Seadon v Seniors Community Care Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 05850

EVELYN SEADON	Plaintiff
v
SENIORS COMMUNITY CARE PTY LTD & ORS (according to the attached Schedule)	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2020
DATE OF JUDGMENT:	4 February 2021
CASE MAY BE CITED AS:	Seadon v Seniors Community Care Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 30

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ADMINISTRATIVE LAW – Judicial review – Whether Medical Panel adequately explained its path of reasoning – Whether it was open to the Medical Panel to make a conclusion – Whether the Medical Panel gave proper consideration to the actual demands of tasks involved in pre-injury duties – Whether the Medical Panel gave proper, genuine and realistic consideration to whether the worker’s pain and condition made her unable to perform pre-injury duties – Whether the Medical Panel failed to take into account a relevant consideration – Suitable employment – Place of residence – Inability to drive – Whether the Medical Panel failed to consider more than the worker’s physical and psychiatric capacity to engage in pre-injury tasks – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 3, 160–2, 302, 313 – Richter v Driscoll (2016) 51 VR 95 – Karabinis v Bendrups [2018] VSCA 124 – Valspar Paint (Australia) Pty Ltd v Ma [2020] VSC 304 – Sidiqi v Kotsios [2020] VSC 446.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A G Uren QC with Mr L B R Allan	Arnold Thomas & Becker Lawyers
For the First Defendant	Mr M F Fleming QC with Mr R Kumar	Wisewould Mahony

TABLE OF CONTENTS

Summary.............................................................................................................................................. 1

Background......................................................................................................................................... 2

Did the Medical Panel adequately explain its path of reasoning?.......................................... 5

Submissions of Ms Seadon.......................................................................................................... 5
Submissions of Seniors Community Care................................................................................. 6
Analysis.......................................................................................................................................... 8

Was it open to the Medical Panel to conclude that Ms Seadon was able to perform the full duties and hours of her pre-injury duties?........................................................................................ 21

Submissions of Ms Seadon........................................................................................................ 21
Submissions of Seniors Community Care............................................................................... 21
Analysis........................................................................................................................................ 21

Did the Medical Panel give proper consideration to the actual demands of the tasks involved in Ms Seadon’s pre-injury duties, and to Ms Seadon’s pain and consequent physical limitations?........................................................................................................................................................ 22

Did the Medical Panel give proper, genuine and realistic consideration to whether Ms Seadon’s pain and medical condition and consequences made her unable to perform the full pre-injury duties and hours of work?........................................................................................................ 23

Submissions of Ms Seadon – grounds 3–4............................................................................... 23
Submissions of Seniors Community Care – grounds 3–4..................................................... 23
Analysis – grounds 3–4.............................................................................................................. 24

In its assessment of Ms Seadon’s ability to perform her pre-injury employment, did the Medical Panel fail to consider more than Ms Seadon’s physical and psychiatric capacity to engage in pre-injury tasks?......................................................................................................................... 26

Did the Medical Panel fail to give proper consideration to the entirety of Ms Seadon’s personal circumstances (other than any by which law must be disregarded) and any other matters which would affect the attractiveness of Ms Seadon to a potential employer?......................... 26

Did the Medical Panel fail to take into account a relevant consideration, namely the place of residence and inability to drive in order to access employment?.................................... 26

Submissions of Ms Seadon – grounds 5–7............................................................................... 27
Submissions of Seniors Community Care – grounds 5–7..................................................... 30
Analysis – grounds 5–7.............................................................................................................. 31

Conclusion......................................................................................................................................... 41

HIS HONOUR:

The plaintiff, Ms Evelyn Seadon, seeks to quash the decision of a Medical Panel. At the time of the incident giving rise to the claimed injuries, she was employed on a casual basis, working as a carer of aged persons for 10–20 hours per week. The Medical Panel concluded, amongst other things, that Ms Seadon did not have an incapacity to perform her pre-injury duties.

Summary

Ms Seadon’s amended originating motion filed on 27 February 2020 contains seven grounds of review. Distilling these, the seven questions for determination and their findings follow.

(a) did the Medical Panel adequately explain its path of reasoning by which Ms Seadon was able to perform the full duties and hours of work of her pre-injury duties as a carer of aged persons? Yes.

(b) was it open to the Medical Panel to conclude that Ms Seadon was able to perform the full duties and hours of her pre-injury duties? Yes.

(c) did the Medical Panel give proper consideration to the actual demands of the tasks involved in Ms Seadon’s pre-injury duties and to Ms Seadon’s pain and consequent physical limitations? Yes.

(d) did the Medical Panel give proper, genuine and realistic consideration to whether Ms Seadon’s pain and medical condition and consequences made her unable to perform the full pre-injury duties and hours of work? Yes.

(e) in its assessment of Ms Seadon’s ability to perform her pre-injury employment, did the Medical Panel fail to consider anything more than Ms Seadon’s physical and psychiatric capacity to engage in pre-injury tasks? No.

(f) did the Medical Panel fail to give proper consideration to the entirety of Ms Seadon’s personal circumstances (other than any by which law must be disregarded) and any other matters which would affect the attractiveness of Ms Seadon to a potential employer? No.

(g) did the Medical Panel fail to take into account a relevant consideration, namely Ms Seadon’s place of residence and inability to drive in order to access employment? In particular, did it fail to:

(i) assess Ms Seadon’s level of incapacity having regard to the entirety of her personal circumstances; or

(ii) take into account a relevant consideration, namely that Ms Seadon’s failure to arrange the reinstatement of her [driver’s] licence was related to the lack of need for a vehicle by reason of her non-involvement in the workforce due to work-related injuries?

No.

Background

On 18 August 2014, Ms Seadon commenced employment as an aged carer with Seniors Community Care Pty Ltd, the first defendant (‘Seniors Community Care’). She claims that she was injured on 12 January 2015 when she was helping a client to undress for his showering (‘the incident’).

On 18 April 2015, Ms Seadon lodged a WorkCover claim for compensation for injuries in relation to the incident. Liability was accepted. Ms Seadon received weekly workers’ compensation payments until 27 November 2017. Her weekly payments were terminated on the basis that her incapacity for work was no longer materially contributed to by an injury arising out of her employment.

On 19 September 2016, Ms Seadon lodged a claim for impairment benefits. This claim related to alleged injuries arising from the incident. Some, but not all, of the claim was accepted. Parts of the claim relating to Ms Seadon’s psychiatric condition and upper back, neck and shoulder were accepted. Parts of the claim relating to Ms Seadon’s lower back and gastrointestinal condition were rejected.

On 9 July 2018, Ms Seadon lodged a further WorkCover claim in respect of the incident. This claim alleged injuries in respect of Ms Seadon’s spine, right shoulder, ribs, gastrointestinal condition and psychiatric condition. The claim was rejected on the basis that an entitlement to compensation already existed under the first claim that she had lodged.

Seniors Community Care continues to accept liability for Ms Seadon’s medical and like expenses in respect of the first claim. It does not in respect of the rejected lower back and gastrointestinal condition. Ms Seadon disputes the decision to terminate weekly compensation payments and to reject other claims made by her.

On 24 July 2018, Ms Seadon commenced a proceeding in the Magistrates’ Court of Victoria. On 14 July 2019, the Magistrates’ Court ordered that medical questions be referred to a medical panel pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRC Act’).

The Medical Panel was convened by the second defendant comprising the third to eighth defendant doctors (‘the Panel’). It provided its opinion in a Certificate of Opinion (‘Opinion’) and Reasons for Opinion (‘Reasons’) both dated 3 November 2019.[1] Questions 1–4 and the Panel’s answers follow.
[1]The ‘Certificate of Opinion’ (‘Opinion’) and ‘Reasons for Opinion’ (‘Reasons’) are exhibited as ‘LD-2’ to the affidavit of Lawrence Andrew Dent, solicitor, sworn on 20 December 2019.

Question 1.What is the nature of [Ms Seadon’s] medical condition(s), including any sequelae, relevant to the following injures:
(a)       injury to the right shoulder
(b)      injury to the right ribs
(c)       injury to the neck.
(d)      injury to the upper back.
(e)       injury to the mid back.
(f)       injury to the lower back.
(g)       Consequential pain syndrome or disorder.
(h)      Consequential gastrointestinal disorder.
(i)Consequential psychiatric/psychological condition, including anxiety and depression.

(“the Claimed Injuries”)

Answer:(a) – (i) In the Panel’s opinion [Ms Seadon] is currently suffering from a chronic pain syndrome following a soft tissue injury on a background of pre-existing constitutional cervical and thoracolumbar spondylosis and constitutional osteoarthritis of the right acromioclavicular joint, and from an aggravation of a pre-existing chronic adjustment disorder with mixed anxiety and depressed mood.
The Panel is also of the opinion that [Ms Seadon’s] is not currently suffering from an intrinsic physical medical condition of the right ribs or of the gastrointestinal tract.

