Petrogas Pty Ltd v Doolan
[2016] VSC 46
•16 February 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 1918
| PETROGAS PTY LTD | Plaintiff |
| v | |
| SHANE DOOLAN AND ORS (According to the schedule attached) | Defendants |
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JUDGE: | McDONALD J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 February 2016 |
DATE OF JUDGMENT: | 16 February 2016 |
CASE MAY BE CITED AS: | Petrogas Pty Ltd v Doolan & Ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 46 |
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ADMINISTRATIVE LAW – Judicial review – Medical Panel findings – Reasons of Medical Panel inadequate – Error on the face of the record – Entitlement of first defendant to indemnity certificate – Appeal Costs Act 1998, ss 3, 4; Supreme Court (General Civil Procedure) Rules 2015, O 56; Workplace Injury Rehabilitation and Compensation Act 2013, ss 3, 274.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M F Fleming QC with Ms F C Spencer | Lander & Rogers |
| For the First Defendant | Mr A J Keogh SC with Mr M A Belmar | Maurice Blackburn |
| For the Second to Fifth Defendants | No appearance | Moray & Agnew |
HIS HONOUR:
On 22 February 2010, Mr Doolan injured his right knee during the course of his employment with Petrogas Pty Ltd (‘Petrogas’) as a tanker driver. As a result of his injuries he was unable to work.[1] He received payments of compensation and medical expenses pursuant to the Accident Compensation Act 1985 for a period of 130 weeks. By a notice dated 30 September 2013, Petrogas’ insurers’ authorised agent advised Mr Doolan of its decision to terminate his entitlement to receive payments on the basis that he had been paid weekly payments for 130 weeks and had a current work capacity, or alternatively, if he had no current work capacity, it was not likely to continue indefinitely.
[1]First Defendant, ‘Affidavit in Support of Application pursuant to s 134AB of the Accident Compensation Act 1985’ sworn 8 April 2014, [7].
On 28 March 2014, Mr Doolan commenced proceedings in the Magistrates’ Court seeking a resumption of weekly payments from 5 January 2014. On 4 December 2014, the Magistrates’ Court referred medical questions to a Medical Panel (‘the Panel’) pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013. The Panel was comprised of the second to fifth defendants.
Of particular relevance to the present proceedings, the Panel was asked to give an opinion as to whether:
(i)in the period 5 January 2014 to the date of the Panel’s opinion Mr Doolan had a current work capacity; and
(ii)whether, if Mr Doolan had no current work capacity, it was likely to continue indefinitely.
In written reasons for its opinion dated 1 March 2015, the Panel unanimously concluded that Mr Doolan had no current work capacity in the period 5 January 2014 to 1 March 2015 and that this was likely to continue indefinitely.
The following passage from the Panel’s opinion is central to the resolution of the issues which fall for determination in the current proceedings:
The Panel also considered whether the plaintiff has a current work capacity.
The Panel considered the definitions of ‘no current work capacity’, (sic) current work capacity’ and ‘suitable employment’ contained within the Act including –
·the severity of the Plaintiff’s right knee condition which significantly restricts his physical capacity for work;
·the Plaintiff’s psychological condition which does not impair his ability to undertake employment;
·the limited range of the Plaintiff’s transferrable skills which limits his ability to obtain alternative employment;
·the Plaintiff’s lack of suitable qualifications limits his ability to obtain alternative employment;
·the lack of any return to work program;
·the length of time that the Plaintiff has been out of work which the Panel considers limits his employment prospects;
·his age of 53 years which is a barrier to obtaining alternative employment;
·the medical information of the referral material from those doctors who have treated or assessed the plaintiff.
The Panel noted a Vocational Assessment Report prepared by Ayres Management Services dated 8 August 2013 following an assessment performed on 31 July 2013. The Panel noted that the report identified the suitable employment options for the Plaintiff: Customer Service Clerk, General Clerk, Mail Clerk, Data Entry Clerk, Dispatch Clerk, Product Assembler and Hand Packer. The Panel considered that the suitable employment options involved activities including prolonged standing, the need to bend and squat from time to time and the need to move about in environments which may have uneven or slippery surfaces which would put the plaintiff at risk of injury. The Panel also considered that the Plaintiff does not (sic) the required experience or transferrable skills for him to be able to gain employment in a clerical field. Based on the Panel’s consideration of the functional requirements of these jobs and in conjunction with its analysis of the suitable employment criteria set out above, the Panel concluded that the identified jobs options do not constitute suitable employment for the Plaintiff. Based on its clinical expertise and experience the Panel also concluded that there is no work for which the plaintiff is currently suited and which he could perform on a reliable and consistent basis.
