Steel Smith Engineering Pty Ltd v McPhee
[2020] VSC 571
•8 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 05089
| STEEL SMITH ENGINEERING PTY LTD | Plaintiff |
| - and - | |
| PETER JOHN MCPHEE and ORS (according to the attached Schedule) | Defendants |
---
JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 July 2020 |
DATE OF JUDGMENT: | 8 September 2020 |
CASE MAY BE CITED AS: | Steel Smith Engineering Pty Ltd v McPhee & Ors |
MEDIUM NEUTRAL CITATION: | [2020] VSC 571 |
---
ADMINISTRATIVE LAW – Judicial review – Medical panel opinion – Whether medical panel made typographical error or erred in reaching conclusion of ‘no current work capacity’ – Whether medical panel erred by limiting inquiry of ‘no current work capacity’ to only five identified employment options – Whether medical panel reasons and conclusions lacked intelligible justification – Whether medical panel failed to take into account mandatory consideration of employment history – Whether medical panel failed to give proper and adequate written reasons – Accident Compensation Act 1985 ss 91, 98C – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 3 and 313 – Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 22 CLR 480 – Minister for Immigration and Citizenship v Li & Ors (2013) 249 CLR 332 – Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Michael Fleming QC with Ms Fiona Spencer | IDP Lawyers |
| For the Defendants | Mr Stephen Moloney with Ms Simone Bailey | Saines Lucas Solicitors |
HER HONOUR:
Introduction
The first defendant (‘Mr McPhee’) was employed by the Plaintiff, Steel Smith Engineering Pty Ltd as a boiler maker and welder from 2003 to 2010.
In May 2008, Mr McPhee made a claim for injury to his left knee sustained on 11 November 2004. This claim was accepted. Between May 2008 and June 2010, Mr McPhee was off work or on modified duties.
From June 2008 to December 2012, Mr McPhee underwent eight surgical procedures on his left knee.
In July 2010, Mr McPhee lodged an impairment benefits claim for injuries to his left leg/knee, right knee, lumbar spine and both hips.
On 21 August 2013, liability was accepted for the left leg (knee only), but rejected for the other claimed injuries. This was disputed, and referred to a medical panel which provided its opinion on 27 July 2016.
That medical panel found that Mr McPhee’s employment with the Plaintiff was a significant contributing factor to his lumbar spine and left hip, but not to his right knee dysfunction.
On 17 August 2016, the Plaintiff’s insurer, CGU, received a request from Mr McPhee’s surgeon, Mr Phong Tran, for approval for a total right hip replacement. On 8 September 2016, CGU rejected the request (‘the first dispute’).
Mr McPhee underwent a right hip replacement on 24 October 2016.
On 11 January 2018, Mr McPhee submitted a WorkCover claim alleging injuries to his left hip, lumbar spine, right hip, rectal tear due to constipation from medication, and to his right knee. These injuries were said to be from falls in December 2007 to January 2008, or as sequelae to the accepted left knee injury.
Mr McPhee was advised on 26 February 2018, that liability for these claims was rejected by the Plaintiff’s authorised insurer (‘the second dispute’).
On 3 March 2018 or 11 April 2018, Mr McPhee submitted a WorkCover form alleging injury to his cervical spine as a result of lifting heavy steel and from multiple falls in his employment with the Plaintiff.
Mr McPhee was advised on 31 May 2018 that this claim was rejected (‘the third dispute). On or about 16 August 2018 Mr McPhee had surgery to his cervical spine.
Mr McPhee brought a proceeding in the Magistrate’s Court challenging the decisions in relation to the first, second and third disputes. Mr McPhee subsequently made an application that medical questions in relation to the three disputes be referred to a medical panel.
On or about 15 February 2019, the Magistrate’s Court referred medical questions to a new medical panel for an opinion pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘Workplace Injury Act’).
A medical panel comprising the second, third, fourth, fifth, sixth and seventh Defendants (‘the Panel’), was convened to give its opinion on the referred medical questions.
Mr McPhee was examined by the Panel on 17 July and 15 August 2019. The Panel was provided with a copy of documents set out in the exhibit AT-1 of Anne Teoludzka sworn 8 November 2019.
The Panel’s Opinion and Reasons
The Panel provided a Certificate of Opinion (‘the Opinion’) and the Reasons for Opinion (‘the Reasons’), both dated 9 September 2019. In the Panel’s Reasons, the Panel considered five issues in dispute. These were ultimately divided into six questions in the Opinion. Only questions four and five (‘Questions 4 and 5’), and the Panel’s answers to them, are relevant for this application:
Question 4 In the period from 17 April 2012 to the date of the Medical Panel’s examination, did/does the plaintiff have:
(a) a current work capacity; or
(b) no current work capacity?
Answer: (a) No.
(b) Yes.
Question 5If the plaintiff had no current work capacity in the period from 17 April 2012 to the date of the Medical Panel’s examination:
(a) was he likely to continue indefinitely to have no current work capacity;
(b) did his incapacity for work result from, or was it materially contributed to by any, and if so which, of the alleged injuries in question 1?
Answer: (a) Yes
(b) The Panel is of the opinion that Mr McPhee’s incapacity for work was materially contributed to by the left knee dysfunction following a patellofemoral injury, surgically treated by a left total knee replacement,[1]
[1]Medical Panel Reference Number: M119/0479, 9 September 2019, Certificate of Opinion, 2–3 (‘Opinion’).
The Plaintiff seeks to quash answers 4 and 5 of the Opinion on the basis that the questions were affected by jurisdictional error, or error on the face of the record.
The Panel considered in detail the chronology of the Mr McPhee’s injuries and the nature of his injuries. For the purposes of this application, the Panel’s assessment of any injuries Mr McPhee suffered other than his left knee injury are not in dispute.
Left knee injury
The Panel was told by Mr McPhee that on 11 November 2004 he developed pain over the outer aspect of his left knee related to kneeling on rough concrete while installing steel bollards. He told the Panel that he attended a hospital accident and emergency department the following day which diagnosed him with a left knee strain. His left knee symptoms settled over the next few months.[2]
[2]Medical Panel Reference Number: M119/0479, 9 September 2019, Reasons for Opinion, 6 (‘Reasons’).
While refurbishing a large dryer in late 2007 or early 2008, Mr McPhee had a series of falls in which he reinjured his left knee. He attended his general practitioner on 5 May 2008 and provided a history of his left knee injury which had occurred in 2004. In subsequent consultations with his general practitioner over the next 12 months, no notes were made mentioning the further injuries in late 2007 or early 2008.[3]
[3]Ibid 7.
Mr McPhee had X-rays of his left knee and was referred to an orthopaedic surgeon, Mr David Mitchell. He underwent three arthroscopic procedures on his left knee on 25 June 2008, 18 March 2009 and 13 May 2009 by the same surgeon. Mr McPhee told the Panel that none of these procedures had helped his left knee symptoms.[4]
[4]Ibid.
Mr McPhee was referred to a second orthopaedic surgeon, Mr Bartlett, who recommended no change in his treatment. Mr McPhee then attended a third orthopaedic surgeon on 5 October 2009, Mr Andrew Byrne. The third surgeon performed three arthroscopic procedures on 23 December 2009, 17 February 2011 and 13 October 2011 on his left knee. He also had a Synvisc injection into his left knee. Mr McPhee told the Panel that none of these procedures improved his symptoms.[5]
[5]Ibid.
Mr McPhee attended a fourth surgeon on 18 May 2012, Mr Timothy Whitehead. He underwent a further arthroscopy of his left knee on 29 May 2012 without improvement. He re-attended the third surgeon, Mr Andrew Byrne on 20 December 2012, and had a further arthroscopy of his left knee which did not improve his symptoms.[6]
[6]Ibid.
