Valspar Paint (Australia) Pty Ltd v MA
[2020] VSC 304
•29 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 04575
| VALSPAR PAINT (AUSTRALIA) PTY LTD | Plaintiff |
| v | |
| HOA MA | First Defendant |
| and | |
| JULIAN FREIDIN, DAVID FISH, PETER GARD, GEOFFREY KLUG and PETER DOHRMANN | Second to Sixth Defendants |
---
JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 May 2020 |
DATE OF JUDGMENT: | 29 May 2020 |
CASE MAY BE CITED AS: | Valspar Paint (Australia) Pty Ltd v Ma |
MEDIUM NEUTRAL CITATION: | [2020] VSC 304 |
---
ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Panel of opinion that worker had ‘no current work capacity’ – Whether Panel failed to ask itself the right question – Whether Panel failed to have regard to relevant material, consideration of which was essential to its statutory function – Whether Panel’s reasons adequate – No error established – Proceeding dismissed – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 313.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr MF Fleming QC with Ms FC Spencer | Russell Kennedy Lawyers |
| For the First Defendant | Mr AG Uren QC with Mr LB Allan | Shine Lawyers |
HER HONOUR:
Hoa Ma worked for Valspar Paints (Australia) Pty Ltd as a filling line process worker from April 1996 until April 2015. During that time, he suffered a number of work-related injuries, including a back strain in 2006, injuries to his right arm and elbow in 2008 and 2013, and an injury to his right knee in 2009. On 28 April 2015, when he was working on the VORTEX filling machine, packing 4 litre cans of paint onto a pallet, he injured his lower back. He has not worked since.
Mr Ma made a series of workers compensation claims in respect of his injuries, each of which was accepted by Valspar’s claims agent. His back injury was diagnosed as disc protrusions at L4-L5 and L5-S1. His treating surgeon recommended that he undergo surgery, but this was not approved by the claims agent.
In July 2017, the claims agent gave notice to Mr Ma that his weekly payments would cease from 21 October 2017, on the basis that he had a current work capacity or, if he had no current work capacity, this was not likely to continue indefinitely.[1] From November 2017, the agent ceased paying Mr Ma’s medical and like expenses in relation to his back injury, for reasons including that his injury was no longer work-related.
[1]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act), s 163(1) provides that a worker’s entitlement to weekly payments ceases after 130 weeks ‘unless the worker is assessed … as having no current work capacity and likely to continue indefinitely to have no current work capacity’.
Mr Ma disputes these decisions in a County Court proceeding commenced in 2018. On 20 December 2018, Judge Wischusen referred five medical questions to a Medical Panel for an opinion, pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). The referral was initiated by Mr Ma, and agreed to by Valspar.
A Medical Panel was convened to consider the referral, comprising Dr Julian Freidin, specialist psychiatrist, Dr David Fish, specialist occupational and environmental physician, Mr Peter Gard, specialist orthopaedic surgeon, Mr Geoffrey Klug, specialist neurosurgeon, and Mr Peter Dohrmann, also a specialist neurosurgeon.
On 9 August 2019, the Panel provided its opinion and a written statement of reasons. The Panel found that Mr Ma’s lower back condition was dysfunction of his lumbar spine following an aggravation of lumbar spondylosis without radiculopathy, and that this injury was materially contributed to by his lower back injury in April 2015. It also found that he had no current work capacity and that this was likely to continue indefinitely. The Panel’s opinion is to be adopted and applied by the County Court in the proceeding brought by Mr Ma.[2]
[2]WIRC Act, s 313(4).
In this proceeding, Valspar seeks judicial review of the Panel’s opinion. It contends that the Panel fell into jurisdictional error by failing to ask itself the right question in relation to whether Mr Ma had ‘no current work capacity’, and by failing to take into account relevant material, consideration of which was essential to its statutory task. It also contends that the Panel’s reasons were inadequate. Valspar seeks an order in the nature of certiorari quashing the Panel’s opinion, and an order in the nature of mandamus remitting the medical questions to a differently constituted Panel.
For the reasons that follow, none of these grounds is made out. The proceeding must be dismissed.
The Panel’s opinion and reasons
Five medical questions were referred to the Panel for its opinion. Those questions, and the Panel’s opinion in relation to each question, were set out in the Panel’s certificate of opinion dated 9 August 2019:
Question 1:What is the nature of any medical condition, including any sequelae of the plaintiff’s
(a)Right arm/elbow;
(b)right knee;
(c)lower back;
(d)psychiatric/psychological state?