Question 2.Was [Ms Seadon’s] employment with [Seniors Community Care] on 12 January 2015 in fact, or could it possibly have been, a significant contributing factor to the claimed:
(a) injury to the lower black (sic);
(b) Consequential gastrointestinal disorder injury?

Answer:(a) The Panel is of the opinion that [Ms Seadon’s] employment with [Seniors Community Care] on 12 January 2015 was not in fact, and could not possibly have been, a significant contributing factor to her current medical condition of thoracolumbar spondylosis, or to any aggravation, exacerbation, acceleration, deterioration or recurrence of any pre-existing condition or disease in any way.
(b) Not applicable.

Question 3.In any, and if so what, period from 27 November 2017 up to, and as at the date of the Panel’s examination of [Ms Seadon], was/is she incapacitated for her pre-injury duties as a carer?
Answer:The Panel is of the opinion that in the period 27 November 2017 to the date of the Panel’s assessment, and currently, [Ms Seadon] had/has no present inability arising from an injury such that she was/is unable to perform the full duties and hours of work of her pre-injury duties as an aged carer with [Seniors Community Care.
Question 4.In respect of any period identified in answer to question 3, did/does that incapacity result from, or is/was it materially contributed by, any and if so which of the Claimed Injuries?

Answer: Not applicable.

On 20 December 2019, Ms Seadon applied to this Court for orders quashing the Panel’s Opinion. Seniors Community Care opposes Ms Seadon’s application. The other defendants did not actively participate in this proceeding.

Turning now to the first issue in dispute.

Did the Medical Panel adequately explain its path of reasoning?

This question arises from ground 1 of the amended originating motion:

The statement of reasons of the Medical Panel does not explain the actual path of reasoning by which it arrived at the opinions which it formed that [Ms Seadon] was able to perform the full duties and hours of work of her pre-injury duties as an aged carer with [Seniors Community Care], in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law, as required by its statutory obligation pursuant to s 313(2) of the Act.

Submissions of Ms Seadon

There is no explanation for the conclusion. The Panel’s path of reasoning is not exposed in the context of Ms Seadon’s medical conditions, as found by it, together with her history taken by the Panel and the nature of her work duties.

The Panel was aware that Ms Seadon had a persistent chronic pain condition. The incapacitating effects of a chronic pain injury are a matter of evidence. Indeed, they form part of a diagnosis of such condition. The Panel recorded Ms Seadon’s complaints of significant pain and restrictions and did not report any concerns about the veracity of those complaints. Its Reasons are consistent with having accepted her account of her pain condition. The submissions of Seniors Community Care’s did not call into question Ms Seadon’s account of her pain and its restrictions.

The nature of the aged care work is that it involves significant physical effort. A chronic pain condition, such as that experienced by Ms Seadon, clearly has debilitating effects and an effect on work capacity, even if physically the actual tasks of the work can be carried out. The Panel recorded that the pre-injury duties were entirely physical.[2] It referred to the relentless pain described by Ms Seadon.[3] It referred to the medication which she is currently taking.
[2]Reasons 4.
[3]Ibid 6.

The Panel considered Ms Seadon’s current symptoms to be related to the incident on 12 January 2015.[4] It noted the onset of her pain as a result of the incident and its persistence to date.[5] It found that there was not an organic reason to explain her pain and that she instead suffered from chronic pain syndrome.
[4]Ibid 10–1.
[5]Ibid 10.

The Panel found there was a temporary aggravation of Ms Seadon’s back pain following the injury as a result of the incident.[6] It considered that the degenerative pathology found in her right shoulder, cervical and lumbar spine predated the incident and was unaffected by it.
[6]Ibid 11.

The Panel did not expose its path of reasoning as to: (a) why she was not precluded from her pre-injury duties and hours of work by her current physical and psychiatric medical conditions or (b) why those current conditions would not be exacerbated or aggravated by performing pre-injury duties and hours of work.

Explicit findings that are not contained in the Reasons cannot be inferred from the conclusion. The Reasons are inadequate.

Submissions of Seniors Community Care

The question properly framed is whether the Panel, notwithstanding the complaint of pain by Ms Seadon, was nonetheless capable of concluding she was capable of returning to her pre-injury employment. Ms Seadon’s premise that the Panel accepted her complaints of significant pain and restrictions and this necessitates the finding that she was incapacitated for her pre-injury duties is rejected.

There is a necessary inference to be drawn here that Ms Seadon’s chronic pain is not disabling. Where the potential incapacitating feature was Ms Seadon’s experience of pain, the Panel’s finding that she retained a capacity for pre-injury duties and hours necessarily carried with it the implication that her symptoms of pain were not sufficiently severe as to preclude her from such employment. In the circumstances of the Panel’s examination of Ms Seadon, including taking a history, and its review of the material that accompanied the referral to it, no further statement was required from it to explain the actual path of reasoning.

It was necessary for the Panel to have regard to the whole of the material before it, including medical records and its findings on examination. It had regard to those matters in coming to its conclusion that Ms Seadon was not precluded from performing her pre-injury duties and hours of work. The Reasons included matters additional to Ms Seadon’s references above. The Panel: clarified the verbal history she provided; observed records indicated neck pain and other aches prior to her employment with Seniors Community Care with reference to ‘fibromyalgia’; observed the records indicate she had worked seven days a week and then had to stop as ‘can’t drive because of pain’ (note of 2 February 2016 post-dated a non-compensable exacerbation of her lower back pain); recorded she gave a history of being independent in her personal care and domestic chores and had no sleep disturbance; recorded she gave a history that, other than seeing her general practitioner once a month, her rheumatologist once a quarter, and a physiotherapist five times a year, she otherwise did not consult any medical practitioner; recorded she gave a history that apart from stretching exercises and riding a stationary bicycle, she otherwise treated her pain with Mersyndol Forte, one tablet three times a day; made minimal findings on physical examination, including no evidence of muscle wasting or atrophy, or loss of power, in the upper or lower limbs; and recorded she gave a history both that she could not work, but also that she would be able to manage if she could secure employment close to her home or on a public transport route.

The Panel is an expert tribunal with the capacity to assess work with a chronic pain condition within its expertise. Everything depends on what the Panel regards as the severity of the pain symptoms asserted. An experience of pain does not necessitate a preclusion from work.

The Reasons should be read fairly and in context without overzealous scrutiny. The question of capacity for work is an evaluative one. Reasons for the formation of an opinion cannot be extensively articulated. In some cases, although further reasons are desirable, they are not necessarily legally required. It was unnecessary for the Panel to provide an explanation as to why a contrary conclusion was not reached.

Analysis

In question 1, the Panel was asked about the nature of Ms Seadon’s medical conditions. Its answer included she ‘is currently suffering from a chronic pain syndrome following a soft tissue injury… and from an aggravation of a pre-existing chronic adjustment disorder with mixed anxiety and depressed mood’.[7] It noted other medical conditions that were not related to any claimed injury.
[7]Opinion 2.

The Panel’s findings about Ms Seadon’s medical conditions included the following.

The Panel considered that the nature, extent and severity of [Ms Seadon’s] current pain symptoms does not correlate with, and cannot be accounted for, by the minor degenerative changes demonstrated clinically and radiologically, and the Panel formed the view that [Ms Seadon] has developed a chronic pain syndrome following a soft tissue injury to the neck and right shoulder, on a background of constitutional cervical and thoracolumbar spondylosis and constitutional osteoarthritis of the right acromioclavicular joint, the effects of which persist to the present time.
The Panel considered the time delay of approximately six months between the incident and the transient exacerbation of [Ms Seadon’s] lower back pain, noting also that by the time of onset of the exacerbation [Ms Seadon] was performing restricted duties. The Panel considered that [Ms Seadon’s] transient episode of acute-on-chronic lower pain was consistent with the natural history of her pre-existing, constitutional thoracolumbar spondylosis, and the Panel also considered that this pre-existing condition of the thoracolumbar spine has not been affected either by the incident of by the duties of [Ms Seadon’s] employment with [Seniors Community Care] in any way.
The Panel considered its normal clinical examination of [Ms Seadon’s] gastrointestinal system in relation to her description of her “indigestion” symptoms, which the Panel noted to be atypical for any form of diagnosable gastrointestinal disorder, and the Panel formed the view that [Ms Seadon] is not currently suffering from any intrinsic physical medical condition of the gastrointestinal system. Noting that [Ms Seadon] is both asymptomatic and without any clinical signs in relation to her right ribs, the Panel also formed the view that she is not currently suffering from any intrinsic physical medical condition of the right ribs.
CONCLUSION
The Panel therefore concluded that [Ms Seadon] is currently suffering from a chronic pain syndrome following a soft tissue injury on a background of pre-existing constitutional cervical and thoracolumbar spondylosis and constitutional osteoarthritis of the right acromioclavicular joint, attributable to the claimed physical injuries.
...
The Panel agreed that [Ms Seadon] has clinical and radiological evidence of cervical spondylosis. However, for the reasons above, the Panel formed a different opinion with respect to both the diagnosis of [Ms Seadon’s] current symptoms of pain, and with respect to the relationship between her cervical spondylosis condition and her employment with [Seniors Community Care].[8]

[8]Reasons 10–2 (emphasis added).

