Thomson v Victorian WorkCover Authority
[2023] VSC 164
•4 April 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 04028
BETWEEN:
| BRETT THOMSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 December 2022 |
DATE OF JUDGMENT: | 4 April 2023 |
CASE MAY BE CITED AS: | Thomson v Victorian WorkCover Authority |
MEDIUM NEUTRAL CITATION: | [2023] VSC 164 (first revision: 5 April 2023) |
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ADMINISTRATIVE LAW – Review of medical panel decision – Jurisdictional error – Whether medical panel made a determination for which there was no evidence or which was not open on the evidence before it – Whether medical panel misdirected itself or failed to carry out its proper statutory function – Whether medical panel’s statement of reasons inadequate – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 274, 302 – Sidiqi v Kotsios [2021] VSCA 187 – Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 – Richter v Driscoll (2016) 51 VR 95 – Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664 – A & L Windows Pty Ltd v Yildirim [2022] VSCA 46 – Nabbs v Handrinos [2013] VSC 419 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Hangay | Zaparas Lawyers |
| For the First Defendant | Mr R Kumar | Minter Ellison |
| For the Second, Third and Fourth Defendant | No appearances | Victorian Government Solicitor’s Office |
TABLE OF CONTENTS
Summary.............................................................................................................................................. 1
Background......................................................................................................................................... 1
Applicable principles........................................................................................................................ 3
In determining that Mr Thomson’s work incapacity was not permanent and that certain medical conditions were in remission, did the Panel make a determination for which there was no evidence or which was not open on the evidence before it?............................................... 4
Mr Thomson’s submissions......................................................................................................... 4
WorkCover’s submissions........................................................................................................... 5
Analysis – ground 1...................................................................................................................... 8
Analysis – ground 2.................................................................................................................... 10
In determining that Mr Thomson’s work incapacity was not permanent, did the Panel misdirect itself or fail to perform its proper statutory function?........................................................ 13
Mr Thomson’s submissions....................................................................................................... 13
WorkCover’s submissions......................................................................................................... 13
Analysis – ground 3.................................................................................................................... 14
Is the Panel’s statement of reasons inadequate?........................................................................ 17
Mr Thomson’s submissions....................................................................................................... 17
WorkCover’s submissions......................................................................................................... 18
Analysis – ground 4.................................................................................................................... 18
HER HONOUR:
The Movember Group Pty Ltd (the ‘Movember Group’) employed Mr Thomson as a network administrator. He claims injuries arising from that employment. A medical panel (the ‘Panel’) concluded, amongst other things, that Mr Thomson did not have a permanent incapacity. Mr Thomson applies to quash the opinion of the Panel and remit the questions it considered to a differently constituted panel.
Summary
Mr Thomson’s amended originating motion filed on 23 November 2022 contains four grounds of review. Distilling these, the four questions for determination and their findings follow.
(a) In determining that Mr Thomson’s work incapacity was not permanent, did the Panel make a determination for which there was no evidence or which was not open on the evidence before it? No.
(b) In determining that Mr Thomson’s conditions of Major Depressive Disorder and abnormal personality traits were in substantial remission, did the Panel make a determination for which there was no evidence or which was not open on the evidence before it? No.
(c) In determining that Mr Thomson’s work incapacity was not permanent, did the Panel misdirect itself or fail to perform its proper statutory function? No.
(d) Is the Panel’s statement of reasons inadequate? No.
Background
In March 2012, Mr Thomson commenced employment with the Movember Group. The Movember Group is insured by the first defendant, the Victorian WorkCover Authority (‘WorkCover’).
On 17 November 2015, Mr Thomson lodged a WorkCover injury claim, claiming to suffer from a ‘psychiatric breakdown, anxiety, depression and [the] need for intensive medical treatment as a result of being extremely overworked’ over a progressive period of approximately three and a half years during his employment with the Movember Group. He says that increasing responsibilities, including overseas IT operations, and extreme overwork ‘culminated in exhaustion and mental breakdown following a 2.5 week business trip to London’.[1]
[1]Plaintiff’s Amended Originating Motion for Judicial Review dated 13 September 2022, [7].