(“the Claimed injuries”)
Answer: In the Panel’s opinion Mr Ma is suffering from:-
(a) residual dysfunction of the right elbow following an aggravation of osteoarthritis of the right elbow
(b) residual dysfunction of the right knee following an aggravation of osteoarthritis of the right knee, treated surgically
(c) dysfunction of the lumbar spine following an aggravation of lumbar spondylosis without radiculopathy
(d) a chronic adjustment disorder with mixed anxiety and depressed mood
relevant to the claimed injuries.
Question 2: Does any medical condition identified by the Panels in answer to questions 1 (c) result from, or is it materially contributed to by the claimed lower back injury?
Answer: In the Panel’s opinion the dysfunction of the lumbar spine following an aggravation of lumbar spondylosis without radiculopathy and chronic adjustment disorder with mixed anxiety and depressed mood is materially contributed to by the claimed lower back injury.
Question 3: If ‘yes’ to question 2, is the provision of either of the following medical services adequate and/or appropriate treatment for the claimed lower back injury:
(a)the surgery proposed by Mr D’Urso in his letter of 3 July 2017, namely L4-5 laminotomy discectomy and rhizolysis;
(b)physiotherapy (and, if so, then at what frequency)?
Answer:In the Panel’s opinion:
(a) the proposed L4/5 laminotomy, discectomy and rhizolysis; and
(b) physiotherapy;
are not currently adequate or appropriate for Mr Ma’s condition.
Question 4:In any, and if so what, period from 21 October 2017 up to, and as at, the date of the Panels’ examination, has the plaintiff had “no current work capacity”, likely to continue indefinitely?
Answer: In the Panel’s opinion in the period from 21 October 2017 up to, and as at, the date of the Panels’ examination Mr Ma had and has no current work capacity which is likely to continue indefinitely.
Question 5:In respect of any period identified in answer to question 4, did/does that incapacity result from, or was/is it materially contributed to by, any and if so which of the Claimed Injuries?
Answer: In the Panel’s opinion Mr Ma’s incapacity did and does result from, and was and is … materially contributed to by the:-
·residual dysfunction of the right elbow following an aggravation of osteoarthritis of the right elbow
·residual dysfunction of the right knee following an aggravation of osteoarthritis of the right knee, treated surgically
·dysfunction of the lumbar spine following an aggravation of lumbar spondylosis without radiculopathy, and
·a chronic adjustment disorder with mixed anxiety and depressed mood.
Dr Freidin, the psychiatrist on the Panel, examined Mr Ma on 26 June 2019. The other members of the Panel conducted a joint examination of Mr Ma on 3 July 2019. Both examinations were conducted with the assistance of a professional Laotian interpreter. The Panel commenced its reasons by referring to these examinations.
The Panel stated that it formed its opinion with regard to the documents and information referred to in Enclosure A, the history provided by Mr Ma, and the examination findings elicited by the Panel. Enclosure A listed more than 200 documents provided to the Panel with the referral, including radiological reports, clinical notes, medical reports, vocational assessments, certificates of capacity, and surveillance material. The Panel was also provided with a joint statement setting out agreed facts,[3] which it reproduced in its reasons. The Panel expressly noted written submissions made to it on behalf of Mr Ma and Valspar.
[3]Pursuant to WIRC Act, s 304.
The first part of the Panel’s reasons dealt with Mr Ma’s claimed physical injuries and his current circumstances. The Panel noted Mr Ma’s history, including descriptions of his right elbow and right knee injuries, and the lower back injury that caused him to cease work in 2015. It also summarised his current physical and emotional symptoms, as well as his current treatment.
The Panel noted the findings of its physical and mental state examinations of Mr Ma. It then summarised the available medical imaging and reports in relation to all three physical injuries. The Panel also referred to surveillance footage of Mr Ma captured on 9-10 November 2017, where he is seen to ‘walk, climb in and out of a car, sit and use a mobile phone in his right hand without impediment’. It considered that these depictions ‘were not inconsistent with Mr Ma’s presentation.’
In a section of the reasons setting out the Panel’s analysis and conclusions, it first addressed each of the three claimed physical injuries. In relation to the right elbow, the Panel concluded that ‘Mr Ma is suffering from residual dysfunction of the right elbow following an aggravation of osteoarthritis of the right elbow, relevant to the claimed right elbow injury’. As to his right knee, the Panel opined that ‘Mr Ma is suffering from residual dysfunction of the right knee following an aggravation of osteoarthritis of the right knee, treated surgically, relevant to the claimed right knee injury’.
The Panel’s conclusions in relation to Mr Ma’s lower back injury were:
The current Panel noted the Certificate of Opinion and Reasons for Opinion of a previous differently constituted Medical Panel dated 3 March 2017. The current Panel noted that the previous Panel had concluded that Mr Ma was suffering from persistent low back pain following a soft tissue injury in the setting of pre-existing degenerative changes of the spine and that the surgery that had been requested at that time consisting of a L4/5 laminotomy, discectomy and rhizolysis was then not appropriate.