In question 3, the Panel was queried whether Ms Seadon had any incapacity for her pre-injury duties in the period following 27 November 2017. It answered that she had ‘no present inability arising from an injury such that she was/is unable to perform the full duties and hours of work of her pre-injury duties as an aged carer’.[9]
[9]Opinion 2.

The Reasons state:

Work Capacity
1.The Panel considered the nature, extent and severity of [Ms Seadon’s] current physical and psychiatric medical condition of chronic pain syndrome following a soft tissue injury and aggravation of a pre-existing chronic adjustment disorder with mixed anxiety and depressed mood in relation her pre-injury duties as a community-based aged care worker with [Seniors Community Care], which involved personal care, such as showering and dressing, and general domestic cleaning duties, which required her to drive a vehicle to access her clients, and which she performed on a casual basis for between ten and twenty hours per week. The Panel also considered its clinical and psychiatric examination findings and the opinions of those medical practitioners who have examined and/or treated [Ms Seadon], as expressed in the various reports included with the Referral material.
2.The Panel noted that [Ms Seadon] does not hold a current driver’s license or own a vehicle, and that this would preclude her ability to engage in her pre-injury role. However, the Panel also noted [Ms Seadon’s] description of the circumstances surrounding the two-year suspension of her license in November 2015, which involved an excessive alcohol intake associated with emotional distress due to personal reasons not related to her employment with [Seniors Community Care], or to any physical or psychiatric medical condition resulting from that employment, and the Panel further noted her explanation for her failure to secure a reinstatement of her driver’s license, which involved a lack of need for a vehicle given her current lifestyle.
3.The Panel considered that [Ms Seadon’s] driver’s license suspension, loss of a vehicle and failure to arrange for the reinstatement of her licence, for which she has been eligible since the expiration of the two-year suspension period, are not related to her current physical and psychiatric medical condition in any way, and consequently do not affect the Panel’s assessment [of] her current work capacity.
4.The Panel considered that the nature, extent and severity of [Ms Seadon’s] current physical and psychiatric medical condition would not preclude her from performing the full duties and hours of work of her pre-injury employment with [Seniors Community Care], and the Panel also considered that this had been the case during the period from 27 September 2017 to the date of the Panel’s assessment. The Panel also considered that [Ms Seadon’s] pre-injury employment duties and hours of work as a community-based aged carer for ten-to-twenty hours per week would not exacerbate o[r] aggravate her current physical and psychiatric medical condition in any way.
5.The Panel therefore concluded that in the period from 27 September 2017 to the date of the Panel’s assessment, and currently, [Ms Seadon] had and has no present inability, arising from an injury, such that she was/is unable to perform the duties of her pre-injury employment as a carer with [Seniors Community Care], and the Panel also concluded that any claimed incapacity did/does not result from, and was/is not materially contributed to by, her current physical and psychiatric medical condition of chronic pain syndrome following a soft tissue injury and aggravation of pre-existing chronic adjustment disorder with mixed anxiety and depressed mood
6.The Panel noted, and considered, the opinions of [Ms Seadon’s] treating general practitioner, Dr E K Vithana, and her treating neurosurgeon, Professor Richard Bittar, expressed in their reports dated 22 October 2018 and 17 September 2017 respectively, which were included with the Referral material and wherein both practitioners considered that [Ms Seadon] does not have a current work capacity.
7.The Panel also noted, and considered, the opinions of the independent medical examiner Dr Natalie Krapivensky, psychiatrist, and of the four medical examiners, Mr Douglas Gardiner, orthopaedic surgeon, and Drs Alex Stockman, rheumatologist, Clayton Thomas, rehabilitation physician, and Kilner Brazier, occupational physician, who assessed [Ms Seadon] at the request of her legal advisors, all of whom considered [Ms Seadon] to have no current work capacity
8.Based on its own physical and psychiatric examination of [Ms Seadon], the Panel formed a different opinion for the reasons above.[10]

[10]Reasons 16–7 (emphasis added) (numbering added).

Ms Seadon submitted there was no connecting link between paragraphs 4 and 5 above. I reject that submission. In paragraph 5 of the Panel’s Reasons above, it ‘therefore concludes’ that Ms Seadon had no inability arising from an injury such that she was unable to perform her pre-injury duties. It also concluded that any claimed incapacity was not materially contributed to by her current physical condition or her current psychiatric condition of ‘chronic pain syndrome following a soft tissue injury and aggravation of pre-existing chronic adjustment disorder with mixed anxiety and depressed mood’. The words ‘therefore concludes’ refer to the previous paragraph, namely paragraph 4.

In paragraph 4 of the Panel’s Reasons above, the Panel made its finding that the nature, extent and severity of Ms Seadon’s current medical condition did not preclude her from performing her pre-injury duties. It also made a finding that the performance of those duties would not aggravate or exacerbate her current medical condition in any way.

I adopt the following principles given by Richards J in Valspar Paint (Australia) Pty Ltd v Ma.[11]

Section 313(2) of the WIRC Act requires a Medical Panel to provide a written statement of reasons for its opinion. Those reasons must explain the Panel’s ‘actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law’. A statement of reasons is not adequate if there is a ‘real doubt’ whether the Panel correctly performed its statutory functions. A real doubt may exist where a Panel’s conclusions are open to more than one interpretation, and in that case the reviewing court should not speculate about a Panel’s path of reasoning in order to resolve ambiguity or fill gaps.
At the same time, a Panel’s reasons need only be sufficient to enable a reviewing court to understand that it has performed its function – to form and give its opinion on medical questions referred to it – lawfully. The High Court’s decision in Wingfoot made clear that a Medical Panel is not an arbitral or adjudicative body, does not have a function of deciding disputes, and is not required to choose between competing arguments or contentions put to it. The adequacy of a Medical Panel’s reasons must be assessed against its statutory function, and not against some other standard.
In addition, the Panel’s reasons must be read fairly, as a whole and in context, and should not be subject to ‘over-zealous judicial review’. A Panel’s reasons may be able to be understood by combining what is expressly stated with inferences necessarily arising, although any such inferences must have a ‘proper evidential foundation disclosed in the reasons’.[12]

[11][2020] VSC 304.

[12]Ibid [50]–[52] (citations omitted).

In Karabinis v Bendrups,[13] the Court of Appeal held:
[13][2018] VSCA 124.

In our view, the judge was correct when he said that the reasons disclosed the Panel’s path of reasoning to its ultimate conclusion. The reasons disclose the significance of the Panel’s findings on examination, the diagnostic imaging and the applicant’s history, to the Panel’s ultimate conclusion. We agree with the judge that, while it may have been preferable for the Panel to explain specifically why it rejected the applicant’s work as a contributing factor to her injury, it was not necessary for the Panel to do this for the purpose of complying with its obligation to provide adequate reasons. In our view, the Panel’s reasons disclose its path of reasoning in the same way that the path of reasoning of the Panel in Wingfoot was held to have been adequately disclosed in that case. While the resolution of the present proceeding cannot be determined by a mere comparison between the Panel’s reasons and the reasons of another panel in another case, the analysis of the reasoning of the Panel in Wingfoot is instructive.
In Wingfoot, the High Court held that in order to exclude other possibilities it was sufficient for the medical panel in that case to make an implied finding that the worker suffered no further injury beyond the soft tissue injury which it expressly found had been sustained. The Court said:
The answer to the Worker’s complaint lies in the implicit finding of the Medical Panel that the Worker on 16 October 1996 sustained only a soft tissue injury, and not an injury to his spine. That finding was one of fact. Whether or not that finding of fact was open to the Medical Panel is a question of law. But no further explanation of the reasoning process adopted by the Medical Panel is necessary to enable a court to address that question.

