Richter v Driscoll
[2016] VSCA 142
•17 June 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0094
| ROSEMARY ANN RICHTER | Appellant |
| v | |
| IAN MALCOLM DRISCOLL & ORS | Respondents |
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| JUDGES: | ASHLEY, OSBORN and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 May 2016 |
| DATE OF JUDGMENT: | 17 June 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 142 |
| JUDGMENT APPEALED FROM: | Richter v Driscoll [2015] VSC 457 |
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ACCIDENT COMPENSATION – Medical Panel – Opinion on medical questions – Statement of reasons – Judicial review – Whether Panel misdirected itself – ‘No current work capacity’ – ‘Current work capacity’ – ‘Suitable employment’ – Meaning of inability to return to work in employment – Whether misdirection operative – Whether Panel failed to have regard to mandated consideration – Whether statement of reasons sufficient – Leave to appeal granted – Appeal allowed.
Accident Compensation Act 1985 ss 5, 93C.
Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 – Philmac Pty Ltd v Asti (1980) 26 SASR 213 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M F Wheelahan QC with Mr M J G Waugh | Constable Connor & Co Pty Ltd |
| For the Respondents | Mr M F Fleming QC with Ms S Gold | Lander & Rogers Lawyers |
ASHLEY JA
KAYE JA:
On 1 September 2015, a judge in the Trial Division dismissed an Originating Motion brought by Rosemary Richter against Ian and Catherine Driscoll and Victorian WorkCover Authority[1] for an order in the nature of certiorari to quash the opinion of a Medical Panel (‘the Panel’) given on 22 August 2014 in respect of four medical questions, and for an order that the questions the subject of that opinion be referred to a differently constituted Panel for redetermination; alternatively, that the Panel be compelled to provide further and better reasons for its opinion.
[1]And others, who are presently irrelevant.
Now, Ms Richter seeks leave to appeal from the judge’s order; and, if leave to appeal is granted, that her appeal be allowed—with orders being made as were sought from, and rejected by, the judge.
In our opinion, for the reasons which follow, Ms Richter should have the relief which she seeks, the medical questions being remitted for consideration by a differently constituted Panel in accordance with these reasons.
Before setting out the grounds upon which she relies, it is first it is necessary to explain the circumstances of the matter.
Circumstances
Personal details
Ms Richter was born on 31 July 1957, and so she now is nearly 59 years of age. She lives in Wodonga. She was educated only to Year 7. The Panel, whose opinion lies at the heart of the present application, accepted that she has ‘difficulties with literacy and numeracy’. She has no computer skills. Before 1994, at which time she would have been aged about 37, she had engaged in very little employment. She had done some babysitting, and had otherwise been a stay at home mother. She thus had virtually no acquired employment skills or experience. In 1994, she began a diploma in horticulture at the Wodonga TAFE. She worked as a nursery assistant between February and June of that year in the employ of the first and second respondents. But in the course of her employment, she suffered a serious low back injury. She ceased work in mid-1994, and has not been in employment since that time. Indeed, as will be seen, it was not in contest that, between mid-1994 and December 2013, a period exceeding 19 years, she was compensated for incapacity resulting from her injury—such a period of admittedly compensable incapacity being in our experience very unusual, and such as required careful consideration when it was asserted that she no longer had ‘no current work capacity’.
The injury. Surgery
The injury sustained by the applicant was an L5/S1 disc prolapse on the left side.
In September 1994, a neurosurgeon performed a laminectomy and nerve root decompression at the L5/S1 level. There was apparently initial improvement, but thereafter regression. The applicant was thereafter treated with a number of drugs, including slow release morphine, and also medication for a supervening psychiatric disturbance.
In 2009, the applicant’s back pain with referred symptoms to the left leg led on to further surgery. Another neurosurgeon undertook decompression of the left L5 nerve root.
The applicant underwent further surgery in August 2010. That surgery was by way of stomach banding, the applicant’s weight having ballooned out by reason of ‘injury, surgery, immobility, depression and medication’.[2] According to the report of Dr Robyn Horsley dated 7 April 2014 (‘the Horsley report’),[3] by late 2009 the applicant weighed 111 kilograms. It appears that, following the gastric band procedure, the applicant progressively lost weight with the result that, by April 2014, she weighed a ‘commendable’[4] 74 kilograms.
Compensation claimed and paid
[2]Applicant’s submissions to the Panel, 2 June 2014, paragraph 2(iii).
[3]It was part of the material before the Panel.
[4]Dr Horsley’s word.
The applicant made a claim for compensation under the Accident Compensation Act1985 (‘the Act’). The claim was accepted. The applicant received weekly payments of compensation between mid-1994 and 28 December 2013.
Termination of payments
Payments were terminated as of 28 December 2013 in accordance with a letter sent to the applicant by the employers’ WorkCover agent, QBE. The letter gave notice of termination of payments pursuant to s 114 of the Act, on the footing that the applicant was no longer incapacitated for work. The letter asserted that she had a ‘current work capacity’; or alternatively, had ‘no current work capacity’, but that this was ‘not likely to continue indefinitely’. This was a shorthand reference to there having been a review of the applicant’s entitlement to compensation in accordance with s 93C(3) of the Act, which had led to an assessment of the kind referred to in sub-s (1)(a) of that section. The letter revealed that QBE relied, in part, upon a Certificate of Capacity given by Dr Jenny Giddens, the applicant’s general practitioner, dated 26 November 2013 (‘the November certificate’); and an NES Vocational Assessment Report dated 14 August 2013 (‘the NES Assessment’, or ‘the Assessment’). We will refer to those two documents in some detail later in these reasons.
The County Court proceeding. Reference of questions to the Panel
On 6 January 2014, the applicant commenced a proceeding in the County Court against the first and second respondents, her former employers. She sought, in substance, resumption of weekly payments. On 5 June 2014, upon the request of those respondents, a County Court judge referred four ‘medical questions’ to a Panel for an opinion. We will set them out a little later in these reasons.
The course of events before the Panel
The Panel was provided with a body of documents, which included medical reports, the NES Assessment, the November certificate, and radiological reports. Members of the Panel also conducted joint examinations of the applicant. On 6 August 2014, she was examined jointly by an occupational physician, a neurosurgeon and an orthopaedic surgeon. On the same day, she was examined jointly by two psychiatrists.
On 22 August 2014, the Panel gave a certificate in which it set out the questions submitted for its consideration, and provided its answers. Thus:
1)What is the nature of the plaintiff’s medical condition of:
a) left L5/S1 disc prolapse;
b) Major Depressive Disorder
(“the alleged injuries”)?
In the Panel’s opinion, the plaintiff is suffering from—
(a)chronic non-specific lumbar back pain with no clinical evidence of radiculopathy;
(b)a chronic adjustment disorder with depressed mood.
2)Does the plaintiff have an incapacity for her pre-injury employment?
Yes.
3)If yes to (2):
a)does the plaintiff have “no current work capacity” as defined by the Accident Compensation Act 1985;
b)if yes to (a) is this likely to continue indefinitely?
(a) No.
(b) Not applicable.
4)To what extent does any incapacity materially result from any and if so which of the alleged injuries?
Question 4: In the Panel’s opinion, the plaintiff’s incapacity for work is materially contributed to by the chronic non-specific lumbar back pain with no clinical evidence of radiculopathy and a chronic adjustment disorder with depressed mood.
The Panel provided written reasons for its opinion, to which we will later refer.
The effect of the Panel’s opinion was that the applicant’s proceeding seeking resumption of weekly payments must have failed. It was in those circumstances that the applicant brought the proceeding by originating motion which was unsuccessful below.
The applicable legislation
Having regard to the time when the applicant commenced her County Court proceeding, and the time when the medical questions were submitted to the Panel, the provisions of the Act applied.[5]
[5] According to the submissions of both parties below, the situation was not one in which meanings given to relevant terms by the Workplace Injury Rehabilitation and Compensation Act2013 were given the same meaning under the Act, which was way in which the judge approached the matter. See Richter v Driscoll [2015] VSC 457 [10]–[11] (‘Reasons’). The submissions appear to have been correct. But nothing turns on it, because the relevant provisions are the same as those which the judge considered.
Section 93C(1)(a) says this:
(1)Subject to section 93CD, a worker’s entitlement to compensation in the form of weekly payments under this Part ceases upon the expiry of the second entitlement period unless the worker—
(a)is assessed by the Authority or self-insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity; …
Section 93C(1)(a) draws attention to the definition of the term ‘no current work capacity’, a phrase defined by s 5 of the Act to mean—
a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.
That definition can be contrasted with the definition of ‘current work capacity’, also found in s 5 of the Act, as meaning—
a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment;
Both definitions make use of the term ‘suitable employment’. It is also defined in s 5 of the Act. Thus:
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)having regard to—
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii)the nature of the worker’s pre-injury employment; and
(iii)the worker’s age, education, skills and work experience; and
(iv)the worker’s place of residence; and
(v)any plan or document prepared as part of the return to work planning process; and
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether—
(i)the work or the employment is available; and
(ii)the work or the employment is of a type or nature that is generally available in the employment market;
The November certificate
Under s 111(1) of the Act, as it stood at relevant times, a worker was required to provide to the WorkCover Authority certificates of capacity in respect of the period for which the worker was entitled to weekly compensation. By sub-s (2), a certificate was required to state, inter alia, whether the worker had ‘a current work capacity or … no current work capacity’.
What we have called the November certificate was operative at the time when the applicant’s payments were terminated. The definition of ‘suitable employment’, by paragraph (a)(i), required the Panel to ‘have regard to’ the certificate.
The certificate described the injury as ‘discogenic back disease, nerve root compression’. It stated that the applicant was fit for alternative duties, subject to restrictions as follows: ‘sedentary duties. No bending, light lifting only, working above waist height’. It is plain that those restrictions had regard only to the applicant’s physical state.
The NES Assessment
We earlier referred to the NES Assessment upon which QBE relied, in part, in giving notice of termination of the applicant’s weekly compensation. As will be seen, the Panel relied upon the NES Assessment insofar as it identified a particular occupation which its author opined was within the applicant’s capacity.
We must say something more about the document.
First, it referred to an earlier certificate of capacity,[6] by which Dr Giddens stated that the applicant was fit for alternative duties, but with the restrictions mentioned in the November certificate.