The Panel took into account the circumstances of Mr Ma’s employment and the nature of his duties. The Panel noted the opinions of his treating practitioners. The Panel concluded that Mr Ma is suffering from dysfunction of the lumbar spine following an aggravation of lumbar spondylosis without radiculopathy.
As to Mr Ma’s psychiatric condition:
The Panel concluded that Mr Ma is suffering from a chronic adjustment disorder with mixed anxiety and depressed mood relevant to the claimed injuries. The Panel noted that there has not been any significant change in his emotional state either when his antidepressant medication was increased initially or subsequently reduced approximately [a] year ago and concluded that the adjustment disorder with mixed anxiety and depressed mood is likely to continue indefinitely.
The Panel concluded that the chronic adjustment disorder with mixed anxiety and depressed mood was of mild severity and would cause a small decrease in his capacity for work, particularly noting his increased anxiety and irritability when he is in crowded or noisy places.
The Panel then turned to the question of whether Mr Ma’s lower back condition was materially contributed to by his claimed lower back injury:
The Panel noted that the date of claim related to 28 April 2015 and that Mr Ma’s osteoarthritis of the right elbow and osteoarthritis of the right knee preceded this date. The Panel noted that the onset of his back pain had occurred in the context of operating the vortex machine and considered the nature of the duties, specific tasks of the duties, and the duration of his employment. The Panel concluded that dysfunction of the lumbar spine following an aggravation of lumbar spondylosis without radiculopathy.
Next, the Panel explained its conclusions that the requested medical services – L4/5 laminotomy, discectomy and rhizolysis, and physiotherapy – were ‘not currently adequate or appropriate for Mr Ma’s condition.’
Under the heading ‘Work Capacity’, the Panel gave its reasons for concluding that Mr Ma had no current work capacity and that this was likely to continue indefinitely:
The Panel noted the description in Mr Ma’s personal circumstances provided in the introduction to this report.
The Panel considered that in the context of his multiple conditions including osteoarthritis of the right elbow which would limit his capacity to lift and carry, his right knee which would limit his ability to stand and walk for long periods and his lower back which would limit his ability to perform repetitive sitting or standing work that Mr Ma is currently incapable of returning to his pre-injury work due to the injuries and that therefore Mr Ma has an incapacity for work arising from an injury.
The Panel considered all aspects of the definitions of ‘no current work capacity’, ‘current work capacity’ and ‘suitable employment’ contained within the Act. The Panel noted the following:-
•Mr Ma’s current age of 50 places him within an employable age group.
•He has reasonable education but has limited English language skills which limits capacity for work in a clerical environment.
•His limited vocational experience is largely confined to manual work and process work.
•His psychological condition causes a small decrease in his capacity for work, particularly noting his increased anxiety and irritability when he is in crowded and noisy environments.
The Panel considered the 130 day vocational assessment report from the Healthe Work dated 31 March 2017 and the subsequent CSS report dated 25 August 2017. In particular the Panel noted the identified employment options of:-
•Process worker - light duties.
•Machine operator (automatic machine only).
•Forklift operator.
•Car park attendant
•School crossing supervisor.
The Panel discussed with Mr Ma these proposed employment options. He said that he felt incapable of performing work as a forklift driver because of his continuing knee and back conditions and that he would be unable to work as either a process worker or machine operator for the same reasons but also would be limited by his right arm. He said that as a car park attendant he would not be able to climb in or out of cars frequently and that his driving was limited to 1 hour. He said that his limited English language skills would limit his ability to carry out the necessary duties of a car park attendant. Mr Ma also noted that he had applied for work as a school crossing supervisor and had been unsuccessful.
The Panel carefully considered Mr Ma’s limited capacity arising from his right elbow, right knee, and lower back in conjunction with his limited English language skills. The Panel considered that while he does have some capacity to work as a school crossing supervisor that this was limited and that he would not always be reliable in attendance. The Panel therefore concluded that the work of school crossing supervisor did not constitute suitable employment.
The Panel concluded that there was no work for which he was currently suited which he could perform on a reliable and consistent basis as a settled member of the wage earning workforce and that therefore Mr Ma has no current work capacity.
The Panel considered that Mr Ma’s condition has mildly improved since 21 October 2017 but that there had been no substantial change during that period and that therefore Mr Ma had no current work capacity in the period from 21 October 2017 up to the date of the Medical Panel examination.
The Panel considered that his condition was unlikely to improve in the foreseeable future and that he was therefore likely to continue indefinitely to have no current work capacity.