On 4 June 2013, Mr McPhee attended a fifth orthopaedic surgeon, Mr Paul Plank, who recommended conservative treatment and referred Mr McPhee to a sixth surgeon, Mr Phong Tran.[7] On 24 October 2014, a left total knee replacement was performed by the sixth surgeon,[8] with Mr Tran describing Mr McPhee having ‘a fantastic result.’[9].
[7]Ibid.
[8]Ibid.
[9]Electronic Court Book, Steel Smith Engineering Pty Ltd v McPhee & Ors (Supreme Court of Victoria, S ECI 2019 05089), 252 (‘Electronic Court Book’).
Before the Panel, Mr McPhee said the his left knee symptoms recently increased and included pain deep in the back of the knee in addition to the medial aspect of his left knee. He told the Panel that the left knee swells to a variable extent, that he is unable to kneel on his left knee, his left lower limb may go numb or have pins and needles, and that he has to be careful as his left lower limb may give way.[10]
[10]Ibid 8.
When the Panel physically examined Mr McPhee it noted that:
·he walked with a slightly wide based gait with an increased bearing on his left lower limb;
·he was able to stand on his toes and heels;
·the Trendelenburg test in both his left and right legs was negative;
·he had equal leg lengths and there was no wasting of his thigh muscles to circumferential measurement;
·there is a 17 cm scar over the anterior aspect of his left knee;
·the range of motion in his left knee was restricted from 0° through to 100° flexion; and
·there was no anteroposterior instability or mediolateral instability.[11]
[11]Ibid.
The Panel examined X-rays of his left knee, dated 30 January 2014, and concluded that there was mild joint space narrowing in the medial compartment of the knee. Subsequent X-rays of his left knee dated 30 October 2014 showed the presence of a cementless left total knee replacement.[12]
[12]Ibid.
The Panel referred to the Certificate of Opinion and Reasons for Opinion of a previously differently constituted medical panel dated 17 June 2013. It noted that the previous Panel concluded that ‘…the worker is suffering from chondro pathology of the medial and patellofemoral compartments of the left knee, relevant to the claimed left knee.’[13]
[13]Ibid.
The Panel considered that Mr McPhee had left knee dysfunction following an initial patellofemoral injury in 2004.[14] The Panel noted that Mr McPhee described a deterioration in his level of symptoms related to his left knee more recently. The Panel noted a good clinical result from the left total knee replacement.[15]
[14]Ibid.
[15]Ibid 9.
The Panel concluded that Mr McPhee is suffering from left knee dysfunction following a patellofemoral injury, surgically treated by a left total knee replacement, relevant to the alleged injuries.[16]
[16]Ibid.
Significant contributing factor
The Panel considered the nature of Mr McPhee’s work as a contributing factor to his left knee injury. The Panel took into account the nature of Mr McPhee's general duties, the fact that he had performed alternative duties from May 2008, and that he had not worked (presumably in his role as a boiler maker and welder) since June 2010.[17]
[17]Ibid 16.
The Panel also considered the likelihood of such problems developing due to age related degeneration and whether any alleged injury was a sequelae or consequence of an accepted injury.[18]
[18]Ibid.
Based upon several factors, the Panel concluded that Mr McPhee's left knee injury, soft tissue injury of the lumbar spine and soft tissue injury of the left hip were not a material contributing factors to any other injury of the lumbar spine, left hip, right knee, right hip or cervical spine.[19]
[19]Ibid.
The Panel noted that in the context of taking constipation inducing narcotic analgesia and other medication, Mr McPhee had suffered perianal pain, rectal bleeding and an anorectal fissure treated surgically and that this ‘resulted from and was materially contributed to by the accepted injury to Mr McPhee’s left knee injury.’[20]
[20]Ibid.
Work capacity
The Panel took an employment history from Mr McPhee. The Panel considered that Mr McPhee had an incapacity arising from an injury for his pre-injury work, from 17 April 2012 to the date of examination.[21]
[21]Ibid 18.
Under ‘WORK CAPACITY’ the Panel set out the personal information Mr McPhee that conveyed to the Panel. I quote verbatim from this section of the Reasons:
Mr McPhee told the Panel that-
·He is now aged 56 and right handed.
·He completed half of Year 10 education.
·He trained as a boilermaker/welder.
·He lives in Smythesdale outside of Ballarat.
·He was employed by Steelsmith Engineering them from 2003 to 2010.
·He has no computer skills.
·Since his injuries he has completed a Certificate IV in Disability Services (‘Certificate IV’) and worked for 3 to 4 months in Disability Services in 2015.
·He holds a car and motorbike licence.
·He has previously worked in maintenance services.
Mr McPhee also told the Panel that:-
·He is functionally limited to a sitting tolerance of 30 minutes due to low back and hip pain.
·His standing tolerance is limited to 30 minutes for similar reasons.
·His sleep is broken as he cannot lie comfortably on either the left or right side and he suffers pins and needles in the hands.
·He said that at home he has a 20 year old son and his wife who works during the day.
·He spends his days doing some vacuuming, washing clothes and cooking.
·He shares the shopping with his wife.
·His son now mows the lawns using a ride-on-mower.
·He is able to drive an automatic vehicle.[22]
[22]Ibid 16–17.
The Panel then progressed to apply these issues to the statutory definitions of ‘no current work capacity,’ ‘current work capacity’ and ‘suitable employment’ within the Act. The Panel noted that:
·Mr McPhee’s current age of 55 places him within an employable age group.
·His current place of residence in Smythesdale, near Ballarat, provides many employment options.
·His lack of computer skills and other administrative experience limits his employment options.
·The current physical condition of his left knee condition limits his ability to perform any work requiring constant standing, walking, squatting, kneeling or climbing of ladders and stairs.
·His current medication includes narcotic analgesia which would limit his ability to concentrate and may make him unsafe with heavy machinery.
·The other physical conditions are either no longer related to his work or are not related to his work.[23]
[23]Ibid 17.
The Panel considered the vocational assessment report dated 17 September 2010. In particular the Panel considered the ‘identified employment options’ of:
·Forklift operator
·Sales Representative
·Warehouse Dispatch Clerk
·Plant Operator
·Vocational Education Trainer[24]
[24]Ibid.
The Panel continued:
The Panel noted that work as a Warehouse Dispatch Clerk, Plant Operator and Vocational Education Trainer required further training and qualifications not held by Mr McPhee and that such training had not been provided.
The Panel also noted that that Mr McPhee had no experience or skills in sales.[25]
[25]Ibid.
The Panel concluded in relation to Mr McPhee’s current work capacity that there is no work for which Mr McPhee is currently suited which he could perform on a reliable and consistent basis and therefore he had no current work capacity. In relation to Mr McPhee’s past work capacity the Panel said:
The Panel considered that Mr McPhee’s condition has not improved since 21 October 2017 but that there had been no substantial change during that period and that therefore Mr McPhee had no current work capacity in the period from 17 April 2012 up to the date of the Medical Panel examination (‘the Impugned Paragraph’).[26]
[26]Ibid (emphasis added).
It was this Impugned Paragraph, including its meaning, construction and conclusions, that was the central thrust of the Plaintiff’s arguments during this proceeding.
Concluding on this point, the Panel considered that Mr McPhee’s condition was unlikely to improve in the foreseeable future and that he was therefore likely to continue indefinitely to have no current work capacity.[27]
[27]Ibid 18.
Applicable Legislation
Compensation
Mr McPhee suffered his injury on 11 November 2004, before the commencement of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘Workplace Injury Act’) on 1 July 2014. Pursuant to s 5(1) of the Workplace Injury Act, this means that the statutory scheme for workplace compensation in the Accident Compensation Act 2013 (Vic) (‘Accident Compensation Act’) applies. Pursuant to s 93 of the Accident Compensation Act, a worker is entitled to compensation in the form of weekly payments in accordance with Part 4 of the Act if:
[that] worker’s incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation.