On about 15 June 2020, Mr Thomson made a serious injury application under the Accident Compensation Act 1985 (Vic) in respect of a claimed permanent severe mental or behavioural disturbance or disorder arising out of or in the course of his employment with the Movember Group.[2]
[2]Ibid, [8].
WorkCover rejected this application on 1 October 2020.
Mr Thomson subsequently commenced proceedings in the County Court of Victoria. He seeks leave under Division 2 of Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRC Act’) to issue common law proceedings regarding the psychiatric injury he allegedly sustained throughout his employment with the Movember Group.[3] He claims damages for pain and suffering, and pecuniary loss.
[3]Ibid, [10].
On or around 15 June 2021, under s 274 of the WIRC Act, the County Court of Victoria referred specific questions to a medical panel for its opinion under s 302 of the WIRC Act.
The second defendant convened the Panel to examine Mr Thomson and give its opinion on the referred medical questions. The Panel comprised the third and fourth defendants.
The Panel jointly examined Mr Thomson on 13 August 2021.
On 31 August 2021, the Panel provided its opinion on the referred questions in a Certificate of Opinion (’Opinion’) and written Reasons for Opinion (‘Reasons’).[4] Questions 1–3 and the Panel’s answers follow.
[4]The Certificate of Opinion (‘Opinion’) and Reasons for Opinion (‘Reasons’) are exhibited as ‘TV-1’ to the affidavit of Trent Francis Vittorio sworn on 29 October 2021.
Question 1.What is the nature of the medical condition of the plaintiff’s mind?
Answer:In the opinion of the Panel, the plaintiff is suffering from Major Depressive Disorder in substantial remission, and abnormal personality traits.
Question 2.Is the plaintiff's current “no current work capacity” permanent (ie, likely to last for during or through the foreseeable future)?
Answer:In the opinion of the Panel, the plaintiff's current “no current work capacity” is not permanent.
Question 3.If “no” to question 2, what employment will or will not constitute suitable employment for the plaintiff and if so for how many hours per week?
Answer:In the opinion of the Panel, employment as an ICT Customer Support Officer or a Network Administrator, after suitable training, and with a graduated return to full time hours (38 hours per week), constitutes suitable employment for the plaintiff.
On 29 October 2021, Mr Thomson applied to this Court for orders (a) quashing the Panel’s Opinion; and (b) remitting the referred medical questions to a differently constituted medical panel. WorkCover opposes Mr Thomson’s application. On 23 November 2021, the second to fourth defendants (who constituted the Panel) informed the Court they would adopt the ‘Hardiman position’ and take no steps in the proceeding.
Applicable principles
Mr Thomson commenced this proceeding in accordance with r 56.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
I adopt the general principles summarised by the Court of Appeal in Sidiqi v Kotsios.[5]
[5][2021] VSCA 187, [29]-[30], [32]-[42], [47], [61], [63]-[64] (Beach, Kaye and Osborn JJA) (‘Sidiqi’).
Turning now to the first two issues in dispute.
In determining that Mr Thomson’s work incapacity was not permanent and that certain medical conditions were in remission, did the Panel make a determination for which there was no evidence or which was not open on the evidence before it?
This question concerns grounds 1 and 2 of Mr Thomson’s amended originating motion.
I will now summarise the parties’ central submissions. Where necessary, I address the authorities they cited in the analysis.
Mr Thomson’s submissions
The concept of permanence means the injury is likely to last for the foreseeable future.[6] The Panel concluded that Mr Thomson’s work incapacity was not permanent. The Panel erred by basing this conclusion upon its finding that he could undertake a training course.
[6]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, 639 [34] (Phillips JA for the Court).
In doing so, the Panel does not seem to have engaged properly with the concept of ‘suitable employment’.[7] The definition of ‘suitable employment’ requires a worker to have the ability to perform work for which they are currently suited. To find Mr Thomson could undertake suitable alternative employment, there needed to be evidence of a training course that Mr Thomson could undertake to support that conclusion. There was no such evidence.