The final question for the Panel was whether Mr Ma’s incapacity for work resulted from, or was materially contributed to by, any of the claimed injuries. The Panel concluded that it did:
The Panel noted that Mr Ma’s ability to walk and to spend long periods on his feet was limited by his right knee and low back conditions. The Panel also noted that his ability to work in any sustained employment using his arms is limited by his right elbow condition. The Panel therefore concluded that the dysfunction of the lumbar spine following an aggravation of lumbar spondylosis without radiculopathy and chronic adjustment disorder with mixed anxiety and depressed mood is materially contributed to by the claimed lower back injury.
The Panel specifically noted the medical reports and opinions of Mr Ash Chehata, shoulder, elbow and wrist surgeon, Professor Peter Teddy, neurosurgeon, and Dr Joseph Slesenger, occupational physician. It stated that it disagreed with identified conclusions in their reports, ‘for the reasons stated above’.
Ground 1 – Did the Panel ask itself the wrong question?
The first ground relied upon by Valspar was:
In arriving at its opinion that the first defendant had in the relevant period ‘no current work capacity’, the Medical Panel failed to ask itself and answer the right question in that the Panel reached its conclusion on the basis of its rejection of five identified employment options when the question for determination was not so restricted.
Valspar submitted that the Panel misconceived its task in arriving at its opinion in answer to Questions 4 and 5, which concerned whether Mr Ma had ‘no current work capacity likely to continue indefinitely’ in the period from 21 October 2017 until the Panel’s examination. It noted that ‘no current work capacity’ is an injury-caused inability to return to employment in the workforce.[4] The Panel’s task was to use its combined experience and expertise to determine whether Mr Ma had such an incapacity. This involved determining whether there was any employment in the workforce in which Mr Ma could engage, including part-time or casual employment. The Panel was not confined to the employment options suggested in the material before it. In this regard, Valspar highlighted that the Panel’s experience and expertise included that of a specialist occupational and environmental physician.
[4]Richter v Driscoll (2016) 51 VR 95, [74]–[75].
The submission for Valspar was that the Panel erred in approaching its task as though it had to determine whether Mr Ma had no capacity to return to employment in any of the five options referred to in the written submissions made to the Panel on behalf of Valspar. This error was, Valspar submitted, evident from that part of the Panel’s reasons that dealt with Mr Ma’s work capacity.[5] The Panel’s approach was said to be inconsistent with the function of a Medical Panel, of forming and giving its own opinion on the medical question referred to it. Valspar submitted that the Panel had made the error of confining itself to choosing between competing arguments as to Mr Ma’s capacity, when its proper function was ‘to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise’.[6]
[5]Set out at [19] above.
[6]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [47].
I do not accept this submission. Reading the Panel’s reasons as a whole, it is clear that the Panel formed its opinion about Mr Ma’s capacity for work in a way that was consistent with its statutory function. Its primary consideration was the physical restrictions that resulted from his multiple conditions – ‘osteoarthritis of the right elbow which would limit his capacity to lift and carry, his right knee which would limit his ability to stand and walk for long periods and his lower back which would limit his ability to perform repetitive sitting or standing work’. It found that these restrictions meant that Mr Ma was unable to return to his pre-injury duties due to his injuries. The Panel further noted his personal circumstances, and his age, education and work experience, in particular his limited English language skills. It also considered that his psychological condition caused a small decrease in his capacity for work, in the form of increased anxiety and irritability in crowded and noisy environments.
These matters were the basis for the Panel’s conclusion that ‘there was no work for which he was currently suited which he could perform on a reliable and consistent basis as a settled member of the wage earning workforce’, and therefore had no current work capacity. This was the right question for the Panel to address, given the statutory concept of ‘no current work capacity’ and the explanation of that concept by the Court of Appeal in Richter v Driscoll.[7]
[7](2016) 51 VR 95, [73]–[98].
The Panel’s approach to this question reflected the approach taken by Valspar, in its written submissions to the Panel. Valspar emphasised that the Panel could only have regard to restrictions or incapacity arising from ongoing compensable injuries when determining Mr Ma’s capacity for suitable employment.[8] It submitted that Mr Ma’s right elbow injury had ‘long since resolved’, all that remained of his right knee injury was scarring, his lower back injury had either resolved or was no longer significantly contributed to by his employment, and he was fit for his pre-injury duties based on his psychological state alone.[9] Valspar’s submission that there was work that Mr Ma could do was premised on him no longer being incapacitated by his work injuries.[10]
[8]Defendant’s submissions to the Medical Panel dated 17 December 2018, [1.3](a), [5.8].
[9]Defendant’s submissions to the Medical Panel dated 17 December 2018, [1.3](b)–(d), [4.5].
[10]Defendant’s submissions to the Medical Panel dated 17 December 2018, [1.3](e)–(f), [5.8]–[5.16].
