Zapparoni v VWA

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03806

Between:
GILLIAN ZAPPARONI	Plaintiff
-and-
VICTORIAN WORKCOVER AUTHORITY (and others according to the schedule)	First Defendant

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2021
DATE OF JUDGMENT:	19 August 2022
CASE MAY BE CITED AS:	Zapparoni v VWA
MEDIUM NEUTRAL CITATION:	[2022] VSC 463

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JUDICIAL REVIEW — Decision of medical panel — Where plaintiff seriously injured in workplace accident in 2008 — Where, after return to work on restricted hours and duties, in 2011, employer terminated plaintiff’s employment — Where claim for compensation accepted — Where weekly payments of compensation commenced — Where, in 2014, a medical panel opined plaintiff had no current work capacity, likely to continue indefinitely — Where, in 2018, VWA terminated weekly payments on basis of claimed “current work capacity” — Where, in 2020, Magistrates’ Court referred medical questions to second medical panel — Where medical panel opined that plaintiff had “current work capacity” because “picking team leader” constituted “suitable employment” — Whether panel failed to have regard to relevant considerations — Whether issues received real and genuine consideration — Whether reasons adequate — Whether opinion unreasonable or irrational — Whether no evidence for opinion — Application granted — Decision quashed — Matter remitted to third medical panel for redetermination — Accident Compensation Act 1985 (Vic), s 5.

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Appearances:	Counsel	Solicitors
For the Plaintiff	Mr A G Uren QC with Mr E Makowski	Ryan Carlisle Thomas
For the First Defendant	Mr M F Fleming QC with Ms F C Spencer	Wisewould Mahony
For the Second to Fifth Defendants	Submitting appearance	Victorian Government Solicitor

HIS HONOUR:

OVERVIEW

In Death of a Salesman, a discomposed Willy Loman plaintively exclaims, “You can’t eat the orange and throw the peel away — a man is not a piece of fruit!” A lot of ink has been spilled about these words since the great American playwright Arthur Miller wrote them in the 1940s. But they strike me as an apt metaphor in this case.

On 20 February 2008, Gillian Zapparoni, then aged 48, was seriously injured while working as a machine operator/supervisor at the biscuit factory in which she had been employed for the past eleven years. She was on her hands and knees cleaning the overflow from a machine when a heavy crusher toppled over and landed on her lower back and right leg. She suffered fractures to her spine and her right foot.

Somewhat heroically, it might be thought, after only three months of recuperation, Ms Zapparoni returned to work on restricted hours and duties. Later, her job was varied to that of a “packer”. However, as her duties resulted in worsening pain in her lower back and right foot, she increasingly required time off work. In May 2011, Ms Zapparoni was told that her employer no longer had a job for her. Her position was terminated. She has not worked since.

On the day of the accident, Ms Zapparoni made a claim for compensation, which was accepted. She received weekly payments thereafter. A medical panel later opined that Ms Zapparoni had “no current work capacity” and that that state of affairs was “likely to continue indefinitely”.

But then, over ten years after being injured, in 2018, Ms Zapparoni’s weekly payments were terminated. The Victorian WorkCover Authority (“the VWA”) claimed that she now had “a current work capacity”.

A further two years on, in August 2020, a second medical panel opined that Ms Zapparoni had “a current work capacity”. While her physical ailments resulting from the injury had improved in the years since the workplace accident, she still suffered from debilitating conditions. For example, she could not perform heavy lifting, which her pre-injury position required, and she suffered constant lower back pain. Principally because of her injury-related limitations, of the numerous jobs of a less physically taxing nature that the VWA claimed she could perform, only one — that of “picking team leader” — was considered “suitable employment” by the panel.

In this Court, Ms Zapparoni challenges the panel’s opinions on several grounds. She applies for orders quashing those opinions and remitting the matter to a fresh medical panel for reconsideration.

The statutory terms “current work capacity” and “suitable employment” are not confined to notions of physical capacity to undertake tasks. In addition to physical capacity, assessing whether employment is suitable requires that, among other things, a worker’s age, previous experience, education and skills be comprehensively brought to account in the calculus. Thus, the statutory terms are directed to a worker’s ability to return to work in employment. Employment is a relationship in which a prospective employee must have something — a capacity to work in employment — to sell.[1] Unless the concept of return to work in employment is given its full dimension, the object of providing just and adequate compensation to workers will be defeated.[2]
[1]Richter v Driscoll (2016) 51 VR 95 at 121[97] (per Ashley and Kaye JJA, Osborn JA agreeing).
[2]Richter v Driscoll (2016) 51 VR 95 at 135[143] (per Osborn JA).

That object was defeated in this case. The panel’s opinion is utterly unrealistic. Picking team leaders require some level of proficiency with computers and data entry, yet Ms Zapparoni’s computer skills were minimal and stale. She had only a Year 8 education and low levels of literacy and numeracy. Her only supervisory role was performed many years ago, and then only in respect of workers doing a different job. Moreover, she was nearly 61 when examined by the panel, and has been out of the workforce since 2011. It is fanciful to think that, in her particular circumstances, Ms Zapparoni’s labour as a picking team leader would be merchantable.

While, particularly in a case like the present, suitability for employment is not a purely medical question, a medical panel still has expertise and experience in this area which this Court does not possess. Further, it is a panel’s role, not this Court’s, to assess both a worker’s physical capabilities and any other evidence before it (including any vocational assessments and the worker’s personal circumstances), and to form an opinion as to suitability for employment and, in turn, current work capacity.