[7]Richter v Driscoll (2016) 51 VR 95 (Ashley, Osborn and Kaye JJA) (‘Richter’).
The Panel erred in determining that there was a training course available that was suitable for Mr Thomson. The Panel erred in deciding he could be employed as an ICT Customer Support Officer or a Network Administrator after undertaking a training course. These conclusions were not open to the Panel on the evidence before it.
The evidence before the Panel lacked the requisite specificity. There was no evidence before the Panel, nor do the Reasons refer to any, to support the Panel’s finding as to the existence of any training course. Nor was there any evidence before the Panel to conclude Mr Thomson’s fitness to undertake such a course. The Vocational Assessment and Labour Market Analysis Report by CoWork dated 25 February 2021 (the ‘CoWork report’) does not identify details of a course. There was no evidence of the training course's location, duration, or contact hours. The Panel’s conclusion that Mr Thomson could do a training course was based impermissibly upon speculation.[8] There needed to be a vocational assessment that Mr Thomson could undertake a training course for the Panel to reach the conclusion it did.
[8]VelliosElectrical Contractors Pty Ltd v Barton [2014] VSC 664, [58] (Cavanough J) citing Hatswell v State of Victoria [2013] VSC 262 (Kyrou J).
The second determination for which there was no evidence, or which was not reasonably open, was the Panel’s determination that there had been a gradual improvement in Mr Thomson’s condition. It is unclear from the Reasons how the Panel arrived at this conclusion. No apparent evidence is identified in the Reasons which would justify the finding. The Panel’s finding that there had been a ‘gradual improvement’ was an error of fact. Its ultimate conclusion as to Mr Thomson’s incapacity depended upon that finding. This invalidates the Panel’s conclusion. The Panel seems, in turn, to have relied upon this finding to support its determination that Mr Thomson’s incapacity was not permanent.
In reply to WorkCover’s submission that Mr Thomson cannot now rely on matters not raised in his submissions to the Panel: a party cannot be shut out from making a submission in a judicial review proceeding just because it did not make the submission before the Panel. That would breach the fair hearing rule. No party can be expected to anticipate everything a Panel identifies as an issue.
WorkCover’s submissions
Mr Thomson has an extensive work history of some 17 years, notwithstanding that he did not complete high school. He completed a Certificate IV in Information Technology, except for one module, from June 1997 – 1998. This was sufficient for him to gain employment in ICT. He progressed to a high-level job with the Movember Group. His work had an overseas management component. This caused long hours. The Panel had an extensive history regarding that.
The joint statement given to the Panel records that WorkCover accepted Mr Thomson suffered a compensable injury, it is persisting, and at the date of referral, he had no current work capacity. The question to the Panel was about the permanence of his work incapacity. The Panel’s Reasons and answers to the questions show it was well aware of the issues arising for its determination.
There was only one vocational assessment report provided to the Panel, being the CoWork report. It was that report which proposed the four suitable employment options which were specifically considered by the Panel. The Panel expressly stated that it took that report into account.
The author of the CoWork report expressly observed that ‘having been job detached for some at [sic] 7 years, Mr Thomson faces the prospect of re-conditioning for work and refreshing his skills’. In that respect, the Panel reached the same conclusion.
Mr Thomson told CoWork that he would consider online training, and this is consistent with what he told the Panel.
There is a real connection between the conclusions reached by CoWork and the Panel’s conclusions.
There was evidence before the Panel to conclude that there exists a course by which Mr Thomson could ‘ensure his IT knowledge and expertise is current’, allowing him to undertake the role of either ICT Customer Support Officer or Network Administrator. The bar of ‘no evidence’ is very high. The types of courses recommended by CoWork are not qualification courses. The CoWork report provides sufficient evidence for the Panel to reach its conclusion. It was open to the Panel, as a matter of common sense, to conclude the relevant course existed. The Panel gave the CoWork report to Dr Nicholas Ingram, psychiatrist, who took no issue with any aspect of it, despite his view that Mr Thomson’s incapacity for work would last for ‘the foreseeable future’.
