Whelan v Victorian WorkCover Authority
[2022] VSC 351
•23 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 02015
| MARK WHELAN | Plaintiff |
| v | |
| DR SUMITRA SHANKAR | First Defendant |
| -and- | |
| DR CHRIS GRANT | Second Defendant |
| -and- | |
| PROFESSOR MALCOLM SIM | Third Defendant |
| -and- | |
| ASSOCIATE PROFESSOR MARTIN RICHARDSON | Fourth Defendant |
| -and- | |
| MS PHI-VAN HOUSTON | Fifth Defendant |
| -and- | |
| VICTORIAN WORKCOVER AUTHORITY | Sixth Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 June 2022 |
DATE OF JUDGMENT: | 23 June 2022 |
CASE MAY BE CITED AS: | Whelan v Victorian WorkCover Authority |
MEDIUM NEUTRAL CITATION: | [2022] VSC 351 |
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JUDICIAL REVIEW – Opinion of medical panel – Current work capacity – Whether approach of panel affected by a ‘pre-condition’ that the plaintiff undertake a ‘work conditioning program’ – Whether panel erred in referring to ‘work conditioning program’ without further explanation – Consideration of panel reasons must not be ‘over-zealous’ – Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | PA Czarnota with P Santamaria | Maurice Blackburn |
| For the First to Fifth Defendants | No appearance | DLA Piper Australia |
| Sixth Defendant | MF Fleming QC with FC Spencer | Wisewould Mahony |
HIS HONOUR:
A Introduction
The plaintiff was 51 years of age and righthanded. He commenced work with the sixth defendant as a truck driver in February 2006. In May 2006 and March 2008, in the course of his employment, the plaintiff suffered accepted injuries to his right shoulder and right side of his neck.
In the first of those incidents, the plaintiff was pulling down a ‘dog bar’ to unload steel from his truck and slipped, wrenching his right shoulder. After the incident, he returned to full-time work in alternative duties as a maintenance controller. It was office-based clerical work. The plaintiff coped in those duties.
The second incident involved throwing a chain over a load on the plaintiff’s truck. The plaintiff suffered right shoulder and neck pain. He again returned to the alternative duties and coped. However, he was retrenched in September 2008. The plaintiff initially looked for ‘new work’, but had ‘no success’ and ‘so has not been looking for work for many years’.[1]
[1]Joint Court Book ’JCB’ 35.
The plaintiff claimed right sided neck and shoulder pain since the incidents.
There was a dispute concerning the plaintiff’s capacity for employment and any need for household help services. Eight questions were referred to a medical panel.
A five member panel was assembled comprising two psychiatrists, an occupational and environmental physician, an orthopaedic surgeon and an occupational therapist. The plaintiff attended the panel for examination by the ‘physical doctors’ on 25 February 2021.
In the usual way, the panel was provided with a significant collection of medical reports and other information including the written submissions prepared on behalf of the plaintiff and sixth defendant respectively.[2]
[2]JCB47-49.
The panel answered the questions by certificate of opinion dated 12 April 2021.[3] Questions 1 to 5 were posed and answered as follows –
[3]JCB31-33.
Question 1What is the nature of the Plaintiff’s medical condition relevant to any injury and/or the alleged injuries to:
(a) the right shoulder?
(b) the cervical spine?
(c) the Plaintiff’s psychological state?
(hereinafter referred to as “the said injuries”).
Answer:In the Panel’s opinion, the Plaintiff has an aggravation of spondylosis of the cervical spine with a right C6 sensory radiculopathy, but no medical condition of the right shoulder and no psychiatric condition.
Question 2 (a) Between the 19th day of January 2019 and the date of the Medical Panel’s examination;
(b) As at the date of the Medical Panel’s examination-
to what extent has any and which of the said injuries resulted from, or been materially contributed to by, injuries suffered by the Plaintiff in employment with the Defendant?