The Panel’s reasons disclosed that it considered the alternative diagnoses of the applicant’s injury and rejected work-related causes. The matters that led to that conclusion were specifically noted in the Panel’s reasons. They included, first, the fact that the most recent MRI scan of the left shoulder demonstrated an apparent reduction in the degree of calcification within the shoulder — a change which the Panel twice stated was ‘entirely consistent’ with calcific tendinitis. Secondly, the fact that the history of symptoms given by the applicant of ongoing pain of a fluctuating nature was also ‘entirely consistent’ with this diagnosis. This history included the onset and progression of left shoulder symptoms at a time when, according to the history taken by the Panel, the applicant was performing lighter work and the failure of the symptoms to settle despite the applicant ceasing work activities.
As we have already observed, the Panel did not explain in express terms why it rejected the applicant’s work as a contributing factor to her injury. For this reason we would grant the applicant leave to appeal in respect of proposed grounds 1 and 2. We would not, however, uphold the appeal on these grounds as we have concluded that the Panel’s reasons met the standard required by law.[14]

[14]Ibid [39]–[42] (citations omitted).

In light of the above, I accept the submission of Seniors Community Care that it was unnecessary for the Panel to provide an explanation as to why a contrary conclusion was not reached.

In Sadsad v NRMA Insurance Ltd,[15] Hamill J observed that a court should not have to ‘fill in the gaps in the path of reasoning by reference to an assumption that the decision was made according to the relevant law…’.[16] In the same case, Hamill J held:

I accept that not every step of the reasoning process needs to be explained explicitly, but in this case I am left not knowing from the report precisely what steps the third defendant took in arriving at his conclusion, what assumptions were made and the basis of any such assumptions.[17]

[15][2014] 67 MVR 601.

[16]Ibid [47], quoted in Broadspectrum (Australia) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320 [60].

[17]Ibid [51].

Nevertheless, as Cavanough J stated in Dias v Oakleigh Centre Industries,[18] a proceeding in which similar submissions were made to this proceeding:

…whether or not the plaintiff had a current work capacity is an evaluative question on which medical opinions could reasonably differ. The reasons behind the formation of an opinion by a medical panel on an evaluative question of that nature often cannot be extensively articulated...[19]

[18][2016] VSC 115.

[19] Ibid [29] (citation omitted).

Seniors Community Care says that it may be inferred from the Panel’s Reasons that Ms Seadon’s pain is not so disabling as to preclude her from her pre-injury employment. It relies on Sidiqi v Kotsios (‘Sidiqi’),[20] which also concerned a worker with a chronic pain condition. Ms Seadon says Sidiqi ought be distinguished because the facts are different, including fear avoidance behaviour. I accept there are differences in the facts. However, there were legal submissions made in Sidiqi that are similar to those made here. I adopt the following principles given by Richards J in Sidiqi:

…a Panel’s reasons need only be sufficient to enable a reviewing court to understand that it has performed its function – to form and give its opinion on medical questions referred to it – lawfully. The Panel’s reasons must be read fairly, as a whole and in context, and should not be subject to ‘over-zealous judicial review’. A Panel’s reasons may be able to be understood by combining what is expressly stated with inferences necessarily arising, although any such inferences must have a ‘proper evidential foundation disclosed in the reasons’.
Mr Sidiqi submitted that the Panel’s reasons did not explain the actual path of reasoning by which it arrived at its opinion that Mr Sidiqi had capacity to work as a store person or forklift driver, despite the accepted diagnosis of chronic pain syndrome. He argued that the ‘missed step’ in the reasoning of the Panel was a failure to explain why it considered he could perform the requirements of his former role despite the pain that had caused him to stop working in that role.
He made a similar submission in relation to the Panel’s opinion, in answer to Questions 8 and 9, that the five employment options were suitable for him. He submitted that the only basis on which the Panel concluded that Mr Sidiqi’s work capacity was not affected by his chronic pain syndrome was the Panel’s own examination of him. He argued that this was a ‘sweeping generalisation’ that did not adequately disclose the Panel’s path of reasoning, or explain why the Panel considered that he had a current work capacity despite his chronic pain.
These submissions were all premised on the Panel having overlooked the disabling effects of Mr Sidiqi’s chronic pain, without explaining why it considered he could work despite the pain. I do not accept that premise. Reading the Panel’s reasons as a whole, it is clear that the Panel accepted that Mr Sidiqi suffered ongoing pain, although his original injury had otherwise resolved. The inference that necessarily arises is that the Panel did not consider his chronic pain to be disabling. The Panel said that it considered he could do his pre-injury duties ‘notwithstanding his persistent pain symptoms’.
I was able to follow the Panel’s path of reasoning to its conclusion that Mr Sidiqi had a capacity to work. It explained that conclusion by reference to the normal clinical examination of Mr Sidiqi’s lumbar spine. The conclusion was also consistent with other matters noted by the Panel in its reasons…[21]

[20][2020] VSC 446 (‘Sidiqi’).

[21]Ibid [42]–[46] (citations omitted).

A similar analysis applies here. The Panel’s conclusion as to work capacity must be read in the context of the whole of its Reasons. I was able to follow the Panel’s path of reasoning to its conclusion that Ms Seadon had a capacity for pre-injury work. There is a proper evidentiary foundation for its conclusions. The Panel’s Reasons specifically refer to the following.

(a) Ms Seadon’s work as a carer for community-based aged care service: it referred to Ms Seadon’s pre-injury duties described by her as ‘the provision of personal care, such as showering or dressing, and/or home care such as cleaning the bathroom, mopping, vacuuming, changing the bed linen and shopping for groceries, to the elderly in their own home, and she estimated that approximately 60% of her work time involved personal care and 40% home care’.[22] She described working on a casual basis between 10–20 hours per week. In its analysis of work capacity, the Panel referred to these types of duties and the hours she worked;[23]
[22]Reasons 4.
[23]Ibid 16.

(b) Ms Seadon’s history given by her and the medical notes and reports in evidence: it referred to the medical records prior to the incident, including a note that she felt ‘she may have fibromyalgia’.[24] It recorded that she told the Panel that these issues had not been investigated prior to 2015 and that she considered her spinal pain at the time to have been ‘just aching from housework’.[25] She referred to having seen a chiropractor for chronic lower back and neck pain prior to the incident;[26]
[24]Ibid 5. The Panel also recorded that Ms Seadon attributed her fatigue during the day to fibromyalgia, which she said worsens after 4pm: Reasons 14.
[25]Ibid 9.
[26]Ibid.

(c) Ms Seadon’s history of treatment: it referred to her referral to a pain specialist on 21 March 2017 and the recommendation for a multidisciplinary pain management program. The Panel noted this program did not eventuate. It recorded that she said to it that a specialist prescribed her a ‘pain patch and the pain intensified’.[27] It noted she had been referred to a clinical psychologist. She told the Panel that she had only seen the psychologist once or twice and it had been ‘a waste of time’.[28] Ms Seadon currently consults with her general practitioner monthly and her rheumatologist every three months. She receives five physiotherapy sessions per year and has been given stretching exercises, which she performs daily. She does not otherwise receive any physical therapy. She informed the Panel that she ‘cycles regularly on her stationary bicycle’;[29]

[27]Ibid 6.
[28]Ibid.
[29]Ibid 8.

(d) Ms Seadon’s work after the incident and history of treatment: she told the Panel that she telephoned the office after the incident and when she went back to work it was agreed that she would not do any housework.[30] Ms Seadon told the Panel that within a week of the incident she attended a medical superclinic and was referred to a chiropractor. She took a month of unpaid leave before returning to work. She could not recall how long she continued to work after the incident. The Panel referred to the medical superclinic records which indicated that had initially made a medical appointment approximately two months after the incident, namely on 5 March 2015. The medical notes indicate that Ms Seadon said she had ‘told work that she could only work 2 hours at a time at housework’.[31] Medical notes from another clinic in May 2015 indicate that she had said she had a ‘fall in [her] job and not worked since’.[32] It referred specifically to a subsequent medical note, on 1 June 2015 which states that she was ‘back at work and working 7d/w now!’.[33] It referred to a later medical note made on 2 February 2016 which states that she ‘had to stop working as cant [sic] drive because of pain’.[34] The Panel noted there was no further documentation of attempts to return to work [in the clinic’s medical notes];
[30]Ibid.
[31]Ibid.
[32]Ibid.
[33]Ibid.
[34]Ibid.

