Stankoski v Flickers Australia Pty Ltd
[2016] VSC 648
•28 October 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 05305
| KOSTE STANKOSKI | Plaintiff |
| v | |
| FLICKERS AUSTRALIA PTY LTD (ACN 005 660 837) and Others (according to the attached schedule) | Defendants |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 June 2016 – final written submission 7 September 2016 |
DATE OF JUDGMENT: | 28 October 2016 |
CASE MAY BE CITED AS: | Stankoski v Flickers Australia Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2016] VSC 648 First Revision 28 October 2016 |
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JUDICIAL REVIEW – Medical Panel – Adequacy of reasons – Whether path of reasoning disclosed – Reasons inadequate – Error of law on the face of the record – Jurisdictional error – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 3, 313(2), Accident Compensation Act 1985 (Vic) s 5; Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 56
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K A Bowshell | Shine Lawyers |
| For the First Defendant | Mr M F Fleming QC with Mr M J Hooper | IDP Lawyers |
HIS HONOUR:
The plaintiff, Mr Koste Stankoski, seeks judicial review of the opinion of a Medical Panel (‘the Panel’), comprising the second, third and fourth defendants, given in writing dated 12 August 2015, constituted to provide an opinion concerning his medical condition relevant to a claimed injury and whether he had a current work capacity.
Mr Stankoski migrated to Australia from Macedonia in 1991, when he was 29 years of age. He began working for the first defendant company, Flickers Australia Pty Ltd (‘Flickers’), on 26 October 2009 as a machine operator. He described his duties to the Panel as including operating machinery, light machine cleaning, packing and general duties around the factory, duties which required him to use both hands consistently throughout the working day.
On 12 November 2012, Mr Stankoski’s left hand and arm became caught in a machine, where they were exposed to high temperature for a prolonged period of time. He sustained severe burns to his left arm and hand and to a lesser extent his right upper arm, before being freed and taken to the Sunshine Hospital. He has since undergone a number of operations. He told the Panel that he underwent surgery, that his arm became infected at the site of the skin graft and that was extremely painful. He spent 10 days in hospital and needed another five operations. The Panel’s reasons to which I refer below set out the present state and effects of those injuries.
Mr Stankoski’s worker’s compensation claim was accepted and he received weekly payments from the date of his injuries. Following a review by the authorised agent for the Victorian WorkCover Authority, the payments were suspended, with effect from 8 June 2015.
Mr Stankoski requested that decision be reviewed by the Accident Compensation Conciliation Service (‘ACCS’) which in turn referred two medical questions to the Panel. Those questions and the Panel’s answers were:
1.What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
Answer: In the Panel’s opinion the worker is suffering from healed scarring of the right upper arm and residual dysfunction of the left upper extremity secondary to multiple burns treated by debridement and skin grafting with neuroma formation at the left wrist and radial thumb and an adjustment disorder with depressed and anxious mood and features of traumatisation, attributable to the claimed injury.
2.Does the worker have no current work capacity? If so, is this situation likely to continue indefinitely?
Answer: The Panel is of the opinion that the worker has a current work capacity.
Mr Stankoski alleges that the reasons given by the Panel, at least in the case of the answer to the second question, were inadequate as they did not disclose a path of reasoning sufficient to identify reviewable error, and as such, did not comply with the requirement to give reasons as set out in s 313(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the WIRC Act’). That subsection states:
(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 Statutory Scheme
Mr Stankoski’s entitlements to compensation for his workplace injury are found in the Accident Compensation Act 1985 (‘the ACA’), which continues to apply in relation to injuries that occurred prior to 1 July 2014. The Dispute Resolution provisions set out in the WIRC Act state the functions, procedures and powers of a medical panel constituted under the WIRC Act. Section 313(2) provides:
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.
A failure to provide adequate reasons is a failure to comply with the legal duty imposed by the statute and is an error of law on the face of the record.[1]
[1]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 493, [28] (French CJ, Crennan, Bell, Gageler and Keane JJ) )(‘Wingfoot’).
The Panel’s reasons
The Panel was constituted by a plastic surgeon, psychiatrist and musculoskeletal physician. In reaching its opinion, the Panel was guided by the definitions of work capacity and suitable employment which are in the following terms:
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.[2]
[2]Section 3 of the WIRC Act and s 5 of the ACA Act.