[6]Apparently dated 24 June 2013.
Second, it referred to the opinion of an examining psychiatrist, Dr Jeffrey Swift, dated 24 April 2013. The doctor reported, in part, that—
Mrs Richter would actually need a vocational assessment and extensive work preparations were she to join the workforce. Even so it would be likely she would only be able to do a small number of hours per week as a casual …
Third, it noted the opinion of Dr James Rowe, a specialist occupational physician engaged by QBE, whose report dated 22 March 2013 stated:
From a physical point of view she has a capacity for employment. I am not of the view that she is totally incapacitated for all work but it would be very difficult for her to find work … She is fit for suitable employment which would have to be a sedentary nature. She cannot go back to work as a horticulturalist or gardener but she does have capacity for retraining and re-education and a return to some other field. However, if one considers her age and the fact that she suffers from chronic pain, it would be very difficult for her to be placed in any sort of occupation.
We pause to note that, so far as the Assessment revealed the situation, these were the only three medical reports known to its author. The applicant being a person who by 2013 had a history of injury which had been treated both surgically and conservatively in a period approaching 20 years, those reports were a very modest basis upon which to found an opinion of job suitability. That said, in this Court criticism of the Assessment focused only upon what was said for the applicant to be the unhelpful description of the job titles which were identified as suitable employment.
Fourth, the Assessment noted the applicant’s complaint of constant pain in her lower back, and limitations upon periods for which she could comfortably sit, stand, walk and drive, also inhibitions with bending and lifting.
Fifth, according to the Assessment the applicant indicated that she could read and write in English ‘fluently’, but had poor spelling; and that she had ‘average numeracy skills’, being ‘able to complete basic mathematical equations and independently manage money and transactions’. Pausing again, this reported self-assessment by the applicant suggested a greater extent of literacy and numeracy than elsewhere appeared in the material which was before the Panel.
Sixth, the Assessment identified what were said to be four ‘suitable employment options’, it being noted that the applicant lived in Wodonga.
The first of the job options was as a cashier, the physical demands being light. An internet job search apparently conducted by the author of the Assessment on 14 August 2013 had identified ‘three potentially suitable roles … within reasonable travelling distance of Ms Richter’s residence’. Although, according to the Assessment, this option was achievable, the author noted that the applicant’s ‘limited relevant experience may be a barrier to obtaining employment’.
To be clear, the applicant in fact had no relevant experience, as must have been apparent to the Panel when it came to consider the Assessment.
The next suggested suitable employment option was as a customer service clerk. The job description included reference to ‘accessing and operating computer network systems and communications systems such as public address and paging systems’. An internet job search on 14 August 2013 had revealed ‘two roles identified within reasonable travelling distance of Ms Richter’s residence’. Although it was said that this option was achievable, the author of the report again noted that the applicant’s ‘limited relevant experience may be a barrier to obtaining employment’.
Not only did the applicant in fact have no relevant prior experience, the author of the Assessment knew that she had no computer skills.
The third employment option to which it was suggested the applicant was suited was as a sales assistant. The physical demands of that job were said to be light. An internet job search had revealed ‘two potentially suitable roles … within reasonable travelling distance of Ms Richter’s residence’. Once again, the author of the report noted that the applicant’s ‘limited relevant experience may be a barrier to obtaining employment’.
The same observation applies as in the case of the first suggested employment option. See [35] above.
The fourth job title identified was that of ‘light process/production worker’. The duties within that job description, as set out in the Assessment, were as follows:
·Load and unload raw materials and finished products
·Check products to reject defective items, pack into boxes and stack onto pallets
·Undertake inventory procedures, pack materials and place in storage
·Maintain the cleanliness of the general working area and machinery
·Position components and materials, under instruction from leading hands or supervisors
·Operate automatic and semi-automatic machinery and tools such as conveyor belts, bottling machines or soldering irons
·Do off-line duties such as sub-assembly and testing, under instruction from leading hands or supervisors
Job prospects were said to be ‘below average’, and the physical demands of the job to be ‘light—medium’.
The Assessment said that:
In an internet job search on 14 August 2013 on the Seek and Australian Job Search websites, there were 4 potentially suitable roles identified within reasonable travelling distance of Ms Richter’s residence.
In respect of this job title also, the author of the Assessment noted that the applicant’s ‘limited relevant experience’ might be a barrier to obtaining employment. The same observation applies as in the case of the other three job descriptions said to constitute suitable employment.
We should mention also that, according to the author of the Assessment, the applicant had—
The certified medical capacity to be able to complete all duties required in this role.
and that—
APM believe Ms Richter would be suitable for employment as a Light Process/Production Worker given the understanding of the duties and requirements of the role and the availability of employment options following the Labour Market Analysis.
That analysis included the asserted identification of ‘four potentially suitable roles within reasonable travelling distance of [the applicant’s] residence.’
The Assessment finally recommended that the applicant ‘commence the NES program’.[7] But having so recommended, the author stated that—
… Mr [sic] Richter has a very limitted [sic] employment history and limitted [sic] transferable skills. This, along with her physical restrictions, present as significant barriers to her chances of securing suitable employment.
[7]The QBE termination letter stated that it had approved the recommendation, and had referred the applicant to NES. Amongst the material before the Panel was an ‘NES Refresher Job Seeker Plan dated 28 August 2013’. The Panel did not refer to it in its reasons. Whatever it contained does not appear, in the event, to have been of much moment.
The Panel’s reasons for opinion
Physical examination of the applicant revealed, according to the Panel’s reasons, disconformities between the extent of her asserted disabilities on the one hand, and observations made by the doctors on the other. The Panel did not opine, however, that the applicant had set out to mislead it. It did refer to evidence of the applicant exhibiting ‘abnormal pain behaviour’ in her presentation.
Counsel for the respondents submitted below, and again in this Court, that the Panel’s reasons for opinion showed that it considered the applicant to have misstated and exaggerated her symptoms, this bearing upon its assessment of the extent of her physical incapacity. When asked where the Panel said such a thing in its reasons, counsel accepted that it had not been said. But he submitted that doctors commonly refrain from expressing such a conclusion, and that the conclusion was implicit in what the Panel said in its reasons.
The Panel watched a surveillance DVD of the applicant engaging in activities in the period 8 to 11 February 2012. According to its reasons, it considered that what was there disclosed was consistent with its conclusions regarding the applicant’s level of current function upon its examination of her. The Panel’s assessment of what the DVD disclosed was different to that made by Dr Horsley. She, in substance, considered that the material showed very little. Still, the assessment was one for the Panel to make.
The Panel’s opinion with respect to the applicant’s physical condition was that she had improved significantly since an examination conducted some nine years previously. It concluded that she was now ‘suffering from chronic non-specific lumbar back pain with no clinical evidence of radiculopathy’; and that the previous disc prolapse, surgically treated, had now resolved.
The opinion of the examining psychiatrists on the Panel, as noted in the reasons, was that the applicant was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood, rather than a major depressive disorder. The adjustment disorder was said to be ‘in part relevant to the chronic pain from the claimed injury, and in part caused by the multiple losses sustained by [the applicant] with the death of her mother five years ago being the most significant’. The diagnosed problem was said to be now of ‘low severity’ and to have little impact on the applicant’s capacity for employment.
The Panel concluded that, although the applicant’s back injury had markedly improved, nonetheless she currently had—
an incapacity for her pre-injury employment, mainly related to the lifting and repeated bending involved, and the [applicant’s] incapacity for work is still materially contributed to by the claimed injury.
Then, according to the Panel’s reasons, it considered whether the applicant had a current work capacity. Its reasons in this connection are central to the issues which this Court has to decide. We will set them out in extensor later in these reasons. All that should be said at this stage, expressing the matter as neutrally as possible, is that the Panel expressed the conclusion that light process work as described by the Assessment constituted ‘suitable employment’ for the applicant.
The judge’s reasons
The judge described the applicant’s primary contentions as being that — (1) the Panel failed to take into account relevant considerations; and (2), failed to provide adequate reasons for its decision. But within those contentions, as her Honour’s reasons later showed, were a multiplicity of submissions. In the case of the first broad contention, they included a submission that the Panel had misdirected itself as to what is comprehended by the concept of ‘no current work capacity’.
According to her Honour’s reasons, the applicant called in aid of her argument with respect to construction the concept of the ‘odd lot’ which derives from early English cases concerned with the Workmen’s Compensation Act 1906 (UK).[8] Her Honour considered whether that concept, having been imported into Australia, now had any place in the compensation scheme created by the Act. Following a considerable analysis her Honour concluded that it did not. She concluded that she should not follow the tentative opinion of Teague J in Lianos v Inner & Eastern Health Care Network, that the definition of ‘suitable employment’—[9]
defined a concept so similar to the odd lot doctrine that there would be no practical difference in any particular case.
[8]Cardiff Corporation v Hall [1911] 1 KB 1009; Ball v William Hunt & Sons Ltd [1912] AC 496, 499–500 (Earl Loreburn LC); see also 501 (Lord Macnaghten), 502 (Lord Atkinson) and 506–508 (Lord Shaw).
[9][1999] VSC 307 [102].
The argument against that construction was the stronger, her Honour opined, because the current definition, by the inclusion of sub-para (b)(ii), was now ‘more confined’ than when Teague J considered the matter.
Having concluded, in effect, what the definition of ‘suitable employment’ does not encompass, her Honour then focused squarely upon the meaning which should be given to the term. She concluded, in substance contrary to the submissions for the applicant, that the import, as she perceived it, of what was said by J.D. Phillips JA[10] in Barwon Spinners Pty Ltd v Podolak[11] was equally applicable in the presently relevant context.[12] She observed that Barwon Spinners had been followed in a number of later cases ‘effectively finding that the definition of “suitable employment” directs attention towards the capacity of the worker within the realities of the labour market’.[13] She then observed that these cases were predominantly decided before the current version of the definition of ‘suitable employment’, which tied in with her opinion that the present iteration of the term was ‘more confined’.
[10]For the Court.
[11](2005) 14 VR 622 (‘Barwon Spinners’).
[12]Whether the applicant had ‘no current work capacity’, in the context of s 93C(1) of the Act. In Barwon Spinners, the relevant provision was s 134AB (38) of the Act.
[13]Reasons [31].