It is, however, this Court’s role on judicial review to supervise the opinions of medical panels in order to ensure that they have been formed in accordance with law. Contrary to submissions made on behalf of Ms Zapparoni, I am not satisfied that the panel failed to have regard to relevant considerations when assessing whether she had a current work capacity, and/or whether the role of picking team leader constituted suitable employment. Nor am I satisfied that the panel’s reasons are inadequate or that it failed to give the matters in issue genuine consideration. I am, however, persuaded that the panel’s opinion is legally unreasonable. The evidence was rationally incapable of warranting an opinion that the role of picking team leader was suitable employment for Ms Zapparoni. This, in turn, in the circumstances of this case, means that it was not open to opine that she had a current work capacity.

Sadly, in her particular circumstances, Ms Zapparoni had no meaningful labour to sell — she had no ability to return to work in employment as a picking team leader. That, of course, is no judgment on her intrinsic worth. Nor, in any just society, could it be. It is merely the conclusion that follows inevitably from the correct application of the statutory tests to the evidence before the panel.

Accordingly, I shall allow the application and order the relief sought. My more detailed reasons for these conclusions follow.

While it will be a matter for others — whether the VWA or a fresh medical panel — it might be expected that an indirect consequence of my conclusion and orders would be that a just system of compensation, as ours is designed to be, when applied properly, will not treat Ms Zapparoni as if she were a piece of fruit. Instead, it might be expected to compensate her by restoring her weekly payments.[3] If it does so, the same system will give content to human dignity in what, but for the disability arising out of injuries sustained in the workplace, would have been the twilight years of Ms Zapparoni’s working life.
[3]If the matter goes before a fresh medical panel, the evidence may be different this time. One certain difference would be that, Ms Zapparoni, who is now 63 and has been out of the workforce for a further two years longer, will be even older and longer out of the workforce.

FACTUAL BACKGROUND

Ms Zapparoni was born on 18 August 1959. She lives in Melton West.

Her work history includes factory work (in a clothing factory), child minding for seven years, family day care for eleven years and packing in the pharmaceutical industry for five years. Thereafter, she worked from July 1997 until May 2011 in the biscuit factory in which she was injured.

Ms Zapparoni’s pre-injury duties at the biscuit factory included full-time manufacturing as a machine operator/supervisor. This was a physical role requiring her to attend to machines, perform lifting and supervise other workers.

After sustaining the back and foot injuries in February 2008, Ms Zapparoni was off work for three months. She then returned to work on restricted duties and restricted hours.

In 2009, Ms Zapparoni’s work duties changed to that of a “packer”, which involved prolonged standing and sitting. But the increased pain she experienced caused her to take time off work intermittently.

In May 2011, she was told that her employer no longer had suitable duties available for her. Her position was terminated,[4] and she has not worked since.
[4]Subsequently, her employer went into voluntary liquidation.

Pursuant to the Accident Compensation Act 1985 (Vic), on the day of the accident, Ms Zapparoni completed a claim for compensation, which was accepted. She received weekly payments thereafter.

After sustaining her injuries, Ms Zapparoni undertook rehabilitation courses. Those courses were in English, computers and floristry. However, the computer courses were basic, and she retained little of any learning she gained. She still has only minimal computer skills. She did not complete the floristry course.

On 21 January 2014, a medical panel[5] opined that Ms Zapparoni had “no current work capacity” and that that state of affairs was “likely to continue indefinitely”.
[5]This first panel, whose reasons were before the second panel and this Court, comprised Dr Andrew Firestone (a psychiatrist), Dr Jack Owczarek (a general practitioner), Miss Susan Liew (an orthopaedic surgeon) and Dr Andrew Gibson (a rheumatologist).

Following termination of her weekly payments in late-2018, Ms Zapparoni, in January 2019, commenced a proceeding in the Magistrates’ Court against the VWA seeking restoration of those payments.

Subsequently, the Magistrates’ Court referred medical questions to a second medical panel for its opinion. Those questions concerned the nature of Ms Zapparoni’s medical condition, whether she had a “current work capacity” or “no current work capacity”, and, if the latter, whether this was likely to continue indefinitely.

MEDICAL PANEL’S REASONS AND OPINIONS

Examinations and history

The panel’s certificate of opinion and its reasons were delivered on 6 August 2020.

Prior to this, Ms Zapparoni was examined by a psychiatrist-member of the panel on 17 June 2020 and by the three other members — a general practitioner, an orthopaedic surgeon and a rheumatologist — on 6 July 2020.[6]
[6]This second panel comprised Dr Christine Kotsios (a psychiatrist), Professor Leanne Rowe (a general practitioner), Mr Keith Elsner (an orthopaedic surgeon) and Dr Andrea Bendrups (a rheumatologist), who are, respectively, the second to fifth defendants in this application. As I understand it, the members of the panel have agreed to abide the outcome of this proceeding in the usual way.

In its reasons, the panel set out the following history given by Ms Zapparoni:[7]

[17] The Plaintiff [Ms Zapparoni] told the Panel she is currently continuing to experience a constant toothache-like pain in the centre of her lower back, which spreads across her back and is intermittently associated with an ache in the front of her right thigh. She does not experience any increase in back pain if she coughs or sneezes.
[18] There are no other leg symptoms such as pain, weakness, numbness or pins and needles. She is able to sit for about an hour at her knitting group, and walking helps her lower back pain. She walks around the shopping centre for about one hour about three times per week. She avoids standing still as she experiences aching in the right foot. She is able to lift light objects, but avoids lifting over 10 kilograms. Sometimes her lower back is painful when she bends. Her bowel and bladder function are normal.
[19] The Plaintiff told the Panel that she has good and bad days with her right foot and her back and her symptoms increase with changes in weather, especially cold weather. Her right foot is generally symptom-free, although if she drives for more than 20 minutes at a time with her right foot on the accelerator, she may experience a cramp across the ball of her right foot, which may last for two to three hours. She also avoids walking on uneven ground. She sometimes experiences swelling of the right ankle at night.
[20] The Plaintiff told the Panel she is able to attend to her personal care although she is not able to bend or to do up her shoelaces. She sometimes uses a walking stick to relieve the pain in her back and her right foot. She enjoys knitting and crocheting and will do this for about half an hour to an hour at a time. She is able to do housework such as washing the dishes, but she does not do any vacuuming or heavier duties. Sometimes she will do weeding in the garden.

