Robert Bosch (Australia) Pty Ltd v Barton
[2008] VSC 227
•27 June 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 9473 of 2007
| ROBERT BOSCH PTY LTD | Plaintiff |
| v | |
| DR DAVID BARTON & ORS | Defendants |
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JUDGE: | JUDD J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 April 2008 | |
DATE OF JUDGMENT: | 27 June 2008 | |
CASE MAY BE CITED AS: | Robert Bosch (Aust) Pty Ltd v Barton & Ors | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 227 | |
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ADMINISTRATIVE LAW – Review of Medical Panel – Adequacy of reasons - Administrative Law Act 1978 s 8
ACCIDENT COMPENSATION – Review of Medical Panel – Adequacy of reasons – Accident Compensation Act 1985 s 45 and Part III Division 3 -
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff For the First to Fourth | Mr D. Beach SC with No appearance | Dibbs Abbott Stillman |
| For the Fifth Defendant | Mr M.O’Loghlen QC with Mr G. Coldwell | Ryan Carlisle Thomas |
HIS HONOUR:
This is an application for judicial review under Order 56 of the Rules of Court. The plaintiff, Robert Bosch (Aust) Pty Ltd (the employer), commenced this proceeding by Originating Motion dated 15 November 2007 in which it sought an order in the nature of certiorari quashing an opinion of a Medical Panel made under s 68 of the Accident Compensation Act 1985 (the Act). The Medical Panel (the Panel) was comprised of the first, second, third and fourth defendants. An order is sought remitting the medical questions, answered by the Panel, to a differently constituted panel to be reconsidered according with law. The grounds relied upon by the plaintiff are jurisdictional error, procedural unfairness and inadequate reasons given by the Panel for its opinion. The fifth defendant is Mr Karl Zika (the worker), who was examined by the Panel and in respect of whom the Panel gave its opinion. There was no appearance on behalf of the Panel.
The worker is now 57 years of age. In 1987 the worker was employed by the employer as a machine setter when he suffered a low back injury allegedly in the course of his employment. He submitted a claim for weekly payments and medical and like expenses later that year. Liability was accepted by the employer. Weekly compensation payments and other expenses were paid to the worker until 17 April 2006, when they were terminated.
In July 2006, the worker commenced a proceeding in the Magistrates’ Court under s 43 of the Act claiming weekly payments and medical and like expenses. The worker alleged that he was totally and permanently incapacitated for employment. He alleged that he was injured as a result of heavy lifting in the course of his employment, resulting in injury to his spine. His particulars of injury include psychiatric illness, chronic pain disorder and adjustment disorder with anxiety and depressed mood. By its notice of defence, the employer admitted that the worker had sustained an injury but alleges that he has a current work capacity.
In the Magistrates’ Court proceeding, the worker made a request under s 45(1)(b) of the Act that medical questions be referred to a medical panel for an opinion. The following questions were referred to a panel for an opinion:
1. Whether the plaintiff had an incapacity for work?
2.If yes to question 1, whether the plaintiff’s incapacity resulted from or is materially contributed to by his accepted low back and psychiatric injuries?
3.If yes to question 2, whether the plaintiff has a “current work capacity” or “no current work capacity” having regard to the definition of “current work capacity” and “suitable employment” contained in s 5 of the Accident Compensation Act?
4.If the plaintiff has “no current work capacity” whether the plaintiff is likely to continue indefinitely to have “no current work capacity”?
5.If yes to question 2, what is the plaintiff’s level of impairment when assessed in accordance with s 91 of the Accident Compensation Act using the methods of the AMA guide to the Valuation of Permanent Impairment (2nd edition)?
At the time of referring the medical questions, the magistrate provided documents relating to the medical questions as required by s 65(6A) and (6B) of the Act. The documents included court documents, WorkCover documents, the worker’s medical and vocational reports, the medical and vocational reports obtained by the employer, CT scans and the results of other medical investigations and surveillance material obtained by private investigators engaged on behalf of the employer.