Her Honour noted that the submission for the applicant was that the definition of ‘no current work capacity’ focused upon ‘an inability to return to work, as opposed to an inability to perform various functions or tasks’.[14] She understood the applicant’s argument to be that, whilst the Panel found that the applicant had a capacity to work, the applicant nonetheless had no capacity to return to work. No-one would hire her because of her age, and having regard to the fact that she had been out of the workforce for 20 years. It had been submitted for the applicant that the Panel ‘fell into error in determining that it was not required to consider whether the [applicant] would be successful in obtaining suitable employment’.
[14]Reasons [36].
Her Honour rejected that submission, in part by resort to the meaning which she attributed to the term ‘suitable employment’ and in part by what she described as a ‘policy perspective’. In the latter connection, she said this:[15]
I agree with the Court in Barwon Spinners that the prospect of all workers who suffer an injury, however minor, and subsequently claim compensation becoming permanently unemployable as a result is a troubling one. If the plaintiff’s contended interpretation of “suitable employment” were to be adopted here, it is a necessary conclusion that employers paying weekly compensation to an injured worker would be required to continue to do so indefinitely, even after the worker’s physical capacity was no longer impaired in any way as a result of the injury, due to the discrimination of subsequent potential employers against an applicant who may be a liability due to their previous compensation claim. Such a conclusion is contrary to the entire purpose of the scheme, which is to link the payment of weekly compensation to the physical injury alone, and its subsequent impact on the worker’s capacity. An inability to obtain employment could be due to any one of a number of subjective factors that would fall well outside the scope of considerations with which a medical panel is concerned.
[15]Reasons [50].
Then her Honour further addressed the ‘odd lot’ issue. She concluded that, even if the concept survived, it did not assist the applicant ‘in any way’,[16] saying:
This is not a case in which the plaintiff has such specialised needs that only a very special employer would be able to offer her work. The employment that has been found to be suitable for her—light process work—is an ordinary class of work that she is able to do. The fact that the plaintiff asserts that no-one would hire her for such work does not mean that she has no capacity to do it. Rather, the medical panel explicitly held that she could.
Nevertheless, even if the odd lot doctrine would have helped the plaintiff in the circumstances of this case, there is one further reason why I do not consider that it does. The current version of the definition of ‘suitable employment’ explicitly states that work will be considered suitable regardless of whether it is ‘of a type or nature that is generally available in the employment market’. This wording is clear and unambiguous. I cannot accept that it has any meaning other than that a worker will have a current work capacity even if the only work available to them is ‘very special’ in its nature and is not an ordinary class of work in the employment market. Even if it had survived the introduction of the Act in 1985, it is clear that the current definition of ‘suitable employment’ leaves no room for the operation of the odd lot doctrine and, as such, it cannot be relied upon by the plaintiff in this matter.
[16]Reasons [56], [57].
Once again, her Honour turned to ‘policy considerations’. She stated that she regarded the construction contended for by the applicant as being ‘too onerous to be applied by a medical panel’.[17]
[17]Reasons [60].
Her Honour referred to this Court’s decision in Giankos v SPC Ardmona Operations Ltd.[18] She stated that, in her opinion, ‘the plaintiff’s “attractiveness” to a prospective employer is a factor directly related to a “vagaries of the market” analysis, in which the required “attractiveness” to an employer will vary with “tightness” of the labour market’. She distinguished the actual result in Giankos, on the basis that the circumstances in the present case were relevantly different.
[18](2011) 34 VR 120 (‘Giankos’).
Her Honour’s ultimate conclusion was that she did not ‘consider that the Panel erred in either its construction of the definition of “no current work capacity” or its conclusion that it was not required to determine whether the plaintiff would be successful in obtaining employment. The Panel had considered the plaintiff’s age, level of education, skills and work experience, place of residence and the fact that she had been out of the workforce for 20 years. It had taken into account its opinion as to the nature of her physical and mental injuries. It did not fail to take into account any material considerations.
Respecting the applicant’s submission that the Panel had given reasons which did not satisfy the requirements of the Act, and having referred to what the High Court said in Wingfoot Australia Partners Pty Ltd v Kocak,[19] her Honour rejected the submission for the applicant that the job title and duties listed in relation to the job of ‘light process worker’ suggested that the role would involve repetitive bending and lifting; for which reason the Panel’s reasons were inadequate because they failed to properly describe the applicant’s lifting abilities and to reconcile her limitations with respect to repetitive bending and lifting with the actual duties involved in light process work. Further, it was submitted for the applicant, and rejected by her Honour, that this inadequacy in the Panel’s path of reasoning was exacerbated by its failure to address the conclusions reached by Dr Horsley in the report to which we have earlier referred. Her Honour evidently accepted the submission for the respondents that, whilst the proper construction of the term ‘no current work capacity’ is a legal question, the question whether a particular worker’s circumstances fit within the meaning of the phrase is a question of fact involving a value judgment which is not amenable to detailed explicit reasoning.[20]
[19](2013) 252 CLR 480 (‘Wingfoot’).
[20]Reasons [79].
Her Honour rejected the idea that the Panel could be required to list every potential duty that might be involved in the ‘vast range of jobs meeting each of the four general descriptions of employment contained in the NES report, and analyse each one in the context of the [applicant’s] physical and mental capacity’.[21] Having said that this would be an immense task, well outside the scope of what is required by a medical panel, her Honour said that—[22]
This is especially so when considering that each specific role for which the plaintiff may apply will likely be different, and adjustments are likely to be made to accommodate her injuries where this is possible.
[21]Reasons [91].
[22]Reasons [91].
The judge also rejected the submission that the Panel had failed to address Dr Horsley’s conclusions, saying that it had formed its own opinion as to the applicant’s physical capacity, ‘which was clearly contrary to that of the [applicant] given the Panel’s findings that she had misstated and exaggerated her symptoms.’[23]
[23]Reasons [93].
Her Honour returned to the theme of misstatement and exaggeration, observing that—[24]
the Panel placed a significant emphasis on its conclusion that the [applicant] had exaggerated or misstated her physical limitations, with the necessary result being that its opinion of her physical capacity would differ from that of the experts on which she has relied. This is a finding of fact that is not open to challenge or evaluation upon judicial review …
[24]Reasons [95].
Before passing from the judge’s reasons, we should note that the applicant’s counsel submitted in this Court that in some measure her Honour misunderstood the gist of what he had contended. In particular, he averred that it had never been argued that the odd lot concept had direct application in the present case; and that the focus of the submissions had been upon the meaning to be given to the term ‘no current work capacity’, not ‘suitable employment’. If that was so, it might explain particular emphasis in her Honour’s reasons. But, in the end, it would not be a useful matter for enquiry.
Proposed grounds of appeal
The proposed grounds of appeal are as follows:
1.The primary judge erred in the construction of the defined term ’no current work capacity’ in s 5 of the Accident Compensation Act 1985.
2.The primary judge erred by failing to find that the Medical Panel had not taken into account mandatory relevant considerations.
3.The primary judge erred in finding that the Medical Panel’s reasons were adequate.
Ground 1
The Parties’ submissions
The gist of the written and oral submissions for the applicant was as follows:
(1) The Panel misdirected itself as to the meaning of the definition of ‘no current work capacity’, and it applied that misdirection when determining that the applicant was suited to work as a light process worker.
(2)As a straightforward matter of statutory construction, the definition of ‘no current work capacity’ referred to ‘an inability arising from an injury such that the worker is not able to return to work in employment’—whether pre-injury employment or suitable employment. The conception was one of return to employment in the workforce, which was to be contrasted with an ability to perform a task or tasks.
In support of this submission, counsel called in aid a passage from the judgment of King CJ in Philmac Pty Ltd v Asti.[25] There, the relevant provision was that compensation should not be discontinued except ‘where the worker has returned to work’. The Chief Justice said this:
[25](1980) 26 SASR 213, 218 (‘Philmac’).
The construction of the words ‘has returned to work’ is assisted by a consideration of the purpose served by the section. The intention plainly is that weekly payments are to continue unless there are sound reasons for discontinuance. … Return to work is considered a sufficient reason, as it seems to me, because it involves the re-establishment of the injured worker as a wage earner who is no longer in need of the weekly payments of compensation. For return to work to have significance for this purpose it must be, in my opinion, a return as a settled or established member of the wage earning workforce.
(3)The definition of ‘suitable employment’, relevant to determination whether there is ‘no current work capacity’—that being the converse of ‘current work capacity’—showed that the relevant conception was one of capacity to resume employment. Not only was that the burden of the opening words of the definition, it emerged from the criteria set out in paragraph (a)(i) to (iv).
(4)The judge below erred by adopting the meaning given to the term ‘suitable employment’ by this Court in Barwon Spinners.[26] The legislative framework under consideration in that case, s 134AB(38)(f) of the Act, was quite different to the context of present relevance—that is, a challenge to termination of payments made in reliance upon s 93C(1) of the Act. The decision of this Court in Victoria v Rattray[27] in which it was said that, on the authority of Barwon Spinners, ‘the question of loss of earning capacity fell to be determined by reference to the physical capacity of the claimant only’, was also a s 134AB case. The real point at issue in that case was the relevance or otherwise of the existence or non-existence of a job vacancy in the claimant’s region within the claimant’s capacity.
[26](2005) 14 VR 622, 636 [25]–[26].
[27][2006] VSCA 145, [20] (Bongiorno AJA, Maxwell P and Nettle JA agreeing).
(5)In any event, it was wrong to read what the Court said in Barwon Spinners as meaning that the definition of ‘suitable employment’ was concerned only with a worker’s physical capacity to undertake a task or tasks.
(6)Paragraphs (b)(i) and (ii) of the definition of ‘suitable employment’ were concerned with the availability of work or employment, not with a worker’s capacity to obtain that work or employment. Neither part of paragraph (b) was relevant to the question of statutory construction before the Court. Paragraph (b)(i) was a statement of the long-held principle that incapacity is not determined by the vagaries of the labour market, whilst paragraph (b)(ii) was the legislative response to the kind of situation which arose in Smorgon Steel Tube Mill Pty Ltd v Majkic.[28]
[28](2008) 21 VR 193 (‘Majkic’).