After the expiry of the ‘second entitlement period’ (in this case, 130 weeks), Mr McPhee is entitled to ongoing weekly payments only if he is assessed as having ‘no current work capacity’, with that state likely to continue indefinitely.[28]
[28]Accident Compensation Act 2013 s 93C(1).
Relevant definitions
Section 5(2) of the Accident Compensation Act incorporates the relevant definitions from s 3 of the Workplace Injury Act. The terms ‘current work capacity’ and ‘no current work capacity’ as referred to in the Panel’s Reasons are defined by s 3 of the Workplace Injury Act 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;
The term ‘suitable employment’ is referred to in both definitions above, as well as in the Reasons. ‘Suitable employment’ is also defined in s 3 of the Workplace Injury Act as:
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.
Duty to provide written reasons
The Panel’s duty to provide written reasons is set out in s 313 of the Workplace Injury Rehabilitation Act, which provides that:
313 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.
Grounds for Review
The Plaintiff seeks judicial review of the Panel’s Opinion in regards to Questions 4 and 5.[29]
[29]Originating Motion for Judicial Review, filed 8 November 2019.
Rather than address each ground of review sequentially as set out in the Originating Motion, I will group the grounds together that deal with common facts. Given the interrelatedness of the various grounds of appeal in relation to the Impugned Paragraph, I will consider Grounds 1(a) 2(a) together. I will then address Ground 2(b). Thereafter I analysis Ground 4. I will then turn to Grounds 1(b) and 1(c) when considering the Panel’s analysis of employment options and work capacity. Finally, I will consider Ground 3 discretely in dealing with whether the Panel failed to take into account a mandatory consideration.
Grounds 1(a) and 2(a)
Ground 1 – In arriving at its opinion in answer to referred question 4, the Panel failed to carry out its function and thereby fell into jurisdictional error or alternatively made an error of law which is apparent on the face of the record in that:
(a) The Panel reached its conclusion that Mr McPhee had in the period from 17 April 2012 to the date of the Panel’s examination ‘no current work capacity’ on the basis of a finding that Mr McPhee’s “condition had not improved since 21 October 2017 but that there had been no substantial change during that period” and failed to consider and determine whether Mr McPhee had ‘no current work capacity’ or a ‘current work capacity’ during any or all points in that period.
Ground 2 – In concluding that Mr McPhee had in the period from 17 April 2012 to the date of the Panel’s examination ‘no current work capacity’, the Panel fell into jurisdictional error or alternatively made an error of law which is apparent on the face of the record in that:
(a)The Panel reached its conclusion on the basis of a finding that Mr McPhee’s ‘condition had not improved since 21 October 2017 but that there had been no substantial change during that period’.
Plaintiff’s submissions
The Plaintiff claims that the Panel, when determining whether Mr McPhee had no current work capacity, failed to consider the correct period it was required to by Question 4, which began from 17 April 2012, and not 21 October 2017 as stated in the Impugned Paragraph.
The Plaintiff also argues that the Panel did not give any consideration to the claimed significant improvement in Mr McPhee’s left knee symptoms following his left knee replacement surgery performed on 24 October 2014 and that Mr McPhee was allegedly able to retrain and return to employment in 2015.
The Plaintiff points to the lack of any mention of the significant improvement brought about by the 2014 surgery or Mr McPhee’s return to employment in 2016 in the Reasons. It argues that substituting 17 April 2012 for 21 October 2017 in the Reasons does not render the Impugned Paragraph more comprehensible, and therefore indicates a more fundamental error in the Reasons. This more fundamental error relates to the Panel failing to properly discharge its function of determining whether Mr McPhee was totally incapacitated for all employment, including employment on a part-time or casual basis, at all points in more than the seven year period from 2012.
Mr McPhee’s submissions
Mr McPhee submits that the reference to 21 October 2017 is an obvious typographical error which only occurred in one place in the Reasons, that is the Impugned Paragraph.
It is submitted that if this date were substituted for 17 April 2012, the correct date, that the Reasons could be read properly, and that it is clear from the Reasons as a whole that the Panel understood the correct date to be 17 April 2012. This is particularly so given that:
(a) the Panel referred to 17 April 2012 in various parts of the Reasons, including in the later part of the very same sentence that the Plaintiff takes issue with;
(b) the Panel’s evident regard to the evidence, including Mr McPhee’s injuries and medical history dating back to 2004;
(c) the definition of ‘no current work capacity’ in the Workplace Injury Rehabilitation Act that required the Panel to consider whether Mr McPhee could return to his pre-injury employment or in suitable employment; and
(d) the 21 October 2017 date is unrelated to any other matter in the proceeding and is not referred to anywhere else. This reinforces the view that the date is simply an oversight and would simply not make any sense if taken as accurate.
Mr McPhee also submits, relying on the High Court’s decision in Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’),[30] that the Panel’s Reasons should not scrutinised ‘overzealously’, and should be read as a whole, rather than severing the sentence in issue away from its context. When read as a whole, it is submitted that the Panel’s path of reasoning is clear and was not reliant on the 21 October 2017 date. Therefore, it submitted that this error does not amount to jurisdictional error because the mistake was not a factual inaccuracy, but an expression with no causative link to the rest of the Panel’s considerations and conclusions.
[30](2013) 252 CLR 480.
Finally, Mr McPhee argues that the Plaintiff’s submission on the Panel failing to take into account Mr McPhee’s ability to retrain and that his left knee had significantly improved since the knee replacement in 2013, is misguided. Mr McPhee submits that these matters were expressly referred to in the Reasons and clearly formed part of the Panel’s path of reasoning.
Analysis
The Court’s task is to consider whether the Panel performed its statutory duty, that is, to answer, among other questions, Questions 4 and 5 which form the heart of the dispute in this case.
Having regard to the oral and written submissions, which were somewhat disconnected to the order of the issues in the Originating Motion, I will break up the analysis into the following based on my view of the issues in dispute in Grounds 1(a) and 2(a):
(a) did the Panel assess Mr McPhee’s work capacity with the wrong timeframe in mind?
(b) even with a date substitution in the Reasons, is there a jurisdictional error or error of law on the face of the record in the Reasons based on the inconsistency between the Panel’s conclusion that Mr McPhee had not improved in the relevant period and other findings that the knee replacement resulted in an improvement?
Did the Panel assess Mr McPhee’s work capacity with the wrong timeframe in mind?
It is accepted by both parties that 21 October 2017 is the wrong date. This is evident from Questions 4 and 5, which specifies the relevant start date as 17 April 2012. Whether this is a simple typographical error, or whether the Panel actually had the wrong date in mind when answering Questions 4 and 5, requires the Court to read and consider the Reasons in full, to establish the relevant path of reasoning and underlying bases for the Impugned Paragraph. It cannot be determined simply by excising the paragraph and reading it on its own, which, at first glance, reads poorly and is confusing.
In the Reasons, the Panel details the history of Mr McPhee’s left knee history, beginning with the injury on 11 November 2004. The Panel examined X-rays of the left knee from January 2014 and from October 2014 (after the total knee replacement). The Panel then notes that Mr McPhee described a deterioration in his left knee symptoms more recently, and that the total left knee replacement on 24 October 2014 achieved a ‘good clinical result’. Critically, following this chronological excursion, under the heading ‘WORK CAPACITY’, the Panel wrote:
The Panel considered the functional requirements of Mr McPhee’s pre-injury work as a boilermaker/welder. The Panel considered that he would be incapable of constant standing, walking, squatting, kneeling, climbing of ladders and stairs, because of his left knee dysfunction following a patellofemoral injury, surgically treated by a left total knee replacement, and therefore Mr McPhee has an incapacity arising from an injury for his pre-injury work. The Panel also concluded that this incapacity included the period 17 April 2012 to the date of the Medical Panel’s examination.[31]
[31]Reasons 17 (emphasis added).
