extensive additional surgical treatment of his left calcaneal fracture, including a subtalar joint fusion, two calcaneal osteotomies, tendo-Achilles lengthening and sural neurolysis, but that his lower back condition has remained essentially unchanged.
The Panel concluded that the Plaintiff is currently suffering from an aggravation of lumbar disc degeneration with referred symptoms to the left leg but without radiculopathy, relevant to the admitted injury to the low back with a designated injury date of 29 May 2003.
The Panel also concluded that the Plaintiff is currently suffering from a residual dysfunction of the left ankle following a calcaneal fracture treated surgically with multiple operations, relevant to the injury to the lower left leg as determined by a Medical Panel in its Certificate of Opinion dated 8 August 2007.

Pausing, the Panel there contrasted, to an extent, the present situation of the plaintiff’s lower back and left ankle conditions with the situation as it was in 2007. The former had remained ‘essentially unchanged’, but the plaintiff had undergone extensive additional surgical treatment of the left ankle injury, as described by the Panel.

Respecting the plaintiff’s psychiatric condition, the Panel noted that in 2007 the third panel had opined that the plaintiff suffered from an adjustment disorder with disturbance of emotion and conduct, which was considered to be a consequence of physical injury. The Panel’s own conclusion, as to the situation obtaining in 2013, was expressed this way:

The Panel agreed with the third Panel’s opinion that the Plaintiff has developed a psychiatric condition as a consequence of his physical injury but, based on its own psychiatric examination of the Plaintiff on 21 June 2013 and on its collective expertise and clinical experience the Panel considered that the Plaintiff’s psychiatric condition has evolved during the five years since the third Panel’s assessment, and that the opinion expressed by Dr Newlands in her report, dated 25 January 2011, more accurately reflects his current state of emotional health.

To understand this change in opinion, it is necessary to note that Dr Newlands reported, in January 2011, that the plaintiff was suffering from ‘an adjustment disorder with mixed anxiety and depressed mood’.

The Panel rejected the defendant’s submission that the plaintiff was no longer incapacitated by reason of compensable injury to his lower back, and that any compensable incident should now be categorised as transient exacerbations of an underlying pre-existing lumbar spinal condition.

With respect to the plaintiff’s capacity for pre-injury work, the Panel said this in its reasons:

The Panel considered that the Plaintiff’s physical medical condition of an aggravation of lumbar disc degeneration with referred symptoms to the left leg but without radiculopathy and residual dysfunction of the left ankle following a calcaneal fracture treated surgically with multiple operations is such that he is not capable of performing his pre-injury duties and hours of work as a truck driver. The Panel also considered that the Plaintiff’s current psychiatric medical condition of a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood does not in and of itself affect his capacity for work but contributes when considering the overall assessment of his current work capacity.
The Panel therefore concluded that the Plaintiff is incapacitated for his pre-injury employment as a truck driver, and the Panel also concluded that the Plaintiff’s incapacity for work results from, and is materially contributed to by, the admitted low back injury, the determined left leg injury and the alleged psychological/psychiatric reaction.

Thus far, the Panel’s reasons addressed its answers to the first three questions which had been submitted for its opinion. Then the reasons began to focus upon the Panel’s answer to questions 4 and 5.

The first aspect of that inquiry was the plaintiff’s own perception of his situation. The reasons record that:

The Plaintiff told the Panel that due to the level of his lower back and left ankle pain he would be unable to work on his ‘bad days’, and he said that unless he was able to ‘control my work environment so that I only work on my good days’ he did not consider himself capable of any form of employment. He told the Panel that in general he experienced 2 – 3 ‘bad days’ per week.
He told the Panel that his knowledge and experience in the field of electronics engineering and radio communications equipment, which would potentially allow him to work in a physically non-demanding capacity, was ‘out of date’, and he said that he considered that his poor memory and concentration would not allow him to successfully complete additional training in this area.