The Panel expressly took into account the various factors it is required to consider when assessing suitable employment. Whether Mr Thomson was psychiatrically fit to undertake such retraining was a matter wholly within the Panel’s expertise. The Panel found that Mr Thomson was functionally capable of undertaking the necessary retraining. It observed that after completing retraining, he should initially start at 15 hours per week and then work up to 38 hours per week. The Panel was accordingly clear about his residual capacity to return to employment. The Panel expressly ruled out his previous role because of the hours and people management involved.
Mr Thomson’s written submissions to the Panel did not address the CoWork report or his retraining prospects. No complaint can now be upheld that it was incumbent upon the Panel to include more details in the Reasons as to a specific course that he might undertake.[9]
[9]A & L Windows Pty Ltd v Yildirim [2022] VSCA 46.
The Panel’s conclusion that there has been a gradual improvement in Mr Thomson’s condition is not a factual finding attended by error.
First, it is apparent from the Reasons that Mr Thomson acknowledged improvement since his last major deterioration. That occurred in circumstances where he was retrenched.
Secondly, the Panel was entitled to take into account the findings of its mental state examination. In circumstances where the Panel had accepted previous deteriorations and improvements in his condition, and had the benefit of various materials provided to it, it was open for the Panel to make a finding of improvement since 2017. The Panel is entitled to rely upon its own expertise.[10]
[10]Sidiqi, [30]-[36].
Thirdly, the material before the Panel confirmed the improvement in Mr Thomson’s condition. The report of Dr Ingram noted an improvement over the last few years. Professor Doherty stated Mr Thomson’s condition was manifesting with mild depression.
Analysis – ground 1
The Panel concluded that Mr Thomson’s current work incapacity was not permanent. This finding was open to the Panel on the evidence before it. This is evident from the following.
Firstly, the Panel examined Mr Thomson and considered his history and medical reports. It made the following diagnosis:
The Panel noted at the interview with [Mr Thomson] that there was no objective evidence of depressed or anxious mood during the interview, that his cognition appeared normal (the only significant noticeable issues with respect to memory were related to situations where the plaintiff said he could not recall aspects of past symptoms or treatment noted in contemporaneous reports) and that his behaviour overall with the Panel did not indicate that he was now suffering from significant features of a Major Depressive Episode/Disorder, notwithstanding his reported symptoms and function.
The Panel therefore concluded that while [Mr Thomson] is suffering from a Major Depressive Disorder, this condition is now in substantial remission. The Panel concluded that the presentation now is mainly consistent with the long-standing personality structure of [Mr Thomson] (borderline and dependent traits) and long-standing issues with lowered mood, and the Panel broadly agreed with the statements made by Associate Prof Doherty regarding [Mr Thomson] being entrenched in views of his impairment, which the Panel considered to be now mainly subjective rather than objective.
As will be further discussed below, this diagnosis was open to the Panel on the evidence before it.
Secondly, the Panel stated that it had considered the definitions of ‘suitable employment’, ‘current work capacity’ and ‘no current work capacity’ in the WIRC Act, and it specifically identified relevant factors it had taken into account. This was not merely recitation. As it stated, it took into account the CoWork report. That report comprehensively considered Mr Thomson’s circumstances and proposed four jobs as suitable employment options.
Thirdly, the Panel considered the functional requirements of the four jobs proposed in the CoWork report in conjunction with Mr Thomson’s medical condition and the suitable employment factors it had identified earlier. It then concluded that two of the proposed jobs were not suitable. The Panel concluded that two other jobs were suitable: ICT Customer Support Officer and Network Administrator. It stated:
The Panel did not consider that the positions of Bookkeeper or ICT Security Specialist were suitable due to the requirements of those positions and the skills and experience of [Mr Thomson]. The Panel considered that the other two positions, ICT Customer Support Officer and Network Administrator, were suitable with regards to the skills and experience of [Mr Thomson], and his current functional capabilities noting his Major Depressive Disorder is in substantial remission and mild in severity, as well as his abnormal personality traits.