With the assistance of a Macedonian interpreter, Mr Stankoski was interviewed and examined by the Panel on two occasions: on the first by two members of the Panel and, on the same day, separately by the other member of the Panel, the psychiatrist. In addition to these interviews, the Panel had before it a number of documents, including medical reports. The Panel had regard to the mandatory considerations contained in the definition of current work capacity set out above, referring in particular to:
·the extent and magnitude of his physical signs and symptoms and perceived physical limitations due to residual dysfunction of the left arm and hand;
·his psychiatric condition which is not of a nature and severity that it would, limit capacity for suitable employment;
·the effects of current prescribed medication which the Panel considers would not limit employment;
·his age of 53 years which the Panel considers would not unduly restrict the potential range of employment options;
·the worker’s place of residence in Reservoir which the Panel considered would not limit the worker’s employment opportunities;
·his current facility in English language which would be an impediment to a range of employment options;
·the potential viability of retraining which is limited by his poor English language capabilities;
·his lack of additional qualifications and certification;
·the absence of a Victorian driving licence which limits access to suitable employment options distant to his residence;
·his work experience which is limited to that of waiting and machine operator;
·his absence from the workforce since November 2012;
·the reports of the worker’s general practitioner and doctors who have assessed the worker, in the referral material;
·the absence of any current return to work plan.
The Panel noted their discussions with Mr Stankoski regarding the recommendations made in an NES Vocational Assessment and the report of Mr Michael Troy, an independent medical examiner, who had specialist qualifications in occupational and musculoskeletal medicine. It recorded those discussions in the following passage:
The Panel discussed with the worker the suitable employment options outlined in the NES Vocational Assessment Report dated 17 November 2014 of Process Worker; Packer; and Safety Inspector. The Panel noted caveats in the report indicating that based upon the worker’s unilateral capacity and severely limited functionality, no available vocational options were able to be identified but if functioning significantly improves to allow for bilateral functionality the suitable employment options of process worker; packer; and safety inspector would become suitable. An additional caveat was included that the worker may benefit from completing qualifications in Health and Safety in order to successfully become a Safety Inspector however English capabilities need be improved prior to commencement of this training.
The worker told the Panel that the proposed suitable employment options you ‘need two arms to work’ citing ongoing difficulties with his left arm that would prevent work in these areas. He said that he was unable to do because of pain and restricted movement of his left elbow and hand and because he was concerned that his persistent difficulties with sleep and his use of medication placed him at risk of further injury. The Panel noted that the worker has not completed any health or safety qualifications in order to make the role of safety inspector viable. The Panel also asked the worker whether he could return to his pre-injury work. The worker stated that he was unable to do so because his pre-injury employment required the use of both hands and he was presently unable to use his left arm because of pain and restrictions of movement.
The Panel also discussed with the worker the employment options outlined in the medical report of Mr Michael Troy (Independent medical examiner) dated 23 April 2015 of traffic controller, security guard at the entrance to a factory; meeter/greeter; car park attendant; or ticket collector. In relation to employment as a traffic controller the worker told the Panel that he is ‘not sleeping well’ and is feeling ‘tense and nervous and is upset as they have stopped weekly payments’. In relation to employment as a security guard he said he doesn’t ‘want to say no’ but he does not feel that he could do this job with his damaged left arm. He said that he does not have ‘good English’ which would preclude work as a meeter/greeter. In relation to employment as a car park attendant or a ticket collector he commented ‘how long will I be doing it, what if they sacked me’ – ‘who else would employ me’.
The Panel referred to Mr Stankoski’s complaints and injuries in the following terms:
The worker’s current major complaint is pain in his left thumb and wrist which he described as ‘feeling tight’ and ‘stretched’ describing more severe pain if the thumb is knocked. He also described the skin demonstrated to be in the cubital fossa region over the volar aspect of the left elbow as feeling ‘tight’ also describing a ‘pinching feeling’ over the anteromedial aspect of his upper right arm. He also described numbness over the left middle and ring finger pulps with numbness affecting all his fingers of the left hand on occasion and predominantly in the evening. Overall he said his left thumb ‘doesn’t work’. He also described scarring over his right upper arm but no functional restrictions in his dominant right arm. He also told the Panel that the skin graft donor site over the anterior left thigh has healed but over the last month he had experienced ‘little pimples coming up.’
On physical examination the Panel noted a stretched and reddened 7cm x 2cm scar over the anterolateral aspect of the right upper arm without loss of subcutaneous tissue and without deformity. The scarring led to no functional restrictions in the right arm. Examination of the left upper extremity identified a slightly hypertrophic donor site over the anteromedial aspect of the worker’s left upper arm measuring 13cm x 5cm. Proximal to this was a large meshed skin grafted area measuring 13cm x 13cm over the volar aspect of the left elbow in the region of the cubital fossa. There was a reasonable amount of subcutaneous tissue remaining but there was a slight adherence of the scar to the biceps tendon and aponeurosis that did not restrict elbow range of motion. The remaining scar at the left elbow was mobile without evidence of any neuroma formation.
There was an additional oblique but linear over the volar aspect of the left forearm measuring 5.5cm x 1cm which was not adherent to deep tissues, mature and stable. At the left wrist and hand the Panel noted a meshed skin graft with a maximum dimension of 13cm x 11cm extending over the distal forearm, volar wrist and to the left thumb to the nail bed of the left thumb. There was an additional non-mesh grafted over the volar surface of the left thumb with some residual webbing and slide adhesion at the base of the thumb. The Panel noted a positive Tinel’s sign over a branch of the radial nerve over the radial aspect of the left wrist and over the radial aspect of the metacarpophalangeal joint of the left thumb. The positive Tinel’s signs were not associated with limb withdrawal and there was no evidence of local hyperaesthesia/allodynia. The Panel also noted slight scarring at the tip of the pulps of the middle and ring finger which would non-tender without loss of pulp bulk.