Then the Panel explained in its reasons that it —

considered all aspects of the definition of ‘suitable employment’, ‘current work capacity’ and ‘no current work capacity’ contained within the Accident Compensation Act 1985 (‘the Act’), and in particular:
·     The nature, extent and severity of the Plaintiff’s physical and psychiatric medical condition, including his use of narcotic analgesia, and its effect on his physical capacity to cope with employment duties and to attend a workplace on a consistent basis;
·     His level of education to the year 11 level, excellent English literacy and numeracy skills, and good computer skills;
·     His age of 49 years (which the Panel considers does not limit his employment options);
·     His place of residence in outer Melbourne suburbia, which the Panel considers does not preclude a range of employment options;
·     His possession of a driver’s licence and his reported inability to drive an automatic vehicle for longer than 20 minutes;
·     His possession of a heavy vehicle licence and a current forklift driver’s licence;
·     His transferrable [sic] skills, which include extensive, but now out-of-date, experience in electronics engineering and radio communications, knowledge and experience of the transport industry and of small business management as a contractor owner/driver and of Foxtel and television antenna installation;
·     His favourable personal presentation and excellent English communication and interpersonal skills;
·     The occupational rehabilitation services which have been provided to the Plaintiff, which include two Vocational Assessments, dated 15 June 2006 and 8 December 2008 respectively, an NES Refresher Assessment and Plan, dated 4 July 2011, and an Independent Job Seeker Plan, dated 18 November 2011, and the alternative employment options identified in these documents, which include the options of a rental clerk, a sales assistant, a call centre operator, a product assembler, an inquiry clerk, a security – gatehouse attendant, a transport and despatch clerk, a purchasing and supply logistics clerk, a sales representative, a business equipment technician, a computer assembly and repairs technician, and a weigh bridge operator;
·     The Vocational Assessment, dated 18 October 2012, prepared by Katherine Green Consulting Pty Ltd at the request of the Plaintiff’s legal advisors, wherein the Plaintiff is considered to have no current work capacity;
·     The opinions of the Plaintiff’s treating general practitioner, Dr Said K Mirranay, expressed in his report, dated 13 November 2012, and his treating psychologist, Kate Hambleton, expressed in her report, dated 21 September 2012, both of whom considered the Plaintiff to have no work capacity, either currently or in the foreseeable future;
·     The opinion of the Plaintiff’s treating physiotherapist, Justin Moar, expressed in his report, dated 22 July 2011, wherein Justin Moar enumerated several recommended restrictions and opined that the Plaintiff has ‘very limited work capacity at present’; and
·     The opinion of the Plaintiff’s treating musculoskeletal physician, Dr Robert Gassin, expressed in his report, dated 21 October 2012, wherein he stated that the Plaintiff ‘has the capacity for retraining for suitable employment duties’

Pausing again, the Panel there referred, inter alia, to ‘occupational rehabilitation services’ which had been provided to the plaintiff. It identified those services by reference to four reports provided to the defendant in the period June 2006 — November 2011; and to a vocational assessment made by a consultant engaged by the plaintiff. As will be seen, the Panel referred again in its reasons to three of the reports provided to the defendant.

The Panel explained its conclusion respecting the plaintiff’s current work capacity this way:

Based on its analysis of the criteria for suitable employment set out in the previous paragraphs, and on its own knowledge and experience of possible occupational options, the Panel considered that the vocational options of a sales assistant and a sales representative, which may require potentially heavy manual handling, and the options of a call centre operator and a product assembler, which require extended periods of sitting, and the option of a security – gatehouse attendant, where the Plaintiff does not hold a current security licence, and the options of a business equipment technician and a computer assembly and repairs technician, where his knowledge and skills are out dated, would not constitute suitable employment for the Plaintiff.
The Panel considered that, notwithstanding the Plaintiff’s own perception of his work capacity, occupational duties where heavy manual handling is not required and where there is no requirement to remain in a seated position for extended periods of time, as is the case with the duties of a rental clerk, an inquiry clerk, a transport and despatch clerk, a purchasing and supply logistics clerk, and a weigh bridge operator; and also with the duties of variety of other occupations such as a car park attendant, a ticket seller and a tourist information officer, would constitute suitable employment for the Plaintiff.
The Panel considered that the Plaintiff has transferable skills and that there are vocational options which are appropriate for his age and physical condition, and which he could perform on a reliable and consistent basis.
The Panel therefore concluded that the Plaintiff has a current work capacity, and the Panel also concluded that the duties of a car rental clerk, an inquiry clerk, a transport and despatch clerk, a purchasing and supply logistics clerk, a weigh bridge operator, a car park attendant, a ticket seller and a tourist information officer would constitute suitable employment for the Plaintiff.

The Panel was alive to the need to give consideration to the opinion expressed by the first Panel in 2007. After expressing its conclusion in the passage just cited, it said this in its reasons:

The Panel noted that the opinion of the first Panel, expressed in the Reasons for Opinion, dated 8 August 2007, that the Plaintiff has no current work capacity and that this situation is likely to continue indefinitely, but that ‘it is possible that with further treatment including vocational rehabilitation, the worker’s condition will improve’. The Panel noted that since the first Panel’s assessment the Plaintiff has undergone extensive additional surgical treatment in relation to his left calcaneal fracture, and that he has received additional vocational rehabilitation services, including a further Vocational Assessment (dated 9 December 2008), an NES Refresher Assessment and Plan (dated 4 July 2011), and an NES Independent Job Seeker Plan (dated 18 November 2011). Based on its examination of the Plaintiff on 21 June 2013, the Panel considered that the Plaintiff’s condition has improved as a result of these interventions such that he now has a current work capacity.

The Panel further stated that it had considered, and reached a different conclusion, to the conclusion that the plaintiff had no current work capacity which had been expressed by a number of independent medical examiners. It had reached a different conclusion ‘[b]ased on its own examination of the plaintiff … and for the reasons above’.

Principles
Sufficiency of reasons

As I have already noted, the plaintiff mounted an attack upon the sufficiency of the Panel’s reasons. Three points must be made.