Having regard to the Reasons as a whole, it is abundantly clear that the 21 October 2017 date is a typographical error, and that the Panel had the right timeframe in mind (that is, the period beginning 17 April 2012) when answering Question 4. The conclusion reached by the Panel which refers to the correct date, and indeed, the subsequent part of the very same sentence at issue which also refers to the correct date (‘therefore Mr McPhee had no current work capacity in the period from 17 April 2012 up to the date of the Medical Panel Examination’),[32] in conjunction with the fact that 21 October 2017 is not a relevant date in this proceeding and is not mentioned anywhere else in the Reasons, all point decisively to it being a typographical error.
[32]Ibid 18.
Furthermore, in light of the chronological history of the left knee condition set out by the Panel, which included relevant events in 2012 and prior, it would be very strange indeed for me to read the Reasons as the Panel limiting the time period in its conclusion when it has, in so much detail, set out the relevant account of Mr McPhee’s left knee from 2004 as the starting point for its consideration and taken it in on board in its reasoning process. The Plaintiff’s contention on this point is therefore untenable.
Even with a date substitution in the Reasons, is there a jurisdictional error or error of law on the face of the record in the Reasons based on the inconsistency between the Panel’s conclusion that Mr McPhee had not improved in the relevant period and other findings that the knee replacement resulted in an improvement
I now turn to the question of whether there is still a jurisdictional error even with the understanding that the date of 21 October 2017 was an oversight. The issue here is whether there is an irreconcilable tension between, on the one hand, the Panel stating that Mr McPhee’s total left knee replacement in 2014 ‘significantly improved his left knee symptoms’ along with other evidence that the knee replacement resulted in an improvement for him, and on the other hand, the Panel’s conclusion that ‘Mr McPhee’s condition has not improved since [17 April 2012]’.
I find that the Panel’s Reasons can be understood cohesively, and that the statements identified by the Plaintiff’s counsel as being inextricably contradictory to the conclusion, are simply part of the Panel’s recognition that Mr McPhee’s left knee condition is not static. As counsel for the Plaintiff highlighted in oral submissions,[33] the Panel, in its canvassing of the history of the left knee, noted that the left total knee replacement performed on 24 October 2014 ‘significantly improved his left knee symptoms’. However, on the very next page, under the heading ‘Current Status’, the Panel wrote:
Mr McPhee told the Panel that:
·His left knee symptoms have recently increased and include pain deep in the back of the knee and also the medial aspect of the left knee.
·The left knee swells to a variable extent.
·He is unable to kneel on his left knee.[34]
[33]Transcript of Proceedings, Steel Smith Engineering Pty Ltd v McPhee & Ors (Supreme Court of Victoria, S ECI 2019 05089, Incerti J, 28 July 2020) 9.9–10.26 (‘T’).
[34]Reasons 8 (emphasis added).
After noting Mr McPhee’s physical examination results, and other evidence, including the reasons for opinion of an earlier medical panel, the Panel stated:
The Panel noted that he describes a deterioration in his level of symptoms related to his left knee more recently. The Panel noted a good clinical result from the total left knee replacement.[35]
[35]Reasons 9 (emphasis added).
I consider that the Panel did take into account the improvements in Mr McPhee’s knee following the total replacement in 2014. So much is clear from the Reasons. However, these improvements in the symptoms were temporally proximate to the actual replacement, rather than an ongoing conclusion of linear improvement. In fact, it was counsel for the Plaintiff in oral submissions who argued that Mr McPhee’s knee condition was not static or unchanged.[36] This is made evident from the language of the Panel which reinforces the view that Mr McPhee’s symptoms deteriorated ‘recently’ (that is, close in time to the date of the Panel’s examination) and that its ‘current’ assessment of his knee was that it limited ‘his ability to perform any work requiring constant standing, walking, squatting, kneeling or climbing of ladders and stairs.’[37]
[36]T5.25–6.4.
[37]T37.26-T3.1; Reasons 17.
These various statements are not fundamentally incompatible with a cohesive reading of the Reasons,[38] if we consider the temporal element, that is, when the improvements and deterioration occurred. The Panel formed its medical opinion, as it was obligated to do, by taking into account the history of the knee condition, and the relevant time period from 17 April 2012. The Panel concluded that even though the knee replacement may have resulted in improvements (even significant improvements) to Mr McPhee’s symptoms at specific points in time, its assessment of his current knee condition, at the date of the Assessment, was as outlined above. Additionally, this rationale is also not inconsistent with its opinion that, despite improvements at certain periods, given its current assessment, Mr McPhee’s condition had not, overall, improved or substantially changed in the 7 year period between 17 April 2012 and the date of the Panel examination.
[38]T10.10–26.
Regarding the comments made by Mr Tran that Mr McPhee’s total left knee surgery produced a ‘fantastic result,’ I do not consider that such an opinion creates a contradiction in the Panel’s Reasons. The Panel had access to the reports of Mr Tran, read them and considered them. This much is evident from the reference to his reports in the Reasons, and the inclusion of Mr Tran’s 20 April 2015 report wherein he commented upon the ‘fantastic result’ of the surgery in the Amended Schedule of Documents attached to the Reasons.[39] I do not consider that the positive opinion of a surgeon commenting upon the outcome of one procedure is sufficient to displace the cohesiveness of the Panel’s overall assessment. Mr Tran’s comments are just his comments on the result of the surgery.
[39]Electronic Court Book 40.
In light of these findings, I conclude that the Panel did not fail to consider and determine whether Mr McPhee had ‘no current work capacity’ or a ‘current work capacity’ with reference to the correct time range, nor are the Panel’s conclusions internally inconsistent with its own findings. Consequently, the grounds of review in Grounds 1(a) and 2(a) must fail.
I now turn to the next ground of review relevant to the Impugned Paragraph, that is the Panel’s conclusion lacked an evident and intelligible justification or is otherwise legally unreasonable.
Ground 2(b)
Ground 2 – In concluding that Mr McPhee had in the period from 17 April 2012 to the date of the Panel’s examination ‘no current work capacity’, the Panel fell into jurisdictional error or alternatively made an error of law which is apparent on the face of the record in that:
(b) the Panel’s conclusion lacks an evident and intelligible justification or is otherwise legally unreasonable.
Plaintiff’s Submissions
The Plaintiff submits that the Panel’s conclusion and answer to Question 4 and 5 lacks an evident and intelligible justification, and is legally unreasonable in the sense articulated by the High Court in Minister for Immigration and Citizenship v Li & Ors (‘Li’).[40]
[40](2013) 249 CLR 332.
In its written submissions, the Plaintiff pointed to the Panel’s finding that Mr McPhee’s condition had not improved since 21 October 2017 as forming the basis for concluding that he had no current work capacity from 17 April 2012 to the date of the examination.[41] As I have noted above, given that this date is clearly a typographical error, and the paragraph is not to be read in isolation from the rest of the Reasons, there is not much substance in this argument. However, in its oral submissions, the Plaintiff pivoted the argument.
[41]Steel Smith Engineering Pty Ltd, Plaintiff’s Outline of Submissions, 10 March 2020, 7.
In oral submissions, counsel for the Plaintiff argued that given the evidence of improvement in McPhee’s left knee following the total knee replacement in October 2014, and his return to work in 2015/2016, it was symptoms from his right hip that caused his pain, rather than his left knee, and that this is the relevant context against which the Panel’s conclusion must be considered.[42]
[42]T10.27–11.8.