[7]For convenience, I have added paragraph numbers to the panel’s reasons.

“Work capacity analysis”

Given the issues raised on this application, it is necessary to set out in some detail the reasons the panel gave under the heading “Work capacity analysis”.[8]
[8]I have not included the panel’s discussion of Ms Zapparoni’s psychiatric condition (see Reasons at [32]-[70] & [72]-[73]). The panel concluded that that condition alone would not prevent her from returning to suitable employment (Reasons at [72]), and there was no challenge to that conclusion in this Court. Other passages in this part of the Reasons have also been excluded, as shown by ellipses.

Under this heading, the panel said that, based on its interviews with Ms Zapparoni, it was of the opinion that it could rely on the history provided by her.[9]
[9]Reasons at [71].

After noting that it considered Ms Zapparoni’s history, the diagnostic imaging provided, its own findings upon examination, and the opinions of the treating doctors and independent medical examiners,[10] the panel said the following:
[10]Reasons at [71].

[74] The Panel noted the extent of the Plaintiff’s persistent dysfunction of the lumbar spine following fractures of L1 and L2 vertebrae and persistent but minimal right midfoot dysfunction following Lisfranc injury and the nature of her pre-injury duties as a full-time manufacturing supervisor/machine operator, which required … repetitive twisting, bending, standing and walking as well as lifting up to 25 kilograms.
[75] The Panel concluded that the Plaintiff is unable to perform her pre-injury duties because of her inability to perform heavy lifting due to her lower back condition.
[76] The Panel took into account all aspects of the definition of ‘suitable employment’, ‘current work capacity’ and ‘no current work capacity’ under the Act and in particular;
·the Panel’s diagnoses of mild persistent dysfunction of the lumbar spine following fractures of L1 and L2 vertebrae, and persistent, but minimal right mid-foot dysfunction following Lisfranc injury, which have significantly improved since the previous Panel assessment in 2014, but may restrict her ability to perform some of the suitable employment options due to her variable pain, minor limitation in range of movement of the lumbar spine and mild tenderness across the right metatarsal heads;
·her current medication for her lower back condition including Norspan 15mcg patches, one patch per week; Celebrex 100mg daily; and Panadol Osteo, two tablets three times daily, which the Panel considered would not impede her ability to perform pre-injury [or] suitable duties;
·the presence of a chronic Adjustment Disorder with mixed anxiety and depressed mood that would not act as an impediment to undertaking suitable employment duties;
·her age of 60 years which the Panel considers may restrict her employment opportunities or viability of retraining;
·her place of residence in Melton West, which the Panel considers would not restrict the potential range of employment options;
·her lack of education to year 8[11] and her poor literacy and numeracy skills which would restrict her employability significantly;
[11]In context, the Panel must have meant something like this: “her lack of education (which was only to Year 8 level)”.
·her lack of transferable skills;
·her work experience which is ostensibly limited to work in factories and [childcare], which would restrict her employability significantly;
·her other unrelated medical conditions for which she is currently receiving treatment including intermittent migraines, high blood pressure, hypothyroidism, high cholesterol and osteoporosis;
·her hearing loss since age 10 or 11 for which she wears hearing aids and would not impede her ability to undertake suitable employment;
·her absence from the workforce since 2011;
·the lack of any recent return to work [plan] or completion of a retraining programme.

[77] The Plaintiff told the Panel that she left school after finishing Year 8. She has a Certificate III in Food Processing, but no other training. After leaving school she worked as a factory worker, in childcare and as a packer in a pharmaceutical company before starting her role in the biscuit factory as a manufacturing supervisor/machine operator in about 1997.
[78] The Panel noted that after the incident, she took about three months off work and then returned to restricted duties, progressively increasing her hours as a manufacturing supervisor. In early 2009, her duties were changed to that of a packer, which involved prolonged standing and lifting. As these duties resulted in an increase in lower back pain and right foot pain, she started to take time off work intermittently. In May 2011, her employment was terminated and she has not worked since this time.
[79] The Plaintiff told the Panel that she would have liked to have continued working if her workplace had remained open, however she was finding the duties as a packer very difficult because of the prolonged standing and lifting.
[80] The Panel noted the Plaintiff has completed a couple of basic computer courses, but still has minimal computer skills. She did not complete the floristry course.

At this point in its reasons, the panel referred to several vocational assessment reports in which it was suggested that Ms Zapparoni might perform the following roles:

a)pricer/labeller; crossing supervisor; mail sorter; leaflet delivery person; and customer service (meet and greet);[12]

b)hand packer (light roles); product assembler; mail clerk; and product examiner (light roles);[13]
c)canteen assistant; community bus driver/shuttle bus driver; and sales assistant (gifts, crafts and flowers);[14]
d)canteen assistant; community bus driver/shuttle bus driver; sales assistant (gifts, crafts and flowers); product examiner (light roles); and mail clerk;[15]
e)floristry assistant; canteen assistant; community bus driver/shuttle bus driver; sales assistant (gifts, crafts and flowers); product examiner (light roles); and mail clerk;[16] and
f)product assembler; despatch packer; and picking team leader.[17]

[12]“Vocational Assessment” by IPAR (3 July 2014) and “Report” (11 July 2014).