First, the required standard of a panel’s reasons is informed by the nature of the function which it performs. It was described this way by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’):

The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. 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.[10]

[10](2013) 303 ALR 64, 77 ([47]) (citations omitted).

Second, given that function, and given the legislative history leading up to the enactment of s 68(2) of the Act in its present form, the standard of reasons required of a panel was stated in Wingfoot to be 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 any 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.[11]

[11]Ibid 79 ([55]).

The High Court thus rejected the conclusion reached by this Court that —

… it was incumbent on the [p]anel to provide a comprehensible explanation for rejecting [certain] expert medical opinions, or, if it be the case, for preferring one or more other expert medical opinions over them.[12]

[12]Ibid 80 ([56]), citing the judgment of this Court in Kocak v Wingfoot Australia Partners Pty Ltd (2012) 35 VR 324, 343 ([55]).

Third, when a court is required to consider an attack upon the reasons of a panel, the approach described in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[13] is to be applied. Thus:

When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic.[14] In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker.[15] The Court continued:[16] “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[17]
[13](1996) 185 CLR 259, 271-272 (citations included as in original). See also Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322 (20 December 2012) [20] (Maxwell P and Cavanough AJA).
[14](1993) 43 FCR 280.
[15]Pozzolanic (1993) 43 FCR 280 at 287.
[16]Pozzolanic (1993) 43 FCR 280 at 287.
[17]See McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616.

Procedural fairness

The plaintiff argued, by the added ground, that the Panel had denied him procedural fairness. Relevant principles were described this way by Cavanough J in Barrett Burston Malting Co Pty Ltd v Kotzman (‘Barrett Burston’):

32.A medical panel convened to form its opinion as to medical questions referred to under the Act is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by the discharge of that function.[18] Failure to sufficiently accord an affected party procedural fairness or natural justice contaminates the medical panel opinion with illegality such that it is liable to be quashed upon judicial review. Examples of a medical panel’s opinion being quashed upon judicial review for failure to observe “the hearing rule” of procedural fairness may be found in Calleja v Franet Pty Ltd[19] and Weerappah v Nisselle.[20] The leading Australian case concerning the content of the hearing rule generally is Kioa v West.[21]
[18]Masters v McCubbery [1996] 1 VR 635.
[19][1999] VSC 202.
[20][1999] VSC 249.
[21](1985) 159 CLR 550.
33.A medical panel is obliged to accord the protection of the “hearing rule” of procedural fairness to the employer/insurer party, not merely to the worker party: see, eg, Weerappah[22] where Smith J said:
[22][1999] VSC 249 at [50].
While much of the foregoing discussion is centred on the position of the worker, it must be borne in mind that there is always another party to these disputes and it too can be disadvantaged if the panel does not accord natural justice. For example, in the course of a medical examination, the worker may reveal information of which the insurer is unaware and which may, if accepted, entitle the worker to the compensation it [sic] had been denied. It would be a denial of natural justice for the insurer not to have an opportunity to address that information before the Panel reached its decision.

34.A medical panel can also breach the hearing rule in relying upon its own medical expertise to form an opinion — say, as to diagnosis, or, say, as to an aspect of disability previously unnoticed by other medical examiners — such that it could be said that a party did not have a fair opportunity to have that proposed adverse conclusion explored with its own experts. In such a situation, the aggrieved party has been denied a fair opportunity to be “heard” (for instance, through submitting its own medical reports or written submissions) on the issue. Calleja v Franet Pty Ltd is an example of the Supreme Court giving relief in such an instance.

35. In Vegco Pty Ltd v Gibbons[23] Kyrou J said:
[23][2008] VSC 363 at [23].
A Medical Panel is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by its opinions on medical questions. The Medical Panel may breach the rules of natural justice where it relies on new information provided to it by the worker during the examination by the Medical Panel, a new medical report, evidence that has not been seen previously by the worker and a matter within the panel’s own expertise and does not prior to reaching the final opinion, provide the substance of this new information, evidence or matter to the parties affected by its opinion and give them a reasonable opportunity to address it. (citations omitted).

36.In Commissioner for ACT Revenue v Alphaone[24], a Full Court, comprising Northrop, Myles and French JJ, said:
[24](1994) 49 FCR 576.
Where the exercise of a statutory power attracts the requirement for procedural fairness, the person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

37.More recently, in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[25] the High Court referred with apparent approval to the passage from the Alphaone decision set out above. The High Court continued:[26]
In Alphaone the Full Court rightly said:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.[27]
[25](2006) 228 CLR 152, especially at [29]ff.
[26]At [32].
[27]Barrett Burston [2013] VSC 248 (15 May 2013) [32]-[37] (citations included as in original).