(e) Ms Seadon informed the Panel that her medication consisted of taking Mersyndol Forte, an antidepressant, and Eno. She does not use heat packs or other topical preparations for additional pain relief;

(f) Ms Seadon’s description of the pain she was experiencing: it recorded that about six months after the incident the lower back pain became worse for a time and now it is ‘the same as it was’ before the incident.[35] It recorded she complains of ‘relentless pain’ affecting the right side of her ribs, right posterior shoulder girdle and right side of her upper back ‘increased by walking for longer than about three minutes and by cold weather’ and that she said that when she is walking ‘every step jolts’.[36] It recorded that she said the pain over the back of her right shoulder ‘goes through to the front and makes you feel sick’.[37] The Panel also reported that Ms Seadon told it that she experienced no increase in her pain with any coughing and sneezing and that pain in her upper back was relieved by sitting still. She did not experience any radiation of her neck and right posterior shoulder girdle pain into her limbs, and had no problem with her right limbs or moving her right shoulder. She described intermittent lower back pain, which occasionally radiated into her lower limbs, ankle and groin;
[35]Ibid 7.
[36]Ibid 6.
[37]Ibid.

(g) Ms Seadon told the Panel that she was independent in terms of personal care. The Panel noted in its assessment of her psychiatric state that she reiterated that she was able to attend to all activities of daily living and household chores:

[Ms Seadon] told the Panel that she is independent in terms of her [sic] personal care, and she denied any difficulties with showering, dressing or washing and styling her hair. She told the Panel that she has no difficulty with getting comfortable in bed at night, and she said that that she is able to lie on her right side without discomfort.
She told the Panel that she does not suffer any sleep disturbance due to nocturnal pain, either in her neck and upper and lower back, or in her tight shoulder and ribs.
[Ms Seadon] told the Panel that at home, where she lives alone in rented accommodation, she is able to cope with the cooking, shopping and housework, but she explained that since her rental is only a small cottage, there is relatively little to do, and she said that she also gets help from her older sister, who visits her regularly three times a week. She told the Panel that she shops for groceries with her sister because “I get panicky” in a supermarket if she is alone, and she said that she cooks occasionally. She added, however, that usually she eats “frozen dinners.”[38]
[38]Ibid 8.

(h) the Panel referred to the radiological reports it had been provided with and felt that no additional reports were necessary for it to give its opinion.[39] Further, in taking her history, the Panel stated there was no evidence of any acute injury from an ‘MRI of her cervical spine and no recommendation of surgery’;[40]
[39]Ibid 10.
[40]Ibid 6.

(i) in its discussion, the Panel specifically considered the onset and progression of her symptoms. It referred to its physical examination findings and the available radiological evidence:

The Panel also considered its physical examination findings, which revealed clinical evidence of cervical and thoracolumbar spondylosis, but no abnormality of the right shoulder, of the right ribs or of the gastrointestinal system; the available radiological evidence, which described degenerative changes in the neck and in the acromioclavicular joint of the right shoulder that the Panel considered to have predated the incident and to be consistent with, and normal for, [Ms Seadon’s] age of 58 years; and the opinions of those medical practitioners who have examined and/or treated [Ms Seadon], as expressed in the reports included with the Referral material.[41]
[41]Ibid 10.

(j) the Panel opined that the pain symptoms do not correlate with the minor degenerative changes that she has experienced:

The Panel considered that the nature, extent and severity of [Ms Seadon’s] current pain symptoms does not correlate with, and cannot be accounted for, by the minor degenerative changes demonstrated clinically and radiologically, and the Panel formed the view that [Ms Seadon] has developed a chronic pain syndrome following a soft tissue injury to the neck and right shoulder, on a background of constitutional cervical and thoracolumbar spondylosis and constitutional osteoarthritis of the right acromioclavicular joint, the effects of which persist to the present time.[42]
[42]Ibid 10–1.

(k) the Panel noted a transient episode of acute chronic lower back pain.[43] The Panel did not express any other findings as to acute pain;
[43]Ibid 11.

(l) the Panel concluded Ms Seadon suffers from chronic pain syndrome. It concluded her pain symptoms did not have an organic basis:

The Panel therefore concluded that [Ms Seadon] is currently suffering from a chronic pain syndrome following a soft tissue injury on a background of pre-existing constitutional cervical and thoracolumbar spondylosis and constitutional osteoarthritis of the right acromioclavicular joint, attributable to the claimed physical injuries.
The Panel concluded that [Ms Seadon] is currently also suffering from cervical and thoracolumbar spondylosis, and from osteoarthritis of the acromioclavicular joint of the right shoulder, but these conditions are constitutional in nature and origin and not attributable to any claimed injury. The Panel therefore concluded that [Ms Seadon’s] employment with [Seniors Community Care] was not in fact, and could not possibly have been, a significant contributing factor to her current medical condition of constitutional thoracolumbar spondylosis, or to any aggravation, exacerbation, acceleration, deterioration or recurrence of any pre-existing condition or disease in any way[44]
[44]Ibid.

(m) the Panel referred to other medical opinions in the material before it and stated that it ‘formed a different opinion with regard to both the diagnosis of [Ms Seadon’s] current symptoms of pain and with respect to the relationship between her cervical spondylosis condition and her employment with [Seniors Community Care]’;[45]
[45]Ibid 12.

(n) Ms Seadon told the Panel that she could work if she did not have pain. She referred to ‘terrible and shocking’ pain in her neck, her legs collapsing, and that she did not drive.[46] The Panel noted that she also told it: ‘however, that if she was able to secure employment close to her home or on a public transport route, she would be able to manage, and she said that if she could catch a bus to work, she thought she should be okay’;[47]
[46]Ibid 15.
[47]Ibid.

(o) the Panel undertook a psychiatric examination of Ms Seadon. It noted amongst other things that she had limited insight into her current situation.[48] It diagnosed a pre-existing chronic adjustment disorder which had worsened in the context of persisting pain resulting from the incident.[49] It found there was an aggravation of that disorder;[50]

(p) in its assessment of Ms Seadon’s work capacity, it specifically considered her chronic pain syndrome and the aggravation of the chronic adjustment disorder. In doing so, it specifically referred to her pre-injury duties. As discussed above, it concluded that Ms Seadon’s medical condition did not preclude her from conducting her pre-injury duties and hours, and nor would there be an exacerbation or aggravation of her medical condition; and

(q) the Panel referred to the reports of other medical practitioners that it had before it who had concluded Ms Seadon had no current work capacity. It stated that it formed a different opinion ‘[b]ased on its own physical and psychiatric examination of [her]’.[51]

[48]Ibid.

[49]Ibid.

[50]Ibid 16.

[51]Ibid 17.

Evidently, the Panel accepted Ms Seadon’s pain symptoms were persistent and diagnosed her with chronic pain syndrome. However, it recognised that question 3 required it to assess whether or not she had an incapacity for her pre-injury duties. Given the above, I am satisfied that it adequately explained its pathway in reaching its conclusion. That is, I understand why it concluded that Ms Seadon’s medical conditions did not cause an incapacity for her pre-injury work.

Was it open to the Medical Panel to conclude that Ms Seadon was able to perform the full duties and hours of her pre-injury duties?

This question arises from ground 2 of the amended originating motion:

It was not open to the Medical Panel to conclude that [Ms Seadon] was able to perform the full duties and hours of work of her pre-injury duties as an aged carer with [Seniors Community Care].

Submissions of Ms Seadon

There is a failure to express conclusions which justify the ultimate finding. The key issue is whether the evidence taken into account could be described as rationally probative of the existence of the fact in issue.[52] If one accepts Ms Seadon’s condition and the effect of it on her, then its finding of no incapacity for pre-injury work is not open. There is no probative evidence which allows that view to be taken. The Panel has merely referred to her injury and conditions. There is no probative evidence that with her particular disability she is capable of doing her pre-injury work.
[52]Ballina Shire Council v Knapp [2019] NSWCA 146 [37].

Submissions of Seniors Community Care

It is an error of law for a tribunal to make a factual finding not open to it. However, for there to be an error of law, there must be no evidence at all to support the finding. Where a tribunal is able to rely upon its own expertise, it may be difficult to establish that.[53]
[53]S v Crimes Compensation Tribunal [1998] 1 VR 83, 90.

Analysis

There was no dispute between the parties as to the applicable principles. I adopt the following principles given by the Court of Appeal upholding the trial judge’s summary:

As to whether the Tribunal’s conclusion was open to it, the judge accepted the submission of the Commission that the correct approach was that set out in the judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS. The question to be addressed was whether, on the probative evidence before the Tribunal, a logical or rational decision-maker could have come to the same conclusion as the Tribunal. Her Honour said:
This approach allows that rational decision makers may reach different conclusions on the same evidence — or, to put it another way, that reasonable minds may differ.[54]

[54]Liberal Party of Australia (Victorian Division) v Rae [2019] VSCA 13 [9] (citations omitted).