[13]“CSS Report” by AMS Consulting Group (28 December 2017).

[14]“Job Seeking Review Report” by AMS Consulting Group (17 July 2018).

[15]“Transferrable Skills Analysis Assessment” by AMS Consulting Group (6 August 2018).

[16]“Transferrable Skills Analysis Assessment” by AMS Consulting Group (23 August 2018).

[17]“Suitable Employment Report” by Recovre (30 October 2019).

The panel then said the following:

[87] The Plaintiff told the Panel that she does not believe she can do any work, as she has not worked for about ten years and she has lost her confidence. The Panel noted the Plaintiff’s age of 60 and potential lack of viability of training particularly as the Plaintiff has limited literacy and numeracy skills and very little employment experience. The Plaintiff also said her constant lower back symptoms are variable in intensity and she is unable to sit and stand for any length of time or bend or lift. She noted that she had to have a lot of time off work prior to ceasing work as a packer due to the extent of her lower back pain.
[88] The Panel considered the functional requirements of the following roles in detail and concluded that the Plaintiff would be unable to fulfil the duties on a reliable and consistent basis as they were likely to increase her lower back pain due to lifting and inflexibility of sitting, standing and walking:
·Crossing supervisor;
·Mail sorter or clerk;
·Leaflet delivery person;
·Customer service (meet and greet);
·Product assembler;
·Product examiner (light roles);
·Canteen assistant;
·Community bus driver/shuttle bus driver;
·Sales assistant (gifts, crafts and flowers);
·Floristry assistant;
·Despatch packer;
·Packer (light roles).

[89] In addition, the Panel noted that the Plaintiff had no experience as a sales assistant, product examiner or bus driver. The Panel noted that a position as a pricer/labeller … would require adequate literacy skills.
[90] The Panel considered however that the Plaintiff would be able to undertake work as a picking team leader on a reliable and consistent basis as these positions would allow the Plaintiff flexibility in sitting, standing and walking, and would not require formal retraining. The Panel further notes the Plaintiff has had previous supervisory experience with her pre-injury employer which would be transferable to the picking team leader role.
[91] Based on the above considerations, the Panel concluded that the Plaintiff has a current work capacity.
…
[94] The Panel disagreed with Dr [M] Brown [an occupational physician who provided reports dated 21 May and 6 August 2018] that the Plaintiff could work as a mail clerk or product examiner as the Panel considered that these roles would require lifting as well as retraining and reasonable literacy skills.
…
[100] The Panel noted the previous Panel’s opinion regarding work capacity. Between the previous Panel assessment in 2014, and the current time in 2020, the Plaintiff said her constant but variable lower back pain has continued to much the same extent and her right foot is currently mostly symptom free. However, the current Panel noted that on physical examination on 6 July 2020, the Plaintiff had evidence of only mild to minimal dysfunction of the lower back and very few objective clinical signs of the right foot, suggesting an overall improvement in both her conditions. Based on these considerations, the current Panel concluded that the Plaintiff has a current work capacity.
[101] The Panel also noted the submissions of the Plaintiff and Defendant and considers it has addressed the issues raised in the above reasoning.

Certificate of opinion

In its certificate of opinion, the panel set out the medical questions asked of it and its answers thereto in this way:[18]
[18]Emphasis in original.

Question 1: What is the nature of the Plaintiff’s medical condition relevant to the injuries alleged in paragraph 6 of the Amended Statement of Claim and, in particular, spine, right foot and consequential psychiatric injury?
The Panel is of the opinion that the Plaintiff is suffering from mild persistent dysfunction of the lumbar spine following fractures of L1 and L2 vertebrae, without radiculopathy.
The Panel is of the opinion that the Plaintiff is suffering from persistent, but minimal right mid-foot dysfunction following Lisfranc injury.
The Panel is of the opinion that the Plaintiff is suffering from a chronic adjustment disorder with mixed anxiety and depressed mood, which has arisen secondary to her physical injury and its consequences.
Question 2: Does the Plaintiff have [i] a “current work capacity” within the meaning of the Accident Compensation Act (“the Act”); or [ii] “no current work capacity” within the meaning of the Act? If “yes” to question 2[ii] hereof, is this likely to continue indefinitely?
The Panel is of the opinion that the Plaintiff has a current work capacity.

RECOVRE REPORT

The “Suitable Employment Report” by Recovre (dated 30 October 2019) was the only report before the panel in which the potential role of picking team leader was assessed and recommended.

The Recovre report identified the particular instance of the role assessed as being with a supplier of automotive accessories to retail stores. The business was located in Altona North, which is about 34 kilometres from Ms Zapparoni’s residence in Melton West.[19]
[19]“Suitable Employment Report” by Recovre (30 October 2019), p 2.

In the report, it was said that picking team leaders:[20]

oversee the picking operations and manage “shorts”, which are items that were not able to be picked for orders, or which were too large to fit in the packing box. These workers also print labels for packing boxes, write off damaged stock and complete some general administration tasks.

… Computer based tasks … form the bulk of tasks undertaken within the role. Workers receive “shorts” printouts, print product labels and reconcile these against stock levels within the computer system. In the event that stock is not available, an inventory request is sent automatically to the inventory team for action. Workers also print picking labels and affix these to packing boxes.

[20]“Suitable Employment Report” by Recovre (30 October 2019), p 20.

The computer applications used by picking team leaders were said to be “Outlook, email (mostly limited to internal communications), WMS and stock and inventory management system[s]”.[21]
[21]“Suitable Employment Report” by Recovre (30 October 2019), p 21.