Illogicality

In some part, the plaintiff’s argument that the reasons were inadequate merged into an argument that a particular finding was illogical. There is a question as to the extent of illogicality or irrationality required before it can be said that jurisdictional error by an administrative body has been demonstrated.[28] It must always be borne in mind that a proceeding such as this is not a merits review. Further, in a particular case it will also be relevant to consider, I think, whether an asserted illogicality led anywhere in the determination which is impugned. That must at least be relevant to the question whether to grant a discretionary remedy.
[28]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

No evidence

The submission for the plaintiff that the reasons were inadequate also at times merged with an argument that there was no evidence to support particular findings — as contrasted with the findings being illogical or irrational. The ‘no evidence’ bar is set very high. The word ‘no’ is to be given its full amplitude. Long ago, in the context of a case stated in a workers compensation matter, the Full Court peremptorily disposed of an attempt by the employer to dress up as a ‘no evidence’ argument what was in truth an attack on the conclusion of fact reached by the Workers Compensation Board in favour of the deceased worker’s widow.[29] I mention the matter not because it exposed any new principle but only because, firmly fixed in the memory of those old enough to remember it, one of the judges asked counsel for the employer (in a matter which turned on medical evidence) why the Board could not have preferred the evidence of a witch doctor favouring the widow’s case to the evidence of a respected cardiologist in favour of the employer’s position. There may have been some licence in the question,[30] but it did tend to illustrate the approach of courts to ‘no evidence’ arguments.
[29]Buckle v Commonwealth Aircraft Corporation Pty Ltd [1968] VR 359.
[30]Not least because the widow in fact relied upon the opinion of an eminent cardiologist.

The plaintiff’s submissions summarised

The way in which the plaintiff’s case was orally developed bore, as counsel for VWA submitted, passing resemblance to the grounds noted at [27] above. I did not find it easy to discern where one argument ended and another began. As I have already observed, arguments nominally addressing the inadequacy of reasons merged with submissions as to illogicality and no evidence. None of this was satisfactory. Against that background, and as best as I understand it, plaintiff’s counsel submitted that the Panel’s opinion was vitiated because —

(1)in concluding that the plaintiff’s condition had improved since the panel opinions expressed in 2007, the Panel had illogically relied, inter alia, upon improvement as a result of the ‘interventions’ constituted by receipt of ‘additional vocational rehabilitation services’;
(2)in any event, the Panel had concluded that ‘vocational’ or ‘occupational’ rehabilitation services had been provided to the plaintiff in 2008 and 2011, when there was no evidence of the provision of such services;
(3)whilst the Panel had concluded that the condition of the plaintiff’s left ankle had improved since 2007, its reasons failed to reveal whether it accepted or rejected the pertinent history as noted in the second cited passage at [39] above;
(4)the Panel’s reasons showed that in concluding that the plaintiff was fit for certain work it had only considered his back disability. The plaintiff had a substantial disability of his left foot and ankle, which evidently had not been brought to account in the Panel’s determination. But if that was not so, then the reasons did not enable the plaintiff to see how the Panel had reconciled the disability of his left ankle with the jobs which, in its opinion, constituted suitable employment;
(5)the plaintiff had been denied procedural fairness because the Panel had concluded that jobs which were not mentioned in any of the material before it constituted suitable employment. Moreover, in its reasons the Panel had provided no work descriptions with respect to those jobs; and so the plaintiff was precluded from making an informed assessment whether its conclusion could be successfully impugned.

Conclusions summarised

The Panel’s reasons show very clearly that it applied itself conscientiously to resolving the questions submitted for its consideration. Its reasons, generally, were thorough, and its path of reasoning sufficient to meet what Wingfoot requires. Nonetheless, I have concluded that the plaintiff must succeed on the fourth submission, put in alternative ways, described at [64] above. I add that the complaint made by the third submission is pertinent to resolution of the fourth submission. In my opinion there is merit also in the second and fifth submissions, although it is unnecessary to reach a concluded view about either of them.

The plaintiff’s first submission

Senior Counsel for the plaintiff accepted that the Panel was not bound to reach the same conclusion as to absence of work capacity as did the first panel. A finding that, on a given date, a worker has no current work capacity, and that this situation is likely to continue indefinitely, admits the prospect of change. On the other hand, counsel submitted, it was uncontroversial that the Panel did need to take account of earlier expressed opinion. It was part of the material before the Panel. In a practical sense, counsel submitted, if the Panel was to reach a different opinion respecting the plaintiff’s current work capacity, there needed to be a discerned change for the better in his condition by contrast with that which obtained in 2007.

Counsel submitted that the Panel had indeed given consideration to the question whether the plaintiff’s condition had improved between 2007 and the time of its determination in July 2013. It had concluded that the plaintiff’s condition had improved. Whilst his back condition had remained essentially unchanged, and likewise the practical impact of his psychiatric injury, the Panel, noting the first panel’s opinion that ‘it is possible that with further treatment including vocational rehabilitation, the worker’s condition will improve’, had said this:

… since the first panel’s assessment the plaintiff … has received additional vocational rehabilitation services, including a further Vocational Assessment (dated 9 December 2008), an NES refresher Assessment and Plan (dated 4 July 2011), and an NES Independent Job Seeker plan (dated 18 November 2011). Based on its examination of the plaintiff on 21 June 2013 the panel considered that the plaintiff’s condition has improved as a result of these interventions such that he now has a current work capacity.[31]

[31]Emphasis added.