The Panel did not accept that premise. Contrary to Valspar’s submissions, the Panel found that Mr Ma was suffering from residual dysfunction of his right elbow and right knee, dysfunction of his lumbar spine, and a chronic adjustment disorder with mixed anxiety and depressed mood. Each of these conditions was the result of a work-related injury, and each limited his ability to work in a different way. This was a solid basis for the Panel’s conclusion that, given Mr Ma’s age, education, skills and work experience, he had no current capacity for work.
Before reaching that conclusion, the Panel took particular note of five employment options identified in the 130 week vocational assessment, and discussed these with Mr Ma. It evidently accepted what he said about his capacity to do each of those jobs. As I discuss below, in relation to Ground 2, these were five roles that, on the material before the Panel, required particular attention. The fact that the Panel gave them that attention does not indicate that it misunderstood its statutory task.
However, the Panel’s task did not require it to identify and consider other employment options, not identified during a thorough vocational assessment process, if it considered that it had enough information on which to form an opinion.[11] Given the restrictions due to Mr Ma’s multiple work injuries, it is not surprising that the Panel was able to form its opinion without canvassing other specific employment options. This was not a case of a failure to make further inquiries where there was an insufficient basis to form an opinion. The material before the Panel was comprehensive.
[11]Chang v Neill[2019] VSCA 151, [50]–[53].
Ground 1 is not made out.
Ground 2 – Did the Panel fail to consider relevant material that was essential to its task?
The second ground relied on by Valspar was:
In determining its opinion on the referred medical questions, the Medical Panel fell into jurisdictional error by failing to take into account a mandatory relevant consideration or relevant material, consideration of which was an essential feature of the Panel’s statutory task, being suitable employment options that had been suggested in relation to [Mr Ma] other than the five suitable employment options that the Panel considered, namely:
(a) picker packer;
(b) cashier;
(c) assembler (light).
Valspar’s complaint was that, while the Panel addressed five identified employment options in its reasons, it said nothing about three other roles that had been suggested as suitable for Mr Ma. Although these three options were highlighted and relied upon in Valspar’s written submissions, they were not actively considered by the Panel. This was, Valspar submitted, a failure to take into account relevant material, consideration of which was an essential feature of the Panel’s statutory task.[12]
[12]Relying on Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [60] and Chang v Neill, [92]. No submission was made that the additional employment options were mandatory relevant considerations for the Panel, in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–40 (Mason J).
Mr Ma submitted that the Panel’s reasons demonstrated that it did take these options into account, and gave them appropriate weight. The Panel stated that it had formed its opinion having regard to all of the material, and referred to the relevant reports and Valspar’s submissions. The fact that it did not mention the three options in its reasons did not mean they were not considered. It was a matter entirely for the Panel whether to give some job options more weight than others. In any event, the three options were obviously not suitable employment, having regard to the Panel’s findings about Mr Ma’s injuries and the extent of his incapacity for work. Failure to consider them would not vitiate the Panel’s opinion.
I do not consider that the fact that the Panel’s reasons did not refer specifically to the three additional employment options demonstrates any jurisdictional error in the formation of the Panel’s opinion. There are three reasons for this conclusion.
First, the Panel began its reasons with a statement that it had formed its opinion with regard to the documents and information provided to it. It later expressly noted the two most recent vocational assessments, the report of Dr Joseph Slesenger of 31 May 2017, and Valspar’s submissions. In the absence of any indication that these statements were disingenuous, I have taken them at face value.[13]
[13]Maribyrnong City Council v Malios [2014] VSC 452, [47]–[48]; Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [83].
Second, taking account of the three additional employment options was not essential to the performance of the Panel’s statutory task in this case. As Valspar submitted in relation to the Ground 1, the Panel’s task was to use its combined experience and expertise to determine whether Mr Ma had an injury-caused inability to return to employment in the workforce. It squarely addressed that task, which, as was submitted for Valspar, was not a ‘tick/cross exercise in relation to suitable employment options’.
Third, the three additional employment options were not obviously suitable for Mr Ma, and were not a fundamental issue or an ‘elephant in the room’ that called for specific attention in the Panel’s reasons.[14] This is apparent from an examination of Valspar’s written submissions to the Panel, and the material on which they were based.
[14]Ryan v The Grange at Wodonga Pty Ltd, [60]; Omerasevic v Kotzman [2016] VSC 383, [97].
Part 5 of Valspar’s written submissions to the Panel concerned its contention that Mr Ma had a capacity to work in suitable employment. After setting out the definitions of ‘current work capacity’ and ‘suitable employment’ in the WIRC Act, the submissions continued:[15]
[15]Defendant’s submissions to the Medical Panel dated 17 December 2018, [5.4]–[5.6].