It was open to the Panel, on the evidence before it, to conclude that Ms Seadon did not have an incapacity in respect of her pre-injury work. Ms Seadon’s submission that there was no probative evidence that she was capable of doing her pre-injury work must be rejected. I adopt the analysis in ground 1 above, and reiterate the particular factors outlined in the sub-paragraphs of 37. The evidence before the Panel included: the history given by Ms Seadon including her description of being able to live independently, the medical records and radiological investigations, her current treatment and medication regime, and her own evidence about her ability to work. Importantly, the Panel is a specialist panel. It examined Ms Seadon and its examination formed part of the evidence before it. It referred to other medical opinions before it that indicated she had an incapacity for pre-injury duties. The Panel stated that it disagreed with those opinions based on its own examination of Ms Seadon. The Panel described her pain symptoms and made a diagnosis in respect of those symptoms. It noted the hours of work and description of her pre-injury duties, including physical duties. It specifically considered whether or not she could perform those duties in light of its diagnosis. This is not a case where the conclusion is unsupported by any probative evidence.

Did the Medical Panel give proper consideration to the actual demands of the tasks involved in Ms Seadon’s pre-injury duties, and to Ms Seadon’s pain and consequent physical limitations?

This question arises from ground 3 of the amended originating motion:

In concluding that [Ms Seadon] was able to perform the full duties and hours of work of her pre-injury duties as an aged carer with [Seniors Community Care], the Medical Panel did not give proper consideration to the actual demands of the tasks involved those duties, or to [Ms Seadon’s] pain and consequent physical limitations.

There was an overlap in submissions for this ground and the next, and accordingly, they will be considered together.

Did the Medical Panel give proper, genuine and realistic consideration to whether Ms Seadon’s pain and medical condition and consequences made her unable to perform the full pre-injury duties and hours of work?

This question arises from ground 4 of the amended originating motion:

The Reasons of the Medical Panel show that it did not give proper, genuine and realistic consideration to the matter of whether [Ms Seadon’s] pain and mental condition, and its consequences, made her not able to perform the full duties and hours of work of her pre-injury duties as an aged carer with [Seniors Community Care].

Submissions of Ms Seadon – grounds 3–4

The Panel did not give any proper consideration as to whether Ms Seadon’s medical condition was such as to make her still capable of performing her pre-injury work. It did not give proper and genuine consideration to the actual tasks of the pre-injury work or to her pain and consequent physical limitations and whether they meant she was unable to perform her pre-injury duties.

Ms Seadon’s experience of pain which constitutes her chronic pain syndrome, and its consequent restrictions, are matters which would naturally inhibit her from obtaining or keeping employment. Her incapacity to perform her pre-injury duties in fact caused her to cease employment. These are relevant matters for the Panel to consider.[55]
[55]Richter v Driscoll (2016) 51 VR 95 (‘Richter’), cited in Lang v Spendless Shoes Pty Ltd [2019] VSC 376 [61] (‘Lang v Spendless Shoes’).

Referring to a number of facts and then providing a conclusion does not constitute giving proper consideration to a matter. It is insufficient to ‘merely set out conclusions of a general nature without any meaningful reasons’.[56]
[56]Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252 [36].

In the absence of expressing what consideration it actually gave, the inference is that the Panel did not give any.

Submissions of Seniors Community Care – grounds 3–4

The Panel had regard to each of the matters that were the subject of Ms Seadon’s complaint. It recorded her pre-injury duties in the history she gave to it and then reiterated those duties when assessing work capacity. There is nothing about the description of duties which is said to be in error, nor is it contrary to the joint statement given by the parties which accompanied the referral of Ms Seadon’s written submissions to the Panel. The Panel specifically had regard to the ‘nature, extent and severity of [Ms Seadon’s] current pain symptoms’ in considering the diagnosis.[57] It specifically had regard to ‘the nature extent and severity of [Ms Seadon’s] current physical and psychiatric medical conditions’ in considering capacity for work.[58] The Reasons specifically contradict Ms Seadon’s assertion that it did not properly consider whether she was capable of performing her pre-injury duties and hours (paragraph 4 cited above).[59] The Reasons appear to specifically respond to paragraphs 19–20 of Ms Seadon’s written submissions. The Panel indicated that it had read her written submissions.[60]
[57]Reasons 10.
[58]Ibid 16–7.
[59]Ibid 17.
[60]Ibid.

Analysis – grounds 3–4

A Medical Panel must provide reasons for its opinion. Subsections 313(1)–(2) of the WIRC Act provide:

Opinions
(1)Subject to section 312, a Medical Panel must form its opinion on a medical question referred to it—
(a)within 60 days after the Medical Panel receives from the Convenor the documents relating to the medical question; or
(b)within such longer period as is agreed by ACCS, a court, VCAT, the Authority or the self-insurer.

(2)The Medical Panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion.

The applicable principles are not in dispute.[61] Reading the Panel’s Reasons as a whole, I find that in its assessment of whether Ms Seadon had an incapacity to perform her pre-injury duties, it gave proper, genuine and realistic consideration to both the actual tasks involved in those duties and her medical conditions. I adopt the analysis in ground 1 above and specifically reiterate the particular factors outlined in the sub-paragraphs of 37.
[61]Singh v Minister for Home Affairs (2019) 267 FCR 200, 209–10 [34]–[35].

I reject the premise of Ms Seadon’s submission that her experience of pain, constituting her chronic pain syndrome, and its consequent restrictions, are matters which would naturally inhibit her from obtaining or keeping employment with the duties which in fact caused her to cease employment. Consequently, I reject the submission that the Panel fell into error by not giving this proper consideration. Firstly, the diagnosis of Ms Seadon’s condition and whether she had an incapacity, were questions for the expert Panel to evaluate and answer. Secondly, whether or not her chronic pain condition led to an incapacity to perform her pre-injury duties was a question for the Panel to evaluate on the evidence before it, including on the basis of its own examination of her.

For completeness, I accept Ms Seadon’s submission that where there is no reference to a critical piece of evidence or particular issue, an inference may be appropriately drawn that the decision-maker has not considered it.[62] This may be relevant to whether the decision-maker actively engaged with the issue.[63] However, that is not the case here. As discussed above, the Panel had an active and intellectual engagement with the issues raised by Ms Seadon, namely it: considered the actual tasks of the pre-injury duties and made specific reference to them, considered her symptoms of pain and made a diagnosis in respect of that, conducted an examination of her, and then reached the conclusion that she had no incapacity to engage in her pre-injury duties. This is not a case where the Panel failed to engage with a ‘factor squarely raised on the evidence and fundamental to the Panel’s answering of the referred questions’.[64]

In its assessment of Ms Seadon’s ability to perform her pre-injury employment, did the Medical Panel fail to consider more than Ms Seadon’s physical and psychiatric capacity to engage in pre-injury tasks?

[62]Ibid [36].

[63]Ibid.

[64]Sensis Pty Ltd v Jones [2018] VSC 754 [52].

This question arises from ground 5 of the amended originating motion:

In performing its statutory task in assessing [Ms Seadon’s] ability to perform her pre-injury employment, the Medical Panel was required to consider whether there was an injury caused inability to return to such work in employment, i.e. as a settled or established member of the wage-earning work force. This in turn required the Medical Panel to consider more than a physical and psychiatric capacity to engage in a particular task or tasks that constitute that employment. The Medical Panel did not comply with that requirement.

There was an overlap in submissions for this ground and the next two, and accordingly, they will be considered together.

Did the Medical Panel fail to give proper consideration to the entirety of Ms Seadon’s personal circumstances (other than any by which law must be disregarded) and any other matters which would affect the attractiveness of Ms Seadon to a potential employer?

This question arises from ground 6 of the amended originating motion:

The Medical Panel was required to give proper consideration to the entirety of [Ms Seadon’s] personal circumstances (other than any which by law must be disregarded), and other matters which would affect the attractiveness of [Ms Seadon] to a potential employer. The Medical Panel did not comply with that requirement.

Did the Medical Panel fail to take into account a relevant consideration, namely the place of residence and inability to drive in order to access employment?

This question arises from ground 7 of the amended originating motion:

The Medical Panel failed to take into account a relevant consideration, namely [Ms Seadon’s] place of residence and inability to drive in order to access employment; and/or
(a)By failing to assess [Ms Seadon’s] level of incapacity having regard to the principles stated in Richter v Driscoll (2016) 51 VR 98, by failing to have regard to the entirety of [Ms Seadon’s] personal circumstances, including [her] place of residence and inability to drive in order to access employment, or to perform the duties of such employment;
(b)By failing to take into account a relevant consideration, in that it considered [Ms Seadon’s] “failure to arrange for the reinstatement of her license” which “involved a lack of need for a vehicle given her current lifestyle” to be unrelated to her employment with [Seniors Community Care], when it was in fact her non-involvement in the workforce, by reason of work-caused injuries, which had led to her current “lifestyle” and “lack of need for a vehicle”.