Counsel submitted that the passage just cited failed to disclose a path of reasoning, was utterly illogical, and was not supported by any evidence. Whatever might be said about improvement in the plaintiff’s left ankle condition, how could the Panel’s examination have revealed improvement resulting from the provision of ‘additional vocational rehabilitation services’ — the more so when consideration of the identified assessments and plans (which I shall call reports) showed that nothing at all had been done to improve the plaintiff’s condition?

Counsel for VWA submitted that —

(1)the passage in the Panel’s reasons particularly relied upon by the plaintiff was not essential to the Panel’s conclusion that the plaintiff had current work capacity;
(2)to read the passage in the way contended for by counsel for the plaintiff offended the Wu Shan Liang approach;
(3)the reasons met the ‘austere standards’ set out in Wingfoot;
(4)the Panel had, as required, intellectually engaged with the reasons of the first panel;
(5)the Panel’s reference to the vocational assessments was no more than an infelicitous attempt to give an opinion with respect to ‘suitable employment’ consistent with the definition of that term in the Act. What the Panel had meant was that the plaintiff’s ability to find, do or keep work had been improved by what was disclosed in the vocational assessment reports;
(6)the Panel’s reasoning did not reveal gross illogicality as would — or perhaps, might — constitute error of law; and
(7)there was evidence to support the Panel’s conclusion with respect to provision of vocational rehabilitation services.

I put to one side, for the moment, the submission for VWA that the impugned passage was not essential to the Panel’s conclusion that the plaintiff had current work capacity. I address the direct attack made upon that passage.

Read literally, it is very hard to accept that the last sentence of the passage makes any sense. Physical examination could not reveal improvement in the plaintiff’s condition as a result of vocational rehabilitation which had done nothing to improve his condition in a physical sense. Even if ‘examination’ were understood to include the history elicited from the plaintiff, the sentence read literally would remain incomprehensible.

I consider, however, that counsel for VWA was correct in submitting that what the Panel was attempting to say was that in determining that the plaintiff’s condition had improved to the point where he now had a current work capacity, it was taking account both of physical improvement and the plaintiff’s suitability for work having regard to the provision to him of services fitting the descriptions in paragraphs (a)(v) and (vi) of the definition of ‘suitable employment’ in s 5(1) of the Act. ‘Current work capacity’ is defined to mean, in substance, an ability to return to work in ‘suitable employment’. ‘Suitable employment’ is defined, in turn, to mean work for which a worker is currently suited having regard, inter alia, to the matters mentioned in paragraphs (a)(v) and (vi) of the definition. ‘Occupational rehabilitation services’ — see paragraph (vi) — is defined by s 5(1) of the Act in expansive terms. The concept of a ‘return to work planning process’ — see paragraph (v) — is developed at length by Part VIIB of the Act.

Logically, one might then go on to ask whether, so understood — (1) anything said in any of the reports was susceptible of a conclusion by the Panel that the plaintiff had received any relevant services; and (2), even if something was said in one or more of the reports which was susceptible of such a conclusion, was it nonetheless wholly illogical for the Panel to have so concluded? As will later appear, I would provisionally answer question (1) in the affirmative, and question (2) in the negative. But for present purposes, answers to those questions need not be given. That is because I agree with the submission for VWA that the passage in the Panel’s reasons set out at [67] above was not an essential part of its reasoning to a conclusion that the plaintiff had current work capacity.

Subject to other submissions for the plaintiff which I must later address, the Panel’s reasons followed a logical path. The Panel —

(1)confirmed the plaintiff’s history as recorded in 2007;
(2)took an updated history;
(3)recorded its examination findings referable to the plaintiff’s left ankle and lower back conditions;
(4)analysed radiological imaging and concluded that no additional imaging or investigations were required in order for it to answer the questions submitted for its determination;
(5)concluded that the plaintiff’s lower back condition had remained essentially unchanged since 2007;
(6)noted that the plaintiff had undergone extensive surgery since 2007 referable to his left calcaneal fracture, and later in its reasons, stated explicitly what was there implied — that is, its conclusion that the plaintiff’s ankle condition had improved since 2007;
(7)concluded, after psychiatric assessment of the plaintiff, that he had developed a psychiatric condition as a consequence of his physical injury which, of itself, did not affect his work capacity, ‘but contributes when considering the overall assessment of his current work capacity’;
(8)concluded that the back and left ankle injuries precluded the plaintiff from returning to his pre-injury employment;
(9)having considered all aspects of the definitions of ‘suitable employment’, ‘current work capacity’ and ‘no current work capacity’ — features of which it specified by references to the circumstances of the case — concluded that the plaintiff was not fit for certain occupations suggested in the defendant’s vocational reports, but had a capacity to perform certain jobs, which the Panel then identified.

The features mentioned by the Panel as noted at [74(9)] above — there were 13, and they did not all tend in the one direction — were, assuming their accuracy, certainly relevant to the Panel’s determination whether the plaintiff had current work capacity.