I reject Mr Thomson’s submission that the Panel erred because there was no evidence of a specific training course. The reference to a training course must be considered in the context of the expert CoWork report authored by an occupational therapist, Kirsty Grieg. It would be nonsensical for an expert to recommend training courses that do not exist. It is evident from the CoWork report that Ms Grieg’s expert opinion is that relevant training courses do exist:
I suggest a rebuilding of attention, routine and skills initially through self-paced work in IT Helpdesk Solutions, for which he could prepare and grow skills from his home base via targeted IT courses. The JobOutlook site cites “a wide range of vendor and industry certifications available that may substitute for formal qualities.”
This work is also good platform to practice customer relations and workplace assertiveness.
Using his updated and transferable skills Mr Thomson could then progress to a role as Systems Administrator.
In respect of the ICT Customer Support Officer role, the CoWork report states under the heading ‘Education / Training’:
An advanced diploma or diploma level of qualification is generally required. However, vendor and industry certifications available may substitute for formal qualifications. In addition, Mr Thomson has extensive industry experience.
In respect of the Network Administrator role, the CoWork report states under the heading ‘Education / Training’:
A Diploma of Networking is typically required, although vendor and industry certifications may substitute for formal qualifications.
The Panel was not required to identify a precise training course. It was open to the Panel to rely upon the expert opinion in the CoWork report, which is clearly predicated upon the opinion that relevant training courses exist.
I reject Mr Thomson’s submission that the Panel erred because there was no evidence that Mr Thomson could undertake a training course. As cited above, the Panel concluded that Mr Thomson was functionally capable, from a psychiatric perspective, of undertaking retraining. It was open to the expert Panel to do so given its diagnosis of his medical conditions. Moreover, the Panel accepted Mr Thomson’s view as to the two positions for which he could retrain. The Panel recorded:
[Mr Thomson] said that with respect to the network administrator position and the ICT customer support officer position, while he had worked in those fields, he could not do either now because there had been substantial changes in the last five years since he stopped working and he would need to do further training.
[Mr Thomson] said that the idea of a course seems overwhelming to him but he would be ’very happy to try stuff’. He noted that he had not been particularly good at school and he had failed when he tried again to do Year 12. He said he could see himself doing volunteer work in the future.
There was a dispute between the parties about whether Mr Thomson could make submissions not made before the Panel. I have allowed submissions made by Mr Thomson in support of his originating motion.
Analysis – ground 2
In February 2017, Mr Thomson was retrenched from his employment. The Panel referred to a deterioration and subsequent ‘gradual improvement’ in Mr Thomson’s medical condition. It did so in the following context:
The Panel concluded that in the course of his employment with The Movember Group [Mr Thomson] became increasingly stressed and that his pre-existing maladaptive behaviours escalated in an attempt to deal with his distress, including by the use of alcohol and other substances. He then became depressed and was admitted to hospital in June 2014, with what appeared to be a combination of a Major Depressive Episode and alcohol withdrawal. [Mr Thomson’s] condition then appears to have deteriorated in the context of the prescription of numerous medications, along with ongoing substance misuse, with some of his medications appearing to have exacerbated his condition.
The Panel further concluded that there was an improvement in [Mr Thomson’s] condition later in 2016 in the setting of a reduction and cessation of medication and what appears to have been a reduction in substance misuse, along with treatment with his new psychiatrist, and that he had improved sufficiently by later 2016 to request a return to work, that is, his Major Depressive Episode was likely in partial remission by that time. [Mr Thomson’s] condition appears to have deteriorated after his request to return to work was rejected and he was terminated from employment. There has subsequently been a gradual improvement in his condition though the Panel notes that [Mr Thomson] considers himself to remain significantly depressed and anxious and that his treating psychiatrist (along with a number of assessing psychiatrists) considered him to have an ongoing Major Depressive Disorder.
As cited previously, the Panel referred to its interview with Mr Thomson. It concluded that while he was suffering from a Major Depressive Disorder, that condition was now in substantial remission.