Answer:In the Panel’s opinion, between the 19th day of January 2019 and the date of the Medical Panel’s examination and as at the date of the Medical Panel’s examination, the Plaintiff’s aggravation of spondylosis of the cervical spine with a right C6 sensory radiculopathy was and is materially contributed to by the alleged cervical spine injury.
Question 3 What is the existence, extent or permanency of any incapacity of the Plaintiff for suitable employment?
Answer:In the Panel’s opinion, the Plaintiff has an incapacity for his pre-injury duties which is permanent, but he does not have an incapacity for suitable employment.
Question 4 If the Plaintiff has an incapacity for work or suitable employment, does the incapacity result from or is it still materially contributed to by, any and which injuries suffered by the Plaintiff in employment with the Defendant?
Answer:In the Panel’s opinion, the Plaintiff’s incapacity for his pre-injury duties results from and is materially contributed to by his alleged cervical spine injury.
Question 5 (a) Between the 19th day of January 2019 and the date of the Medical Panel’s examination;
(b) As at the date of the Medical Panel’s examination – did the Plaintiff have:
(i) a current work capacity; or
(ii) no current work capacity?
Answer:In the Panel’s opinion, between the 19th day of January 2019 and the date of the Medical Panel’s examination and as at the date of the Medical Panel’s examination, the Plaintiff did and does have a current work capacity.[4]
[4]JCB31-32.
As would be evident, the panel accepted that the plaintiff had a subsisting medical condition relating to his employment with the sixth defendant, particularly an aggravation of spondylosis of the cervical spine with a right C6 sensory radiculopathy. There is no present issue concerning the determination of injury.
The present issue is directed particularly to the panel’s answer to question 3, in which it determined that the plaintiff did not have an incapacity for ‘suitable employment’, and question 5, in which it determined that, between 19 January 2019 and the date of the medical panel’s examination, the plaintiff ‘did and does have a current work capacity’.
The panel delivered lengthy reasons for its stated opinions.[5] It recorded the history taken on examination as well as the plaintiff’s claims of persisting and constant pain. It also recorded the results of its physical examination, the substance of the medical imaging reports and thereafter stated its conclusions in respect of the plaintiff’s physical medical condition.
[5]JCB34-49.
The reasons also referred to the panel’s psychiatric examination of the plaintiff, and related aspects, and thereafter explained why it was that the panel determined that the plaintiff had no psychiatric diagnosis relevant to the accepted injury. There is no issue about those aspects of the panel’s determination.
The present issue is directed to the panel’s reasoning concerning ‘current work capacity’; appearing in and from page 12 of the reasons.[6] That passage should be reproduced in full –
[6]JCB42-44.
Current work capacity
The Panel took into account the nature and physical requirements of the Plaintiff’s pre-injury employment duties as a truck driver, which involved him throwing chains overhead to tie down loads on the truck, and his report of returning to a brief period of doing the same truck driving role in 2008 and noticing neck pain when having to throw chains over his shoulder to secure a load, and concluded that he is not capable of performing his pre-injury employment duties on a reliable and consistent basis due to his neck condition and, due to the longstanding nature of this condition, his incapacity for his pre-injury duties is permanent.
The Panel, considered the nature and severity of the Plaintiff’s neck condition relevant to the claimed injury and the factors to be considered in the definitions of “current work capacity”, “no current work capacity” and “suitable employment” contained in the Act and took into account:
i.the Plaintiff’s age of 51 years, which the Panel considers would not likely limit his employment options,
ii.his place of residence in an outer suburb of Melbourne, which the Panel considers would not likely limit his employment options,
iii.his completion of secondary education to year 11 and completion of several certificates (including a certificate in OHS after his injuries), despite a history of dyslexia, which the Panel considers may limit his employment options to some extent,
iv.his range of previous employment mainly in higher and lesser physically demanding jobs, which the Panel may limit his employment options [sic],
v. the fact that he was coping well while working full time in alternative duties as a maintenance controller (office based role to organise/schedule maintenance and servicing of trucks) before being retrenched, but it is more than 12 years since he was in any form of employment and there have been no further return to work attempts since then, which the Panel considers may limit his employment options,
vi.the Panel’s conclusion that the Plaintiff is not suffering from any psychiatric condition relevant to any alleged injury, which would not limit his employment options,
vii.that he has no other medical conditions which would affect his ability to undertake suitable employment,
viii.the fact that he is not currently undertaking a rehabilitation program and there is no current return to work plan, which the Panel considers would likely limit his employment options, and
ix. that based on the supplied certificates dated until February 2020, his local doctor was certifying him as fit for modified employment with some restrictions until July 2013, but unfit for any employment after that date.