(7)The judge erred in concluding that to attempt to construe the words ‘return to work’ as requiring that a worker be successful in obtaining employment was to strain the ordinary meaning of those words, ‘contrary to well-established principles of statutory interpretation’. What the Panel had to do was evaluate the applicant’s capacity to re-enter the workforce, including in suitable employment, as a wage earning employee.
(8)The Panel misdirected itself by addressing the question whether there was ‘no current work capacity’ as a matter of the applicant’s physical capacity to perform some, though undefined, tasks comprehended within the job description of light process/production worker contained in the Assessment. Further, the Panel’s reasons did not attempt to reconcile any of the described duties with the injury as found, or with the restrictions stated in the November certificate.
(9)The Horsley report had addressed the true issue. In that report, dated 7 April 2014, Dr Horsley had said:
Given the length of time since the injury and the ongoing nature of the symptoms, I believe that the symptoms are likely to persist. I note Ms Richter’s current narcotic medication, her 20 years out of the workforce, her age at 56, her significant literacy issues, her poor educational background and her very limited working experience. Her opportunities for redeployment are very limited. She is currently in receipt of a Newstart allowance. She does not present as a retraining or redeployment candidate.
And:
Overall, Mrs Richter is likely to remain out of the workforce permanently. There are considerable barriers. She is now 56 years of age. She has been out of the workforce for 20 years. Her previous work experience was as a babysitter and nursery assistant for just a couple of months. She has Year 7 education. She has significant literacy issues. She has no computer skills. She presents poorly.
Mrs Richter, I believe is unlikely to return to the workforce in any capacity. I believe that her attractiveness to a new employer in an open and competitive marketplace would be negligible. On the basis of her physical capacity alone, within the restrictions as outlined above, in theory she probably has capacity for part-time work, possibly up to 15 hours per week. However, realistically, I believe that she will continue to remain out of the workforce into the longer term. I do not believe that she is a realistic deployment candidate and she is certainly not a retraining candidate.
With respect to the doctor’s reference to the applicant’s lack of ‘attractiveness to a new employer’, counsel submitted that the doctor was directing consideration to the applicant’s suitability for employment, not the vagaries of the labour market.
(10)This being a weekly payments matter, no question of ‘stripping out’ non-physical findings—as is required by s 134AB(38)(h)—arose. That is, the Panel had to consider the question whether the applicant had no current work capacity, and in that connection, whether she had an inability to return to suitable employment, taking account of both the physical and psychiatric consequences of injury.[29]
(11)The definition of ‘medical question’ in s 5 of the Act showed that, in a case such as the present, not every consideration relevant to answering the question involved medical expertise. In respect of non-medical aspects, the Panel sat like a jury. It was no answer to the applicant’s submissions to say that a panel should not be required to assess a worker’s employability. Indeed, this Panel had done so in the case of the first three employment options identified by the Assessment.
(12)The Panel’s reasons showed that it did not disagree with Dr Horsley’s opinion as to the applicant’s employability. Dr Horsley’s opinion as to the applicant’s injury-caused physical limitations and psychiatric upset was ‘in the same dimension’ as the Panel’s diagnosis. The Panel considered, however, that it was no part of its role to consider whether the applicant would be able to find employment. But that would only be correct if ability to find employment was intended to address the state of the labour market.
Pressed by the Court, counsel submitted that the Panel must take into account a worker’s incapacity to be accepted back into the workforce.
[29]Contrast also s 91(2) of the Act, respecting assessment of degree of impairment, relevant to whether a worker suffered ‘serious injury’—as to which see, for example, s 93B(1)(a), (b) and (c) and s 93C(1)(b) and (2)(a).
The gist of the respondents’ submissions was as follows:
(1)It was necessary for the Panel to interpret the linked statutory definitions of ‘current work capacity’ and ‘no current work capacity’ and ‘suitable employment’. The Panel stated in its reasons that it had done so. Nothing in its reasons suggested that it had misinterpreted any of those definitions.
(2)The Panel’s reasons were to be given a beneficial construction. Counsel cited and referred to the Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[30] There, in the context of reasons given by Minister’s delegates in a number of immigration matters, the High Court had upheld this observation by the Full Federal Court:[31]
[30](1996) 185 CLR 259 (‘Wu Shan Liang’).
[31]Wu v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 432, 444.
The delegate was thus aware of the test she had to apply. Her reasons are entitled to a beneficial construction. We should not take the view that she did not apply the correct test unless this appears clearly from what she has written.
The plurality in the High Court then said this:[32]
[32]Minister for Immigrationand Ethnic Affairs v Liang (1996) 185 CLR 259, 271–272 (Brennan CJ, Toohey, McHugh and Gummow JJ). See also 291–294 (Kirby J).
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 - 22.[33] 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.[34] The Court continued:[35] ‘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.[36] In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
(3)The applicant’s sole complaint was directed to the Panel’s observation that it was ‘not required to determine whether the plaintiff will be successful in obtaining employment’, but those words were completely consistent with the requirements of the definition of ‘no current work capacity’.
(4)The Panel’s reasons, read as a whole, provided context to the impugned sentence. The applicant had given a history of unsuccessfully applying for jobs, and her general practitioner had certified her fit for alternative duties for some time. This gave life to the Panel’s observation that it was not required to determine whether the applicant would be successful in obtaining employment.
(5)The applicant was seeking to replace or substitute the words ‘able to return to work’, with ‘able to obtain work’, or, ‘able to find work’. This was unjustified.
(6)In written submissions, the applicant had contended that, ‘What the Medical Panel had to evaluate was the applicant’s capacity to re-enter the workforce, including in suitable employment, as a wage earning employee’. The respondents agreed with that formulation, and that is precisely what the Panel had done.
(7)What was said by this Court in Barwon Spinners about the definition of ‘suitable employment’ applied equally in the present connection. The term, as defined, applies to the whole of the Act; and it should be given a constant meaning throughout.
(8)The critical aspect of the definition of ‘no current work capacity’ was inability to return to work. The definition focused on the capability of the worker to return to work.
(9)The Panel evidently considered factors other than physical limitations in concluding that three of the four jobs nominated by the Assessment did not constitute suitable employment. It was not to be supposed that the Panel ignored those other circumstances in the case of the fourth job.
[33](1993) 43 FCR 280.
[34](1993) 43 FCR 280 at 287.
[35](1993) 43 FCR 280 at 287.
[36]See McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609, 616.
Analysis
Within Ground 1 lie two questions. First, what is the correct meaning of the definition of ‘no current work capacity’? Second, did the Panel misdirect itself about that matter? The second question is important because, even if the judge did misdirect herself as to the meaning of the term, that would be inconsequential if the Panel had correctly directed itself as to its meaning.
In our opinion, for the reasons which follow, the applicant’s submissions with respect to the first question should generally be accepted.
First, as a matter of plain statutory construction, we consider that the definition of ‘no current work capacity’ requires that there be an injury-caused inability to return to work in employment—whether that be the worker’s pre-injury employment or suitable employment. The definition does not end with the words ‘return to work’. Rather, the conception is of return to work in employment. The focus is thus upon an injured worker’s inability to engage in employment.
Second, we agree with the applicant’s submission that the word ‘employment’ carries with it the idea, as King CJ put it in Philmac, of return to work ‘as a settled or established member of the wage earning workforce’. In Philmac, the legislation simply referred to return to work. Even so, King CJ in substance found within that concept an implication of return to work in employment (which is expressly stated in the definition now under consideration); and return to employment in what might be described as a meaningful way, so as to obliterate a continuing need for weekly payments of compensation.
Third, we agree with the applicant’s submission that return to work in employment, so understood, requires more than that a physical capacity to engage in a task or tasks. That is because there is more to an ability to work in employment—‘ability’ being converse of ‘inability’, which appears in the definitions of ‘no current work capacity’ and ‘current work capacity’—than the ability to perform a task that happens to be required in that employment. The definition of ‘suitable employment’, which falls for consideration in the context of ‘no current work capacity’, plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise, paragraphs (a)(ii), (iii) and (iv) would have no work to do.
Fourth, whether a worker has ‘no current work capacity’, according to the definition, depends in the first place upon whether the worker has an inability to work in his or her pre-injury employment. It would be contradictory if, in determining that question, one was confined to an examination of the worker’s physical capacity to perform a particular task or tasks in that employment. For if it was concluded that there was such capacity in a particular case, one would never get to the question whether the worker was able to return to work in ‘suitable employment’, which specifically requires consideration of matters travelling beyond physical capacity to perform a task. In our view, inability to return to work in pre-injury employment must encompass consideration of circumstances akin to, but not necessarily limited to, the matters set out in paragraphs (a)(ii), (iii) and (iv) of the definition of ‘suitable employment’. A simple example will illustrate the point. Suppose that a worker was adjudged physically able to perform the tasks required by his or her pre-injury employment, but that the employer’s place of business was so far distant from the worker’s place of residence that the continuing level of incapacity precluded travel to and from that workplace. If inability to return to work in pre-injury employment began and ended with consideration of a worker’s physical capacity to perform the tasks required by the job, then the worker would be held to have the ability to engage in his or her pre-injury employment. But if the question was whether the worker had the ability to work in ‘suitable employment’, the worker’s place of residence would be relevant—either because there was simply no ‘suitable employment’ in the area where the worker resided—the ‘Melbourne residence/Mildura work’ situation—or else because the area in which ‘suitable employment’ must have existed was confined by incapacity-caused limits upon the worker’s ability to travel.
Fifth, contrary to the conclusion reached by the judge below and the respondents’ submissions, we consider that Barwon Spinners did not decide that the definition of ‘suitable employment’ focuses solely upon a worker’s physical capacity to undertake a task. Indeed, in our opinion, it is supportive of the construction of the terms ‘no current work capacity’ and ‘suitable employment’ contended for by the applicant. We should set out what the Court relevantly said in order to explain those conclusions. Thus:[37]
[37]Barwon Spinners, 622, [25]-[27].
25.The concept of ‘suitable employment’ will, of course, give rise to difficulties from time to time, but the thrust of the definition is plain enough. It looks to the possibility of employment after injury; hence the reference to ‘work for which the worker is currently suited’. Age, education and experience are among the matters relevant, as also are the nature, and no doubt extent, of the worker’s incapacity and, of course, pre-injury employment. Obviously employment is not to be regarded as ‘suitable’ if situated too far from the worker’s place of residence; and so a specialist factory in Mildura will not ordinarily be regarded as providing ‘suitable employment’ for a worker resident in Melbourne. The expression ‘whether or not that work is available’ emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is ‘suitable employment’, whether or not the job is currently available.