It was also said that:[22]

Workers undertake computer based tasks for the bulk of the work day, however tasks performed are basic and involve simple data entry into existing programs and applications. Use of these applications [is] taught on the job however workers entering the role should possess basic computer skills including rudimentary keyboard skills, basic email functions and mouse use knowledge. There is no requirement for skills in Word or Excel (beyond data entry into existing sheets).

[22]“Suitable Employment Report” by Recovre (30 October 2019), p 23.

Under the heading “Labour market information”, while information was provided in respect of the roles of product assembler and despatching and receiving clerks, there was no such information given for the role of picking team leader. Instead, this was said:[23]

There is no specific occupational category for Team Leaders and the duties and tasks of the assessed role most closely align to those of despatching and receiving clerks.

[23]“Suitable Employment Report” by Recovre (30 October 2019), p 24.

I note also that the report states that the education and training requirement for despatching and receiving clerks is a Year 10 education.[24] As we have seen, Ms Zapparoni has only a Year 8 education and poor literacy and numeracy skills.

GROUNDS FOR REVIEW

[24]“Suitable Employment Report” by Recovre (30 October 2019), p 24.

Introduction

In the originating motion, seven grounds were pleaded. Mr Uren QC, who appeared with Mr Makowski for Ms Zapparoni, argued some of those grounds together. Mr Fleming QC, who appeared with Ms Spencer for the VWA, did the same, but with a slightly different grouping. It is convenient to address the grounds in the following order and groupings.

Grounds 3 & 5: Failure to consider relevant matters

Grounds 3 & 5

Relevantly, Grounds 3 and 5 are pleaded in these ways:

[Ground 3] Matters relevant to whether the occupation of picking team leader is “work for which the [plaintiff] is currently suited,” include whether the plaintiff has the capacity to adequately comprehend and perform the duties of a picking team leader, or ha[s] the skills, qualities or attributes necessary to perform the duties of that occupation. The Medical Panel did not take that matter into account, and also … ignored material relevant to that matter.
…
[Ground 5] The Medical Panel has not considered or taken into account or has ignored a relevant matter, namely whether the plaintiff was likely to obtain, and retain, employment as a picking team leader, with her work caused disabilities and with her personal characteristics and in her personal circumstances … .

Plaintiff’s submissions

Under Ground 3, Mr Uren submitted that the panel’s reasons show that it failed to consider matters which it was bound to consider in assessing whether the job of a picking team leader was suitable employment for Ms Zapparoni.

Counsel referred to Richter v Driscoll, where Ashley and Kaye JJA stated that the focus of the inquiry is upon the injured worker’s inability to engage in employment, which carries with it the idea of return to work as a settled or established member of the wage-earning workforce.[25] For that purpose, the worker’s personal circumstances must be considered, and “comprehensively brought to account”.[26]
[25]Mr Uren cited Richter v Driscoll (2016) 51 VR 95 at 114[74]-[75] (per Ashley and Kaye JJA).
[26]Richter v Driscoll (2016) 51 VR 95 at 120-121[95] & 123[103] (per Ashley and Kaye JJA).

So much is clear, it was submitted, from the statutory definitions of “no current work capacity”, “current work capacity” and “suitable employment”, which, relevantly, were in the following terms:[27]
[27]See s 5 of the Accident Compensation Act 1985 (Vic). As I understood it, this application was conducted on the basis that the definitions in that provision were applicable. While the definition of suitable employment has altered over time, the relevant parts of the newer definition remain the same (see the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 3; and see also Richter v Driscoll [2015] VSC 457 at [10]-[12] (per Zammit J); Richter v Driscoll (2016) 51 VR 95 at 99[19]-100[20] & fn 5 (per Ashley and Kaye JJA)).

· “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;

· “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; and

· ‘“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.

Mr Uren submitted that the following passage in the panel’s reasons constituted the essence of its reasoning for concluding that the role of picking team leader was suitable employment for Ms Zapparoni:[28]

[90] The Panel considered however that the Plaintiff would be able to undertake work as a picking team leader on a reliable and consistent basis as these positions would allow the Plaintiff flexibility in sitting, standing and walking, and would not require formal retraining. The Panel further notes the Plaintiff has had previous supervisory experience with her pre-injury employer which would be transferable to the picking team leader role.

[28]Reasons at [90].

In Mr Uren’s submission, the panel’s reasons betray a failure on its part to consider a range of other matters it was required to consider, including the following personal characteristics and circumstances:

a) Ms Zapparoni’s age of 60 (not far off retirement age);

b) her lack of employment since 2011 and the length of time that she had been out of the workforce;

c) her lack of relevant experience;

d) that she had only a Year 8 education, significant literacy issues and could only read and understand about 20 percent of the newspaper;

e) that she had issues with comprehension and retention;

f) that her skills remained very basic;

g) that her pre-injury work had been in the manual arena; and

h) that there had been failed attempts at retraining and upgrading her computer-based skills.

Under Ground 5, Mr Uren submitted that it is apparent that the panel failed to consider whether Ms Zapparoni was likely to find, obtain and retain employment. Again, he relied on Richter v Driscoll to support his argument that these were mandatory relevant considerations.[29]
[29]Richter v Driscoll (2016) 51 VR 95 at 112[70] (per Ashley and Kaye JJA).

There is now some controversy about the proposition upon which Mr Uren’s submission rests, at least insofar as finding and obtaining work are concerned.[30] For reasons that will become apparent later, I need not attempt to resolve that controversy. In the circumstances of this case, I think it makes no difference whether or not a worker’s ability to find or obtain work is a relevant consideration. Suffice it to say at the moment that I consider that the panel’s repeated references to whether certain factors might affect Ms Zapparoni’s “employability” are sufficient to encapsulate an awareness of the key concept of whether she was able to return to work in employment — and, in particular, whether she had any labour to sell. That is the real point in this case. The matters raised by Mr Uren under Grounds 3 and 5 (aside from the notions of finding and obtaining work) all, in one way or another, potentially go to that concept.