While the Panel has identified that the Plaintiff has a right C6 sensory radiculopathy, the Panel found this is only a partial sensory loss and considers that this is unlikely to have a significant impact on the current work capacity of the Plaintiff.
The Panel noted Recovre’s suitable employment report dated 19 February 2020 and supplementary report dated 30 June 2020 in which the following employment options were identified as suitable for the Plaintiff:
• Fleet controller
• Despatch and receiving clerk
• Hire controller
• Maintenance controller
• Spare parts interpreter
The report also detailed the findings from worksite visits for the following two roles, which Nabenet considered were consistent with the demands of the above employment options; Radio controller and Road safety camera operator.
While the Recovre report did not set out the physical demands of the five identified suitable employment options, the Panel noted the Nabenet NES workplace demands analysis report dated 8 August 2018, which set out the physical demands for three of those options; maintenance controller, spare parts interpreter and hire controller, as well as for an additional employment option of customer service representative. The Panel noted the physical demands and requirements of those jobs and also considered that the identified demands of the hire controller job identified in the Nabenet report would be very similar to those of the fleet controller job and despatch and receiving clerk jobs identified in the Recovre report.
The Panel reviewed the proposed suitable employment options with the Plaintiff. He considered that for the spare parts interpreter job, lifting of the heavier spare parts would be a problem. Regarding the road safety camera operator job the Plaintiff thought that this would involve too much driving and too much carrying and setting up equipment. While he thought the other options would be less demanding from the physical perspective, he thought he would have difficulty doing those jobs on a reliable basis due to pain. He also considered that prolonged sitting at a workstation was likely to be difficult for him.
The Panel took into consideration the Plaintiff’s young age, transferable skills and in particular his previous experience as a maintenance controller, which he was able to perform after the two incidents, his completion of year 11 of schooling and several post secondary certificates and the lack of any psychiatric condition and, despite his history of dyslexia, the Plaintiff was able to perform the alternative duties as a Maintenance Controller/Worker until he was retrenched in September 2008.
The Panel also took note the physical demands of the proposed job options and the symptoms and limitations imposed by the Plaintiff’s neck condition, which are predominantly due to neck pain limiting tasks that involve overhead reaching, heavy lifting, pulling or pushing anything greater than 5kg [sic]. The Panel also noted that these proposed employment options roles do not require him to tie down loads by throwing chains above shoulder level or handle very heavy weights, which are the main physical barriers to him performing his pre-injury job.
Based on its clinical expertise and experience, and after considering the other factors outlined above, the Panel concluded that the Plaintiff is currently suited for the proposed job options of maintenance controller, hire controller, fleet controller and despatch and receiving clerk. The Panel considers that these four jobs have similar physical demands to the alternative role of maintenance controller/worker that he performed post injury during his return to work program in 2008. The panel also considered that the Radio controller and Road safety camera operator jobs both have additional physical demands not suited to the Plaintiff’s neck condition.
Therefore, the Panel concluded that the Plaintiff could undertake the proposed suitable employment options of maintenance controller, hire controller, fleet controller and despatch and receiving clerk on a reliable and consistent basis as a settled or established member of the wage earning workforce with no risk of aggravating his neck condition and therefore the Panel concluded he has a capacity for suitable employment.
The Panel acknowledges that the Plaintiff is likely to be deconditioned following a prolonged period out of the workforce, not having many structured activities or routine throughout the week and gaining weight due to a lack of exercise. This is likely to have an impact on the Plaintiff when he first returns to suitable employment and therefore the Panel considers that he would benefit from a work conditioning program prior to commencing work, as part of his return to work preparation.