Examination of the left hand identified restricted flexion of the left thumb with retention of extension range of motion. There was mild to moderate restriction in active range of motion of the left wrist which the Panel noted to be pain-free on passive range of motion assessment. All digits of the left hand demonstrated full extension and an ability to flex all digits into the palm when making a fist. The Panel assessed power in the left upper limb and identified variable strength on repeat measures. The Panel examined the donor site over the left anterior upper thigh and noted a mature, well healed and stabled 19cm x 19cm donor site.
The Panel concluded in this part of its opinion:
Based upon the worker’s history and the Panel’s findings on examination and review of the referral material the Panel concluded that the worker is suffering from healed scarring of the right upper arm and residual dysfunction of the left upper extremity secondary to multiple burns treated by debridement and skin grafting with neuroma formation at the left wrist and radial thumb, attributable to the claimed injury.
The Panel further considered that the worker retains reasonable function in his left arm and hand which is limited, to some extent, by neuroma formation. The Panel considered however that, in the absence of hyperaesthesia/allodynia, intermittent symptoms related to neuroma formation, when knocked, could be obviated by use of a padded and protective thumb and wrist support.
Mr Stankoski told the Panel that he was presently troubled by a number of problems. These included disrupted sleep, problems with his mood, experiencing flash backs about two to three times a week and embarrassment because of having to wear a glove in winter and long sleeves in summer. He told the Panel that he is prescribed Panadeine Forte – two tablets per day and that he took medication for treatment of blood pressure, gout and an antidepressant.
The Panel conducted a mental health examination and concluded that Mr Stankoski was suffering from an adjustment disorder with depressed and anxious moods and features of traumatisation, but his current psychiatric condition was not of the nature or severity that it impacted negatively on his ability to engage meaningfully in suitable employment options.
The Panel, at a later point, again mentioned the NES Assessment and Mr Troy’s report stating:
The Panel also considered the NES Vocational Assessment Report dated 17 November 2014 as referred to above, including the suitable employment options and various caveats.
The Panel also considered the employment options outlined in the medical report of Mr Michael Troy (independent medical examiner) dated 23 April 2015 also referred to above.
As to Mr Stankoski’s current work capacity and suitable employment options, the Panel concluded:
Whilst the Panel acknowledged that the worker has some residual dysfunction of his non-dominant left hand the Panel formed the opinion from its own physical examination of the worker that the dysfunction/impairment is mild and he retains reasonable function in his left arm and hand. The Panel further noted that whilst use of the hand is limited, to some extent by neuroma formation, there was no evidence of any hyperaesthesia/allodynia and any intermittent symptoms related to neuroma formation, when knocked. Could be obviated by the use of a padded and protective thumb and wrist support. The Panel considered that the worker retains full function of his dominant right arm and only mild dysfunction of his non-dominant left arm that would allow consideration of employment as a car park attendant and/or ticket collector without requirement for retraining.
The Panel therefore concluded that the worker has a current work capacity.
The Panel also stated that it:
noted the medical report of Mr Michael Troy (independent medial examiner) dated 23 April 2015 in which he opined that the worker does have a current work capacity as his right arm is not affected at all. Mr Stankoski did have a current work capacity as his right arm was not affected at all. He offered alternative employment options of traffic controller; security guard at the entrance to a factory; meeter/greeter as he does have some reasonable English; car park attendant; and ticket collector. Whilst the Panel agreed with Mr Troy that Mr Stankoski would be able to undertake employment options of car park attendant and ticket collector, the Panel disagreed that he could be a meeter/greeter as his English language skills were not entirely sufficient for colloquial greetings in English.
The Panel also referred to, but did not agree with all aspects of the medical reports of Mr Peter Battlay, a general surgeon. The Panel also noted that it came to a different conclusion from the medical report of Dr I Alexova, the treating general practitioner and the report of Mr S Salerno, the treating plastic surgeon.
Other indications of Mr Stankoski’s capacity to speak English
As stated, Mr Stankoski was interviewed by the Panel with the assistance of an interpreter. The found as a fact, that he had ‘poor English language capabilities’. [3]Panel Some of the medical reports provided to the Panel commented on Mr Stankoski’s ability to speak English. Associate Professor Donald Marshall, a clinical associate professor of surgery, saw Mr Stankoski on 22 May 2013. He noted that he attended with a Macedonian interpreter and a friend. He stated that it appeared that he had poor English. On 19 November 2013, he again saw Mr Stankoski and noted that he had poor English ‘which is also affecting his recovery’.