VWA’s submissions

[30]See the discussion below of Cavanough J’s recent judgment in Jordan v Kotsios [2022] VSC 332.

Mr Fleming submitted that, when read as a whole, the reasons disclose that the panel did in fact comprehensively consider all of the matters raised by Mr Uren,[31] and not just Ms Zappaorni’s physical limitations or those matters mentioned in the single paragraph upon which reliance was placed.
[31]Mr Fleming referred to the Reasons at [76]-[77], [80], [87], [89], [90], [94], [97] and [99].

Moreover, it is clear that the panel expressly excluded certain suggested employments — namely, sales assistant, product examiner, bus driver and mail clerk — on the basis of lack of relevant work experience, lack of adequate literacy skills or the need for retraining.[32] This, the submission continued, shows that the panel must have had the same considerations in mind when assessing the suitability of the role of picking team leader.
[32]Reasons at [89] and [94].

Further, Mr Fleming submitted that the vocational assessment material to which the panel had regard also addressed Ms Zapparoni’s personal circumstances, including her education, work experience, qualifications and transferable skills.

In Mr Fleming’s submission, the reasons make it plain that, when the panel was considering whether Ms Zapparoni had a current work capacity, it had in mind the broader concept of her employability, in the sense of whether her labour would be saleable in the labour market. In this regard, the panel expressly referred to the effect of her education and skills on her employability, as well as the effect of other personal circumstances on her employment options.[33]
[33]Reasons at [76].

In turn, the panel expressly considered and determined that Ms Zapparoni would not need any formal restrictions or retraining to undertake employment as a picking team leader and that she would be able to perform the duties required on a reliable and consistent basis.[34]

Consideration

[34]Reasons at [90], [97] and [99].

A ground of review alleging a failure to take into account a relevant consideration can be made out only if a medical panel has failed to take into account a consideration that it was bound to take into account.[35] The onus is on the plaintiff to establish that the panel in fact failed to take that matter into account.[36] It is not enough to show that a panel’s reasons are so expressed as to suggest merely the possibility of error in this respect.[37]
[35]Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-41 (per Mason J).
[36]B Marsh Nominees v City of Moonee Valley [2004] VSC 237 at [29] (per Osborn J); XYZ v State TrusteesLimited [2006] VSC 444 at [31] (per Cavanough J).
[37]Dixon v Hacker [2007] VSC 342 at [40]-[42] (per Forrest J).

While there is no dispute that the panel was bound to take into account most of the matters identified by Mr Uren,[38] the principal question under these grounds is whether I am satisfied that it in fact failed to do so.
[38]As I have foreshadowed, I need not determine whether “a Panel is not required to conclude whether or not the worker could ‘find employment’” (see Bainbridge v Westside Meats Pty Ltd [2021] VSC 320 at [28] (per Gorton J)) or whether a worker could obtain employment. See further below.

If the paragraph upon which Mr Uren focussed were treated as the totality of the panel’s reasons on whether the role of picking team leader was suitable employment for Ms Zapparoni, it would be clear enough that the panel had failed to take into account several mandatory considerations, including, for example, her age and the fact that she had not worked since May 2011. But, as Mr Fleming submitted, the panel referred elsewhere in its reasons to these and other matters relevant to the issue of employability, and expressly said that it took these matters into account when considering the definitions of suitable employment, current work capacity and no current work capacity.[39]
[39]Reasons at [76].

The principal passage relied on by Mr Fleming listed several factors personal to Ms Zapparoni and/or coming within the definition of suitable employment, including the following: her age (of 60); her lack of education and poor literacy and numeracy skills; her work experience; her lack of transferable skills; her absence from the workforce since 2011; and the lack of any recent return to work plan or completion by her of a retraining programme.[40]
[40]Reasons at [76].

As I understood Mr Uren, his submission was that these points were made only in a general way much earlier in the reasons and were not taken into account — either comprehensively or at all — specifically when considering whether the role of picking team leader was suitable employment for Ms Zapparoni.

While it would have been possible for the panel to refer to all matters again when addressing the only role which it found to be suitable, to conclude that its failure to do so demonstrates that it did not take those matters into account in considering that particular issue would be unsound — and too pernickety.[41] The panel had numerous roles to consider. It was not obliged to repeat every relevant consideration when addressing each of those roles. An element of generalisation was permissible.
[41]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (per Brennan CJ, Toohey, McHugh and Gummow JJ).

In any event, the other passages on which Mr Fleming relied tended against a conclusion that the panel failed to take into account the matters urged by Mr Uren. For example, that the panel expressly excluded other less physically taxing roles as suitable because Ms Zapparoni lacked the relevant work experience or literacy skills, or because of the need for retraining,[42] rather suggests that the panel would have taken similar matters into account in considering the role of picking team leader.
[42]Reasons at [89] and [94].

In the result, I am not satisfied that the panel failed to have regard to the matters relevant to whether the role of picking team leader was suitable employment for Ms Zapparoni or, in turn, to whether she had a current work capacity.

It follows that I reject Grounds 3 and 5.

Ground 1: Failure to have regard to place of residence vis-à-vis job opportunities

Ground 1

Ground 1 is pleaded in the following way:

[Ground 1] By the definition of “suitable employment” in the Act, the Medical Panel was required by statute to have regard to the plaintiff’s place of residence in determining whether the occupation of picking team leader was suitable employment for the plaintiff for the purposes of answering Question 2. The Medical Panel did not have regard to the plaintiff’s place of residence with respect to the occupation of picking team leader, and in particular did not consider whether there were employment opportunities for Mrs Zapparoni as a picking team leader within reasonable distance of her home. Further, there was no evidence that such was the case, and it was not open to the Medical Panel to so decide.