26.None the less, the definition of ‘suitable employment’ was called in aid by Mr Maxwell to support an argument that the concept of capacity to earn in employment involved employability and that a worker who had been injured at work and successfully claimed compensation was in practical terms unemployable. It appears from the evidence given below that there are now persons calling themselves expert in the area of ‘capacity to earn’, and in one or more of these four appeals the so-called expert opined that, given the injury and the consequent claim for compensation, no employer would be prepared to risk employing the worker again in any capacity, having regard to the possibility that further injury might be sustained and even that the employer itself might be prosecuted under safety regulations. The mere history of injury and claim would be enough (it was suggested) to deter any employer from offering further employment to the victim of antecedent workplace injury — and that suggestion was made, as we followed it, almost irrespective of the magnitude of the injury in question.
27.The possibility that, irrespective of the nature and extent of the injury first suffered, a worker becomes unemployable because of the subsequent claim for compensation, is troubling. On the one hand, it may be said to be a realistic approach to the possibility of further employment, which will lead to common law damages for those in our community who are the most vulnerable because of injury at work. On the other hand, the mere reference to ‘capacity for any employment’ does not, on its face, suggest that Parliament was concerned with an economic capacity rather than a physical or mental capacity. For instance, in para (g) what is relevant, after considering rehabilitation or re-training or the possibility of rehabilitation or training, is—
… a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion ….
In our opinion, the expression ‘if exercised’ means ‘if exercised in employment’. Parliament is looking here to a physical capacity for work which, if exercised in employment, would bring about the result that the worker was earning more than the limit relevant to serious injury. It is not concerned with whether employment will or will not be obtained: it is concerned rather with the economic yield of such work, if the capacity for that work was in fact exercised in employment. Mr Forrest pointed out that this was at least consistent with the definition of ‘suitable employment’ which spoke of employment ‘for which the worker is currently suited (whether or not that work is available)’.
The Court there stated that the definition of ‘suitable employment’:
… looks to the possibility of employment after injury; hence the reference to ‘work for which the worker is currently suited’. Age, education and experience are among the matters relevant, as also are the nature and no doubt extent of the worker’s incapacity and, of course, pre-injury employment. Obviously employment is not to be regarded as suitable if situated too far from the worker’s place of residence.
Those observations immediately preceded the Court’s observation, relied upon by the respondents, that—[38]
The expression ‘whether or not that work is available’ emphasises that the definition is looking to the capacity to work, meaning the physical incapacity for employment.
Moreover, immediately after that passage, the Court went on to say:
If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is physically able to do a particular job, then that is ‘suitable employment’, whether or not the job is currently available.
There again, the Court emphasised matters travelling beyond physical capacity.
[38]Barwon Spinners, 636 [25].
Barwon Spinners was concerned with applications for leave to bring proceedings claiming damages for loss of earning capacity—this raising for consideration the meaning of s 134AB(38)(e), (f) and (g) of the Act—provisions focusing particularly upon measurement of loss of earning capacity by reference to pre-injury employment and post-injury employment or the potential for employment—sub-section (38)(g) referring to a capacity for work which ‘if exercised’ would result in the worker having earnings of a certain dimension. It is, with respect, entirely unsurprising that the Court rejected an argument founded upon unemployability by reason of the vagaries of the labour market in that particular context. But that should not obscure the substance of what the Court said about the definition of ‘suitable employment’, which we have excerpted at [79] above. To be clear, in our opinion the question does not arise of giving the definition of ‘suitable employment’ some different meaning than that given it in Barwon Spinners.[39]
[39]In Victoria v Rattray (2006) 154 IR 346 and Giankos (2011) 34 VR 120, 142 [103] there was brief reference, in the context of s 134AB(38)(f) disputes, to capacity for ‘suitable employment’ being concerned with a worker’s physical or mental capacity to work again, Barwon Spinners being cited. The issue raised in this appeal did not fall for consideration, and those parts of the definition of ‘suitable employment’ which extend beyond physical capacity, to which the Court referred in Barwon Spinners, were not mentioned.
Sixth, the opening words of the definition of ‘suitable employment’ reinforce the conclusion that this definition, and, for reasons which we have explained, the definition of ‘no current work capacity’ are directed to ability to undertake work in employment.
Seventh, paragraph (b)(i) of the definition of ‘suitable employment’ is directed, as applicant’s counsel submitted, to the vagaries of the labour market. The traditional view of the conception of ‘incapacity for work’ was that an employer did not guarantee the state of the labour market. Paragraph (b)(i) encapsulates that notion. Save in one respect, the sub-paragraph thus says nothing about the issue of construction falling for consideration in this matter. The qualification is this: unavailability is not set at large. If it was, then the matter which must be considered by reason of paragraph (a)(iv) would have no work to do.
Eighth, paragraph (b)(ii) was inserted by a substituted definition contained in the Accident Compensation (Amendment) Act 2010. In his Second Reading Speech,[40] the Minister said nothing about that substituted definition, and the explanatory memorandum said only that the substituted provision was to ‘provide further clarification regarding the scope of the concept of “suitable employment”’.
[40]Victoria, Parliamentary Debates, Legislative Assembly, 10 December 2009, 4622–4626 (Tim Holding, Minister for Finance, WorkCover and the Transport Accident Commission).
At the same time, however, s 134AB(38)(f) was amended. According to the Second Reading Speech:[41]
The references to ‘suitable employment’ throughout the Act were always intended to capture a wide range of employment, vocational training and educational arrangements through which workers may be returned to gainful employment. This concept has been obscured through restricted interpretation by the courts of what suitable employment entails, most recently in the case of Smorgon Steel Tube Pty Ltd v Majkic. This undermines fundamental controls in the scheme as well as the core objectives of the Act, including the common law economic loss gateway and return-to-work obligations.
[41]Ibid 4625.
It is enough to say that the substantial amendment to s 134AB(38)(f) was to require a comparison of pre-injury earnings and post-injury earnings ‘whether in suitable employment or not’. That was a way of legislatively overturning the decision in Majkic, where this Court held that a judge in the County Court had been correct, on a serious injury application, to conclude that work undertaken post-injury in a protected job did not constitute ‘suitable employment’. Buchanan JA, with whom Kellam JA and Robson AJA agreed, said this:[42]
I consider that the legislature intended that the worker’s loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker, who is incapable of performing his normal work.
[42]Smorgon Steel Tube Mills Pty Ltd v Majkic (2008) 21 VR 193, 196, [10].
It can be seen that paragraph (b)(ii) of the definition of ‘suitable employment’, together with the amendment of s 134AB(38)(f) was a precise response to the construction of those provisions as they stood when Majkic was decided. Dealing with a quite particular circumstance, in our opinion paragraph (b)(ii) adds nothing to the analysis which we have thus far undertaken.
Ninth, counsel did not draw attention to the phrase ‘the work or the employment’ in paragraph (b)(i) and (ii) of the definition of ‘suitable employment’, but we should address the matter. It might perhaps be said that the expression of ‘work’ and ‘employment’ disjunctively contraindicates there being a conjoint requirement of inability to work in employment. But, in our view, nothing much can be made of that language. When a definition of ‘suitable employment’ was first introduced into the Act, by s 6 of the Accident Compensation (WorkCover) Act 1992, the definition commenced as follows:
‘Suitable employment’, in relation to a worker, means employment in work for which the worker is suited (whether or not that work is available) …
Paragraph (b)(i) and (ii) thus add a reference to ‘employment’, when originally there was none. Left unexplained is retention of the word ‘work’.
Tenth, from the earliest times of workers compensation legislation up until the enactment of the first iteration of the Act in 1985, compensation was payable in respect of ‘incapacity for work’. That conception enabled regard to be had to the kind of considerations now set out in paragraph (a)(ii) to (iv) of the definition of ‘suitable employment’, although it was not precisely so limited. To be clear, it was not confined simply to physical incapacity. An instance of this conception—one amongst many—was Ball v William Hunt & Sons Ltd.[43] In Cardiff Corporation v Hall,[44] a case in which the decision of a County Court judge sitting as arbitrator under the Workmen’s Compensation Act 1906 (UK) adverse to the worker, was held, by majority, to be open, there were nonetheless important observations of principle by Fletcher Moulton and Buckley LLJ in that connection.[45]
[43][1912] AC 496.
[44][1911] 1 KB 1009.
[45]Ibid 1020-1021, 1026. See [95]–[96] below.
But whilst incapacity for work, from earliest times, was not confined simply to physical incapacity, at the same time there was insistence that an employer did not guarantee the state of the labour market.
The phrase ‘incapacity for work’ was maintained in the first iteration of the Act. Indeed, definitions of ‘total incapacity’ and ‘partial incapacity’ were inserted into s 5(1) of the Act by s 6 of the Accident Compensation (WorkCover) Act 1992, that being the Act which inserted the first definition of ‘suitable employment’.
The Act underwent further relevant change in 1997. Section 30 of the Accident Compensation (Miscellaneous Amendment) Act 1997 repealed the definitions of ‘total incapacity’ and ‘partial incapacity’. But, at the same time, definitions of ‘current work capacity’ and ‘no current work capacity’ were inserted, and the quantification provisions were amended to delete reference to total or partial incapacity, and to insert, in their stead, references to ‘no current work capacity’. That by no means explains the entirety of the changes effected by the 1997 Act, but it suffices for present purposes.
These observations may be made. The definitions of ‘current work capacity’ and ‘no current work capacity’ were expressed in language almost identical with that in the repealed definitions of ‘total’ and ‘partial’ incapacity for work. So the definitions of ‘current work capacity’ and ‘no current work capacity’ trace from, and in our view may be taken to be informed by, the fact that physical capacity alone was never considered the be all and end all of determination of incapacity for work. In our view, the plain meaning of the present definitions of ‘no current work capacity’ and ‘suitable employment’ is consistent with long-established jurisprudence respecting closely-related concepts.[46] But, to be crystal clear, our opinion as to the meaning of the definitions is one based on reading their text.