It was only after the Panel had engaged in the path of reasoning described in [74] above, which revealed why it concluded that the plaintiff had current work capacity, that it addressed the opinion of the 2007 panels. That is where the impugned passage in its reasons set out at [67] above appeared.

In that part of its reasons, the Panel also adverted to the opinions of a number of medical practitioners to the effect that the plaintiff had no current work capacity. Those opinions were rejected ‘based on [the Panel’s] own examination of the plaintiff … and for the reasons above’.

So also, in that part of its reasons, the Panel stated that it did not accept the submissions for VWA that the effects of any compensable injury were now passed; and that any incapacity was not attributable to compensable injury.

Again, in that part of its reasons, the Panel addressed, and rejected, a submission for the plaintiff that he was ‘incapacitated for employment as well as any suitable employment as a result of his lower back injury’ and that ‘there’s been no material change with regard to his accepted injuries since the last medical panel’s certificate of opinion date [sic] 8 August 2007’.

Thus, the part of the Panel’s reasons which dealt with (1) the 2007 panel opinion as to the plaintiff’s work capacity, (2) medical opinion which denied that the plaintiff had work capacity, and (3) various submissions for the parties, involved tying off loose ends after the Panel had already reached a conclusion that the plaintiff had a current work capacity. If the conclusion reached in that connection was sound, I do not consider that a defect in the subsidiary reasoning should be considered fatal.

Accordingly, I reject the plaintiff’s first submission.

The plaintiff’s second submission

Counsel submitted that the Panel’s conclusion that the plaintiff had current work capacity was vitiated by reason of its reliance, inter alia, upon ‘occupational rehabilitation services provided to the plaintiff’. This was one aspect of one of the 13 matters considered by the Panel in the context of ‘suitable employment’, ‘current work capacity’ and ‘no current work capacity’; see [51] above. Counsel argued that there was no material which disclosed the provision of any such services. Counsel for VWA contended to the contrary.

These submissions related closely to the impugned passage in the Panel’s reasons which I discussed at [66]-[81] above, and to the questions posed, but not answered, at [73] above. If there was no evidence of ‘occupational rehabilitation services’ in the one connection, it was equally so in the other — albeit that the description in the latter was ‘vocational’, rather than ‘occupational’, rehabilitation services. No distinction, in context, should be drawn between one and the other.

That takes me to the reports which the Panel identified. I particularly focus upon the reports made subsequent to the 2007 panel opinions.[32]
[32] In each instance, there was a different author. There was thus a want of continuity of assessment.

The report submitted on 9 December 2008 identified the purpose of the plaintiff’s referral as follows:

… with the main aims to review age, education, skills, work experience and injury, in order to determine suitable employment options and to develop an appropriate vocational management plan.

Two assessments were conducted: as to the plaintiff’s ‘transferrable [sic] skills’, and as to his ‘aptitude’ for identified employment options. The report concluded that certain identified jobs constituted suitable employment. The report thus offered a conclusion about capacity for work.

The report dated 4 July 2011 was a second document which said almost nothing at great length. The author opined that ‘formal re-education assessment may be indicated in this case’, identified ‘barriers’ to the plaintiff obtaining employment and suggested solutions, and identified nonetheless what were said to be suitable employment options. The solutions to barriers included, ironically, ‘vocational rehabilitation counselling’ and assisting the plaintiff ‘to engage in RTW-focused program’ and ‘conduct job seeker training revision regime’. There is no indication in the report that anything was done to implement any of those solutions, including vocational rehabilitation.

The third report, dated 18 November 2011, stated that ten ‘agreed actions’ had been completed. These actions included: discussion of commencement of job seeking and vocational options with the plaintiff’s general practitioner, preparation of a current resume, discussion about different methods to seek employment, preparation of a job application letter, commencement of job seeking, review meetings and a review of plan. According to the report, seven of the ten agreed actions were undertaken and completed by the rehabilitation consultant, rather than the plaintiff. The plaintiff participated in the other three, which had nothing to do with job seeking. The author stated that the plaintiff had acquired skills to ‘independently job search’, but he continued to be ‘a challenge’ to the case manager. The author had sent the plaintiff a suitable vacancy for a weighbridge operator — considered to be very appropriate for a man with a back injury — but the plaintiff had not followed up.

The report disclosed the author’s conclusion that the plaintiff had acquired an ability to independently job search, although he, the plaintiff, believed that he was incapacitated for work, and although all job seeking had been done by the rehabilitation consultant and not the plaintiff.