[3]Reasons of Medical Panel Re Mr Koste Stankoski, 12 August 2015, 8
On 8 September 2014 Dr Simon Kennedy, a clinical and forensic psychologist, interviewed Mr Stankoski and recorded that he presented without an interpreter and that he had limited English, but the examination was possible.
On 15 September 2014, Mr Peter Battlay, a general surgeon, examined Mr Stankoski without the presence of an interpreter. He recorded that he spoke broken English that was quite difficult to understand.
The NES Vocational Assessment Report
The Panel’s opinion referred to the NES Vocational Assessment Report, which was dated 17 November 2014 and it is appropriate to refer to particular details of it. The author of the Report, who had interviewed Mr Stankoski, recorded that he attended the appointment with the aid of an interpreter and required the interpreter’s direction throughout the assessment.
The Assessment Report concluded:
Identified Suitable Employment Options
Based upon Mr Stankoski’s current unilateral capacity and severely limited functionality, no available vocational options were able to be identified.
If unilateral functioning significantly improves to allow for bilateral functionality, the available job options for Mr Stankoski are as follows:
1. Process Worker (ANZSCO Code: 8399)
2. Packer 9ANZCO Code:8321).
Following further retraining in health and safety, the below job option may be considered:
1. Safety Inspector (ANZCO Code: 312611)
The Assessment Report noted that Mr Stankoski identified the following barriers impacting on his successful return to work:
· Unfit for work and unable to drive due to not possessing a driver’s licence.
· Reliant on public transport.
· Limited functional tolerances.
· Possible further surgery on left hand to remove future nerve fibres. Due to occur after November 2014.
· Persistent pain symptoms.
· Limited English ability where he has limited comprehension, articulation and conversational ability.
Under the heading ‘WORKER’S LITERACY’, the Assessment Report recorded that at the time of assessment, Mr Stankoski self-rated his communication and language skills as follows:
· Reading – below average
· Writing below average
· Speaking below average
Under the heading ‘Worker Job Interests’, the Assessment Report concluded:
Mr Stankoski reported that he was unable to identify suitable employment options that he would be interested in, as he was certified unfit for work and had reported minimal functional tolerances.
Mr Stankoski reported that he did not feel capable of returning to work at the time of the assessment and reported that he did not think that he would be able to return to work at any point in the future due to his current circumstances. Mr Stankoski also reported that an upcoming surgery appointment for after November 2014 also presented as a major barrier. Based on Mr Stankoski’s extremely limited current work capacity identified by Mr Battlay, General Surgeon, no suitable and available vocational options were identified that required sole unilateral physical functioning.
Based on Mr Stankoski’s recovery and significant improvement in his functionality whereby bilateral functionality was restored, along with Mr Stankoski’s employment history, transferable skills, and education background the following vocational options may be considered as viable suitable new employment:
· Process Worker (ANZCO Code:8399)
· Safety Inspector (ANZCO Code: 312611)
· Packer (ANZCO Code: 8321).
Under the heading ‘Identified Barriers To Return To Work, And Recommendations’ one matter recorded was:
Barriers
Recommendations
Mr Stankoski reported limited English ability which presents itself as a significant language barrier for new employment.
WorkFocus Australia has assessed and [will] coordinate Mr Stankoski’s enrolment into the approved English course which is currently underway.
The report of Mr M Troy
As previously noted, the Panel referred to a medical report of Mr Michael Troy, an independent medical examiner, dated 23 April 2015 prepared after he had examined Mr Stankoski on 14 April 2015. It is appropriate to refer to that report in a little detail.
Mr Troy noted that Mr Stankoski was accompanied to the examination by a Macedonian interpreter. After setting out Mr Stankoski’s medical history since the injury, Mr Troy recorded his diagnosis of his injuries as being a soft tissue injury to his right upper arm plus the left upper and forearm, and including the left thumb. He noted that there was restriction of movement of his left elbow, left wrist, left thumb and possibly arthrodesis to the interphalangeal joint of the left thumb. The injury was still persisting by way of the restricted movement in his upper left limb. He needed to continue with physiotherapy. Mr Troy also stated:
He does have a current work capacity as his right arm is not affected at all. You have included Work Focus’ report and that was sent to you on 17th November 2014. It suggested he could be a packer or a safety inspector. The other thing he could do is be a traffic controller or he could be a security guard at the entrance to a factory. He could be a meeter/greeter as he does have some reasonable English. He could be also be a car park attendant or a ticket collector. He would find it difficult to engage in any major physical activity with his left hand for the simple reason his left thumb is so painful and he has that restricted flexion of his left elbow.
He does have a capacity to go on modified duties as I have suggested. Apparently he has never driven. He has never had a licence, even when he was back in Macedonia. He could readily travel on public transport as he did on the day of this interview.