A vocational assessment conducted in 17 April 2015 identified the following suitable employment options:
(a) picker packer;
(b) cashier.
A vocational assessment conducted on 31 March 2017 identified the following suitable employment options:
(a) process worker – light duties;
(b) machine operator (automatic machine only);
(c) forklift operator;
(d) carpark attendant; and
(e) school crossing supervisor.
The CSS report also identified assembler (light) as a suitable employment option for the worker.
The material provided to the Panel included a vocational assessment report completed by a rehabilitation consultant with The ORS Group, dated 17 April 2015. According to the ORS report, at the time of the assessment Mr Ma was performing full time modified duties as a process worker, having undergone his second right elbow surgery in November 2014. He was pleased to be back at work and was coping well with his modified duties. The consultant identified the jobs of picker-packer and cashier as suitable alternative duties for Mr Ma, given the restrictions from his right knee and right elbow injuries.
Shortly afterwards, on 28 April 2015, Mr Ma injured his lower back and stopped work. It is not really clear why Valspar thought that the ORS report remained relevant more than three years after the assessment, after Mr Ma had suffered a different injury, and after he had undergone further vocational assessment in 2017.[16] In my view, the Panel did not have to give specific attention to employment options suggested in an out-of-date report.
[16]Valspar also relied on the consultant’s record of a case conference on 24 March 2016 with Mr Ma’s general practitioner, Dr Jacqueline Quach, which recorded Dr Quach as stating that Mr Ma had return to work capacity in administration and cashier, 2-3 hours per day, with breaks every hour. That was not Dr Quach’s opinion by 2018. In every certificate of capacity she provided that year she stated that Mr Ma could not work ‘given the current exacerbation of lower back pain’.
The five employment options that the Panel noted in its reasons – namely, process worker (light duties), automatic machine operator, forklift operator, car park attendant, and school crossing supervisor – were suggested in a vocational assessment report prepared by a rehabilitation consultant from Healthework, dated 31 March 2017. The Healthework report identified five roles that the consultant considered were suitable for Mr Ma, given his physical restrictions and transferable skills. A position description was provided for each role, listing the duties, physical demands and skills required.
Mr Ma was then seen by Dr Joseph Slesenger, a specialist occupational physician, on 31 May 2017. The material provided to Dr Slesenger included the Healthework report. Dr Slesenger was of the opinion that Mr Ma’s lumbar spine condition was no longer related to his work injury on 28 April 2015 and that, based on his compensable physical impairment alone, he could gradually return to work performing pre-injury duties and hours. He considered that Mr Ma had a current work capacity and could return to work immediately, with the restrictions that he not push, pull or carry over 5 kg, not do repetitive bending or twisting, and work four hours a day, four days a week. In Dr Slesenger’s opinion, Mr Ma had capacity to perform the duties of the five roles identified in the Healthework report, with those restrictions, returning to full-time work within 10 weeks. He also suggested that Mr Ma could return as a packer or assembler.
A psychiatric assessment was conducted by Dr Dielle Felman, consultant psychiatrist, who examined Mr Ma on 29 May 2017. Dr Felman was also asked to provide an opinion on Mr Ma’s work capacity and whether the employment options identified by Healthework were suitable. From a psychiatric point of view, she considered forklift driver to be an unsuitable role. This was due to ‘phobic avoidance of forklifts’, Mr Ma having told her that he sustained his right elbow injury in 2013 when a forklift crashed into him.
The last report in the sequence is a further report by the consultant at Healthework, dated 25 August 2017, entitled ‘CSS Report’. The CSS report summarised the opinions of Dr Slesenger and Dr Felman, and then set out five employment options – process worker (light), automatic machine operator, car park attendant, school crossing supervisor, and assembler (light). The last option was new. It was perhaps suggested instead of forklift driver, which Dr Felman considered to be unsuitable. The functional requirements for each role were listed. There was no description of the duties or skills required for ‘assembler (light)’, or any explanation of how it differed from process worker (light).
The Panel said in its reasons that it had considered the Healthework report and the subsequent CSS report. It particularly noted the five employment options identified in the Healthework report, which it discussed with Mr Ma. While it did not address the additional role of assembler (light) suggested in the CSS report, the materials did not raise anything of substance for it to address. The role was so vaguely described that it could not be described as a fundamental issue, consideration of which was essential to performance of the Panel’s function.
Separately, the Panel noted and disagreed with Dr Slesenger’s opinions that Mr Ma’s lumbar spine condition was no longer work-related and that he could return to his pre-injury duties. The Panel was not obliged to specifically address Dr Slesenger’s suggestions of packer and assembler, given that it had rejected the opinions on which those suggestions were based.
Ground 2 is not made out.