In my opinion, it stretches the imagination to say that any of the reports contained any material which could lead to a conclusion that the plaintiff had current work capacity in part because of the provision of vocational rehabilitation services — vide paragraphs (v) and (perhaps) (vi) of the definition of ‘suitable employment’. Each of the reports consisted, regrettably, of page after page of flummery. The skills said by the last of the reports to have been acquired by the plaintiff are a case in point. Remembering that the plaintiff was a man in his mid-forties who had been in work all his life until suffering injury in 2003, the skills acquired were said to be —

‑     looking for work and the different job search methods that can be used
‑     how to access job vacancies via the internet
‑     self-marketing and self-promotion to potential employers
‑     information regarding WISE and how to promote this to new employers
‑     awareness of personal skills, characteristics and attributes and how to use these to assist in gaining new employment
‑     application letter writing
‑     understanding of the interview process and how to perform well in interviews (use of role plays) how to update resume and application letters as required
‑     WISE information
‑     where to look for employment opportunities
‑     specific and suitable vocational options to ensure identifiable and realistic job seeking goals have been established

If I had been in the position of the Panel, I would have concluded, focussing upon the substance and not the flummery, that none of the reports revealed the provision to the plaintiff of a single thing which constituted ‘vocational rehabilitation services’. But it can be argued that the Panel was entitled to draw something from the language of the reports which I would not draw; and that if I were to conclude that they provided no evidence at all of the provision of vocational rehabilitation services I would simply be substituting my conclusion for that of the Panel.

In the end, it not being decisive, I provisionally reject the plaintiff’s submission. As a corollary, I am provisionally unable to say that it was utterly illogical for the Panel to conclude that the reports constituted some evidence of the provision of vocational rehabilitation services to the plaintiff.

I should add this. Even if I had been persuaded that there was no evidence that the plaintiff had been provided with occupational rehabilitation services, it would be another matter whether the Panel’s opinion would be thereby vitiated. The provision of such services was, as I have said, but one aspect of 13 features taken into account by the Panel in deciding that the plaintiff was fit for suitable work, and thus had current work capacity. I doubt whether an error in a fragment of the Panel’s reasoning which culminated in its ultimate conclusion should be held to vitiate that conclusion. That is so despite the Panel’s later reference (in the context discussed at [66]-[81] above) to improvement in the plaintiff’s condition as a result of the intervention constituted by the receipt of ‘additional vocational rehabilitation services’.

The plaintiff’s third and fourth submissions

Grounds 3 and 4 may be considered together.

The Panel found that the plaintiff had residual ankle dysfunction — see [43] above. It so concluded after noting his history — see the second passage in its reasons cited at [39] — and after making the findings on examination and viewing the radiology described at [41] and [42] above. It concluded that the ankle dysfunction contributed to the plaintiff’s incapacity for his pre-injury employment. But then it concluded — see [53] above — that the plaintiff had a current work capacity, and it identified jobs which constituted suitable employment. It decided that certain jobs which had been nominated as suitable in the various reports would not constitute suitable employment because they might ‘require potentially heavy manual handling’ or ‘require extended periods of sitting’. But it concluded that ‘occupational duties where heavy manual lifting is not required and where there is no requirement to remain seated for extended periods of time’ would constitute suitable employment. The jobs which the Panel identified as being suitable were said by it to have those characteristics.

In terms, the Panel only referred to two consequences of the plaintiff’s spinal injury when concluding that he was not capable of performing certain jobs as an alternative to his pre-injury employment, but that he was capable of undertaking other jobs. Plaintiff’s counsel submitted that the Panel had evidently failed to take account of her client’s ankle disability in reaching its conclusion. This was demonstrable because (1) one of the things which made work suitable from the standpoint of the plaintiff’s spinal disability — that is, not having to sit for extended periods — was the very thing that the plaintiff would need to do because of his ankle disability; and (2), certain jobs which the Panel had identified as suitable work were plainly not sedentary. Counsel submitted that the starting point of the problem, an error in itself, was the Panel’s failure to express a conclusion whether it accepted the plaintiff’s account of his ankle disability (as set out in the second passage cited at [39] above).[33] Counsel submitted also that the Panel’s reasons were plainly insufficient in the event that the Panel had taken the plaintiff’s ankle disability into account. How was the plaintiff, or this Court, to know that, and how could the Panel’s reasoning be examined for possible error?
[33]Counsel relied upon a passage in the judgment of Beach J in Nabbs v Handrinos [2013] VSC 419 (15 August 2013) [36]-[37]. His Honour’s remarks preceded the decision of the High Court in Wingfoot, but I doubt that they lose force by reason of that decision.

Counsel for VWA submitted that the reasons were ‘redolent’ with consideration of the plaintiff’s ankle disability. The fact that the Panel did not mention that disability when deciding which nominated jobs he was or was not capable of performing simply meant that the Panel was satisfied that the ankle disability did not operate as a disabling circumstance with respect to any of those jobs. Counsel further submitted that the plaintiff was inviting the Court overzealously, and thus impermissibly, to dissect the Panel’s reasons.