Counsel for the Plaintiff, relying on Li and Minister for Immigration and Border Protection v SZFVW (‘SZFVW’),[43] submitted that the Panel could not reach its decision by ‘necessary implication’, but rather, its reasoning should be evident and intelligible. It is argued that even with the substitution of the correct date, 17 April 2012, the conclusions and the Panel’s Reasons do not adequately allow the Court to be satisfied that the Panel performed its statutory function or to understand why it formed the opinion that it did.[44]
[43](2018) 357 ALR 408.
[44]T22.16–24.
Defendant’s Submissions
Mr McPhee disputes the Plaintiff’s submission that there was a finding that Mr McPhee’s condition had not improved since 21 October 2017. It is submitted that the Reasons detail numerous findings of fact, the reasons behind them, and the logical connection relevant to the finding that Mr McPhee had no current work capacity from 2012 to the date of the assessment.
Mr McPhee points to the underlying facts and analyses which form the basis for the Panel’s conclusion, including:
(a) the eight surgeries that Mr McPhee had undergone between 2008 and 2014, including the total knee replacement;
(b) Mr McPhee’s constipation since 2013 and the colonoscopy and sphincterectomy which provided roughly six months of relief;
(c) Mr McPhee’s work history;
(d) Mr McPhee’s Certificate IV and the several months of work as a care attendant in 2015;
(e) Mr McPhee’s lack of experience in sales and lack of other relevant training to qualify him for work with the identified alternative employment options.
It is submitted that these underlying factual determinations preclude the Plaintiff’s submission that the Panel found that McPhee’s condition had not improved since October 2017, and that it sets out the building blocks for the final conclusions which are clearly within the range of reasonable outcomes.
Analysis
I have already concluded above that the 21 October 2017 date was a typographical error. This takes me to the Ground 2(b) of the Plaintiff’s Originating Motion. While the grounds of review discussed above related to whether I could be satisfied that the Panel performed its statutory function and answered the questions put before it, the relevant question here is whether I can determine that there is a logical or justifiable connection between the material that the Panel referred to, the Panel’s findings and its answers to Questions 4 and 5.
Counsel for the Plaintiff correctly identified that the Panel’s answers to Questions 4 and 5 are findings of fact amenable to judicial review if the findings lacked an ‘evident and intelligible justification’ or the findings are ‘manifestly unreasonable’.[45] In Li, the High Court explained that this is a separate ground for judicial review where, even based on reasons provided, it is not possible for a court to ‘comprehend how the decision was arrived at.’[46] Gageler J explicated that a court’s review of the reasonableness of a decision by an administrative decision-maker is ‘concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’, and also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.[47]
[45]T13.22-T14.6, citing SZVFW 550 [10] (Kiefel CJ); 573 [82] (Nettle and Gordon JJ)
[46]Li 367 [76] (Hayne, Kiefel and Bell JJ).
[47]Ibid 375 [105] (Gageler J), quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 [47] (internal quotation marks omitted).
The High Court in SZVFW subsequently applied Li and stressed that legal unreasonableness is highly ‘fact dependent and requires a careful evaluation of the evidence’.[48] It involves an assessment of whether the decision was authorised, with reference to the ‘scope, purpose and object of the statutory source of power’.[49]
[48]SZVFW 574 [84] (Nettle and Gordon JJ).
[49]Singh v Minister for Home Affairs [2019] FCA 1790; (2019) 267 FCR 200, 216 [111] (Reeves, O’Callaghan and Thawley JJ).
However, in my review of the reasonableness of the Panel’s Opinion and Reasons, I am also bound by what the High Court has said on the review of administrative decisions, that is:
(a) the court should not construe a panel’s reasons ‘minutely and finely with an eye keenly attuned to the perception of error’;[50] and
(b) a medical panel’s reasons are also entitled to a beneficial construction in this review process, and should not be scrutinised overzealously.[51]
[50]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey J, McHugh J and Gummow J) (‘Liang’), quoting with approval Collector of Customs v Pozzolanic (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ). See also Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252 (‘Gruma Oceania’) [23]–[30] (Neave, Santamaria and Kyrou JJA).
[51]Liang 271–2 (Brennan CJ, Toohey J, McHugh J and Gummow J) (citations omitted). See also Gruma Oceania [29] (Neave, Santamaria and Kyrou JJA).
As to the Plaintiff’s submissions that the lack of reasons obscured the possibility that Panel committed an error of law (for example, by not considering appropriate alternative employment options, including part-time employment), the Court of Appeal has held that it is not enough to show that a panel’s reasons, as expressed, suggest the possibility that it proceeded upon the wrong view of the law. The court must be satisfied that a panel in fact committed a vitiating error of law.[52]
[52]Gruma Oceania [37] (Neave, Santamaria and Kyrou JJA).
I have already explained above how I consider that the Panel’s conclusion that Mr McPhee’s left knee dysfunction as being a basis for the Panel’s answers to Question 4, that he had no work capacity from 17 April 2012 to the date of the examination. In addition to the left knee dysfunction, the Panel’s Reasons clearly note findings that I have set out at [38]-[40].
This is in addition to the previous history given by Mr McPhee which I have outlined in [61]-[67] above. Counsel for the Plaintiff was correct in submitting that I must view the Reasons and conclusions in context. In light of the Panel’s conclusion that Mr McPhee is incapable of ‘constant standing, walking, squatting, kneeling, climbing [of] ladders and stairs’,[53] and the Panel’s express noting of his previous work for three to four months in Disability Services in 2015, the conclusion that he had no current work capacity in the relevant period was within a range of possible and acceptable outcomes, to borrow Gageler J phrasing.[54]
[53]Reasons 17.
[54]Li [105], quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 [47] (internal quotation marks omitted).
I consider that it is a defensible conclusion in fact and law that a person who is limited in their ability to walk, stand, squat, kneel or climb would be unable to perform a role in Disability Services. This is reinforced when considering the context of the decision, more specifically, Mr McPhee’s written submissions to the panel. He explained, referring to his job as a Disability worker, that the job aggravated the pain he experienced, including in his knees, as it required him to walk around the house serving breakfast and dispensing medication, and he was therefore unable to continue.[55]
[55]Electronic Court Book 277 [99].
Further, the findings above demonstrate that the Panel’s conclusion on work capacity was not reached, as submitted by the Plaintiff, solely on reliance on the left knee dysfunction, but also in combination with the Panel’s consideration of his work capacity and potential alternative employment options.
I conclude that the Plaintiff has failed on this ground of review.
I will now move on to the ground of review relevant to the Impugned Paragraph, Ground 4, regarding the adequacy of the Panel’s Reasons.
Ground 4
Ground 4 - The Panel erred in law by failing to give a proper and adequate written statement of reasons for its opinion in respect of referred medical questions 4 and 5 in accordance with s 313(2) of the WIRCA
Plaintiff’s Submissions
The Plaintiff submits that the Panel erred in law by failing to give a proper and adequate written statement of reasons for its opinion in respect of referred medical Questions 4 and 5 in accordance with s 313(2) of the Workplace Injury Act.
Relying upon the High Court’s decision in Wingfoot, the Plaintiff submits that it was the Panel’s statutory obligation to explain the actual path of reasoning by which it arrived at the opinion it forms on the medical questions referred to it to enable a court to see whether its opinion involved an error of law.
The Plaintiff submits that the Panel’s conclusion that Mr McPhee had no current work capacity in the period from 17 April 2012 to the date of the Panel’s examination fails to set out any discernible path of reasoning. The Plaintiff submits that the Panel’s reasons for reaching this conclusion are incomprehensible.