The Panel therefore concluded that the Plaintiff has no current work capacity.[2]
[2]Medical Panel Reasons for Opinion dated 1 March 2015, 10.
The Vocational Assessment Report prepared by Ayres Management Services dated 8 August 2013 identified seven suitable employment options for Mr Doolan:
(i) customer service clerk/information desk clerk;
(ii) general clerk;
(iii) mail clerk (i.e. corporate mailroom);
(iv) data entry operator;
(v) dispatching and receiving clerk;
(vi) product assembler; and
(vii) hand packer.[3]
[3]NES Vocational Assessment Report dated 8 August 2013, 1.
Save for the hand packer position, the Vocational Assessment Report incorporated a detailed description of the duties and physical requirements for each of the positions identified as suitable employment options. In the case of each of the clerical positions, the ‘physical demands’ of the position was stated to be ‘sedentary’. The physical demand of the ‘product assembler’ position was stated to be ‘light’.[4]
[4]Ibid 13.
One of the clerical positions identified in the Vocational Assessment Report is a data entry operator. The position description for that position incorporated into the assessment report identifies the duties of the position as follows:
· Types in data and codes to process information using computers.
· Retrieves, confirms and updates data.
· Keeps records of data input.
· Maintains logs of messages to and from computers.
· Sorts outgoing material and prepares documents for transmission.[5]
[5]Ibid 9.
No aspect of these duties above provides any support for the Panel’s conclusion that ‘the suitable employment options involved activities including prolonged standing, the need to bend and squat from time to time and the need to move above in environments which may have uneven or slippery surfaces which would put the Plaintiff at risk of injury’.[6] Mr Keogh SC, who appeared with Mr Belmar on behalf of Mr Doolan, conceded this to be so.[7] Contrary to the finding of the Panel, the duties for the position of data entry clerk are consistent with those duties being able to be performed from a seated position.
[6]Medical Panel Reasons for Opinion dated 1 March 2015, 10.
[7]Transcript of Proceedings, Petrogas Pty Ltd v Doolan & Ors (Supreme Court of Victoria, S CI 2015 1919, McDonald J, 11 February 2016) T12 LL26-30.
Without setting out in detail the duties of the remaining clerical positions identified as suitable employment options, I have no hesitation in concluding that, with the possible exception of the mail clerk position, each of the other positions involved duties which predominantly could be undertaken from a seated position. The same may be said of the product assembly position. Thus, it is entirely unclear how, or on the basis of what evidence, the Panel reached the conclusion that the suitable employment options identified in the Vocational Assessment Report involved activities including prolonged standing, the need to bend and squat from time to time and the need to move about in environments which may have uneven or slippery surfaces which would put the Mr Doolan at risk of injury.
Equally mystifying is the Panel’s conclusion ‘that the Plaintiff does not [have] the required experience or transferrable skills for him to be able to gain employment in a clerical field’.[8]
[8]Medical Panel Reasons for Opinion dated 1 March 2015, 10.
The introduction to the Panel’s reasons includes the following:
The Plaintiff who is 53 years old told the Panel that he is right handed. He said that he grew up in North Eastern Victoria and completed Year 12 in Wangaratta. He commenced a one year science degree at Latrobe University. The Plaintiff said that he worked for the Australian Federal Police for a number of years. He worked at (sic) a supervisor at wineries in North West Victoria where he also being (sic) worked as an occupational health and safety officer for a short time. He has completed a diploma in horticulture but said he was not able to gain a job in an appropriate field. He has also been employed as a security guard.
The Plaintiff told the Panel that he gained a job with trucking firms in the early 2000s. He worked for Air Liquide in 2002 for one year or so and then gained work as a fuel tanker driver with Petrogas.[9]
[9]Ibid 4-5.