In written submissions made to the Panel the employer relied on the surveillance material as evidence that the worker was feigning or at least seriously exaggerating his disability and incapacity. The employer submitted that the surveillance evidence indicated that the worker had a capacity for a wide range of employment. The employer relied in particular upon surveillance video tapes numbered 4 and 6, which I have viewed. The worker did not deny that he was the person depicted in the surveillance videos. Tape number 4 depicts the worker, in late 2005, unloading long lengths of timber weatherboard from his vehicle, placing them against the side of a house and later lifting the weatherboards from where they had been stacked up onto an upper level of the house. That activity was repeated. Tape 6 depicts the worker leaving a building, in which Dr Andrew Miller is said to have rooms, following his examination on behalf of the employer on 19 January 2006. On that occasion, the worker appeared to experience difficulty moving and walked with the aid of a stick while in the proximity of Dr Miller’s rooms, but is later observed walking without any apparent difficulty or any observable impediment. On behalf of the worker it was submitted in writing to the Panel that during the period September 2005 until February 2006 (the period of the surveillance), the worker was taking large amounts of Panadeine Forte to cope with back pain. This is said to be corroborated by a medication printout summary.
The credibility of the worker’s account of his symptoms was also challenged in medical reports from Dr Strauss and Mr O’Brien provided to the Panel. Having viewed the surveillance material Dr Strauss expressed the opinion that he did not believe the worker to be truthful and did not believe that the worker was suffering from a work-related psychiatric condition or injury. He concluded:
Mr Zika at interview today gave me the impression through his history and presentation that he is a man with significant and chronic pain throughout his body, but particularly in his back, and who has significant restrictions. Interestingly he presented as a smiling individual who did not appear depressed even though he claims that he is also depressed and anxious.
After viewing the extensive videos that were sent to me I do not believe that this man is a truthful witness. I saw this man engaged in a number of activities in 2005 and in the videos there is little evidence of the need for a walking stick to help this man. In other words in the videos he presented as a person who was quite active and he was doing a good deal of lifting and manipulating and he showed no physical restrictions on the videos which contradicts his presentation at both of my assessments of this man.
Furthermore he appeared to be carrying relatively heavy items in some of the videos and doing some building work.
I am not convinced that Mr Zika is a truthful historian and I am not prepared to state that he has a psychiatric illness. He certainly does not have a psychologically based pain disorder and, on the basis that he was not a particularly truthful historian, I am not prepared to accept that he is anxious and depressed or in fact has a psychiatric illness. He certainly presented as a smiling individual at interview today.
On this basis I do not believe that this man is suffering from a work-related psychiatric condition or injury.
I do not believe that currently employment is causing him to suffer from a psychiatric condition.
I believe that from a psychiatric point of view he has no symptoms or signs or problems associated with the initial injury in 1987.
Any work aggravation to any psychological problem has ceased.
He has no psychiatric incapacity whatsoever and is quite well equipped from my point of view to cope with pre-injury employment.
There is no evidence at this stage that he has any psychiatric incapacity and he is fit for suitable employment.
He does not require any treatment from my point of view.[1]
Mr O’Brien examined the worker on 7 February 2007, having previously examined him on 14 December 2004 and 30 January 2006. He concluded:
As indicated in my last report, the findings of the activity report in October 2005 certainly appear critical. The patient was observed to undertake tasks that he would now claim to be impossible due to chronic pain. This certainly cannot be explained on the basis of spinal pathology and indeed it would suggest the presentation at the time of this examination deliberately demonstrates signs of illness behaviour, such as the marked limp and use of the walking stick. It is also of interest that the patient now could not even recall the medication he was taking, yet he has required medication for pain relief since 1987.
From this available evidence one would have to conclude that there is no evidence of organic pathology that could explain the current symptoms and variability of physical activity. In fact this would have to be regarded as non-organic.
[1]Report of Dr Nigel Strauss, dated 1 February 2006.
There can be no doubt that the issue of the worker’s credibility raised by the surveillance evidence and medical reports before the Panel was significant and material to the questions for its consideration. The employer alleged that the worker was pretending to those examining him to be suffering from a significant limitation on his mobility but, when free of medical observation, he did not appear to suffer any such disablement. The allegation went to the heart of the Panel’s function, which included medical examinations of the worker and the formation of opinions about his level of disability. In order to answer the questions it was necessary for the Panel to form a view about the accuracy of the worker’s account of his disability, pain and symptoms. The resolution of such an issue may not often be required of a medical panel. It is an issue commonly resolved by a jury or a judge following cross-examination of the worker using the surveillance material to challenge credit. The Panel may not be equipped or trained to solve such an issue, but in this case it was required to do so.