Further, the Plaintiff argues that the Panel’s use of the word ‘but’ to introduce its finding that there had been no substantial change the relevant period after identifying that Mr McPhee’s condition had not improved, is difficult to understand. The Plaintiff claims that the use of the word ‘but’ would make sense if the conclusion had first been reached that there had been improvement in the defendant’s condition. However, the Plaintiff contends that the use of ‘but’ in the Impugned Paragraph serves to obfuscate how the Panel arrived at its conclusions.
Defendant’s Submissions
Based on the High Court’s decision in Wingfoot, Mr McPhee argues that the Reasons indicate the path of reasoning, the justifications behind the Panel’s conclusions, and the satisfaction that the Panel had performed its statutory duty, which is what is required of written reasons of medical panels. Mr McPhee submits that it is in fact the Plaintiff’s own attempted construction of the Reasons, with the 21 October 2017 date in place, that produces the illogical reasoning or lack of reasoning in the Panel’s Reasons, and that the substitution of 17 April 2012 cures this.
Mr McPhee repeats the submissions on the date mistake being an oversight, the necessary reading of the Reasons as a whole, and the justifiable path of reasoning, in support of the argument that the Panel’s Reasons was adequate.
Analysis
In considering the adequacy of the Panel’s Reasons, it is important for the Court to keep in mind the function of a medical panel. As the High Court has stated in Wingfoot the function of a medical panel ‘is neither arbitral nor adjudicative’, but rather, to ‘form and give its own opinion on the medical questions referred to it…’.[56] The Court of Appeal, in Gruma Oceania Pty Ltd v Bakar (‘Gruma Oceania’),[57] applying Wingfoot, has held that given this function, the reasons of the Panel should be read in context, taking into account the background of the case, the material provided to the Panel and the issues on which the Panel is required to express its opinion.[58]
[56]Ibid 498–499 [47] (French CJ, Crennan, Bell, Gageler and Keane JJA).
[57][2014] VSCA 252.
[58]Gruma Oceania [28]–[29] (Neave, Santamaria and Kyrou JJA).
I reiterate the High Court’s view on the approach of review in these cases set out in [81] above. I also consider what the Court of Appeal in Gruma Oceania said on grounds of appeal related to language or phrasing, that is:
In Gamble v Emerald Hill Electrical Pty Ltd, this Court reaffirmed the following principles that apply to judicial review of a medical panel’s reasons:
…
[A] court hearing a judicial review application in relation to a Victorian medical panel will ordinarily view with disfavour grounds of review which rely on mere looseness in the language or unhappy phrasing in the Panel’s reasons. Such grounds usually fail, and their inclusion tends to suggest that the judicial review application as a whole lacks legal merit.[59]
[59]Ibid [29], citing with approval Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45, 48 [9], 51 [20] (Maxwell P and Cavanough AJA) (citations omitted).
For the Plaintiff to succeed on this ground, I would need to be persuaded that the Panel’s Reasons were so inadequate that the Reasons do not permit consideration of whether the Reasons were affected by jurisdictional error, not just that the phrasing of the Impugned Paragraph should have been phrased using ‘and that’, rather than ‘but that’. As the Court of Appeal stated, there must be a ‘real doubt’ about whether the Panel performed its statutory function.[60]
[60]Gruma Oceania [47].
I also adopt Cavanough J’s statement in Vellios Electrical Contractors Pty Ltd v Barton,[61] that the statutory requirement to provide reasons for its opinion (and referring to the written submissions provided to the Panel):
does not mean that every such submission, much less every part of every such submission, must be dealt with in the Medical Panel’s statement of reasons in such a way as to show that the decision-maker has engaged in an ‘active intellectual process’ in relation to the submission or part.[62]
[61][2014] VSC 664.
[62]Ibid [79] (Cavanough J).
From the analysis of grounds 1(a), 2(a) and 2(b) above, which I will not repeat, I find that the Panel’s Reasons in this case are sufficiently clear and there is no ‘real doubt’ that it performed its statutory function. I have concluded above that the path of reasoning did not involve a jurisdictional error. From the Reasons, and from my analysis in [58]–[68] and [78]–[88] above, it is clear why the Panel concluded Mr McPhee did not have a current work capacity from 17 April 2012 and that this was likely to continue indefinitely. This incapacity for work was due to the left knee dysfunction which was unlikely to improve, his limited mobility, and the fact that there is no work for which he is suited to perform on a ‘reliable and consistent basis’.
Accordingly, I am not persuaded that the Panel failed to give an adequate written statement of its Reasons and Ground 4 must fail.
I will now move to consider the grounds of review relevant to the Panel’s analysis of employment options and enquiry into ‘current work capacity’.
Ground 1(b) and (c)
Ground 1 – In arriving at its opinion in answer to referred question 4, the Panel failed to carry out its function and thereby fell into jurisdictional error or alternatively made an error of law which is apparent on the face of the record in that:
….
(b) Further, the Panel reached its conclusion that the first defendant had no current work capacity at the time of its examination on the basis of its rejection of five identified employment options.
(c) In arriving at its conclusion in this way, the Panel replaced the true question to be determined with a limited enquiry into the suitability of five employment options.
Plaintiff’s submissions
The Plaintiff argues that the Panel reached its conclusion that Mr McPhee had no current work capacity at the time of its examination on the basis of its rejection of five identified employment options, and that in arriving at its conclusion by reference to these employment options, the Panel replaced the true question to be determined with a limited enquiry into the suitability of five employment options.
The Plaintiff adopts the definition of ‘no current work capacity’ as provided in Richter v Driscoll to refer to an injury-caused inability to return to employment in the workforce.[63] The Plaintiff submits that the Panels function, as an expert body, was to decide whether Mr McPhee was under such incapacity using the Panel’s combined experience and expertise. This included the expertise and experience of a specialist occupational and environmental physician.
[63](2016) 51 VR 95, 114 [74]–[75] (Ashley JA, Kaye JA).
The Plaintiff submits that the Panel’s task involved determining whether there was any employment in the workforce in which Mr McPhee could engage, including employment on a part-time and casual basis. The Panel, it is argued, was not confined to employment options suggested in the material before it.
The Plaintiff alleges that the Panel’s Reasons disclose no active consideration or evaluation of Mr McPhee’s ability to work in other employment, such as employment in disability services, or semi-sedentary employment such as at a machine or bench as was purportedly suggested by orthopaedic surgeon Mr Simm.
The Plaintiff asserts, relying upon the obiter comments of the High Court in Wingfoot, that Panel could not merely undertake a tick/cross exercise in relation to suitable employment options suggested in the material before it. The Plaintiff argues that the Panel’s decision about the physical condition of Mr McPhee’s left knee would appear to leave open the capacity for a range of semi-sedentary and sedentary employments, at least on a part-time basis. Moreover, the Plaintiff argues that the Panel identified no restrictions on Mr McPhee’s ability to sit arising from his left knee injury.
Defendant’s submissions
Mr McPhee disputes the Plaintiff’s submission that the Panel limited its consideration of employment options to the five specific options identified in the vocational assessment report dated 17 September 2010 when determining whether Mr McPhee had a current work capacity. It is submitted, relying on the Panel’s use of the words ‘In particular’ when stating ‘In particular the Panel noted the identified five employment options’,[64] that the Reasons evince the Panel’s consideration of other relevant factors, of which the five identified employment options were merely part of, and not, by themselves, dispositive.
[64]Reasons 17.
Mr McPhee argues that the Panel’s Reasons sets out a detailed recitation of facts going to Mr McPhee’s work history including his physical condition and work duties and his past and present physical state and condition. These are issues that Mr McPhee argues go to the statutory mandate of assessing what is suitable employment for Mr McPhee.
Mr McPhee notes that the Panel addressed Mr McPhee’s preinjury duties and his capacity to perform those preinjury duties. Further, Mr McPhee submits that the Panel turned its mind to the question of whether there was current work capacity within the terms of the statutory definition of ‘current work capacity’.