The Panel also considered that there has been little change in the Plaintiff’s neck condition since January 2019 until his current presentation and therefore the Panel concluded that between the 19th day of January 2019 and the date of the Medical Panel’s examination and as at the date of the Medical Panel’s examination, the Plaintiff did and does have a current work capacity.
The Panel took note of the vocational assessment report dated 27 March 2020 by Mr Bill Radley, psychologist, in which he concluded that the Plaintiff had no current work capacity. The Panel noted that Mr Radley based his conclusions on the Plaintiff suffering from a right shoulder rotator cuff condition and an adjustment disorder with mixed anxiety and depressed mood, in addition to his cervical spine condition. The Panel does not agree that the Plaintiff has any right shoulder condition, nor any psychiatric condition, and based on considerations of the Plaintiff’s cervical spine condition alone, the Panel came to a different conclusion from that of Mr Radley.
[Emphasis added].
The paragraph highlighted by underlining was the focus of the plaintiff’s present contentions.
Thereafter, the panel considered the issues of household help services as well as several previous medical opinions, some of which concerned work capacity. The panel disagreed with various identified opinions to the effect that the plaintiff had ‘no current work capacity’.[7]
[7]JCB44-46.
In substance, the present issue is that in its passage of reasoning concerning ‘current work capacity’ the panel concluded that –
(a) the plaintiff did not have a capacity for his pre-injury duties; but that
(b) since 19 January 2019 the plaintiff had had a ‘current work capacity’ in respect of certain ‘suitable employments’.
In that connection, it was submitted that by the highlighted paragraph to which I have referred the panel had erected a ‘pre-condition’ that the plaintiff undertake a ‘work conditioning program’ prior to commencing any work. It followed, it was submitted, that the panel had erred in its understanding and application of the definition of ‘current work capacity’. The plaintiff referred to the definition of ‘current work capacity’ in section 3 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), as follows –
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.
[Plaintiff’s emphases added].[8]
[8]JCB11.
B The present proceeding
The present proceeding was commenced by originating motion dated 10 June 2021.[9] The originating motion states two somewhat elaborate grounds of judicial review, particularly –
[9]JCB3-8.
1.The Medical Panel failed to give reasons that explained the actual path of reasoning by which it arrived at its opinion that:
a.In answer to medical questions 3, 4 and 5 referred to it, it failed to provide an explanation as to how it reconciled its opinion that the Plaintiff has a current work capacity for various suitable employment roles on a reliable and consistent basis as a settled or established member of the wage earning workforce with no risk of aggravating his neck condition, with its opinions the Plaintiff is likely to be deconditioned and would benefit from a work conditioning program prior to commencing work as part of his return to work preparation, thereby purporting to impose a pre-condition with no detail and of indefinite duration on him having a “current work capacity”;
b.In answering medical question 3, 4 and 5 referred to it, it failed to provide any practical content of the suggested work conditioning program it felt the Plaintiff would benefit from engaging in, prior to commencing work and as part of his return to work preparation;
c.Failing to comply with its statutory function to answer medical questions referred to it, namely questions 3, 4 and 5, in accordance with the analytical process required in Richter v Driscoll (2016) 51 VR 95;
2.Alternatively to 1, it emerges by implication from the reasons that the Panel, in determining medical questions 3, 4 and 5 referred to it, erred in law:
a.By erroneously interpreting and applying the statutory definitions of “current work capacity” and “suitable employment” in finding that the Plaintiff had a “current work capacity”, in circumstances where it formed the opinion that he is likely to be deconditioned and would benefit from a work conditioning program prior to commencing work as part of his return to work preparation, thereby purporting to impose a pre-condition with no detail and of indefinite duration on him having a “current work capacity”;
b.By failing to answer the medical questions in accordance with the analytical process required in Richter v Driscoll (2016) 51 VR 95.