…
There is nothing other than his injury which is preventing him from going back to his previous work or going back to working as I have described. Additionally, he states his company has supplied him with a housekeeper however that is totally unnecessary as his son is 19 years old, living with him, and unemployed. The need for a housekeeper is not necessary as a work related expense.
Ground of review
Mr Stankoski seeks judicial review of the Panel’s opinion or decision on the ground that the inadequacy of its reasons was such that it did not discharge its statutory obligation.
The particulars to that ground are:
The Reasons do not explain why the Medical Panel considered that the Plaintiff’s English language skills were good enough to enable the Plaintiff to undertake the jobs of ‘car park attendant’ and ‘ticket collector’ but not the jobs of ‘meeter/greeter’, ‘traffic controller’ or ‘security guard at the entrance to a factory’.
Further or alternatively, the Reasons do not explain whether or not the Medical Panel considered that the Plaintiff could undertake the jobs of ‘security guard at the entrance to a factory’ or ‘traffic controller’ or the reasons for any such view.
Further or alternatively, the Reasons do not explain by reference to the Plaintiff’s medical condition and skills how the Medical Panel considered that he was able to undertake the jobs of ‘car park attendant’ and ‘ticket collector’ but not the jobs of ‘meeter/greeter’, ‘traffic controller’ or ‘security guard at the entrance to a factory’.
Further or alternatively, the Reasons do not disclose whether the Medical Panel considered each of ‘car park attendant’ and ‘ticket collector’ required in terms of medical condition and skills. They therefore do not disclose how the Medical Panel concluded that the Plaintiff could undertake work as a ‘car park attendant’ or a ‘ticket collector’ given the Medical Panel’s findings as his medical condition and skills.
Applicable legal principles
In Wingfoot Australia Partners Pty Ltd v Kocak,[4] the High Court discussed the requirements for reasons of a Medical Panel. The Court said:
The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.[5]
[4](2013)252 CLR 480.
[5]Wingfoot (2013) 252 CLR 480, 501 [55].
The decision in Wingfoot has been applied by this Court on a number of occasions including in two decisions of the Court of Appeal to which I next refer.
Richter v Driscoll
Richter v Driscoll[6] is a recent Court of Appeal judgment raising somewhat similar issues to those in the present case. It was delivered after I reserved judgment in this matter, so I invited and received written submissions from the parties about its significance for this case.
[6][2016] VSCA 142 (Ashley, Osborn and Kaye JJ). The judgment at first instance had been relied on by the first defendant.
Ms Richter was 59 years old, lived in Wodonga and had entered the workforce at around 37 years of age. Having studied horticulture, Ms Richter worked as a nursery assistant before suffering a serious low back injury, which resulted in her being unable to work from mid-1994 to December 2013. In 2013, she was deemed to no longer have ‘no current work capacity’ by a Medical Panel.
The Court of Appeal found that despite a Panel’s regard to relevant considerations, the reasons provided were inadequate in that they insufficiently state the Panel’s actual path of reasoning. The Panel was also found to have misdirected itself by not differentiating between the mere ability to perform a task and the requirement of the statute to return to work in employment being suitable employment as defined.
The Panel had relied on the descriptions of various roles contained in a NES Vocational Assessment Report and had agreed with the conclusions of the employment consultant that the job of ‘light process worker’ was suitable employment for the worker. The Court was critical of the content of the NES Vocational Assessment Report, stating that:
This [Report] was a most unsatisfactory document upon which to found a conclusion as to the applicant’s physical capacity for work. But if a conclusion was to be reached that the applicant had an ability to engage in employment which required one or more of the duties described, the Panel, in our opinion, was required to give some practical content to the job involved, in order that its conclusion was capable of being examined. How, for example, could its conclusion that the applicant was physically able to perform one or more of the duties described in the Assessment be tested, to see whether it was irrational or illogical, without there being some description of the Panel’s understanding of the physical demands of the duties in the job description? Simply to describe the listed duties, and to accept and act upon the characterisation that the physical demands of those duties were light to medium, was a lesson in obscurity.[7]
[7]Ibid [126] (Citations omitted).
Two other matters considered by the Court, which are of potential relevance to this case, should be noted. The first is that to say whether a worker has ‘no current work capacity’ within the statute:
requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances – these include injury-caused incapacity…as well as 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.[8]
Secondly, in considering the Panel’s reliance to jobs identified in a Vocational Assessment Report, it may be relevant to consider whether it was possible to test its conclusion that the worker was physically able to perform one or more of the duties described in the Assessment without there being some description of the Panel’s understanding of the physical demands of the duties in the job description. .[9]
In my opinion, the need to be able to test the assessment that the worker was able to perform the duties of particular jobs, is important, where no job descriptions of the particular job are referred to.
[8]Ibid [95].
[9]Ibid [126].
I consider that the comments of the Court of Appeal are equally applicable to an assessment of the language capacity of a particular job, or more specifically the capacity to speak English when that is a requirement of the job. There was no dispute that the language requirements of jobs identified by the Panel in this case were relevant to deciding Mr Stankoski’s work capacity. The jobs considered by the Panel would all appear to have required a capacity to speak English.