Plaintiff’s submissions

Mr Uren submitted that, given the terms of paragraph (a)(iv) of the definition of suitable employment, the panel was required to have regard to Ms Zapparoni’s place of residence in determining whether the role of picking team leader was suitable employment for her. Her place of residence was relevant because there must have been suitable employment in the area where she resided or in the area confined by incapacity-caused limits upon her ability to travel.[43]
[43]Mr Uren referred to Richter v Driscoll (2016) 51 VR 95 at 115[77] (per Ashley and Kaye JJA).

Mr Uren accepted that the panel stated that it had regard to Ms Zapparoni’s place of residence in Melton West, for it was said that “the Panel considers [that this] would not restrict the potential range of employment options”.[44] But this, in his submission, was only a general observation and was not related specifically to the occupation of picking team leader, and therefore her place of residence was not taken into account in determining this particular issue.
[44]Reasons at [76].

Further, he noted that the only role of picking team leader identified in the Recovre report was in Altona North, which was some 37 kilometres from Ms Zapparoni’s home. I understood this submission to pick up the history that Ms Zapparoni gave the panel, which included that, if she drove for more than 20 minutes at a time, she might experience a cramp across the ball of her right foot, which would last for two to three hours,[45] and the medical opinion that she had “a driving tolerance of 30 minutes”.[46]

VWA’s submissions

[45]Reasons at [19]; see also [95].

[46]Reasons at [95]; see also [98].

Mr Fleming pointed out (correctly) that the panel expressly referred to Ms Zapparoni’s address on the first page of its reasons.[47] The Panel again referred to her place of residence when setting out the matters to which, in Mr Fleming’s submission, it had had regard in forming its opinion as to whether she had a current work capacity, and stated its opinion that her place of residence would not restrict the potential range of employment options accessible to her.[48] It was submitted that this opinion can be taken, implicitly, to have included employment as a picking team leader.
[47]Reasons at [6].
[48]Reasons at [76].

Mr Fleming submitted that this conclusion was unsurprising given that Ms Zapparoni had a current driver’s licence and was able to drive, and had been required to travel around 40 kilometres each way to her former workplace after her injury (and before the improvement in her lumbar spine and foot conditions). Further, relevant to her ability to use public transport, the panel took a history which included that she was able to sit for about an hour at her knitting group and to walk for an hour around the shopping centre about three times a week.[49]
[49]Reasons at [18] & [20].

It was also submitted that, to the extent that Mr Uren can be taken to have contended that the panel was required to identify suitable jobs within a reasonable commuting distance of where Ms Zapparoni resided, that contention should be rejected. Reliance was placed on the reasoning of Gorton J in Bainbridge v Westside Meats Pty Ltd, where his Honour said this:[50]

[51] [It was submitted that] … [the] Panel was required to identify suitable jobs within a reasonable driving distance of where Mr Bainbridge lived. Again, I disagree, to the extent that this submission required an explicit finding on the part of the Panel. The Panel, in forming its view, had to have regard to Mr Bainbridge’s place of residence in determining whether he had the capacity to return to work in suitable employment. It did so: it noted that Mr Bainbridge lived in ‘outer Melbourne suburbia’, and explicitly said that this did not limit his employment options. This conclusion was unsurprising given Mr Bainbridge’s ability to drive his motor vehicle. And … the vocational reports indicated that, as a general proposition, employment of at least four of the five types under consideration existed in the ‘north west’. This was sufficient.

[50]Bainbridge v Westside Meats Pty Ltd [2021] VSC 320 at [51(c)] (per Gorton J).

Mr Fleming submitted that, in any event, the particular role assessed was in Altona North, about 30 kilometres from Ms Zapparoni’s place of residence. It was submitted that it was therefore open to the panel to conclude that this role and employment as a picking team leader more generally would be accessible to her, whether via public transport or car.

Consideration

That the panel expressly opined that Ms Zapparoni’s place of residence (in Melton West) would not restrict the potential range of employment options available to her strongly suggests, in context, that that opinion included recognition of any travel (whether by driving or on public transport) that might be required to attend employment as a picking team leader. Part of that context is found in the panel’s acknowledgment of Ms Zapparoni’s “physical capacity and current restrictions in November 2019”, which included “driving up to 30 minutes”, and the panel’s express opinion that this “align[s] with the role of being a picking team leader”.[51] Further, while the panel did not specifically refer to the distance between Melton West and Altona North when assessing Ms Zapparoni’s suitability for employment as a picking team leader, it must have been aware of that distance given that it was mentioned in the Recovre report, to which it referred.[52]
[51]Reasons at [98].
[52]In the Recovre report, it was said that the distance was 34 kilometres, whereas Mr Uren said it was 37 kilometres and Mr Fleming said it was 30. While I think that these are distinctions without any meaningful difference, I shall assume that the Recovre report is correct.

I accept Mr Fleming’s submission that the panel was not required to identify suitable jobs within a reasonable driving distance of where Ms Zapparoni lived, at least to the extent that Mr Uren’s submission required an explicit finding to that effect. Obviously, if the only role said to be suitable was available only in a location such a distance from the worker’s place of residence that it would be unreasonably onerous or practically impossible for the worker to attend the place of work, that would be a different matter. But that was not this case. The panel was simply required to have regard to Ms Zapparoni’s place of residence in determining whether she had the capacity to return to work in suitable employment. I am not persuaded that the panel failed to do this.

In those circumstances, I am not satisfied that the panel failed to take into account either Ms Zapparoni’s place of residence or the area confined by incapacity-caused limits upon her ability to travel from her residence to a place of work as a picking team leader.