In my opinion, the plaintiff’s submissions must be accepted. If the Panel did not take the plaintiff’s ankle condition into account in the present connection, then it failed to fully address the consequences of his injuries. But if, on the other hand, the Panel did take the plaintiff’s ankle condition into account in determining his capacity for certain work, it did not say so. Its reasons are silent whether or not it took the disability into account. They do not reveal any reconciliation which the Panel might have made of the plaintiff’s ankle disability and the demands of the jobs for which it concluded he had capacity for work, or of the circumstance that the plaintiff’s back and ankle disabilities had quite different and conflicting incapacitating consequences. The plaintiff, and this Court, are thus unable to examine the Panel’s reasons for possible error.

Ground 5

The plaintiff’s counsel submitted that the Panel had decided that certain jobs constituted suitable employment for her client, those jobs not having been identified in any of the material placed before the Panel, and the plaintiff having been given no opportunity to address the Panel as to their suitability. This, counsel submitted, constituted a denial of procedural fairness.

Counsel further submitted that the Panel had not provided job descriptions referable to the additional jobs in its reasons. The plaintiff was thus unable to determine, likewise this Court, whether in concluding that the jobs constituted suitable employment the Panel had erred in its reasoning. This was really a complaint about inadequacy of reasons.

Counsel for VWA submitted that the Panel was not limited, in answering question 5, to job options which had been discussed in the various documents provided to it. The Panel had been entitled to rely upon its own expertise in identifying suitable employment. The Panel’s opinion, identifying additional suitable employment options, was not something which ‘could not have been reasonably anticipated’. Neither was it ‘not obviously … open on the known material’, or something that had come ‘out of the blue’.[34] The plaintiff had been on notice that the Panel would consider and give its opinion upon a wide range of ‘light work’ job types. The plaintiff had been given a fair opportunity of informing the Panel about all matters relevant to suitable employment. The Panel was not required, and it would be unworkable in practice for it to be required, to inform a plaintiff of the precise duties of the actual jobs which it was considering as suitable employment, and then seek his opinion. Still less was the Panel bound to fragment its process by suspending its consideration of questions submitted for its opinion so as to give the plaintiff’s side the opportunity of making further submissions.
[34]These phrases having been extracted from authorities to which I referred at [61] above. See, in particular, Barrett Burston [2013] VSC 248 (15 May 2013) [36], [38] and [48].

In my opinion, the Panel did not deny the plaintiff procedural fairness in the particular circumstances of this case.

In some circumstances, a panel might be obliged to fragment its consideration of a matter in order to accord a party procedural fairness. Barrett Burston was such a case.[35] So was Calleja v Franet Pty Ltd.[36]
[35]Ibid [51].
[36][1999] VSC 202 (1 June 1999) [22]-[24] (Vincent J).

But what are those circumstances? A panel is an expert tribunal. It is entitled to rely upon its expertise in making its determination. Here, the Panel’s expertise was in part the expertise of Dr Homolka, an occupational physician. She might be expected to understand a good deal about job descriptions. It would go too far, and the authorities do not require it, to say that every resort by a panel to its own knowledge and expertise, not communicated to a party, will constitute want of procedural fairness. It will, I think, be a matter of fact and degree in every case, but speaking generally a want of procedural fairness is likely to be disclosed where a finding by a panel is unexpected, could not have been reasonably anticipated, or would not obviously be open on the known material. Barrett Burston and Calleja were exemplars of that kind of situation.

Question 5 was important — not just because it was asked. The answer to that question gave life and content to the Panel’s bare conclusion that the plaintiff had current work capacity. It provided a yardstick by which to assess the validity of the Panel’s conclusion that the plaintiff had such capacity — as my consideration of the plaintiff’s fourth submission shows. For the Panel to add to the list of jobs which had been nominated in the various reports as being suitable employment was of some moment.

On the other hand, no less than 12 jobs had been nominated in various reports as constituting suitable employment for the plaintiff; and the jobs which the Panel settled upon as being suitable — subject to the problem arising by reason of the plaintiff’s fourth submission — were rental clerk, inquiry clerk, transport and despatch clerk, purchasing and supply logistics clerk and weighbridge operator. To those jobs, the Panel added car park attendant, ticket seller and tourist information officer. At first glance, none of the additional jobs seems likely to have had significantly different physical content to that of the nominated jobs which the Panel concluded constituted suitable employment for the plaintiff. This was not a case, by contrast with Calleja and Barrett Burston, where the Panel went on a frolic of its own.

There is, on the other hand, some substance to the reasons complaint which the plaintiff agitated under cover of the procedural fairness ground. Although the matter need not be decided, it appears to me that if the Panel was to nominate additional jobs as being suitable employment for the plaintiff, it needed to describe in its reasons what those jobs entailed. Absent job descriptions, the plaintiff was left with the job names; and that created difficulty in examining the Panel’s conclusions to see if they disclosed error.

Orders

I will make an order in the nature of certiorari quashing the certificate of opinion of the Medical Panel dated 5 July 2013, and make an order in the nature of mandamus remitting the medical questions the subject of the opinion for reconsideration and determination by a differently constituted panel in accordance with law.

See, for instance, Wurth Australia Pty Ltd v Gallichio [2010] VSC 630 (24 December 2010) [40]

(Macaulay J).

[2014] VSC 478

2 October 2014