Ground 3 – Were the Panel’s reasons adequate?
Valspar’s third ground of review was that the Panel had erred by failing to give a proper and adequate written statement of reasons for its opinion in respect of the referred medical questions, in accordance with s 313(2) of the WIRC Act.
Section 313(2) of the WIRC Act requires a Medical Panel to provide a written statement of reasons for its opinion. Those reasons must explain the Panel’s ‘actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law’.[17] A statement of reasons is not adequate if there is a ‘real doubt’ whether the Panel correctly performed its statutory functions.[18] A real doubt may exist where a Panel’s conclusions are open to more than one interpretation,[19] and in that case the reviewing court should not speculate about a Panel’s path of reasoning in order to resolve ambiguity or fill gaps.[20]
[17]Wingfoot, [55].
[18]Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [47].
[19]Pearce v Lloyd [2016] VSC 806, [62].
[20]Denham v Consolidated Herd Improvement Services Co-op Ltd [2014] VSC 520, [37].
At the same time, a Panel’s reasons need only be sufficient to enable a reviewing court to understand that it has performed its function – to form and give its opinion on medical questions referred to it – lawfully. The High Court’s decision in Wingfoot made clear that a Medical Panel is not an arbitral or adjudicative body, does not have a function of deciding disputes, and is not required to choose between competing arguments or contentions put to it.[21] The adequacy of a Medical Panel’s reasons must be assessed against its statutory function, and not against some other standard.
[21]Wingfoot, [47].
In addition, the Panel’s reasons must be read fairly, as a whole and in context, and should not be subject to ‘over-zealous judicial review’.[22] A Panel’s reasons may be able to be understood by combining what is expressly stated with inferences necessarily arising, although any such inferences must have a ‘proper evidential foundation disclosed in the reasons’.[23]
[22]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). See also Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45, [9], [18], [20] and Gruma Oceania, [29].
[23]Tan v Kotzman [2016] VSC 482, [22].
Valspar identified a number of deficiencies in the Panel’s reasons that, it submitted, went ‘beyond mere looseness of language or unhappy phrasing’. I will consider each in turn.
Lower back injury – Material contribution
The most significant complaint concerned the Panel’s reasons for its opinion that Mr Ma was suffering from ‘dysfunction of the lumbar spine following an aggravation of lumbar spondylosis without radiculopathy’ and that this condition was materially contributed to by his back injury in April 2015. Valspar submitted that there was no discernible path of reasoning to this conclusion. Rather, the Panel’s reasons went from ‘noting’ and ‘considering’ various matters to ‘therefore’ concluding. It pointed out that the Panel had not referred to the most recent MRI of Mr Ma’s lumbar spine, and that a critical sentence under the heading ‘Material Contribution’ was apparently incomplete.[24]
[24]The sentence said to be incomplete was the final sentence of the paragraph extracted at [17] above.
Valspar submitted to the Panel that it should find that the effects of any aggravation or exacerbation of pre-existing degenerative changes in the lumbar spine sustained by Mr Ma on 28 April 2015 had resolved, and that, since 21 October 2017, employment had not been a significant contributing factor to an ongoing lumbar spine injury. It referred to various matters in the materials before the Panel in support of this submission, in particular the report of Dr Slesenger.[25]
[25]Defendant’s written submissions to the Medical Panel dated 17 December 2018, [4.7].
As was submitted for Mr Ma, his history of lower back pain was straightforward. In April 2015, he suffered right lower back pain at work in the region of his sacroiliac joint. He stopped work then and has not worked since. Over some months he developed pain radiating into his right leg, which has been constantly present. He still suffers pain over the right lower back, which radiates into the right leg. This history was recorded by the Panel, and was clearly accepted by it. It was consistent with the Panel’s observations on examination and with the two reports of MRI scans of the lumbar spine that were noted by the Panel. The history revealed no other event that might have caused the back pain he was still experiencing. It was a simple history of a lower back injury that was causing Mr Ma ongoing pain. The Panel’s reasons were correspondingly simple.
The Panel could certainly have given more expansive reasons than it did. In particular, it could have explained why it did not accept Valspar’s submission that the lower back injury in 2015 was no more than a soft tissue injury that had resolved. However, the Panel was not obliged ‘to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else’.[26] What matters is that the reasons disclose the Panel’s path of reasoning in sufficient detail that a reviewing court can see whether the Panel’s opinion involved an error of law.
[26]Wingfoot, [56].
Read as a whole, I consider that the Panel’s reasons adequately explain its conclusion that Mr Ma’s lower back condition was still materially contributed to by his work injury of 28 April 2015. I was able to understand, without speculation, how it had reached that conclusion.