In written argument, the plaintiff identified the grounds as ‘separate, albeit overlapping’.[10]
[10]JCB9.
In a commendably focussed address, counsel for the plaintiff described the central argument as follows –
…the issue is the adequacy of reasons given to set out how the Panel arrived at its opinion that the plaintiff has a current work capacity and how that’s reconciled with comments that the plaintiff has a deconditioned state, having not worked for 12 years, and comments that as part of return to work preparation prior to commencing work he would benefit from a work conditioning program. We say that a fair and beneficial review of the reasons leaves real doubt as to whether the Panel correctly applied the test for current work capacity in the sense that the plaintiff, with all those features, how it can be said that he is currently ready and fit to resume and maintain work on any reliable and consistent basis.[11]
[11]Transcript ‘T’ 2.
In addition, counsel focused attention on the panel’s reference to a ‘work conditioning program’ and submitted that –
… we don’t really know what this work conditioning program entails, we don’t know for how long it’s expected to go for, what are the aims, what progress is anticipated, who is running the program …[12]
[12]T5.
In that connection, by the originating motion, the plaintiff seeks that the opinion of the panel be quashed and an order in the nature of mandamus be made remitting the medical questions to a differently constituted medical panel to be ‘reconsidered in accordance with law’.
The first to fifth defendants – being the members of the panel – adopted the Hardiman position.
C Grounds 1 and 2: ‘reasons’ and ‘error’
I have already identified the essential substance of the plaintiff’s arguments.
In address, counsel for the plaintiff did not use the word ‘pre-condition’. However, that remained the substance of the criticism. It was submitted that the panel must have erred in its consideration of ‘current work capacity’.
Counsel also criticised the panel’s reference to a ‘work conditioning program’. Comparison was sought to be made with the reasoning of another panel in ‘a somewhat similar circumstance’ in Jafari v Yong.[13] It was submitted that –
… it [the panel in that instance] explained and set out the practical content of what a work conditioning process may look like for another worker. We say that no attempt has been made here to provide any similar explanation, and we say that that is the sort of thing you would expect, particularly when you are dealing with someone who’s been out of work for such a long time… And we say that one paragraph raising a prospect of the need for a prior work conditioning program just doesn’t suffice…[14]
[13][2020] VSC 589 (‘Jafari’).
[14]T7. That submission did not incorporate the rather unhelpful qualification in the plaintiff’s outline of submissions that the ‘level of detail fleshed out … [by the panel in Jafari] is also (in some respects) lacking…’: JCB12.
In Jafari, the panel was quoted as stating, relevantly, as follows –
…
The panel noted the period of time that Mr Jafari has spent out of the workforce, together with the nature of the condition. The Panel considered that a graduated return to work program would allow a work conditioning process to occur, and this would benefit Mr Jafari. The Panel concluded that he could initially work reduced weekly working hours such as 20 hours per week, and this could progressively increase, aiming to return back to working his pre-injury weekly working hours over a three month period.[15]
…
[15]Jafari (n 13) [21].
Counsel submitted that understanding the present panel’s reasons involved ‘speculative gap filling’ that was ‘indicative of inadequacy’.[16]
[16]T22.
For their part, counsel for the sixth defendant submitted that there was no error and, among other things, pointed to various aspects of authority as well as to the context within which the relevant parts of the highlighted paragraph appeared in the reasoning of the panel.
In essence, I accept the substance of the submissions advanced on behalf of the sixth defendant. In my view, the panel did not err in its consideration of the concept of ‘current work capacity’ and did not erect the completion of a ‘work conditioning program’ as a precondition to the plaintiff recommencing work in suitable employment.
I was referred to and am conscious of authorities that emphasise both that an ‘overzealous’ approach should not be taken when scrutinizing such reasons and, indeed, that a beneficial approach should be taken.[17] That said, I do not regard the present case as requiring any ‘beneficial approach’ in order that the contentions of error might be rejected.
[17]Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, 271-272, Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 [55]-[56], [63]-[65] and Gruma Oceania v Bakar [2014] VSCA 252 [29].