[46]This consistency could only be pressed so far. The Act has long been notorious for its obscure language and departure from long-established jurisprudence. See, for instance, Wellbridge v Jackson [1990] VR 689, 694 lines 24–36 and 696 lines 35–45.
About ‘suitable employment’, this may be said. The term was used, in connection with calculating compensation for partial incapacity, from earliest times.[47] A large jurisprudence developed.[48] It is plain that suitability of work was never confined to physical capacity to perform a task required by a particular job. What we take to be the plain meaning of the definition is generally consistent with that jurisprudence.
[47]For instance, s 9(3) of the Workmen’s Compensation Act 1925 (UK) referred to ‘the average weekly amount which [the workman] is earning or is able to earn in some suitable employment or business after the accident’.
[48]Conveniently summarised in Willis’s Workmen’s Compensation, 37th edition, 1945, 306–316.
Eleventh, the definitions of ‘no current work capacity’ and ‘suitable employment’, as we construe those definitions, together with the inclusion in the definition of ‘medical question’ of paragraphs (aba), (abaa), (abb) and (abc), will require medical panels to consider matters travelling beyond bare medical expertise. But that is not a reason for construing the definitions otherwise than their plain words require. Not that it is decisive, questions of ‘no current work capacity’ and ‘suitable employment’ are not the exclusive preserve of medical panels.
Twelfth, the construction which we place on the definitions under consideration can be expressed in either of two ways. One is to say that whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances—these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce. Viewing the matter in that way, these observations of Buckley LJ in Cardiff Corporation v Hall, are in point:[49]
The two following propositions are of course distinct: First, that owing to incapacity for work arising from the accident the condition of the workman is such that his labour is not saleable or is saleable only at a reduced figure, and, secondly, that his labour is saleable or is saleable at the same figure as before the accident but that he has failed to find a purchaser. The former and not the latter is the relevant proposition in the question of compensation. …
It is difficult, no doubt, to draw the line. Physical incapacity is not necessarily alone to be considered. In some employments personal disfigurement may preclude employment when physical capacity is just as good as before. In such case personal disfigurement is an element to be taken into consideration. The circumstances under which labour can command employment in the market being all taken into consideration, the question is whether the accident has produced in the workman some incapacity for work personal to himself which prevents his obtaining employment.
[49][1911] 1 KB 1009, 1027.
The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in the same case, where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.[50]
[50]Ibid 1020.
Neither of those ways of looking at the matter is at odds with the settled law that an employer does not guarantee the state of the labour market. Nor do they mean that inability to work in employment covers the situation in which—addressing the reality of what may occur—an employer will not take on a worker only because the latter has been off-work and in receipt of compensation payments. Rather, they focus upon an assessment of the inhibitions which exist upon the worker’s ability to work in employment. ‘Employment’ is a relationship in which a prospective employee must have something—a capacity to work in employment—to sell. A prospective employer will not buy if the entirety of the circumstances personal to the worker, as outlined in these reasons, lead the employer to conclude that the worker has nothing to sell.
It follows from what we have said that, in our view, the construction which the judge placed upon the definition of ‘no current work capacity’ was unduly narrow.
That takes us to the second question which arises under cover of Ground 1.
Authorities to which respondents’ counsel referred, as to the way in which the reasons of an expert but non-legal tribunal should be read, pertained to the adequacy of reasons. But we should approach the question whether the Board misdirected itself by considering its reasons in the same way. That is, we should avoid too zealous an examination of the reasons with a view to establishing the presence or absence of misdirection.
We should set out what it relevantly said in its reasons:
The Panel noted that the plaintiff’s own GP had been certifying her as fit for alternate duties for some time and that the plaintiff herself was currently applying for a number of jobs although she had been so far unsuccessful. The plaintiff told the Panel that employers had told her that they would not employ her due to her back injury. The Panel noted that the plaintiff told them that she was interested in working in aged care or animal care.
The Panel 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 Panel considered the NES Vocational Assessment Report by APM, dated 14 August 2013, included in the Referral documentation. The Panel noted that four suitable employment options were identified in this report, namely Customer Service Clerk, Cashier, Sales Assistant and Light Process Worker.
The Panel noted:-
·The plaintiff’s current age of 57 years; the Panel accepts that the plaintiff’s age may be a barrier to returning to work;
·The plaintiff’s education and qualifications—the plaintiff originally completed Form 1 in high school and later went to TAFE to start a horticultural course. She said that she had completed the equivalent of year 11 during that course but had required some help with oral exams. The plaintiff indicated that she had difficulty reading and writing but was able to use a mobile phone to get her daughter to help her with things that she could not read and was able to program a GPS. She has a car licence.
·The plaintiff’s previous training and work experience—the Panel noted that the plaintiff had very limited previous work experience. It noted that she had worked for a short period as a babysitter in her 20s and also said that she had worked cleaning parts in an auto wrecker. It also noted that she worked for approximately 3 months as a nursery assistant during her TAFE course and this was where her injury occurred.
·The plaintiff lives in Wodonga which is a large regional centre with a variety of jobs available;
·Her ability to drive locally;
·The nature and extent of the plaintiff’s chronic non-specific lumbar back pain with no clinical evidence of radiculopathy, and chronic adjustment disorder with anxious and depressed mood.
·The significant improvement in the plaintiff’s physical and psychiatric condition since the last Panel assessment and the significant weight loss since gastric banding surgery 4 years ago.
The Panel considered the functional requirements of the jobs identified in conjunction with the suitable employment criteria above. After taking into account the possible job options, the plaintiff’s physical condition and taking into account her age, previous experience, education, skills and place of residence, the Panel considered that her lack of clerical skills, including difficulties with literacy and numeracy, would be a barrier to her working as a Customer Service Clerk, Cashier or Sales Assistant and the Panel considered that these roles did not constitute suitable employment. The Panel formed the opinion that the plaintiff does have a current work capacity to work as a light process worker as suggested in the NES report. As the report notes, this occupation is classed as light to medium physically. The Panel noted that such a role did not require specialised skills and training was, in most cases, ‘on the job’. The Panel considered the duties listed in the vocational assessment for the role of light process worker and concluded that the duties would be able to be undertaken by the plaintiff in line with her current physical and mental condition. The Panel concluded that the plaintiff would be able to undertake the role of light process worker on a reliable and consistent basis.
The Panel therefore concluded that the plaintiff has a current work capacity.
The Panel noted the report by Dr Robyn Horsley, dated 7 April 2014, in which she states that the plaintiff ‘is likely to stay out of the workforce permanently. There are considerable barriers. She is now 56 years of age. She has been out of the workforce for 20 years. Her previous work experience was as a babysitter and a nursery assistant for just a couple of months. She has Year 7 education. She has significant literacy issues. She has no computer skills. She presents poorly … I believe (she) is unlikely to return to the workforce in any capacity. I believe that her attractiveness to a new employer in an open and competitive marketplace would be negligible. On the basis of her physical capacity alone, within the restrictions as outlined above in theory she probably has capacity for part-time work, possibly up to 15 hours per week. However, realistically, I believe that she will continue to remain out of the workforce in the longer term.’
The Panel acknowledges that it may be difficult for the plaintiff to find suitable employment but also acknowledges that the test of work capacity relates to identifying work that the plaintiff would be able to perform on the basis of her physical restrictions, her age, her qualifications, her experience and her place of residence. The Panel is not required to determine whether the plaintiff will be successful in obtaining employment. For this reason, and based on collective experience and expertise, formed to different opinion [sic] to Dr Horsley regarding the plaintiff’s current work capacity.
Taking the required approach, we are satisfied that the Panel did misdirect itself.
First, the Panel alluded to matters set out in paragraph (a)(i) to (iv) of the definition of ‘suitable employment’ when concluding that three of the four ‘possible job options’ did not constitute suitable employment. It may be said that this entailed consideration of the applicant’s relevant personal circumstances, of which the work-caused incapacity was a necessary part, but only a part, of what the Panel had to consider. Whether consideration of those circumstances—all aspects of which, it needs to be understood, must be comprehensively brought to account—was any more than formal recitation (except in the case of the applicant’s problems with literacy and numeracy) need not be conjectured. But what can be said is that, in terms, the Panel’s consideration of the ‘light process worker’ option incorrectly focused entirely upon the applicant’s physical capacity to undertake the duties described in the Assessment. It concluded that she would be able to perform those duties ‘in line with her current physical and mental condition’. The Panel’s reasons show that it approached the matter in a way which was not consistent with the submission for the respondents that it must be taken to have brought to account the applicant’s age, previous experience, education, skills and place of residence, as it stated it had done in the case of the other job options.
Second, the worker with whom the Panel was concerned was in a quite particular situation. Not only was she aged 56 or thereabouts, not only did she have minimal education, not only did she have virtually no experience as a member of the paid workforce, and therefore no acquired employment skills, she had been out of all work for 20 years by reason of an incapacity which had been compensated. This last circumstance, which the Panel did not mention at all in its assessment of her suitability, was surely a matter which required consideration.[51] It was a matter which, in our opinion, could have been brought to account—focusing only on the definition of ‘suitable employment’—under paragraph (a)(i) and/or (ii) and/or (iii). It did not fit precisely into any one of those circumstances, but in our view, they ought not to have been read so narrowly in respect of what was, in our opinion, a matter of considerable importance. The Panel’s failure to mention this matter implies what its treatment otherwise of the ‘light process worker’ job option shows—that it focused upon the applicant’s physical capacity to perform tasks.
[51]Contrast the way in which a Panel approached a somewhat similar circumstance in Denham v Consolidated Herd Improvement Services Pty Ltd [2014] VSC 520 [28], dot point 11 iii.
Third, we have considered whether the Panel’s bland conclusion that the applicant would able to undertake the ‘light process worker’ duties listed in the Assessment bespeaks misdirection. The duties, noted at [40] above, were described in generic terms[52] and were accompanied by a computer-search characterisation of the physical demands of the job title being ‘light – medium’. The Panel’s treatment of this job option constituted, in our opinion, a significant deficiency in its consideration of the question of ‘suitable employment’. It emphasised the Panel’s focus on the physical demand of the job. But what the Panel said seems to us to bear, at least principally, upon the adequacy of its reasons.
[52]As we later conclude. See [125] (2) below.