Division 3 of Part III of the Act establishes and regulates medical panels. Section 65 provides that a panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.[2] The Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.[3] Information given to a panel may only be used in limited circumstances.[4] The attendance of a worker before a panel must be in private, unless the panel considers that it is necessary for another person to be present.[5] A worker may request the panel to meet with persons who provide medical services to him and the panel must meet with those persons.[6] The body referring a medical question to a panel, in this case the Magistrates’ Court, must submit a document to the panel specifying certain information including agreed facts or questions of fact relevant to the medical question indicating whether the facts are agreed or in dispute.[7] The panel must be provided with copies of all documents relating to the medical question in the possession of the person or body referring the questions, in this case the Magistrates’ Court.[8]
[2]Section 65(1).
[3]Section 65(2).
[4]Section 65(3).
[5]Section 65(4).
[6]Section 65(6).
[7]Section 65(6A).
[8]Section 65(6B).
While the employer had an opportunity to and did make submissions in writing to the Panel it was not represented before the Panel and had no right to be represented. The attendance of the worker before the Panel is in private unless the Panel considers it necessary to have another person present. In Masters v McCubbery[9] Winneke P observed that when forming its opinions the medical panel was required to observe the rules of natural justice. It is a separate question as to whether those rules might make it necessary for a medical panel to permit an employer to attend and cross-examine a worker. It does not appear that any application was made by the employer for that opportunity and no complaint is made in this proceeding of the failure of the Panel to afford the employer any such opportunity.
[9][1996] 1 VR 635 at 642.
The employer does, however, complain of a denial of procedural fairness by the Panel. Its complaint is that the Panel did not address the contention by the employer that the worker was deliberately feigning the extent of his disablement to the medical professionals treating him and, inferentially, would be likely to so conduct himself before the Panel. In other words, the panel failed to address the important issue of credibility. Alternatively, the employer submits that, if the Panel did address the issue, its reasons are manifestly inadequate in failing to recognise the significance of the issue and explain how it was resolved.
In Masters v McCubbery& Ors[10], Winneke P said, in relation to the questions referred to a Medical Panel as “medical questions”:
Although these critical issues are referred to the Medical Panel couched in terms of “medical questions” and the responses of the Panel to them are couched in terms of “opinions”, such legislative terminology cannot obscure the fact that the Panel has been called upon to decide matters of mixed law and fact, which decisions operate by virtue of the provisions of the Act to bind the court and thus to effectively dispose of the issues which have been raised by the worker and placed by him and by the court for its determination.
[10][1996] 1 VR 635.
That observation is equally applicable to the “medical questions” referred in the present case. By way of example, question 1 – “Whether the plaintiff had an incapacity for work?” - inquires, in the most general way, about the worker’s condition unaided by any statutory definition. The definition of “incapacity” in s 5 does not assist. It is followed by an inquiry as to the cause of that incapacity. By question 2, the Panel is required to form and express an opinion as to whether any incapacity resulted from or was materially contributed to by the low back and psychiatric injuries of the worker. This question required the Panel to examine the relationship between the worker’s accepted injuries and his incapacity for work. Questions 3 and 4 required the Panel to express an opinion as to whether the worker had or did not have a “current work capacity” and if not, whether that situation would continue. “Current work capacity” is defined in s 5 of the Act as follows:
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.[11]
[11]Emphasis added.
“Suitable employment” in relation to a worker, means employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following –
(a)the nature of the worker’s incapacity and pre-injury employment;
(b)the worker’s age, education, skills and work experience;
(c)the worker’s place of residence;
(d)the details given in medical information including the medical certificates supplied by the worker;
(e)the worker’s return to work plan, if any;
(f)if any occupational rehabilitation services are being provided to or for the worker;[12]
[12]Section 5.
In order to answer all questions the Panel was required to decide matters of mixed law and fact. It would be required to examine and question the worker, whose credibility was challenged.
On 20 September 2007 the Panel gave its opinion in response to the medical questions, as follows:
1. Whether the Plaintiff has an incapacity for work?
Yes.
2.If yes to question 1, whether the Plaintiff’s incapacity results from or is materially contributed to by his accepted low back and psychiatric injuries?
In the Panel’s opinion the Plaintiff’s incapacity for work is still materially contributed to by the accepted low back injury and its psychiatric sequelae.
3.If yes to question 2, whether the Plaintiff has a “current work capacity” or “no current work capacity” having regard to the definition of “current work capacity” and “suitable employment” contained in Section 5 of the Accident Compensation Act?