Submissions of Ms Seadon – grounds 5–7

In assessing Ms Seadon’s capacity to perform her pre-injury employment, the Panel was required to consider whether she was in fact likely to obtain employment, not just whether she could do the tasks involved, but to actually find someone prepared to employ her with her disabilities.

Employability has been determined by a number of cases which deal with the issue of capacity for work. Section 160 of the WIRC Act, a benefits provision [‘Compensation in weekly payments’ provision], uses the words ‘incapacity for work’. Incapacity for work is the foundation of giving benefits under that Act. ‘Incapacity for work’ is not defined in the Act. It has been considered by various authorities to denote partial or total incapacity for work in the labour market in which the applicant was working or might reasonably expect to work.[65] It also requires consideration of the work and not coping with the new employment or exacerbating or aggravating their injury.[66] In that regard, the absence of a physical injury as a cause of pain does not preclude a psychological injury being a cause.[67]
[65]Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171, 175; Thompson v Armstrong & Royse Pty Ltd (1950) 81 CLR 585.
[66]Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533.
[67]Commonwealth v Smith [1989] 10 AAR 277 [16].

The meaning of ‘current work capacity’ and ‘no current work capacity’ in the WIRC Act are informed by the authorities. Employability is something which has always been taken into account. It was also taken into account in Richter v Driscoll (‘Richter’).[68]
[68]Richter [88].

The question must be posed: whether Ms Seadon is likely to find work in the area of work she was doing with Seniors Community Care, with the pain and other disabilities to which she made reference? In Richter, the Court of Appeal stated in order for there to be a capacity for work, the worker must have something to sell to a prospective employer.[69] This requires the worker’s disabilities to be considered in that context. Therefore, the Panel ought to have considered whether she had an ability to obtain employment with her particular difficulties and not just an ability to do work. The Panel failed to consider that and accordingly its answer to question 3 is flawed.
[69]Ibid [97].

On the issue of suitability for employment, there are a number of ingredients that must be taken into account. In Richter, the Court of Appeal established the following principles in relation to suitable employment: (a) the definition requires there be an injury caused inability to return to work; (b) ‘employment’ means return to work as a settled or established member of the wage earning workforce; (c) ‘suitable employment’ is more than the physical capacity to perform tasks – attention must still be paid to the nature of the worker’s pre-injury employment, the worker’s age, education, skills and work experience, and the worker’s place of residence; (d) consideration of ‘no current work capacity’ depends in the first place upon whether the worker has an inability to perform his or her pre-injury employment; and (e) ‘suitable employment’ looks to the possibility of employment after injury with reference to Barwon Spinners Pty Ltd v Podolak[70] to ‘work for which the worker is currently suited’.[71] Further, it said that whilst the employer does not guarantee the state of the labour market, in order for there to be capacity to work in employment, the worker must still have something to sell to a prospective employer.[72] This requires the worker’s disabilities to be considered in that context.
[70](2005) 14 VR 622.
[71]Ibid 636 [25] (emphasis in original).
[72]Richter 121 [97].

The effects of the compensable injury on Ms Seadon’s ability to obtain employment are relevant.[73]
[73]See Re Panke and Director-General of Social Services (1981) 4 ALD 179 (‘Re Panke’); Cole v Minister for Immigration and Border Protection (2018) 261 FCR 537, 553–5 [58]–[70]. See also Richter [120]–[121]. The issue was left undecided in Lang v Spendless Shoes.

Ms Seadon does not have a car and her pre-injury employment seems to require driving a vehicle to travel between clients. She is not currently able to do that because she does not have a car. The Panel noted that she ‘does not hold a current driver’s license or own a vehicle, and that this would preclude her ability to engage in her pre-injury role’.[74] However, the Panel stated it ‘considered that [Ms Seadon’s] driver’s [licence] suspension, loss of a vehicle and failure to arrange for the reinstatement of her [licence], for which she has been eligible since the expiration of the two-year suspension period, are not related to her current physical and psychiatric medical condition in any way, and consequently do not affect the Panel's assessment of her current work capacity’.[75]
[74]Reasons 16.
[75]Ibid 17.

Ms Seadon has no car and there is no evidence she could buy one. The Panel took the view it would ignore the issue because she could not get a driver’s licence. The issue is with not having a car rather than not having a driver’s licence. The Panel accepted that she gave up her licence because she did not need one. There is no point in her getting her licence because she cannot drive without a car.

Accessing employment is an issue relevant to the capacity for employment because one cannot have capacity if one cannot get to the place of employment. This is particularly the case in a job such as Ms Seadon’s pre-injury one. Clients might be anywhere and not always accessible by train. Personal mobility is a factor to take into account.

The Panel ought to have taken into account the fact that Ms Seadon does not have a car. The assessment of suitable employment includes taking into account the worker’s personal circumstances, including location. A worker’s place of residence is a mandatory consideration. In Richter, the suitable employment ingredients were held to apply to pre-injury duties. If place of residence is relevant to suitable employment, then there is no reason that it is not relevant to pre-injury employment.

Whether or not the loss of the driver’s licence was caused by the injury to the worker, is not the relevant issue. The address of the worker, which is taken into account, is not caused by injury. What is looked at, is the personal circumstances of the worker and whether, considering the entirety of the circumstances, they are able to engage in their pre-injury employment.

Submissions of Seniors Community Care – grounds 5–7

The circumstances here are different to those in Richter. It concerned a finding by a medical panel that the applicant had ‘no current work capacity’. The discussion in Richter took place in the context of the concept of ‘suitable employment’. (This is encapsulated in the question of ‘no current work capacity’). There, the Court of Appeal criticised the medical panel’s findings that the applicant could undertake tasks associated with the ‘suitable employment options’ purportedly identified by a vocational report. Here, the Panel was asked a different question. It was asked whether Ms Seadon was ‘incapacitated for her pre-injury duties as a carer’ and responded to that question as referred. The Panel was not asked to provide an opinion on suitable employment options or whether she had a current work capacity. Accordingly, the Court of Appeal’s conclusions about the medical panel’s error in Richter do not have direct application here.[76]
[76]Richter [103]–[106].

Reading the Panel’s Reasons as a whole, it is implicit in them that Ms Seadon could return to her pre-injury duties as a settled or established member of the wage earning workforce. This is implicit from the conclusions that she could perform her full duties and hours and could do so without exacerbating or aggravating her symptoms.

Similarly, insofar as it was necessary for the Panel to consider Ms Seadon’s ability to obtain employment or reemployment, this does not add anything further to the Panel’s conclusions. There is nothing in this case which suggests that she may be able to return to her pre-injury work but not obtain suitable employment.

Putting the driving issue to one side, it cannot be said the worker was not suited to her pre-injury role. How can Ms Seadon retain a capacity for her pre-injury role yet nevertheless not have anything to sell on the labour market? The issue of employability is founded on Ms Seadon’s assertion that her experience of pain would naturally inhibit her from seeking employment. If the Panel’s conclusions about Ms Seadon’s pain were open to it, then the ground of appeal concerning employability falls away.

The Panel was only being asked here as to the suitability of pre-injury employment and not beyond. Even if Richter was applicable here, what would be required is that there be ‘personal characteristics’ of Ms Seadon coupled with a physical or psychiatric incapacity.[77] There was no physical or psychiatric limitation which precluded her from holding a driver’s licence or having a car. The incapacity must stem from or relate to the injury: see ss 160-3 of the WIRC Act.
[77]Richter [144].

Accordingly, even if the loss of licence was related to Ms Seadon’s injury, it would not assist her. She lost her licence because of an alcohol prosecution. The Panel found it was not related to her condition in any way. Authorities have dealt with supervening and unrelated medical conditions analogously.[78] Were her contentions accepted, the Court would be in effect concluding that she had an entitlement to weekly payments notwithstanding that any preclusion from her pre-injury employment related to the loss of her licence which post-dated her injury and was wholly unrelated to it.
[78]Walsh v Department of Human Services (2014) 44 VR 244.

In any event, Ms Seadon informed the Panel that ‘her sister generally drives her anywhere else she might need to go’ and that she could manage employment on a public transport route.[79]
[79]Reasons 8, 15.

Analysis – grounds 5–7

Question 3 required the Panel to assess whether Ms Seadon ‘was/is she incapacitated for her pre-injury duties as a carer’.