With that in mind, the answer to the plaintiff’s overlapping contentions seems to me to be evident in the unfolding context provided by the reasoning of the panel. In particular, prior to the paragraph of reasoning highlighted by counsel for the plaintiff –
(a) the panel recorded that the plaintiff had worked in full-time duties as a maintenance controller following the incidents of injury and had coped in those duties until being retrenched;[18]
[18]JCB35.
(b) the plaintiff had subsequently ‘looked for some new work, but he had no success and so has not been looking for work for many years’;[19]
[19]Ibid.
(c) the panel thereafter referred to the plaintiff’s dyslexia, education and work experience, claims of pain, increased weight, lack of ‘structured activities’ and made findings concerning the nature of the subsisting physical injury;[20]
[20]JCB35-41.
(d) in the latter respect, the panel considered the ‘right C6 sensory radiculopathy’ to be ‘a partial sensory loss’ only and that it was ‘unlikely to have a significant impact on the current work capacity of the plaintiff’;[21]
[21]JCB42.
(e) specifically in respect of and under the heading ‘current work capacity’, the panel noted that the plaintiff could not return to his pre-injury employment as a truck driver, but considered the ‘nature and severity of the plaintiff’s neck condition’ and specifically referred to the differing definitions of ‘current work capacity’, ‘no current work capacity’ and ‘suitable employment’;[22]
[22]Ibid.
(f) the panel took into account a sequence of relevant factors of which there was no criticism – some of which it identified as having the potential to limit, or the likelihood of limiting, the plaintiff’s employment options;[23]
[23]JCB42.
(g) in that context, the panel gave consideration to several proposed suitable employments and considered the plaintiff to be ‘currently suited’ for the particular positions of maintenance controller, hire controller, fleet controller and despatch and receiving clerk (but not some others);[24]
[24]JCB43-44.
(h) in that regard, the panel referred specifically to the plaintiff’s ‘previous experience as a maintenance controller, which he was able to perform after the two incidents’[25] and to its assessment that the four suitable employments have ‘similar physical demands to the alternative role of maintenance controller/worker that [the plaintiff] performed post-injury during his return to work program in 2008’;[26]
(i) in that context, the panel concluded that the plaintiff could undertake those suitable employment options ‘on a reliable and consistent basis as a settled or established member of the wage earning workforce with no risk of aggravating his neck condition’ – which counsel for the plaintiff identified as amounting to a ‘Richter v Driscoll formulation’;[27] and
(j) the panel concluded that the plaintiff ‘therefore … has a capacity for suitable employment’.[28]
[25]JCB43.
[26]JCB44.
[27]T3. Cf., (2016) 51 VR 95 (‘Richter’).
[28]JCB44.
The highlighted paragraph then appears. Counsel for the plaintiff emphasised the references to the plaintiff likely being ‘deconditioned’, the ‘impact’ of returning to work and to the final part of the final sentence, in which the panel referred to a work conditioning program ‘prior’ to commencing work and as a part of the plaintiff’s ‘return to work preparation’. For their part, counsel for the sixth defendant emphasised the preceding word ‘benefit’ – which was submitted plainly not to posit the ‘work conditioning program’ as a ‘condition’ or requirement.[29]
[29]T8.
Thereafter, as I have earlier noted –
(a) the panel noted that there had been ‘little change in the Plaintiff’s neck condition since January 2019’;[30]
(b) the panel concluded that ‘between the 19th day of January 2019 and the date of the Medical Panel’s examination and as at the date of the Medical Panel’s examination, the plaintiff did and does have a current work capacity’;[31] and
(c) the panel addressed the opinions of other practitioners concerning the plaintiff’s work capacity and confirmed its ‘different conclusion[s]’.[32]
[30]JCB44.
[31]Ibid.
[32]JCB44-46.