In the Panel’s opinion the Plaintiff has no current work capacity.
4.If the Plaintiff has “no current work capacity” whether the Plaintiff is likely to continue indefinitely to have “no current work capacity”?
Yes.
5.If yes to question 2, what is the Plaintiff’s level of impairment when assessed in accordance with Section 91 of the Accident Compensation Act, using the methods of the AMA guides to the Valuation of Permanent Impairment (2nd edition)?
In the Panel’s opinion the Plaintiff has a 21% whole person impairment when assessed in accordance with Section 91 of the Act.
In the Reasons for Opinion, also dated 20 September 2007 (Reasons), the first nine paragraphs recite information apparently provided by the worker. The worker told the Panel of his work and medical history:
The [worker] told the Panel that on 1 December 1987, as he lifted a basket of car components, weighing about 30 kg, he was troubled by increasing back symptoms and difficulty moving. He said that he subsequently consulted his own doctor and received treatment with X-rays, anti-inflammatory tablets, physiotherapy, referral to a specialist and subsequently certificates to undertake restricted duties for reduced hours.
The [worker] told the Panel that in 1988 he attempted to return to work on three to four occasions, usually undertaking restricted duties for reduced hours. He said that he was troubled by increasing back and leg symptoms and in 1988 he ceased work and he has not worked since.
The [worker] told the Panel that he received additional treatment with physiotherapy, hydrotherapy, traction, medication, investigations, regular reviews by his doctor and attending spa treatment in Germany.
The [worker] described to the Panel his current symptoms of escalating lower back and left leg symptoms, constant lower back pain which is increased during the cold weather, with bending, lifting, sitting and walking, pain extending down into the anterolateral aspect of the left thigh, calf and foot, cramps in the legs, pain in the lateral aspect of the right thigh and calf, pins and needles in the legs and at times he needs to use a walking stick because he is unsteady on his feet. There were no symptoms of bladder or bowel dysfunction. He also described feeling depressed, anxious and uneasy if he is alone in the house, problems with concentration and memory and social isolation.
The Reasons make reference to a physical examination of the worker in which the Panel noticed a general limitation of lower back movements with reported pain. The Panel reviewed X-rays and other data including a myelogram, CT scan and MRI scan. Having listed this data, the Panel continued:
The Panel viewed the surveillance videos in the presence of the [worker], which showed the [worker] undertaking a variety of activities including walking freely, at times walking slowly using a walking stick, handling some building materials and getting in and out of a car. The [worker] told the Panel that he would normally take medication prior to the occasions that he was seen moving freely and afterwards was troubled by increasing lower back pain.
The Panel concluded that the [worker] is suffering from an aggravation of multi-level disc disease of the lumbar spine with a possible left sided radiculopathy, relevant to the alleged injury.
The Panel also conducted a psychiatric examination. On mental state examination the [worker] sat immobile throughout the interview. He was of medium height and build wearing glasses. He walked with a cane. In demeanour, he was expansive and digressive. Having introduced himself to the interpreter, he continually spoke in broken English. Sometimes during the examination he smiled or laughed. At other times he spoke in an emotional fashion about the effect the injury has had upon his marriage, his relationship with his family and his present situation. Answers to most questions were digressive and sometimes muddled. He would spontaneously talk about unrelated issues. There appeared to be some anxiety, but he did not describe panic attacks or agoraphobic symptoms. He appeared to be of normal intelligence. There were mild symptoms causing subjective distress with respect to thinking. For example, forgetfulness and diminished concentration was reported. There were heightened pain perceptions indicating a slight deficit but no evidence of frank hallucinations or delusions. There was a moderate problem with respect to affect in that frequent anxiety attacks with somatic concomitants, marked liability of affect and major problems with interpersonal relationships were observed. There was a slight problem with respect to behaviour in that he was likely at times to show disturbed behaviour when under stress. There was a slight deficit in judgement at times. The Panel concluded that the [worker] is suffering from a chronic Adjustment Disorder with mixed anxiety and depressed mood as a consequence of his physical injury.
The Panel concluded that the nature of the [worker’s] condition is such that the [worker] is incapacitated for all work.
The Panel concluded that the [worker’s] incapacity for work is still materially contributed to by the claimed back injury and its psychiatric sequelae.