Section 302 of the WIRC Act provides:

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

Section 3 defines ‘medical question’ to mean any of the following:

...
(c) a question as to whether a worker has a current work capacity or has no current work capacity and what employment would or would not constitute suitable employment;
...
(m) a question whether a worker’s incapacity for work results or resulted from, or is or was materially contributed to by, an injury or alleged injury;
…

Importantly, s 160 provides:

Compensation in weekly payments
If a worker’s incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation, the compensation must be in the form of weekly payments, subject to and in accordance with this Act.

Sections 161–2 provide that a worker may be entitled to weekly payments ‘while incapacitated for work’ and prescribes the percentage of payments with reference to weekly earnings using the terms ‘current work capacity’ and ‘no current work capacity’.

The terms ‘current work capacity’, ‘no current work capacity’ and ‘suitable employment’, are defined in s 3 as follows:

current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment;
...
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment;
...
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to the following—
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii)the nature of the worker’s pre-injury employment;
(iii)the worker’s age, education, skills and work experience;
(iv)the worker’s place of residence;
(v)any plan or document prepared as part of the return to work planning process;
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker;

(b) regardless of whether—
(i)the work or the employment is available; or
(ii)the work or the employment is of a type or nature that is generally available in the employment market;

and, for the purposes of Part 4, includes—
(c)employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
(d)employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e)suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education;

As Incerti J recently stated:

In assessing [the worker’s] current work capacity, whether he had no current work capacity and whether there was suitable employment for [the worker], there were a number of considerations that the Panel was bound to take into account. These considerations are mandatory for a sufficient assessment to be made about [the worker] and for the Panel to properly discharge its statutory function. The mandatory considerations for suitable employment are set out in the definition given to the term in s 3 of the Workplace Injury [Rehabilitation Compensation] Act. There are no legislatively mandated considerations for ‘current work capacity’ and ‘no current work capacity’ – the considerations for these terms are contextually dependent upon the application of the terms to the situation of a person under examination. There is no real statutory indication to the weight to be given to various considerations relevant to the definitions of current work capacity, no current work capacity and suitable employment.[80]

[80]Steel Smith Engineering Pty Ltd v McPhee [2020] VSC 571 [139].

In Richter, similar to here, a medical panel was asked whether ‘the plaintiff [has] an incapacity for her pre-injury employment’.[81] In contrast to here, if that question was answered in the affirmative, the panel was asked a further question: ‘does the plaintiff have ‘no current work capacity’ as defined by the Accident Compensation Act 1985’?[82] This does not distinguish the principles in Richter. It is applicable here and authority for the proposition that: ‘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 para (a)(ii), (iii) and (iv) of the definition of ‘suitable employment’’.[83] This proposition is outlined in the fourth factor of the Court of Appeal’s analysis below. Other parts of the analysis are included that provide context and guidance.[84]
[81]Richter 98–9 [14].
[82]Ibid (emphasis added).
[83]Ibid 115 [77].
[84]The Accident Compensation Act 1985 is the predecessor legislation to the WIRC Act. As the Court of Appeal noted, relevant provision are the same: Richter 99 [17] n 5.

In Richter, the Court of Appeal stated the following.

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?…
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:
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.

…

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—
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.

There again, the Court emphasised matters travelling beyond physical capacity.
…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.
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.
…
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. In Cardiff Corporation v Hall, 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.
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. But, to be crystal clear, our opinion as to the meaning of the definitions is one based on reading their text.
About ‘suitable employment’, this may be said. The term was used, in connection with calculating compensation for partial incapacity, from earliest times. A large jurisprudence developed. 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.
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 paras (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:
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.

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’.
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.[85]

[85]Richter 114–21 [72]–[97] (citations omitted) (emphasis added).

There are a number of other authorities cited by Ms Seadon in support of the proposition that employability is a factor to be considered in assessing whether or not the worker has an incapacity for work.[86] Both parties also made reference to Lang v Spendless Shoes. There, Cavanough J made observations concerning the issue of whether or not the definition of ‘no current work capacity’ requires consideration of the effects of a worker’s compensable injury in relation to their ‘‘employability’, in the sense of the worker’s ability or inability to regain the worker’s former employment or to obtain other ‘suitable employment’’.[87] Cavanough J stated that he need not and should not resolve the controversy of this potentially important legal issue.[88]
[86]Richter 121 [97]; Fuller v Avichem Pty Ltd [2019] NSWCA 305 [58]–[60], [98]. See also Ball v William Hunt [1912] AC 496, 505 applied in Re Panke 180 (Davies J) quoted in Re Rade Stevanovic and Australian Telecommunications Commission [1984] AATA 263 [30]–[33], [41]–[48].
[87]Lang v Spendless Shoes [65] (emphasis in original).
[88]Ibid [67]. In deference to the submissions that his Honour had heard, he made a number of observations concerning Richter: see [70]–[74].

Turning now to grounds 5–7 of the amended originating motion.

The key contention of ground 5 is that the Panel did not consider anything more than a physical or psychiatric capacity to engage in the tasks that constituted Ms Seadon’s pre-injury employment. That submission must be rejected. The Panel specifically considered another factor, namely that she did not hold a driver’s licence or vehicle. It also noted Ms Seadon’s ‘developmental history’ and specifically referred to her education and previous work experience. It may be inferred from this that the Panel was aware of its obligation to consider more than a physical or psychiatric capacity to undertake the pre-injury tasks. It was unnecessary for it to list all the other matters it considered.

The key contention of ground 6 is that the Panel failed to give consideration to matters which would affect the attractiveness of Ms Seadon to an employer. In other words, that the Panel failed to give consideration to her employability. Ms Seadon says that the Panel failed to consider whether she was likely to find work as a carer with the pain and other disabilities to which she made reference.

In terms of Ms Seadon’s medical conditions, the Panel proceeded, correctly, to assess whether she had any work incapacity on the basis of its diagnosis of her medical conditions. To be clear, it would be incorrect to assess on the contended basis, namely Ms Seadon’s own references to pain and other disabilities. The Panel’s Reasons, quoted above at paragraph 28, demonstrate that it considered her medical conditions when assessing her work capacity.

Seniors Community Care asks how Ms Seadon can retain a capacity for her pre-injury role yet nevertheless not have anything to sell on the labour market? This submission misses the point. It is that in assessing Ms Seadon’s capacity for her pre-injury role, the Panel was obliged to consider her employability given her work-related injuries. There is no reference to the words ‘employability’ or ‘suitable employment’ in the Panel’s Reasons. However, the questions posed to it did not use those words, nor were they contained in the written submissions before it. Given all these factors, it was unnecessary for the Panel to make specific reference to whether Ms Seadon could obtain such employment with her medical conditions. It may be inferred from the Panel’s Reasons that it proceeded on the basis that she could obtain employment.

The key contention of ground 7 is that the Panel failed to take into account a relevant consideration, namely Ms Seadon’s place of residence and inability to drive on the basis that they were unrelated to her employment. Ms Seadon contends that her non-involvement in the workforce led to her current lifestyle and lack of need for a vehicle. As cited above, in Richter, the Court of Appeal considered the worker’s place of residence relevant in two different circumstances: (a) ‘because there was simply no ‘suitable employment’ in the area where the worker resided—the ‘Melbourne residence/Mildura work’ situation’, or (b) ‘because the area in which ‘suitable employment’ must have existed was confined by incapacity-caused limits upon the worker’s ability to travel.’[89] It was open to the Panel to exclude her lack of vehicle and driver’s licence on the basis that they were not related to her medical conditions. It may be recalled that it is common ground that the loss of licence was a consequence of a driving conviction. It would be descending into merits review to review the Panel’s factual conclusion.
[89]Richter 115 [77] (emphasis added).

Finally, applying Richter, the Panel was obliged to consider Ms Seadon’s place of residence and whether there was suitable employment in the area in which she worked. The Panel noted that Ms Seadon informed it that she could manage along a public transport route and that her sister drives her when needed. It may be inferred from this that the Panel did consider her place of residence in respect of whether there was suitable employment.

Conclusion

Each ground in Ms Seadon’s originating motion must be rejected. Her application will be dismissed.

SCHEDULE OF PARTIES

S ECI 2019 05850
BETWEEN:
EVELYN SEADON	Plaintiff
- v -
SENIORS COMMUNITY CARE PTY LTD	First Defendant
ASSOCIATE PROFESSOR PETER GIBBONS as THE CONVENOR OF MEDICAL PANELS	Second Defendant
DR GREGORY TAGGART	Third Defendant
ASSOCIATE PROFESSOR ABDUL KHALID	Fourth Defendant
DR CHRISTINE KOTSIOS	Fifth Defendant
DR SUSANNE HOMOLKA	Sixth Defendant
DR ANDREA BENDRUPS	Seventh Defendant
MR JOHN SKELLEY	Eighth Defendant

[2021] VSC 30

4 February 2021