The finding was open to the Panel on the evidence before it for the following reasons. Firstly, the Panel was an expert one. It interviewed and assessed Mr Thomson and relied upon this to form its conclusion. It referred to a 75 minute interview and how Mr Thomson presented at the interview. It drew conclusions regarding his psychiatric state, finding that there was ‘no objective evidence of depressed or anxious mood during the interview, that his condition appeared normal … and that his behaviour overall with the Panel did not indicate that he was now suffering from significant features of Major Depressive Episode/Disorder’.
Secondly, the Panel considered the medical reports and other material before reaching its conclusion. Its report contains a review of supplied documents. These documents were over a range of time, both predating and postdating Mr Thomson’s retrenchment in February 2017. The Panel agreed with Professor Doherty’s opinion that Mr Thomson was entrenched in views of his impairment. It stated that Mr Thomson and a number of psychiatrists consider him to have a major ongoing Major Depressive Disorder. However, as cited above, it referred to its interview with Mr Thomson and reached a different conclusion.
Although it is not determinative, it is useful to record the following. Mr Thomson told the Panel that his condition had ‘spiralled’ after he was retrenched in February 2017, but then improved again with treatment, although he felt that the improvement had ‘petered out’ in the last 18-24 months. He felt he was now at the same level as 18-24 months ago. There was evidence from psychiatrists of Mr Thomson’s improvement in his psychiatric condition. In a report dated 4 February 2021, psychiatrist Dr Ingram recorded some improvement in Mr Thomson’s depression in the last few years.
I reject Mr Thomson’s submission that there was no evidence for the Panel to assess his condition because it did not have evidence to compare his condition over the time the improvement occurred. Mr Thomson relied upon Nabbs v Handrinos.[11] Beach J criticised a medical panel relying upon vocational reports, dated more than a year earlier, to conclude the existence of jobs available for a person with restrictions. The medical panel report predated surgery on the plaintiff.[12] Beach J stated that, ideally, more current and relevant vocational reports could be produced on a re-determination.[13] However, in that case, Beach J, in the context of the plaintiff’s complaint about allegedly inadequate reasons, considered:
The panel is an expert tribunal which performed its own medical assessments of the plaintiff. Having performed examinations of the plaintiff, the panel was well able to come to a conclusion that, at the time of its examination, the plaintiff had a particular capacity for employment. In such circumstances, it would be open to a panel to accept medical reports, produced by different doctors who had performed earlier examinations, that expressed different conclusions as to work capacity at earlier points in time. In a case such as the present, it may be that a medical panel cannot point to any objective improvement or event which has ameliorated the plaintiff’s condition in an intervening period. In such circumstances, a medical panel may accept that there was a relevant incapacity in the past – but find that (without supervening improvement), on a current examination, such incapacity no longer exists...[14]
[11][2013] VSC 419 (Beach J).
[12]Ibid, [33].
[13]Ibid, [34]-[35].
[14]Ibid, [32].
In my view, those comments are apposite to what the Panel has in this case considered and concluded in respect of Mr Thomson’s psychiatric condition.
Mr Thomson’s submission that the Panel’s conclusion was an ‘error of fact’ strays into the impermissible territory of merits review.
In determining that Mr Thomson’s work incapacity was not permanent, did the Panel misdirect itself or fail to perform its proper statutory function?
This question concerns ground 3 of Mr Thomson’s amended originating motion.
Mr Thomson’s submissions
The Panel misdirected itself as to the proper application of the test of ‘suitable employment’ in the WIRC Act. The Panel reached the conclusion that Mr Thomson could undertake suitable employment by speculation. It failed to take into account matters such as Mr Thomson’s poor scholastic history, that he did not enjoy school, that study did not come easily to him, and that he found work stressful. There is a disconnect between the Panel’s assessment of Mr Thomson and the history it took from him.
On a proper construction of the evidence before the Panel, it ought to have concluded that Mr Thomson could not sell his ‘labour’. It is unclear on the face of the Reasons why the same considerations, particularly his personality, which the Panel considered rendered Mr Thomson unfit for his pre-injury work, would not have equally made him unfit for other ‘suitable employment’. The Panel failed to engage in an intelligent path of reasoning in concluding that he could engage effectively as a student and an effective workforce member.