Fourth, the respondents relied, inter alia, upon the last substantive paragraph of the Panel’s reasons. We consider, however, that what the Panel there said does not assist the respondents’ case. The Panel’s statement that, ‘the test of work capacity relates to identifying work that the plaintiff would be able to perform on the basis of her physical restrictions, her age, her qualifications, her experience and her place of residence’, whilst identifying matters referred to in paragraph (a)(i) to (iv) of the definition of ‘suitable employment’, again focused upon the identification of work, rather than ‘inability to work in employment’. To say, as the Panel did, that it was not required to determine whether the plaintiff would be successful in obtaining employment was true, so far as it was a statement only directed to inability to obtain employment by reason of the state of the labour market. It could not be carried any further. In particular, it was not a correct statement if it meant that the Panel was not required to consider whether the entirety of the applicant’s relevant personal circumstances—that is, her injury-caused incapacity and other relevant personal circumstances which we have discussed—meant that she would likely be unsuccessful in obtaining employment because she had nothing ‘merchantable’ to sell. The entirety of the worker’s relevant personal circumstances, in a case such as the present, would readily be understood to have a compounding effect.
It follows from what we have so far said that Ground 1 must be upheld.
Ground 2
The Parties’ submissions
It was submitted for the applicant that paragraph (a)(i) of the definition of ‘suitable employment’ required the Panel to have regard to what we have called the November certificate. Counsel submitted that the Panel’s reasons demonstrated that it had not considered the substance of that certificate. This was a matter that had been the subject of submissions before the primary judge, but her Honour had only referred to the certificate in a presently irrelevant connection.[53]
[53]Counsel referred to Reasons [88]. As counsel for the respondents pointed out, the judge also referred to the certificate at Reasons [45]. This second reference was, as the applicant would have it, similarly irrelevant for present purposes.
Applicant’s counsel agreed that the gist of the complaint was that the Panel used the certificate to bolster its conclusion that the applicant was fit for some duties, and that what it did not do was focus upon the certificate of incapacity so far as it stated the opinion of a long-time practitioner as to limitations upon the applicant’s capacity.
Counsel for the respondents submitted that the Panel’s reasons showed that it did have regard to the contents of the certificate. It was entitled to accept Dr Giddens’ opinion that the applicant was fit for alternative duties, without being obliged to accept the doctor’s opinion as to limitations upon the applicant’s employment capacity.
Analysis
In Wingfoot, the High Court described a Panel’s function this way:[54]
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.[55] 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.
[54]Wingfoot 498-499 [47].
[55]cf Masters v McCubbery [1996] 1 VR 635, 645.
Paragraph (a)(i) makes specific reference to a certificate of capacity such as the November certificate. Regard must be had to that certificate when considering a worker’s current suitability for work in employment. Paragraph (a)(i), referring as it does to ‘the details provided in medical information including, but not limited to the certificate of capacity supplied by the worker’, gives what counsel for the respondents conceded was ‘a special status’ to such a certificate. But, as the passage cited in the preceding paragraph shows, a Panel, when a medical question is referred to it, is not obliged to adopt every part of such a certificate.
We should think that the limitations which Dr Giddens stated in the November certificate were not consistent with the opinion which the Panel reached as to the applicant’s physical capacity to perform the duties of a light process worker. But whilst it would have been better had the Panel explained why it did not accept the limitations stated by Dr Giddens, it cannot be said, only because the Panel did not advert to that aspect of the certificate, that it did not have regard to it.
Again, it might be said that what the Panel did was to rely upon so much of the certificate as stated that the applicant had a capacity for alternative duties, whilst saying nothing about the significant limitations which the certifying practitioner stated. It might be thought that the Panel’s reasons displayed a ‘picking and choosing’ to support its conclusion as to the applicant’s physical capacity to engage in the duties of a light process worker. But the Panel had to form its own opinion, and again it cannot be concluded that it did not have regard to the November certificate only because it accepted part of the what the certificate stated.
In our opinion, Ground 2 fails. Although the judge below said little about the November certificate, had she squarely addressed the issue upon which the applicant relied, she ought to have concluded that the Panel had not failed to take account of a mandatory and relevant circumstance.
Ground 3
The Parties’ submissions
Counsel for the applicant submitted that—
(1) The Panel failed in its reasons to reconcile the tasks identified by it with the applicant’s physical restrictions. One could not say whether or not an error of law (that is, other than a misdirection) was involved in what the Panel did because its actual path of reasoning was not disclosed. That was contrary to the minimum requirement of reasons identified in Wingfoot.[56]
[56][2013] 252 CLR 480, 501 [55].
(2) The Panel’s statement that ‘the occupation is classed as light to medium physically’ had to be considered in the context of the tasks described in the Assessment, many of which must involve lifting and bending. But the Panel’s reasons did not explore in any way the characterisation of the occupation as involving light to medium work on the one hand and the duties which were described. What the Panel did was to accept the characterisation and then state a conclusion—absent any path of reasoning—that the duties described were within the applicant’s physical capacity.
(3) The Panel’s reasons gave rise to ‘a series of questions which might include the following’:[57]
[57]T41, line 10 to T42, line 6.
Did it decide that the light process job did not involve repetitive binding? Did it decide that the light process job might involve repetitive bending, that the applicant could manage repetitive bending without pain? Did the panel think that the applicant might have pain, but the pain would not be harmful? Did the panel determine that the light process work and the duties that are identified would not require the plaintiff repetitively to lift weights? Did the panel think that although the job light process work, might involve lifting weights repetitively, the weights would be below a certain weight … the description of this particular job was abstract high level. Did the panel think that there should be a weight limit on what the applicant might lift; either on an occasional basis or a repetitive basis, or any other basis? Was there any limit on the number of hours which the applicant might be required to undertake light process work, which on the face of it requires lifting and bending?
We do not know whether or not the panel turned its mind to those issues which necessarily arise from the combination of the panel’s own diagnosis of the applicant and the description of the duties in the vocational assessment, but the panel has not exposed any path of reasoning which reconciles the applicant’s limitations with the duties that have been listed in the report.
(4) The judge erred by drawing out of the Panel’s reasons a conclusion that it had found that the applicant had exaggerated or misstated her physical limitations, the necessary result being that her physical incapacity was the less, this enabling the Panel to reach a conclusion that the applicant’s capacity was greater than that assessed by other medical practitioners. The Panel, according to its reasons, had expressed no conclusion that the applicant had misstated or exaggerated her symptoms. It had found that the applicant exhibited abnormal pain behaviour, and it was not surprising that the applicant had suffered a psychological reaction to her injury, operations and prolonged impairment. No question of stripping out the applicant’s psychologically mediated signs or symptoms arose in the present connection. In all, the judge’s suggested explanation why the Panel had reached the conclusion which it did as to the applicant’s capacity for employment was not stated in the Panel’s reasons; and it did not assist her Honour’s conclusion that the Panel’s reasons were sufficient.
(5) In all, the judge erred in concluding that the reasons were sufficient, and that they gave ‘a comprehensive description’ of the Panel’s path of reasoning. Further her Honour had engaged in mere speculation when saying that ‘adjustments are likely to be made to accommodate [the applicant’s] injuries where this is possible’.[58]
[58]Reasons [91].
It was submitted for the respondents that—
(1) The judge was correct to hold that the Panel adequately explained its path of reasoning in accordance with the Wingfoot criteria. Reasons were entitled to a beneficial construction. The Panel could not be required to list every potential duty that might be involved in a range of jobs.
(2) The Panel stated its finding as to the applicant’s current extent of incapacity, that she had improved significantly since a previous Panel examination in 2004, and that the previous L5 disc prolapse had now resolved. No criticism was made of the Panel’s findings and reasoning in that connection.
(3) The duties of the proposed role of light process worker were precisely identified in the vocational material and extracted by the Panel. Having regard to its statutory function and expertise, the Panel was entitled to come to a conclusion regarding the applicant’s capacity for work. It could not be required ‘to decompose the various tasks of all the various jobs constituting the proposed classes of suitable employment down to precise quantitative weight limits’.
(4) It should necessarily be inferred that the Panel came to a finding, by reference to its own expertise, that light process work as a class of employment, was less physically strenuous than the applicant’s pre-injury employment.
(5) Criticism of the primary judge for inferring that the Panel concluded that the applicant exaggerated her symptoms was unfounded. The judge’s conclusions in that connection were convincing.
(6) The Wingfoot standard should not be manipulated so that ‘the essential austerity of [that] formulation [was] undermined by an overly prescriptive, overly detailed reassurance that reviewable error has not taken place’.
Analysis
In Wingfoot, the High Court said this:[59]
The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the Medical Panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain.
The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve 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.
[59](2013) 252 CLR 480, 501 [54]–[55].
Both counsel submitted that the effect of Wingfoot was to reinstate the extent of the obligation to give reasons stated by this Court in Masters v McCubbery.[60] In our opinion, there was considerable force to those submissions, but the matter need not be resolved in order to deal with the question of the sufficiency of reasons in this case.
[60][1996] 1 VR 635, 650–651 (Winneke P), 653 (Ormiston JA), 661 (Callaway JA). Masters v McCubbery involved reasons provided pursuant to a request under the Administrative LawAct1978. But the approach should be the same. A passage from the judgment of Callaway JA was cited in Wingfoot, at [51].
In applying the Wingfoot formulation, we take into account the considerations mentioned in Wu Shan Liang in the case of the reasons of an expert but non-judicial body.
So considered, we consider that the Panel’s reasons decisively failed to describe its path of reasoning to the conclusion that the applicant had the physical capacity to engage in light process work. It follows that the judge below erred in concluding to the contrary. Ground 3 should be upheld. This would necessitate the appeal being allowed and the applicant having relief as sought, regardless that Ground 1 should also, in our opinion, be upheld.
The sequence of the Panel’s reasoning, so far as it was revealed, was as follows:
(1) The Panel formed its own opinion about the applicant’s ongoing disability and related that to her ability to perform her pre-injury employment. She was suffering from chronic non-specific lumbar back pain with no evidence of radiculopathy. She was also suffering from a chronic adjustment disorder with mixed anxiety and depressed mood, which was of low severity, ‘and would have little impact on her capacity for pre-injury duties or other suitable employment’. She currently had an incapacity for her pre-injury employment, mainly related to the lifting and repeated bending involved. That incapacity was still materially contributed to by the compensable injury.