There do appear to be some words missing from the conclusion expressed under the heading ‘Material Contribution’ on page 18 of the Panel’s reasons. However, the missing words appear in the Panel’s certificate of opinion, in its answer to Question 2– namely, ‘and chronic adjustment disorder with mixed anxiety and depressed mood is materially contributed to be the claimed lower back injury.’[27] The slip did not obscure the Panel’s reasons for its answer to Question 2.
[27]Set out at [9] above.
For completeness, I was not concerned by the Panel’s lack of reference to the most recent MRI scan of Mr Ma’s lumbar spine, dated 24 November 2017. There appeared to be no significant difference between it and the two previous MRIs of 21 June 2015 and 18 August 2016, both of which were mentioned in the Panel’s reasons. Valspar did not submit otherwise.
No current work capacity – Material contribution
Next, Valspar complained about the paragraph under the heading ‘Material Contribution’ on the last page of the Panel’s reasons. The impugned paragraph is set out at [20] above, and concerns the Panel’s answer to Question 5. Valspar described the reasons given in that paragraph as incomprehensible, and said that they did not attempt to engage, even in a superficial way, with the matters raised in its written submissions to the Panel.
Read in isolation, the paragraph is very brief and the reasons in it appear disjointed. However, the paragraph is not to be read in isolation, but in the context of the whole of the Panel’s reasons. When that is done, the paragraph is clearly referring to conclusions explained earlier in the reasons, which formed the basis for the Panel’s ultimate conclusion that Mr Ma’s incapacity for work was materially contributed to by his work injuries.
The Panel had explained its conclusions that Mr Ma still had medical conditions related to his right arm/elbow and right knee injuries. There was no issue about causation in relation to those injuries – the only issue was whether they had resolved. The Panel had also explained its conclusions that Mr Ma’s lower back condition was materially contributed to by his April 2015 back injury, and that his psychiatric condition was relevant to his claimed injuries. It had explained why it considered him to have no current work capacity. All of those explanations were steps along the Panel’s path of reasoning to the conclusion it expressed on the last page of its reasons.
In relation to the complaint that this part of the Panel’s reasons did not engage with the submissions made by Valspar, the Panel was required only to explain how it arrived at the opinion that it reached. It did not have to explain why it had not accepted particular submissions, or why it did not share opinions on which Valspar relied.
Right knee injury – Causation
Valspar also took issue with the Panel’s reasons for its conclusion that Mr Ma’s residual right knee dysfunction was causally related to his 2009 knee injury. As was pointed out by Mr Ma, the Panel was not asked for an opinion about the compensability of his right knee injury. Question 1 asked only about the nature of any medical conditions relevant to the right knee injury. Causation was in issue only in relation to any lower back condition that the Panel found him to have. The Panel can hardly be criticised for not providing reasons for an opinion that it was not asked to give, on a question that was not controversial.
Suitable employment options
The final complaint made by Valspar about the Panel’s reasons concerned its explanation for the conclusion that Mr Ma had no current work capacity. Valspar submitted that the Panel’s reasons jumped from Mr Ma’s responses to five listed employment options, to a discussion about the suitability of only one of those options, to its conclusion that Mr Ma is totally incapacitated for employment. The Panel did not explain its path of reasoning in relation to the other four options discussed, or why they could not be performed on a part time or casual basis. In relation to the option of school crossing supervisor, the Panel did not explain why the fact that Mr Ma would not always be reliable in attendance made it an unsuitable option.
I do not consider that Valspar’s submission accurately described the Panel’s reasons on the question of Mr Ma’s incapacity for work. It also mischaracterised the Panel’s statutory task.
As discussed, the Panel addressed itself primarily to the physical restrictions that resulted from Mr Ma’s various work injuries, and found that these restrictions meant that Mr Ma had no current work capacity.[28] Its reasons addressed the statutory definition of that term.
[28]See [25]–[28] above.
The Panel’s task did not require it to undertake a ‘tick/cross exercise’ with a list of suggested options for suitable employment.[29] It did, however, address the most relevant of those, and plainly accepted what Mr Ma said about his capacity to do them. Mr Ma appears to have thought he could do the work of a school crossing supervisor, given that he had applied for the role. The Panel explained that his capacity to do the work was limited and he could not reliably attend. This was, in my view, a sufficient explanation of why the Panel did not consider any of the employment options to be suitable.
[29] See [30], [37] above.
Similarly, the Panel was not obliged to give reasons why it disagreed with certain opinions expressed by Mr Chehata, Professor Teddy, and Dr Slesenger. It was enough that it explained why it formed its own opinions, which I am satisfied that it did.
I consider the Panel’s reasons were adequate. Ground 3 is not made out.
Disposition
As no error has been established, the proceeding must be dismissed. I will hear the parties on the question of costs.
3
17
0