The Panel considered all aspects of the definition of “suitable employment” contained in the Act. In particular, the Panel considered the [worker’s] age, level of education, work experience, transferable skills and the extent of his back and psychiatric conditions. The Panel also took account of the submissions and the vocational options in the Vocational Assessment Reports. The Panel concluded that the extent of his medical conditions is such that there is no work for which the [worker] is currently suited and could perform on a consistent basis. He therefore has no current work capacity.
The Panel considers the [worker’s] condition is unlikely to improve in the foreseeable future and therefore concluded that he is likely to continue indefinitely to have no current work capacity.
The Panel conducted an impairment assessment using the American Medical Association Guides to the Evaluation of Permanent Impairment (second edition) as required by Section 91 of the Act. The Panel used a goniometer to measure ranges of movement.
The Panel concluded that the worker had a psychiatric impairment of 20% and a whole person impairment of 21% when assessed in accordance with s 91 of the Act.
In its submissions in this proceeding the employer defined the principal issues arising under its grounds of review set out in the Originating Motion as follows:
(1)Did the Panel fall into jurisdictional error by failing to take into account certain surveillance reports and videos forwarded with the referral and the plaintiff’s solicitors submissions addressed thereto or alternatively deal with the surveillance material in a seriously illogical or irrational manner;
(2)Did the Panel fail to accord the plaintiff procedural fairness by failing to address and respond to the plaintiff’s “primary contentions”, as set out in its solicitor’s submissions, that the worker was deliberately feigning or seriously exaggerating incapacity; and
(3)Did the plaintiff err in law on the face of the record through inadequate reasons for its opinion.
I propose to deal first with the adequacy of the Reasons for Opinion of the Panel for much the same reason as did Pagone J in Davidson v Fish & Ors.[13] The complaint made by the employer concerning the adequacy of the reasons has at least three broad limbs. First, the reasons do not inform the reader of the process of reasoning leading to the conclusion, if there be a conclusion, that the surveillance evidence was rejected as evidence of malingering or at least that the worker had some current work capacity. Secondly, insofar as the reasons might indicate that the Panel took into account the surveillance evidence, the medical reports of Mr O’Brien and Dr Strauss, the definition of “suitable employment” and the six matters required to be taken into account for that purpose, the Panel did not engage in a “proper, genuine and realistic consideration to the merits of the case” and, in particular, the important issue of the workers credibility. Thirdly, insofar as the Panel recorded its conclusions in the Certificate of Opinion and the Reasons, the critical conclusions do not have a requisite connection or link to the reasons given.
[13][2008] VSC 32.
In Masters v McCubbery, Winneke P said, in relation to the obligation of a medical panel to provide sufficient reasons:
A medical panel is not required to do more than provide sufficient reasons to enable it to be seen by the court and the parties that it has arrived at its decision in accordance with its statutory functions. This, after all, is the limit of the obligation imposed by the [Administrative Law Act 1978] upon any “tribunal” which is required to accord natural justice in arriving at its “decision”: see s 8(4) of the [Administrative Law Act 1978]. Such an obligation is imposed on many statutory tribunals in this State which, by their decisions, are empowered to interfere with the rights of persons who are subject to their jurisdiction. If the legislature intended that medical panels should not give reasons in order to secure the policy objectives of the legislation, then it is to be expected that it would say so in express language.[14]
[14][1996] 1 VR 635 at 650.
The President continued,
[a]s I have already pointed out they are required to do no more than to provide a succinct statement of why they came to the conclusions which they did sufficient to enable the parties and the court to see that they have addressed their mind to relevant matters and have not acted unreasonably: see Iveagh (Earl of) v Minister of Housing and Local Government [1964] 1 QB 395 at 410.[15]
Ormiston JA said,
[i]t may be conceded that Parliament did not require the opinion given to take the form of a judgment but that does not mean that it did not consider it appropriate that, when asked, such panels should not give sufficient explanation of their reasoning as to enable a review thereof by the Supreme Court either under the Administrative Law Act or otherwise by judicial review.[16]
Callaway JA required that a medical panel give reasons in sufficient detail:
…to show the court and the worker that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members' medical knowledge and experience.[17]
[15]Ibid [651].
[16]Ibid [653].
[17]Ibid [661].