In relation to the definition of ‘current work capacity’, Mr McPhee argues that the reference in the Reasons, to ‘substantial change’, means that the Panel considered ‘the present inability arising from the injury and whether he is able to return to his preinjury employment or whether he’s able to return to suitable employment.’[65]
[65]T50.19.
Mr McPhee also submits that, relying on the statutory definition of ‘work capacity’, the attempted return to work in 2015 and 2016 does not demonstrate a work capacity, given that Mr McPhee only managed to work 1–2 nights per week, for 3–4 months, when viewed against more than 7 years. Additionally, Mr McPhee points to the his submission to the Panel which highlighted the aggravated pain he experienced when he undertook those shifts.
Mr McPhee make specific reference to the exegesis in the Reasons where the Panel states ‘[t]he panel considered all aspects of the definitions of “no current work capacity”, “current work capacity” and “suitable employment” within the Act’ and the paragraph starting with, ‘The panel considered all aspects …’[66]
[66]Reasons 17.
Thus, in light of the above, Mr McPhee submits that the Panel ‘asked itself the right question.’[67] As the right question was asked, the analysis then turns to whether the Panel’s discretion miscarried in a way which is able to be said to be a jurisdictional error which vitiates the exercise of its power.
[67]T51.6-7.
In relation to the various employment options considered in the Reasons, Mr McPhee highlights that the relevant point is that the Panel considered those matters which were advanced by that NES vocational assessment report.[68]
[68]T51.25-27.
Ultimately, Mr McPhee argues that the Plaintiff’s argument ‘trenches upon and crosses the division between judicial review and merits review.’[69]
[69]T53.2-4.
Analysis
There is no disagreement between the parties that the definition ‘no current work capacity’ refers to an injury-caused inability to return to employment in the workforce. There is also no suggestion that the Panel did not appreciate this definition of the Act it was operating under.
The Plaintiff’s primary contention is that, when considering if Mr McPhee could return to employment, the Panel should have considered casual and part-time arrangements, that Mr McPhee has the physical capabilities to complete sedentary and semi-sedentary work and that the Panel limited itself to five identified employment options.
In cases such as this, it is important to recall that ‘[d]isagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.’[70]
[70]Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 75 ALJR 542, 548-549 (McHugh J).
The Panel reasoned, as a finding of fact, that Mr McPhee had ‘no current work’ capacity under the Workplace Injury Act. An extensive analysis of his employment history was undertaken. It was considered that he had an incapacity arising from an injury for his pre-injury work. The Panel considered all the relevant definitions pertinent to ‘no current work capacity’ under the Act, including ‘current work capacity’ and ‘suitable employment’.
A panoply of factors were considered by the Panel in determining whether he had a current work capacity ranging from his age and attendant employment prospects, the locality he lived in, his computer and administrative skills and experience, his physical condition and his medication.
In this regard, the Panel’s contextually tailored analysis is shown in the Reasons where it analysed the employment prospects generally available to Mr McPhee while considering the particularly pertinent employment options available to him.[71] As counsel for Mr McPhee noted, five identified employment options were merely part of, and not, by itself, dispositive of the intellectual process of considering Mr McPhee’s current work status. Moreover, in each of these instances, the Panel considered the specific skills, experiences and training that would be required for Mr McPhee to adequately fulfil these roles.
[71]Reasons 17.
The Plaintiff’s submission artificially imposes sedentary or semi-sedentary, or casual or part-time, employment tasks on persons under review by a medical panel and thus fetters the necessary discretion available to a medical panel in determining whether, in a contextually appropriate manner, a person has a current work capacity. The Plaintiff’s argument, is, at best, a policy submission as to the worth of sedentary or semi-sedentary, or casual or part-time, employment rather than speaking to how the Panel carried out its statutory function. It moves this Court into the realm of merits review that is distinctly not a feature of this Court’s jurisdiction in judicial review.
I therefore find that Grounds 1(b) and 1(c) must fail.
I now turn to the final ground of review.
Ground 3
Ground 3 – In concluding that the first defendant had in the period from 17 April 2012 to the date of the Medical Panel’s examination ‘no current work capacity’, the Medical Panel fell into jurisdictional error by failing to take into account a mandatory relevant consideration, being the history given to the Panel by the first defendant as to his employment in 2015 following completion of a Certificate IV in Disability Services.
Plaintiff’s submissions
The Plaintiff submits that the Panel fell into jurisdictional error by failing to take into account a mandatory relevant consideration. It is claimed that the Panel did not consider the history given to the Panel by Mr McPhee as to his employment in 2015 and/or 2016 following completion of a Certificate IV.
The Plaintiff argues that, although the Panel referred in the Reasons that Mr McPhee had completed a Certificate IV and had worked for three to four months in disability services in 2015, Mr McPhee’s ability to retrain and engage in this employment is not considered in the passage of the Panel’s Reasons setting out its conclusion that Mr McPhee had no work capacity at all times in the period from 2012.
The Plaintiff further argues that the Panel’s Reasons fail to reconcile the conclusion reached that Mr McPhee had no current work capacity at all times in the period from 2012, with Mr McPhee’s claimed return to employment for part of that period.
Thus, the Plaintiff concludes, the Court should infer that the Panel’s failure to refer at all to Mr McPhee’s employment in regard to its conclusion to Question 4 that the Panel inadvertently overlooked the issue when it came to answer that question.
In reply to Mr McPhee’s written submissions, the Plaintiff argues that the Panel made bare reference to Mr McPhee’s completion of a Certificate IV and the work he undertook for three to four months in disability services in 2015. Further, the Panel’s Reasons do not provide an adequate foundation upon which to conclude that it engaged in an active intellectual process of considering whether Mr McPhee’s return to employment for part of the relevant period in 2016 was a return to suitable employment.[72] The Plaintiff submits that an evaluation of the Panel’s Reasons discloses no more than mere advertence to Mr McPhee’s return to employment, and no active engagement with the relevant issue of whether this constituted a return to suitable employment during part of the period under consideration.[73]
[72]Citing, analogously, LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166, 178 [52] (North, Logan and Robertson JJ).
[73]Steel Smith Engineering Pty Ltd, Plaintiff’s Outline of Submissions in Reply, 25 May 2020 [11]–[12].
Defendant’s submissions
In respect of the Plaintiff’s submission that the Panel failed to consider Mr McPhee’s return to work in 2015/2016 after obtaining his Certificate IV, Mr McPhee submits that the Reasons demonstrate that such a consideration was taken into account.
Mr McPhee argues that the issue of mandatory consideration is best viewed as a matter of weight and proper assessment. It is submitted that the Panel looked at all these different factors within the realm of that which it was obliged to. Mr McPhee submits that working in disability services for a period of 3 to 4 months cannot rise to the level of a mandatory consideration.
Mr McPhee argues that the Plaintiff’s contention regarding mandatory consideration contains two strands; first, whether there was a relevant consideration that was not taken in account in the sense articulated in Minister for Aboriginal Affairs v Peko-Wallsend (‘Peko-Wallsend’);[74] or second, whether there was a consideration that was not taken into account in a sufficiently adequate way. Mr McPhee argues that the Plaintiff’s contention should be seen in the second sense, that is, that there was insufficient intellectual engagement with the consideration and that insufficient engagement means that the consideration was not properly taken into account.
[74](1986) 162 CLR 24.
Mr McPhee argues that the jurisprudence in this area relies upon a duty to actively engage with a matter which is required for consideration, that the reasoning process is sufficient and that there has been assessment of the matters which are bound to be taken into account.
Mr McPhee submits that the Panel’s Reasons also demonstrates that his physical improvement was considered.