It will be evident that the highlighted paragraph is surrounded by multiple features of reasoning that are not indicative of any error, let alone error of the kind suggested. In particular –
(a) the panel noted more than once that the plaintiff had worked as a maintenance controller following injury, and coped;
(b) that work was ‘based in the office where he was mainly involved in clerical work and using the phone’;
(c) the panel specifically addressed the issue of ‘current work capacity’ and referred directly to that definition being ‘in the Act’ as well as to the definitions of ‘no current work capacity’ and ‘suitable employment’;
(d) it addressed the issue of ‘suitable employment’ and Richter in a manner that was correct;
(e) in that regard, it considered the four ‘suitable employments’ to be ‘similar’ to the plaintiff’s previous post injury work as a maintenance controller;
(f) it considered the plaintiff to be ‘currently suited’ to those employments and that he ‘has’ a capacity for ‘suitable employment’; and
(g) the panel determined that the plaintiff had had ‘a current work capacity’ since 19 January 2019 and thereafter referred repeatedly to the concepts of ‘no current work capacity’ and ‘suitable employment’ without apparent error.
The surrounding context suggests overwhelmingly that the panel made no error in its consideration of the concept of ‘current work capacity’. It stated plainly enough that the plaintiff both had and ‘has’ a ‘current work capacity’. It was a capacity for light duties as opposed to the plaintiff’s pre-injury heavier duties as a truck driver (which the panel found to be unsuitable). It was a capacity that had been exercised since injury and was said to have been enjoyed since 19 January 2019. In that sense, it was identified as established and subsisting, not contingent.
Specifically, however, in respect of the highlighted paragraph –
(a) its plain terms do not posit the ‘work conditioning program’ as a condition or requirement to be satisfied prior to the exercise by the plaintiff of the ‘current work capacity’ identified – in particular, the word ‘benefit’ is indicative of advice or suggestion rather than standing to qualify the capacity otherwise stated;
(b) moreover, its form generally, and the reference to the ‘work conditioning program’ as preparation ‘prior’ to commencing such work in particular, are reflective of the history earlier recorded by the panel to the effect that the plaintiff had looked for work with ‘no success’; and
(c) in that sense, its form is influenced by the likelihood that the plaintiff may continue not to immediately find work – although he has capacity for it – and so may have time during which he could ‘benefit’ from a ‘work conditioning program’ prior to ‘when he first returns to suitable employment’.
It follows from the above that I reject the submission that the panel either erected a ‘pre-condition’ or otherwise erred in its consideration of the concept of ‘current work capacity’. In my view, consideration of the reasoning of the panel does not require any speculation or ‘gap filling’.
For completeness, I should refer to the plaintiff’s point concerning the panel’s reference to a ‘work conditioning program’. In that connection –
(a) it is common for panels to refer simply by label or description to medical and other procedures and treatments, including ‘pain management’ and ‘graduated return to work’ programs;
(b) although it was submitted by counsel that ‘we don’t really know what this work conditioning program entails’, there is no evidence that a doctor would not understand the reference (let alone an occupational and environmental physician or consultant occupational therapist – both of which were on the panel); and
(c) while the panel in Jafari referred to its anticipated ‘content’ of a ‘graduated return to work program’ in respect of a worker who plainly did not have a full and current work capacity – the panel’s reference was nonetheless brief,[33] and the present worker, of course, was considered by the present panel to have a full and current work capacity in identified suitable employments; and
(d) the reasoning of one selected panel cannot reasonably stand as the measure of adequate reasoning in respect of references to medical procedures and programs by every panel.[34]
[33]Jafari (n 13) [21].
[34]Especially, perhaps, reasoning of the panel in Jafari – which the plaintiff’s outline of submissions otherwise referred to as ‘(in some respects) lacking’: JCB12. See also, Karabinis v Bendrups & Ors [2018] VSCA 124 [39].
In short, I do not accept that present panel’s reference to a ‘work conditioning program’ was inadequate in any way, let alone indicative of reasoning that could stand to impugn its determination of the medical questions.
For these reasons, grounds 1 and 2, as formulated and focussed in argument, must be rejected.
D Conclusions
The plaintiff’s grounds for judicial review must be rejected. The proceeding will be dismissed.
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