The issues confronting the Panel in this case were not simply questions that were to be answered by bringing to bear medical expertise and experience. The Panel was required to express an opinion as to whether the plaintiff had a “current work capacity”, which in turn called upon the Panel to determine whether the worker was able to return to work in suitable employment, which meant employment in work for which he was currently suited having regard to the nature of his incapacity and pre-injury employment; his age; education; skills and work experience; his place of residence; the details given in medical information including medical certificates; the worker’s return to work plan, if any; and any occupation rehabilitation services that were being provided to or for him. These are the six matters referred to under the definition of suitable employment in s 5 of the Act. In order to express that opinion the Panel was required to address the credibility of the worker which was subject to a very fundamental challenge.
The Panel interviewed the worker, examined him and reviewed the material supplied to it including the surveillance material in private. The worker was in attendance but the employer was not. That feature of the Panel’s deliberations, in my opinion, makes it all the more important that the Panel explains the process by which it arrived at its critical conclusions. Having read and re-read the questions, the Certificate of Opinion and the Reasons, I am left without assistance as to how the Panel resolved the central issue of the worker’s credibility and effectively dismissed the significance of the surveillance material and the opinions of Dr Strauss and Mr O’Brien. There may be a sound basis for doing so (if that is what the Panel did) but it is not obvious and certainly not explained.
I would adopt, with respect, what was said by Pagone J in Davidson v Fish & Ors:[18]
It is not enough that the document be headed “Reasons” or that the panel considered the document to contain its reasons: Dorman v Riordan (1990) 24 FCR 564, 568 (Sweeney, Davies and Burchett JJ). What is critical is that a reader may see the reasoning process leading to the conclusion. The usefulness of reasons are lessened, and the important safeguard provided by the obligation to give reasons is reduced, to the extent that the reasons do not explain why or in what way a conclusion is reached: In Ansett Transport v Wraith (1983) 48 ALR 500 Woodward J said at 507 that a requirement for a decision maker to give reasons requires the decision maker to explain the decision in a way which will enable a person aggrieved to say, in effect: “Even though I may not agree with it, I now understand why the decision went against me”. Counsel for Eclipse rightly conceded that the reasons could have been expressed differently with clearer linkages between the facts stated and the conclusions reached. Connecting words like “because” or “therefore” between facts and conclusions would assist the reader, such as Mr Davidson, in understanding why and how his personal case and rights were being affected, and would assist a court in seeing how the medical panel had discharged its statutory functions. That is not to say that the medical panel needed to consider all of the issues raised or to have given lengthy reasons; rather, it is to say no more than that it needs to make explicit how or why the facts and circumstances it selected lead it to the conclusion it reached. The reason for the omission of some fact, issue or submission may be clear from the circumstances of the case without the need for all facts, issues and submissions to be dealt with specifically and expressly. The obligation to give reasons is not a requirement merely to have them. The requirement to give them focuses upon their expression and communication to those who receive them: what must occur is an exposition of the reasoning process for the reader so that the reader can understand how and why the writer’s conclusion was reached.
[18][2008] VSC 32 para 12.
The Reasons do not disclose the reasoning process of the tribunal in relation to the central issue of credibility and thus current work capacity. The Panel was required to explain its conclusion in relation to those issues and how it arrived at its conclusion. It may be supposed that the Panel conclude that the explanation given by the worker was sufficient for its purpose. But it does not say so. In the face of what can properly be described as compelling video surveillance material requiring, at the very least, a credible explanation from the worker, the Panel merely notes that:
The [worker] told the panel that he would normally take medication prior to the occasions that he was seen moving freely and afterwards was troubled by increasing lower back pain.
Having regard to the surveillance material and the opinions of Dr Strauss and Mr O’Brien and the Panel’s reliance on information provided by the worker, it was incumbent upon the Panel to acknowledge and deal with the worker’s credibility and give reasons for its conclusion. The absence of any conclusion and reasons dealing with the issue suggests that the Panel did not understand the centrality of the challenge made by the employer to the worker’s credibility to the formation of its opinions. It is impossible to know what it made of the surveillance material. Moreover, whilst the Panel was not required to accept the opinions of Dr Strauss and Mr O’Brien it should, in the circumstances, have explained its reasons for reaching diametrically opposed conclusions. As Smith J said in Pyle v Nisselle and ors:[19]
The Panel was required to explain why it reached its opinion. If it had rejected the opinions of the experts provided to it on behalf of the applicant, it should have explained why this was so.
[19][2000] VSC 398 at para 25.