Gruma Oceania Pty Ltd v Bakar
In Gruma Oceania Pty Ltd vBakar[10], the Victorian Court of Appeal by applying the principles discussed in Wingfoot found a Medical Panel’s reasons inadequate.
[10][2014] VSCA 252 (Neave, Santamaria and Kyrou JJA) (‘Bakar’).
Ms Bakar had worked as a process worker in a bread manufacturing factory before claiming worker’s compensation following an injury to her shoulder.[11] Her claim was accepted, but at a later date her payments were terminated on the basis that she had a current work capacity. She disputed this decision and the ACCS referred the same questions to a Medical Panel as it did in this case.
[11]Ibid [2].
The Panel found that Ms Bakar had a current work capacity. It provided a number of examples of the kinds of work that she would be incapable of performing, basing its finding on the medical examinations that it had undertaken and been referred to. The Panel also suggested a number of roles that Ms Bakar would be capable of performing, based on factors including the Panel’s ‘collective knowledge, experience, expertise and experience of industry’.[12]
[12]Bakar [2014] VSCA 252, [37].
The Court explained its conclusion as follows:
It is apparent from the summary at [37] above that, while the Panel explained why Ms Bakar was not capable of performing the Incapable Jobs by reference to her medical condition and linguistic skills, a similar explanation was not provided for the Panel’s conclusion that she was capable of performing the Capable Jobs and other unidentified jobs. Instead, the Panel simply relied on sweeping generalisations. In the case of the job ‘school crossing supervisor’, the Panel’s generalisation related to its collective knowledge, experience and expertise, its clinical findings and Ms Bakar’s transferable skills, without any reference to any particular aspect of her medical condition or transferable skill. In the case of the jobs ‘small product assembler’, ‘ticket seller’ and ‘sandwich maker’, the generalisation was at an even higher level of abstraction, namely the Panel’s ‘knowledge and experience of industry’.
By not linking its conclusion about Ms Bakar’s capacity to perform the Capable Jobs to any aspect of her medical condition, the Panel has failed to explain the relationship between the medical condition set out in the answer to the first medical question and the conclusion about Ms Bakar’s current work capacity that is set out in the answer to the second medical question. The absence of such an explanation means that the Panel has failed to provide a path of reasoning that explains the two answers.
The consequence is that the Reasons are insufficient to enable the Court to determine whether the Opinion does or does not involve any error of law. Accordingly, the Panel has failed to meet the test for adequate reasons under s 68(2) of the Act, as set out in Wingfoot.[13]
[13]Ibid [39]-[41] (Citations omitted).
The parties’ submissions
Mr Stankoski’s submissions
Mr Stankoski relied on the decision in Bakar[14] to support his argument that the Panel’s reasons were inadequate. He submitted that once the Panel decided to identify particular jobs that Mr Stankoski was capable of performing, it was required to link, with sufficient detail, the requirements of the work deemed suitable and his language and physical capabilities.
[14]Ibid.
Mr Stankoski further attacked the Panel’s reasons as inadequate on a number of different grounds, including that:
·his colloquial English whilst not sufficient to enable him to work as a ‘meeter/greeter’, would be sufficient to enable him to work as a ‘car park attendant’ or ‘ticket collector’.
·no link was made connecting his particular disabilities or capabilities to the jobs of ‘car park attendant’ and ‘ticket collector’ for which he was deemed capable.
·the jobs of ‘traffic controller’ or ‘security guard to a factory’ suggested in Mr Troy’s report were referred to, but not considered in any way.
·the reasons did not adequately explain the difference of opinion between the Panel’s findings on Mr Stankoski’s work capacity and the opinion of his treating General Practitioner, Dr Aleksova.
The Panel failed to explain why it considered that Mr Stankoski’s English was sufficient to enable him to work as a carpark attendant or a ticket collector, but not in several other jobs mentioned. There was no path of reasoning explaining the Panel’s consideration of the characteristics of the jobs that it identified, either of those it considered suitable or those it considered unsuitable.
Contrary to the principles discussed in Richter v Driscoll[15], the Panel, in its reasons, did not link the jobs in question to Mr Stankoski’s capacity, whether as to his language, training, physical or psychological in order to explain how it considered that he could undertake some jobs but not others.
[15][2016] VSCA 142 (Ashley, Osborn and Kaye JJA)( ‘Richter’).
The inadequacy of the Panel’s reasons was error of law on the face of the record, entitling Mr Stankoski to relief in the nature of certiorari.
Flickers’ submissions
Flickers sought to differentiate the reasons given by the Panel in this case from those in Bakar. It submitted that the Panel had referred to Mr Stankoski’s limited English ability twice in consideration of the mandatory relevant factors stipulated in the legislation. The Panel had noted aspects of Mr Stankoski’s past that indicated an awareness of his limited English, including that he had migrated to Australia when he was 29 years of age; and had completed English language classes as recently as June 2015. Taken together, these passages showed that the Panel was aware of Mr Stankoski’s language abilities and could be presumed to have taken that factor into account in its conclusions.