Mr McPhee asks the Court not to view the reasoning process of doctors and specialists who comprise an expert panel, in the same manner as a panel of lawyers providing written reasons. Cognisant of this difference, Mr McPhee argues that the Panel exposed the facts it took into account by referencing that Mr McPhee completed the Certificate IV and that he worked for three or four months,[75] that the Panel considered all of the medical reports including a report with a difference of opinion by Mr Tran,[76] and in one sentence the Panel said whether it agreed or disagreed with the relevant opinions.[77]
[75]Reasons, 16.
[76]Ibid 18.
[77]Ibid 19.
Mr McPhee further argues that the question of his current work capacity was a mandatory consideration and it was actively assessed in detail. The Panel also noted the submissions it received from the Plaintiff.[78] The considerations which the Panel was bound to take into account included all the definitions in ’current work capacity,’ ’suitable employment’ and within the definition of those words there actually is a broad discretion on the Panel to exercise its medical judgment.
[78]Ibid.
As to the weight accorded to the different evidence, Mr McPhee submits that the weight to be given to the evidence is for the decision maker and not a court in the assessment of the relevant consideration question.
Mr McPhee further submits that if the Court finds that the matters contended by the Plaintiff must be taken into account then, first, the consideration of the work in disability services and the Certificate IV were weighed up by the Panel at various parts of its Reasons and a comprehensive consideration of the health and work history of Mr McPhee occurred and, second, there was a degree of active engagement on the question.[79]
[79]Ibid 7–9, 16–19.
Analysis
In assessing Mr McPhee’s current work capacity, whether he had no current work capacity and whether there was suitable employment for Mr McPhee, 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 Mr McPhee 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 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.
The only considerations that the Plaintiff substantially contends were not taken into account by the Panel related to suitable employment options for Mr McPhee. In particular, the Plaintiff contended that s 3(a)(i)–(iii) of the Act pertaining to the nature of the worker’s incapacity, the nature of his pre-injury employment and his skills and experience, and s 3(e) pertaining to availability of suitable training or vocational re-education, were not adequately considered by the Panel.
Although there are elements of the Panel’s Reasons that contain passages the meaning of which it is undoubtedly difficult to discern, the passages providing a description of the s 3(a)(i)-(iii) and s 3(e) considerations are clear. Under ‘WORK CAPACITY’ the Panel details the personal information Mr McPhee conveyed to the Panel, which I have already set out above at [37]. Based upon this information, the Panel considered the functional and physical requirements of Mr McPhee’s pre-injury work as set out at [61]. The Panel then progressed to apply these considerations to the statutory definitions of ‘no current work capacity,’ ‘current work capacity’ and ‘suitable employment’ within the Act as set out above at [46]-[47].
These considerations are not catalogued as mere lip service. They are contextually rooted considerations applied to the statutory definitions applicable to the Panel’s task. Key considerations like age, residence, skills and experience, physical condition and medical history are applied to past, present and future employment prospects. The Panel was aware of the many employment options open to Mc McPhee due to his age and residence and yet, that these employment options are circumscribed due to the left knee injury he has suffered. The Panel correctly identified and applied these key considerations in the performance of its statutory function.
Moreover, after listing the particularly applicable employment options of forklift operator, sales representative, warehouse dispatch clerk, plant operator and vocational education training, the Panel continued:
The Panel noted that work as a Warehouse Dispatch Clerk, Plant Operator and Vocational Education Trainer required further training and qualifications not held by Mr McPhee and that such training had not been provided.
The Panel also noted that that Mr McPhee had no experience or skills in sales.[80]
[80]Ibid.
The Panel here clearly engages with the educational and vocational options open to Mr McPhee and concludes that training for positions identified as particularly applicable to him were provided. Further, it is noted that Mr McPhee does not have experience or skills in sales that would make him qualified to be a sales representative.
At this juncture, it is pertinent to turn to the Plaintiff’s argument that the Panel did not consider the history given to the Panel by Mr McPhee as to his employment in 2015 and/or 2016 following completion of a Certificate IV. I agree with Mr McPhee’s argument that the weight and proper assessment of these considerations is a task uniquely held by the Panel. It behoves the Court to substitute its own assessment of the evidence for that of an expert panel. This is particularly the case when a Court is tasked with reviewing the decision of a body like the Panel. As the High Court in Peko-Wallsend stated:
It follows that in the absence of any statutory indication to the weight to be given to various considerations, it is generally for the decision- maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.[81]
[81]Peko-Wallsend 41 (Mason J).
The nub of the Plaintiff’s argument is that by referencing Mr McPhee’s brief employment and his Certificate IV in the section of its Reasons that addresses what he told the Panel rather than after the paragraph where the Panel references the statutory definitions it is working within, the Panel therefore did not consider these factors as considerations within its process of reasoning.
I disagree with this approach.
The Court must be careful not to expect the same level of rigour and attentiveness that is expected of legal and judicial opinions in a panel’s reasons. Members of the Panel are expected to answer medical Questions. The nature, content and process of reasoning that is required to answer these questions cannot conform to other common administrative law matters subject to judicial review such as the decision of a tribunal, a departmental officer or a Magistrate. In that regard, the comments of the Court of Appeal in Gruma Oceania are apposite:
The function of a medical panel is neither arbitral nor adjudicative and therefore it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on the medical question referred to it. Rather, the function of the panel is to give its own opinion on the medical question referred by applying its own medical experience and expertise.[82]
[82]Gruma Oceania [25] (Neave, Santamaria and Kyrou JJA) citing Wingfoot 499[47].
A medical panel’s reasons are therefore entitled to a ‘beneficial construction’ in the sense that they should ‘not … be scrutinised … over-zealous[ly] … by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.’[83] The Panel’s reasons:
must be read fairly, as a whole and in context, and should not be subject to ‘over-zealous judicial review’ with the comprehensibility of its 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.’[84]
[83]Gruma Oceania [29] (Neave, Santamaria and Kyrou JJA), citing Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45, 48 [9], 51 [20] (Maxwell P and Cavanough AJA) (citations omitted), cited in Conroy v Romas [2019] VSC 695 [113] (Ginnane J).
[84]Valspar Paint (Australia) Pty Ltd v MA [2020] VSC 304 (Richards J), citing Liang 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
I do not agree that by placing the consideration of what the Panel was told by Mr McPhee regarding his employment in 2015 and/or 2016 and his Certificate IV in one section of its Reasons results in these considerations not being an operative element of the Panel’s reasoning process. The reference to his brief employment and his Certificate IV evidences that the Panel considered these matters of sufficient worth to note them. That does not mean they were not considered. I am content to draw the inference that by raising these matters at the Panel progressed to determine that the weight to be attached to the them was insufficient to require any further reference to the Reasons.
These considerations were evidently outweighed by other factors that the Panel considered probative to the medical questions including: age; residence; educational and vocational opportunities; experience and expertise; and physical and medical disposition.
I do not find that the Panel ignored a mandatory consideration. I therefore dismiss Ground 3.
Conclusion
Given that all the Plaintiff’s grounds for review must fail, I dismiss the application for judicial review and, subject to any submissions, I believe that the most appropriate course is that the Plaintiff pays the defendants’ costs.
I will hear the parties on costs and the appropriate form of order if there are any submissions.
| SCHEDULE OF PARTIES | |
| STEEL SMITH ENGINEERING PTY LTD | Plaintiff |
| - and - | |
| PETER JOHN MCPHEE | First Defendant |
| CRAIG MILLS | Second Defendant |
| JOHN BOURKE | Third Defendant |
| DAVID FISH | Fourth Defendant |
| GEOFFREY KLUG | Fifth Defendant |
| GEOFFREY LITTLEJOHN | Sixth Defendant |
| JONATHAN HARRISON | Seventh Defendant |
2
10
0