(2) The Panel ‘noted’ a number of matters, which were apparently an intended reference to matters made relevant by paragraph (a)(i) to (iv) of the definition of ‘suitable employment’. They included the observation that ‘the plaintiff lives in Wodonga which is a large regional centre with a variety of jobs available’.
(3) The Panel concluded, as we have already noted, that the applicant had ‘a current work capacity to work as a light process worker, as suggested in the NES report’. The report had noted that the job was classed as ‘light to medium physically’. The Panel considered that the ‘duties listed in the vocational assessment’ and concluded that ‘the duties would be able to be undertaken by the plaintiff in line with her current physical and mental condition’.
The Panel’s conclusion with respect to the ‘light process worker option’, as we have earlier observed, focused upon the applicant’s physical capacity to perform tasks; and the reasons were adequate to reveal that the Panel misdirected itself in that connection. But the reasons were by no means adequate, in our opinion, to enable an understanding how the Panel concluded that the applicant had the physical capacity to perform certain duties. The Panel did not purport to apply its expertise and experience in assessing the applicant’s capacity to perform the duties of a light process worker. In terms, it acted upon the duties[61] as described in the Assessment, and with the statement that the physical demands of the occupation were ‘light to medium physically’.
[61]Which, it seems clear, were ‘generic’. See [125](2) below.
We referred at [30] above to criticism of the Assessment in this Court. Applicant’s counsel submitted that the relevant description of duties was generic. It referred to widely differing tasks, with different physical demands, the characterisation ‘light-medium’ being non-specific. There was nothing before the Panel to show what feature or features of the generic description were present in the case of any actual job. It was not enough (assuming that the Panel had not misdirected itself) for the Panel simply to say that ‘the duties’ listed would be able to be performed by the applicant. Even the most beneficial reading of the Panel’s reasons could not make good its deficiencies.
We consider that—
(1) It is evident that the entirety of the material set out in the Assessment with respect to each job title was the product of computer searches. Thus, the job title itself was identified by a computer code number. The stated average wage was the product of search on another website. The asserted availability of jobs fitting the description was the product of searches on two other websites. What knowledge, if any, the ‘Employment Services Consultant’ who was the author of the Assessment had of work actually required and done in jobs fitting any of the four titles was not revealed by the Assessment.
(2) It seems clear that the duties described in the computer-generated response were not the description of what was required by any particular job, but were rather a generic description of activities one or more of which was or were required by different jobs falling within the job title. So much appears from the widely variant activities described, relevantly, in the case of the job title ’Light process/production worker’.
(3) What duties were required in the four jobs which the author of the Assessment described as ‘potentially suitable roles’ was not revealed by the Assessment.
This was a most unsatisfactory document upon which to found a conclusion as to the applicant’s physical capacity for work. But if a conclusion was to be reached that the applicant had an ability to engage in employment which required one or more of the duties described, the Panel, in our opinion, was required to give some practical content to the job involved, in order that its conclusion was capable of being examined. How, for example, could its conclusion that the applicant was physically able to perform one or more of the duties described in the Assessment be tested, to see whether it was irrational or illogical,[62] without there being some description of the Panel’s understanding of the physical demands of the duties in the job description? Simply to describe the listed duties, and to accept and act upon the characterisation that the physical demands of those duties were light to medium, was a lesson in obscurity.
[62]In Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, Neave JA, with whom Santamaria JA and Ginnane AJA agreed, considered at some length the ‘illogical or irrational’ ground and its points of connection with, and differentiation from, the Wednesbury unreasonableness ground. See [82]–[100]. There was no argument in this case directed to that issue. The matter was conducted on the simple basis that a failure to provide sufficient reasons to expose possible error will ground relief in the nature of certiorari.
Moreover, without there being some exposition of what the Panel took to be the duties involved in some job falling within the broad job title, it was not possible to say whether a job fitting that description was available when regard was had to the applicant’s place of residence. The observation by the Panel that the applicant ‘lives in Wodonga which is a large regional centre with a variety of jobs available’ was meaningless—and irrelevant—unless it was intended to imply that there was some light process worker job in fact available either in Wodonga or within a reasonable driving distance of the applicant’s place of residence, the physical demands of which the Panel concluded were within the applicant’s capacity.
The only suggestion that some job fitting the job title was available was in the Assessment’s assertion that as at August 2013—which was 12 months before the time of the Panel’s determination—there were ‘four potentially suitable roles’ identified within ‘reasonable travelling distance’ of the applicant’s residence. What those potentially suitable roles involved was not stated in the Assessment.
The judge’s conclusion that the Panel’s path of reasoning was disclosed, at least in part, by it having found that the applicant had misstated and exaggerated her symptoms, this contributing to its conclusion that her physical capacity to undertake duties was as great as it concluded was the case, was not a circumstance stated by the Panel. Neither would such an inference be justified. The Panel noted that there was evidence of abnormal pain behaviour in the applicant’s presentation. That was unsurprising, having regard to her long history of injury-caused incapacity. Moreover, the Panel’s observations were apparently consistent with the observation of Dr Horsley that ‘there was significant fear avoidance behaviour exhibited with tender points on light touch palpation’.
Further, the Panel accepted that the applicant was suffering, at time of its determination, from chronic non-specific lumbar back pain, together with a chronic adjustment disorder with mixed anxiety and depressed mood. It reached its conclusion about the applicant’s chronic pain and its cause looking beyond her abnormal pain behaviour.[63]
[63]And, if not included in that description, disconformities between her presentation informally and on formal examination.
In the event, the Panel’s reasons were not demonstrated to be adequate by recourse to its supposed reliance upon exaggeration and misstatement by the applicant.
Finally, we consider that the judge was not justified in stating that ‘adjustments are likely to be made to accommodate [the applicant’s] injuries where this is possible’. It was speculative; and it was not a circumstance upon which the Panel relied in its reasons.
Orders
In our opinion, the applicant has made out grounds 1 and 3. We would order that:
1. The applicant have leave to appeal.
2. The appeal be allowed.
3.The orders of the Supreme Court made 1 September 2015 be set aside.
4.In lieu thereof, order that —
(1)The Medical Panel’s opinion dated 22 August 2014 be quashed.
(2)The medical questions submitted for the opinion of a Medical Panel be referred to a differently constituted Medical Panel for redetermination in accordance with these reasons.
(3)The first, second and third defendants pay the plaintiff’s costs of the proceeding on the standard basis.
5.The first, second and third respondents pay the applicant’s costs of the application for leave to appeal and of the appeal.
OSBORN JA:
I agree with Ashley and Kaye JJA that leave to appeal should be granted and the appeal should be allowed. I gratefully adopt their Honours’ analysis of the facts.
Ground 1 of appeal raises a central question of statutory construction:
The primary judge erred in the construction of the defined term ‘no current work capacity’ in s 5 of the Accident Compensation Act 1985.
Statutory construction begins and ends with the text.[64]
[64]Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503, 519 [39].
The parties agreed before the primary judge that version 190 of the Accident Compensation Act 1985 (‘the Act’) applies to this proceeding. The Act provided for the following objects:[65]
[65]Section 3 (emphasis added).
(a)to reduce the incidence of accidents and diseases in the workplace;
(b)to make provision for the effective occupational rehabilitation of injured workers and their early return to work;
(c)to increase the provision of suitable employment to workers who are injured to enable their early return to work;
(d)to provide adequate and just compensation to injured workers;
(e)to ensure workers compensation costs are contained so as to minimise the burden on Victorian businesses;
(f)to establish incentives that are conducive to efficiency and discourage abuse;
(g)to enhance flexibility in the system and allow adaptation to the particular needs of disparate work situations;
(h)to establish and maintain a fully-funded scheme;
(i)in this context, to improve the health and safety of persons at work and reduce the social and economic costs to the Victorian community of accident compensation.
The Act relevantly provided:[66]
(1)Subject to section 93CD, a worker’s entitlement to compensation in the form of weekly payments under this Part ceases upon the expiry of the second entitlement period unless the worker—
(a)is assessed by the Authority or self-insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity; or
[66]Section 93C(1)(a).
The Act further provided:[67]
[67]Section 5(1).
(1) In this Act unless inconsistent with the context or subject-matter—
…
current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment;
…
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment;
…
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)having regard to—
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii)the nature of the worker’s pre-injury employment; and
(iii)the worker’s age, education, skills and work experience; and
(iv)the worker’s place of residence; and
(v)any plan or document prepared as part of the return to work planning process; and
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b)regardless of whether—
(i)the work or the employment is available; and
(ii)the work or the employment is of a type or nature that is generally available in the employment market;
The definition of ‘no current work capacity’ commences with broad words:
a present inability arising from an injury …
The words ‘arising from’ embrace a consequential, as well as a direct, effect of an injury.
The definition relevantly requires that the inability be—
such that the worker is not able to return to work … in suitable employment.
Ability to return to work in employment is not simply dependent upon capacity to physically undertake particular tasks. The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. The object of containment of cost is not intended to prevent this from being achieved.
A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.
In my view, the definition of suitable employment does not change the governing nature of these concepts. Suitable employment means employment in work for which the worker is currently suited. The Act then provides for factors which must be considered in assessing whether the worker is able to return to employment in work for which the worker is currently suited. The factors listed in paragraphs (a)(i) to (iv) go to characteristics of the worker bearing on his or her employability and are not limited to physical capacities. The factors listed in paragraphs (a)(v) and (vi) go to factors related to processes intended to facilitate a return to work either by way of work plans or rehabilitation services. The significance of return to work is emphasised in the objects of the Act. The outcome of these processes may or may not have been successful, but, for present purposes, these factors are relevant in that they go to the capacity of the worker to return to work in employment in the broad sense that I have sought to explain.
Paragraph (b)(i) makes clear that labour market factors are not relevant. Paragraph (b)(ii) is, as Ashley and Kaye JJA explain, the legislative response to the particular type of situation which arose in Smorgon Steel Tube Mill Pty Ltd v Majkic.[68]
[68](2008) 21 VR 193.
I respectfully agree with Ashley and Kaye JJA’s subsidiary conclusions 2 to 12.[69]
[69]Paragraphs numbered [75]–[97].
Subject to the above, I also respectfully agree generally with their Honours’ reasons and with the orders they propose.
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