WorkCover’s submissions
The Panel was aware of Mr Thomson’s educational history, including that he did not complete year 12. The CoWork report shows that Mr Thomson focused on employment, rather than school attendance, from a young age and was ‘vocationally rather than academically oriented’. The Panel observed that he has good literacy and communication skills. That he did not finish year 12 also appears to be of little, if any, relevance, noting that he completed a Certificate IV in Information Technology before commencing his IT career.
There is no inconsistency between the Panel’s conclusion that Mr Thomson would likely suffer an increase in his depressive symptoms if he returned to his pre-injury employment, and its conclusion that after retraining he would be able to engage in employment as an ICT Customer Support Officer or a Network Administrator. The Panel took a history from Mr Thomson. It highlighted the stress and long hours associated with Mr Thomson’s pre-injury employment. These features of his pre-injury role, which make it presently unsuitable for him (and which were causative of his increasing stress), are not features that are inherently associated with the two employment options endorsed by the Panel.
Mr Thomson’s complaints amount to impermissible merits review.
Analysis – ground 3
The terms ‘current work capacity’, ‘no current work capacity’ and ‘suitable employment’ are defined in s 3 of the WIRC Act:
current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment;
…
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre‑injury employment or in suitable employment;
…
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to the following—
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii)the nature of the worker’s pre‑injury employment;
(iii) the worker’s age, education, skills and work experience;
(iv)the worker’s place of residence;
(v)any plan or document prepared as part of the return to work planning process;
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b) regardless of whether—
(i)the work or the employment is available; or
(ii)the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—
(c)employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
(d)employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e)suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education;
I adopt the principles given by the Court of Appeal in Richter v Driscoll.[15] Relevantly, they include the following. The definition of ‘no current work capacity’ focuses on an injured worker’s inability to engage in employment.[16] The return to employment should be in a meaningful way, as a ‘settled or established member of the wage earning workforce’.[17] The return to employment is ‘more than a physical capacity to engage in a task’.[18] The Court of Appeal stated:
’Employment‘ is a relationship in which a prospective employee must have something — a capacity to work in employment — to sell. A prospective employer will not buy if the entirety of circumstances personal to the worker … lead the employer to conclude that the worker has nothing to sell.[19]
[15](2016) 51 VR 95.
[16]Ibid, [74] (Ashley and Kaye JJA).
[17]Ibid, [75] applying Philmac Pty Ltd v Asti (1980) 26 SASR 213.
[18]Ibid, [76].
[19]Ibid, [97].
As to the question of whether the Panel has misdirected itself, the Court should ‘avoid too zealous an examination of reasons with a view to establishing the presence or absence of misdirection’.[20]
[20]Ibid, [100].
As to the Panel’s statutory function, s 302(1) of the WIRC Act states it ‘is to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment, referred by … the court…’.[21]
[21]Section 3 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRC Act’) defines ‘medical question’.
I adopt the oft-cited description of the function of a medical panel given by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’).[22]
[22](2013) 252 CLR 480, 498-9 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ) (‘Wingfoot’), cited in Richter (2016) 51 VR 95, 125 [111].
Here, I find that the Panel did not misdirect itself or fail to perform its proper statutory function in opining that Mr Thomson’s current ‘no current work capacity’ is not permanent. For clarity, I find that the Panel did not misdirect itself as to the proper test of ‘suitable employment’. I reject Mr Thomson’s submissions for the following reasons.
Firstly, as I have already held regarding ground 1, it was open for the Panel to conclude that a training course was available and that Mr Thomson could undertake it. I reject his submission that this was speculative reasoning. Mr Thomson referred to his possibility of a relapse. The Panel concluded he was in substantial remission. I am satisfied that the Panel considered Mr Thomson’s medical conditions before concluding that he was functionally capable, from a psychiatric perspective, of undertaking training. Moreover, as described above, the Panel had regard to the history it took from Mr Thomson, and reports from other medical providers, before forming its opinion following its examination of him. I reiterate the findings in respect of ground 2 above.