Flickers submitted that the passages in the Panel’s reasons relied on by Mr Stankoski were too selective. It noted that the reasons included the statement that:
The Panel therefore concluded that the worker has a current work capacity.
Flickers submitted that the particular passage relied on by Mr Stankoski, which involved in part consideration of Mr Troy’s report, was contained in a section of the reasons that explained why the Panel agreed or disagreed with reports of other doctors, which it had considered in forming its opinion. At law, the Panel was under no obligation to express reasons as to why it disagreed with the opinions of any other medical practitioner.[16] In the particular passage on which Mr Stankoski relied, the Panel was merely explaining why it disagreed with Mr Troy’s conclusions and was not giving reasons for any positive conclusion. The plaintiff’s approach to the text of the reasons was both artificial and erroneous.
[16]Wingfoot (2013) 252 CLR 480, 502 [56].
Flickers submitted that the decision in Richter[17] was relevant as to the principles to be applied, but not in other respects. The question whether the adequacy of reasons was always to be answered on the evidence of the particular case, and having regard to the reasons given by the particular Medical Panel. The Panel, in this case, did not tie its conclusion to the vocational assessment. Rather, the Panel interviewed Mr Stankoski and obtained a detailed history including as to his English language capacity. It assessed his ability to work having regard to the objective facts, to the things that he told the Panel and to their impressions of him and of his English language capacity. It could not have been expected to analyse the precise words that he would have been required to speak in each job that it considered. The Panel accepted that Mr Stankoski could work as a ‘car park attendant and/or ticket collector without requirement for retraining’, but explained that there were other jobs, such as ‘meeter and greeter’ which were beyond the limits of his English ability.
[17][2016] VSCA 142.
The Panel was not required to state the abilities required of each job touched upon in the materials, or to create a checklist and then determine whether Mr Stankoski ticked every box on that list. The Panel gave written reasons that identified the actual path it followed to conclude that he had the capacity for the two identified jobs, taking into account his English ability and the other factors that it expressly identified. The Panel’s opinion as to Mr Stankoski’s capacity for work was a question of fact.
Mr Stankoski’s sole ground of review was inadequate reasons and, unlike the position in Richter[18], he had not posited any supposed legal error that might not be revealed because of the inadequacies in the Panel’s statement of reasons.
[18]Ibid.
Analysis
It is important to state at the outset that the reasons of the Panel must be construed beneficially, and not be scrutinised over-zealously by seeking to discern whether some inadequacy may be gleaned from the way they are expressed.[19]
[19]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Panels need not explain how or why they disagree with any particular material before them, including medical opinions. Thus, the Panel, in this case, did not have to explain why it had not accepted the opinions of Mr Stankoski’s treating doctors.[20] However, if the Panel adopts a conclusion, then it must disclose the path of reasoning that has led to it. This is because, to repeat the principles set out in Wingfoot[21], the Court must be able to see from the path of reasoning whether the Panel’s opinion does or does not involve an error of law. A plaintiff does not have to establish that the provision of adequate reasons would have revealed an error of law.
[20]Wingfoot (2013) 252 CLR 480, 502 [56].
[21](2013) 252 CLR 480.
If a Medical Panel chooses to express its findings by providing examples of jobs deemed to be suitable employment, then sufficient information must be available to the Panel about those jobs for it to consider properly the worker’s suitability for them and to enable the Court to understand the Panel’s reasoning about those jobs.
The Panel’s reasons were, in many respects, detailed. However, it is important to keep in mind that the Panel found as a fact that Mr Stankoski had ‘poor English language capabilities’. He also had ‘reasonable’ function in his left arm and hand, but with some limitation. The Panel’s reasons suggest that it used the assistance of a Macedonian interpreter in speaking with him. It is accepted that his poor English was relevant to his capacity to perform the work required in particular jobs. His language was one part of the ‘entirety of [his] personal circumstances’[22] to be considered. The reasons suggest that that was the most important factor affecting the Panel’s answer to the second question referred for its opinion. The Panel distinguished between the jobs that it considered that Mr Stankoski was capable of performing and those that it considered that he was not. That distinction appears to have been based on the Panel’s decision of what it considered the jobs required. But, its path of reasoning about that matter was not disclosed. It had no job or duty descriptions for any of the jobs that it mentioned. At first glance, it is easy to assume that the requirements of jobs such as ‘ticket collector’ or ‘car park attendant’ are self–evident. However, that is not necessarily the case and, in any event, if that were the Panel’s approach, it should have been stated in its reasons.
[22]Richter, [75].