There is no prescribed formula for the preparation of reasons by the Panel. They must be responsive to the issues under consideration and explain how the Panel resolved the issues and reached the decisions required to answer each of the questions.[20] The Reasons fail to adequately explain how, in the circumstances, the Panel accepted all that was apparently told to it by the worker. The Reasons also fail to explain the basis for the Panel’s conclusions in relation to the worker’s capacity to work. There is nothing to explain to the reader why any one or more of the facts observed, diagnosed or told to its members by the worker lead to the conclusion,
…the nature of the [worker’s] condition is such that the [worker] is incapacitated for all work.
When, in its Reasons, the Panel purports to explain its answer to questions 2 and 3 relating to current work capacity and consideration of “suitable employment”, it does so as if an afterthought. In its Reasons the Panel merely notes that it,
considered all aspects of the definition of “suitable employment” contained in the Act. In particular, the Panel considered the [worker’s] age, level of education, work experience, transferable skills and the extent of his back and psychiatric conditions. The Panel also took account of the submissions and vocational options in the Vocational Assessment Reports. The Panel concluded that the extent of his medical conditions is such that there is no work for which the [worker] is currently suited and could perform on a consistent basis. He therefore has no current work capacity.
[20]Kamener and ors v Griffin (No 2) [2005] VSC 202 at para 46l.
It is not enough to recite the matters that have been taken into account. What is it about the worker’s “medical conditions”, skills, work experience and education that justified the conclusion that he had no current work capacity? In circumstances where the credibility of the worker and thus the truth of the what he has told the Panel is under attack the Panel is, in my opinion, required to explain the basis upon which it has reached that conclusion. As Lindgren J pointed out in Deloitte Touche Tohmatsu v ASC[21] the question is whether the Panel really, genuinely, properly and effectively took into account the considerations referred to. The weight to be given to each is not a matter with which I am concerned. But in the absence of its reasoning process it is not possible to discern whether the Panel discharged its responsibility.
[21](1996) 136 ALR 453 at 468.
The addition the Panel’s conclusion,
…that the [worker’s] incapacity for work is still materially contributed to by the claimed back injury and its psychiatric sequelae,
is left hanging in its Reasons. There is no explanation as to how the Panel arrived at that conclusion. The Reasons do not disclose the link between the worker’s incapacity for work and his medical condition. There may be circumstances in which reasons linking such a conclusion to a medical condition may be less expansive than required in this case. In this case, where the central issue was the credibility of the worker and in particular his credibility to those conducting an examination, it was incumbent upon the Panel to disclose the steps in its reasoning process leading to this conclusion.
The lack of adequate reasons denies a party the opportunity to understand how the Tribunal reached its decision. Inadequate reasons also deny any real opportunity to identify errors of law. In my opinion there are significant and material inadequacies in the Reasons published by the Panel. It matters not, in my view, whether this defect is characterised as an error of law,[22] or a failure to accord procedural fairness. Having regard to my conclusion concerning the inadequacy of the Reasons, there is no need to separately consider the other grounds relied upon by the employer. In any event they are, for the most part, subsumed by the complaint concerning the adequacy of the Reasons. This is because it is simply not possible to know how the Panel dealt with the issue of the workers credibility and the other matters to which it was required to have regard when answering the questions posed for its opinion.
[22]Clarke v National Mutual Life Insurance and ors [2007] VSC 341 at para 67; Pyle v Nisselle [2000] VSC 398; Kamener v Griffin [2004] VSC 235; Calleya v Franet [2000] VSC 339 and Taylor v Mountain Pine Furniture [2004] VSC 324.
This is not a case where it is appropriate to refer the matter back to the Panel to provide further reasons pursuant to s 8(4) of the Administrative Law Act. I respectfully adopt what was said by Forrest J in Clarke v National Mutual Life,[23]
Where no reasons are provided then it may be appropriate to refer the matter back to the original panel for delivery of adequate reasons, however where the reasons are partly defective in the sense that “not all issues have been dealt with”, an order compelling delivery of further or better reasons has an “air of unreality”. Such an order would merely give the tribunal an opportunity to “patch up” reasons which have been shown to be defective.[24]
[23][2007] VSC 341 at [70] see also Moyston Court Fisheries Ltd v Malios [2007] VSC 518 at [86]
[24]See also Davidson v Fish and ors [2008] VSC 32 at paras 14-16.
In my opinion the inadequacy of the Reasons vitiates the Panel’s decision. The circumstances of this case require that the decision be set aside and that the questions be referred for consideration by a differently constituted medical panel.
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