Secondly, contrary to Mr Thomson’s submission, the Panel did consider his scholastic history. The Panel noted from its referral that it was agreed that Mr Thomson had completed year 11 at school and had no formal qualifications. The Panel stated it took his education, and ‘good literacy and communication skills’, into account in considering the definition of ‘suitable employment’, ‘work capacity’ and ‘no work capacity’ in the WIRC Act. The Panel interviewed Mr Thomson and obtained a personal history, which included information about school. The history referred to him not wanting to be at secondary school in year 8, and disciplinary issues in years 8-10. It referred to a change of secondary school in year 11. The Panel referred to Mr Thomson telling his father that he did not want to do year 12 and coming to a deal where he got a job instead.
Neither of the jobs the Panel identified as suitable employment required formal qualifications, and the Panel provided its reasoning, outlined above, in respect of its conclusion that Mr Thomson could undertake training.
Thirdly, contrary to Mr Thomson’s submission, the Panel did take into account that Mr Thomson had been stressed at work. It found his psychiatric conditions are such that he could not return to his pre-injury employment. In doing so, it specifically considered ‘the likely levels of stress and responsibility in that position’ along with other factors. Mr Thomson submits that the Panel failed to engage in an intelligible path of reasoning in making this finding, yet finding he could undertake two other jobs following retraining. I reject that submission. The Panel’s reasoning, already described above, took into account the functional requirements of those two jobs, as well as other factors, including his medical condition, before concluding they were suitable employment after undertaking training. The submission that Mr Thomson has no future ability to sell his labour is rejected.
Is the Panel’s statement of reasons inadequate?
This question concerns ground 4 of Mr Thomson’s amended originating motion.
Mr Thomson’s submissions
According to s 313(2) of the WIRC Act, the Panel had a statutory obligation to provide reasons for its decision. If the reasons are inadequate, there is an error of law.[23] In this context, ‘adequate’ means adequate to enable a court to see whether the opinion involves any error of law.[24] Where reasons invite speculation, this is insufficient to allow a Court to understand the Panel’s path of reasoning and accordingly an error.[25]
[23]Wingfoot, 492-3 [27]-[28].
[24]Ibid, 500-1 [53].
[25]Ibid, 502 [57].
The Panel’s Reasons are inadequate. They are silent and invite speculation on:
(a) how the Panel concluded that Mr Thomson’s medical condition had gradually improved since 2016, and in particular, what evidence the Panel took into account in reaching that conclusion;
(b) how the Panel concluded there was a training course that Mr Thomson could complete and then meaningfully engage as an effective and settled workforce member, particularly given his scholastic ability and personality traits;
(c) the effect of a possible relapse and how it would preclude Mr Thomson from being fit to undertake the suitable employment options of ICT Customer Support Officer or a Network Administrator. Mr Thomson remains depressed and relapse is a real possibility if he is exposed to the pressures of study and work.
WorkCover’s submissions
The submissions above in respect of grounds 1-3 are reiterated. The Reasons are adequate. What Mr Thomson in truth complains about is the outcome, not the path of reasoning.
Analysis – ground 4
A medical panel must provide reasons for its opinion.[26] I adopt the High Court’s oft-cited description in Wingfoot of the standard required of a statement of reasons given by a medical panel.[27]
[26]WIRC Act s 313(2).
[27] Wingfoot (2013) 252 CLR 480, 501 [54]-[55], cited in Richter (2016) 51 VR 95, 129 [118].
Mr Thomson does not identify anything new under this ground. His submissions are merely repetitive of those made in respect of grounds 1-3.
Mr Thomson’s submission that the Panel’s Reasons are inadequate is rejected. I refer to and reiterate the reasoning above, particularly [46]-[47], [51]-[52], [56]-[57], [71]-[72] and [74].
SCHEDULE OF PARTIES
| S ECI 2021 04028 | |
| BETWEEN: | |
| BRETT THOMSON | Plaintiff |
| - v - | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
| ASSOC PROF PETER GIBBONS AS THE CONVENOR OF MEDICAL PANELS | Second Defendant |
| DR STEVEN ADLARD | Third Defendant |
| ASSOC PROF ALEXANDER HOLMES | Fourth Defendant |
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