It is worthwhile recapping how the Panel’s formation of opinion appeared to have occurred. As mentioned, the NES Vocational Assessment had concluded that were Mr Stankoski’s medical situation to improve, with some additional training, he may become suitable to become a: Process Worker; Safety Inspector; or Packer. The Assessment came to this conclusion by reference to ANZCO job descriptions. The Assessment did not refer to the positions of ‘car park attendant’, ‘ticket collector’ or ‘meeter/greeter’. Those references came from Mr Troy, an independent medical expert, whose experience or qualifications in the identification of the duties of particular jobs, were unstated. Mr Troy did not refer to any ANZCO descriptions for these jobs.
The Panel had the benefit of reading the NES Vocational Assessment and Mr Troy’s consideration of it and thereafter reached its opinion. As the excerpts of the Panel’s reasons set out above show, the Panel agreed with some of Mr Troy’s conclusions and disagreed with others. It is worth repeating the Panel’s Opinion:
Whilst the Panel agreed with the Mr Troy that Mr Stankoski would be able to undertake employment options of car park attendant and ticket collector the Panel disagreed that he could be a meeter/greeter as his English language skills were not entirely sufficient for colloquial greetings in English.
The Panel did not demonstrate how or why it agreed with Mr Troy, by reference to the duties of the jobs. It did not show a path of reasoning that disclosed its reasons for concurring with Mr Troy; nor could it have done so, as no reasons appear in Mr Troy’s report to explain why he considered that Mr Stankoski was capable of performing the two particular jobs to which the Panel referred. The Panel’s discussions with Mr Stankoski about these roles appears to have been limited – the reasons record that he said in respect of the position of a car park attendant or a ticket collector – ‘how long will I be doing it, what if they sacked me’ – ‘who else would employ me’. This is not a case where it can be concluded that, because the Panel questioned the worker about the jobs, that it considered their requirements, and considered the limitations identified in a Vocational Assessment Report.[23] The two positions of ‘car park attendant’ and ‘ticket collector’ were not even mentioned in the Vocational Assessment Report.
[23]As had apparently occurred in Haq v Dodgshun [2015] VSC 450, [50].
As stated, the Panel’s reasons indicate that it agreed with some, but not all of Mr Troy’s conclusions. But, for the reasons previously expressed, Mr Troy’s conclusions provided no path of reasoning for the Panel.
All of the jobs that the Panel and Mr Troy considered must have required some degree of customer service and contact requiring the use of at least colloquial English. Making the reasonable assumption that the Panel concluded that Mr Stankoski’s English level was sufficient to undertake the roles of ‘car park attendant’ or ‘ticket collector’; the reasons involve no more than a conclusion with no path of reasoning disclosing why that conclusion was reached in the case of a worker with ‘poor English language capabilities.’
In Richter[24] the third ground of appeal concerned the adequacy of the Panel’s reasoning. The Court determined that the Panel’s reasons failed to describe its path of reasoning for the conclusion that the applicant had the physical capacity to engage in light process work. The reasons were ‘by no means adequate’ to enable an understanding of how the Panel concluded that the applicant had the physical capacity to perform certain duties. It was unclear what knowledge ‘the employment services consultant’ had of the jobs fitting particular titles. Bakar[25] is a similar case.
[24][2016] VSCA 142.
[25][2014] VSCA 252.
In Richter[26], the Court stated that without some exposition of what the Panel took to be the duties involved, and some jobs being available falling within that broad job title, it was not possible to say whether a job fitting that description was available when regard was had to the applicant’s place of residence. Similarly, in the present case, without some exposition of what the Panel took to be the duties involved in the jobs of ‘car park attendant’ or ‘ticket collector’, it is not possible to identify the Panel’s path of reasoning leading to the opinion that Mr Stankoski had a current capacity for work by reference to those jobs. The Panel must have had a path of reasoning to distinguish between those jobs and those of ‘traffic controller’ or ‘security guard to a factory’, that it did not consider were suitable for Mr Stankoski. One might speculate that it involved its assessment of Mr Stankoski’s capability in English and some unstated assessment of the duties of the particular jobs. But, that is to speculate and the requirement for the provision of a path of reasoning exists to remove the need for speculation.
[26]Ibid [126].
Conclusion
Applying, the principles discussed in Wingfoot,[27] I consider that the Panel did not provide adequate reasons as required by the WIRC Act of its opinion that Mr Stankoski did have a current work capacity.
[27]Wingfoot (2013)252 CLR 480, 501 [55].
I will grant an order in the nature of certiorari for error of law on the face of the record and quash the Panel’s certificate of opinion and remit the questions referred to it for rehearing in accordance with law.
SCHEDULE OF PARTIES
S CI 2015 05305 BETWEEN: KOSTE STANKOSKI Plaintiff - and - FLICKERS AUSTRALIA PTY LTD (ACN 005 660 837) First Defendant - and - RUSSELL CORLETT Second Defendant - and - PETER GIBBONS Third Defendant - and - SIMON STAFRACE Fourth Defendant
0
7
0