It is apparent from Mr Doolan’s employment history that he is a person of at least average, and probably above average, intelligence. He has tertiary qualifications having completed a diploma in horticulture. He has been a member of the Australian Federal Police and worked as an occupational health and safety officer. His employment history is consistent with him having a capacity to turn his hand to a wide range of employment tasks. Putting to one side the question of his physical capacity, his educational and employment history strongly suggests that he would be capable of performing duties of a clerical nature. It is entirely unclear how, or on the basis of what evidence, the Panel came to a contrary conclusion.
Counsel for Petrogas raised the ‘no evidence’ ground[10] and alternatively the ‘inadequate reasons’ ground[11] in respect of the Panel’s findings that:
(a) the suitable employment options involved activities including prolonged standing, the need to bend and squat from time to time and the need to move about in environments which may have uneven or slippery surfaces which would put Mr Doolan at risk of injury; and
(b) Mr Doolan does not have the required experience or transferrable skills for him to be able to gain employment in a clerical field.[12]
[10]Plaintiff, ‘Plaintiff’s Outline of Submissions’ dated 16 July 2015, [19]-[20], [30]-[31] and [34]-[41].
[11]Ibid [21]-[23], [32] and [42]-[48].
[12]Ibid [30].
In Court on 11 February 2016, Counsel for Mr Doolan[13] and Counsel for Petrogas[14] both submitted that the Court may conclude that these findings by the Panel demonstrate that the Panel’s reasons are inadequate. The Panel was subject to a requirement to set out in its statement of reasons the actual path of reasoning by which it arrived at the opinions which the Panel formed for itself.[15]
[13]Transcript of Proceedings, Petrogas Pty Ltd v Doolan & Ors (Supreme Court of Victoria, S CI 2015 1919, McDonald J, 11 February 2016) T18 LL8-18 and T19 LL10-13.
[14]Ibid T22 L20 —T23 L1.
[15]Wingfoot Australia Partners Pty Ltd v Kocok (2013) 252 CLR 480, [47]-[48] (‘Wingfoot’); Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [108] (Neave JA, Santamaria JA and Ginnane AJA agreeing); Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [26].
Inadequacy of reasons will inevitably be an error of law on the face of the record. Certiorari is available to remove the legal consequences of an opinion for which inadequate reasons have been given.[16] The Panel’s reasons are manifestly inadequate. It follows that Petrogas is entitled to an order quashing the opinion of the Panel comprised by the second to fifth defendants dated 1 March 2015.
[16]Wingfoot (2013) 252 CLR 480, [28].
For the sake of completeness, the Court will address one further matter which was raised on behalf of Petrogas. Mr Fleming QC, who appeared with Ms Spencer on behalf of Petrogas, submitted that the Panel fell into jurisdictional error by addressing the question of whether Mr Doolan had any reasonable prospect of obtaining employment in one of the suitable employment options identified in the Vocational Assessment Report. On five separate occasions in the Panel’s statement of reasons the Panel made a finding as to Mr Doolan’s prospects of obtaining alternative employment.[17]
[17]Plaintiff, ‘Plaintiff’s Outline of Submissions’ dated 16 July 2015, [49].
Where a Medical Panel has been asked to record an opinion as to whether an individual has a current work capacity, the Panel’s inquiry should include consideration of whether the worker is able to return to ‘suitable employment’ as defined in s 3 of the Workplace Injury Rehabilitation and Compensation Act 2013. The likelihood of a worker obtaining employment is irrelevant to the question of whether employment in a particular role is suitable.[18]
[18]See, for example, Richter v Driscoll [2015] VSC 457, [49] and [60]-[61].
Conclusion
The Court will order that the opinion of the Panel comprised by the second to fifth defendants dated 1 March 2015 is quashed. An order shall be made remitting the medical questions in respect of which the certified opinion was given to a differently constituted panel to be reconsidered in accordance with law. As Petrogas has been successful in its application for judicial review it is entitled to an order that the Mr Doolan pay its costs of the proceeding, including any reserved costs. Mr Doolan is entitled to an indemnity certificate under s 4 of the Appeal Costs Act 1998.
SCHEDULE OF PARTIES
No. S CI 2015 1918
BETWEEN:
PETROGAS PTY LTD Plaintiff
-and-
SHANE DOOLAN First Defendant
DR DAVID MURPHY Second Defendant
DR DIANE NEILL Third Defendant
DR JOHN BARTLETT Fourth Defendant
PROFESSOR GREGORY LITTLEJOHN Fifth Defendant
0
4
0