Accordingly, I do not uphold Ground 1.

Ground 6: No genuine consideration

Ground 6

Ground 6 is pleaded in this way:

[Ground 6] The Medical Panel did not properly perform its statutory task, which required that it engage in an ‘active intellectual process’, in which each matter relevant to whether the occupation of picking team leader was suitable employment for the plaintiff received genuine consideration.

Plaintiff’s submissions

Mr Uren submitted that the panel’s reasons show that it failed to engage in an “active intellectual process”, in which each of the matters bearing upon whether the role of picking team leader was suitable employment for Ms Zapparoni received genuine consideration.[53]

VWA’s submissions

[53]Mr Uren cited Sensis Pty Ltd v Jones [2018] VSC 754 at [63] (per Ginnane J, citing Tickner v Chapman (1995) 57 FCR 451 at 462 (per Black CJ) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 540[105] (per Gleeson CJ and Gummow J)).

In response, Mr Fleming joined issue on this ground and reiterated his submissions under Grounds 1, 3 and 5.

Consideration

For the reasons I gave (under cover of Grounds 1, 3 and 5, above) for rejecting the complaint of failure to have regard to relevant considerations, I am not satisfied that the panel failed to engage in an “active intellectual process”, in which each of the matters identified as bearing on whether the role of picking team leader was suitable employment for Ms Zapparoni received genuine consideration.

Accordingly, Ground 6 fails.

Ground 2: Inadequate reasons

Ground 2

Ground 2 is pleaded in this way:

[Ground 2] The Medical Panel did not explain its path of reasoning for concluding that, despite the matters referred to in paragraphs 9 and 10 of … [the originating motion],[54] and other impediments to work capacity and employment referred to in the Reasons and in the material which the Medical Panel had, the occupation of pick[ing] team leader was suitable employment for the plaintiff with her injuries, their sequelae, her personal characteristics and personal circumstances, and in the context of the statutory requirements of suitable employment, and for her having a current work capacity, as required by Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at 493[28] & 499[48].

Plaintiff’s submissions

[54]These matters are, in substance, the same as those discussed under cover of Grounds 3 and 5, above.

Mr Uren submitted that the reasons do not explain the actual path of reasoning by which the panel in fact arrived at its opinion, and that there was insufficient detail in those reasons to enable a court to see whether the opinion does or does not involve any error of law.[55] In particular, I understood Mr Uren to submit that, because the reasons do not disclose how the panel reconciled its opinion with those matters discussed in Grounds 3 and 5 that militated against Ms Zapparoni’s suitability for the role of picking team leader, it was impossible to tell whether the panel erred in law in the process of doing so.

VWA’s submissions

[55]Mr Uren in his submissions referred to Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at 493[28] & 499[48] (per French CJ, Crennan, Bell, Gageler and Keane JJ). More recently, see also A & L Windows Pty Ltd v Yildirim [2022] VSCA 46 at [30] (per Beach and Kennedy JJA and O’Meara AJA).

In Mr Fleming’s submission, it can be seen that the panel reached its conclusion that Ms Zapparoni had a current work capacity through an evaluative synthesis of all of the matters set out in its reasons under the heading “Work capacity analysis”.[56]
[56]Reasons at [74]-[101].

He submitted that it is evident from this part of the reasons that the panel formed the opinion that Ms Zapparoni would be able reliably and consistently to undertake work as a picking team leader and that, accordingly, she had something of value to sell in the market for labour. This opinion was formed notwithstanding her age, time out of the workforce and limited skills, and having regard to the following matters:

a) the mild nature of her physical and psychiatric conditions;

b) her work experience and transferable skills derived from her pre-injury machine operator/supervisor role which she was able to perform notwithstanding her limited literacy and numeracy skills;

c) her ability to use a computer to some degree, including in the workplace;

d) her ability to complete a Certificate III in Food Processing and two computer courses;

e) the detailed information in the Recovre report about the duties of a particular picking team leader role, including that there were no formal education requirements and that only basic computer skills were required as the simple data entry tasks were taught on the job;

f) that her previous supervisory experience would be transferable to the picking team leader role;

g) the lack of any need for formal restrictions while performing the picking team leader role; and

h) the absence of any requirement for formal retraining in order for her to undertake the duties of that role.

Further, Mr Fleming relied on Cavanough J’s remarks in Dias v Oakleigh Centre Industries, where his Honour said this:[57]

[W]hether or not the plaintiff had a current work capacity is an evaluative question on which medical opinions could reasonably differ. The reasons behind the formation of an opinion by a medical panel on an evaluative question of that nature often cannot be extensively articulated.

[57]Dias v Oakleigh Centre Industries [2016] VSC 115 at [29].

Mr Fleming also submitted that the obligation to provide reasons only required the panel to give reasons for the opinion it actually formed. The panel was not required to explain why it did not reach a different conclusion.[58]

Plaintiff’s reply

[58]See, for example, Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at 502[56] (per French CJ, Crennan, Bell, Gageler and Keane JJ). More recently, see also A & L Windows Pty Ltd v Yildirim [2022] VSCA 46 at [30] (per Beach and Kennedy JJA and O’Meara AJA).

In reply, Mr Uren made it clear that he was not arguing that the panel needed to explain why it did not reach a conclusion it did not form; rather, the argument was that the panel failed to explain how it reached the view that a picking team leader role was, for Ms Zapparoni, suitable employment.

Consideration

In the principal paragraph on which Mr Fleming relied in rebuttal of Mr Uren’s submissions (under cover of Grounds 3 and 5) that the panel had failed to take into account various considerations that went to whether or not the role of picking team leader was suitable employment for Ms Zapparoni,[59] the panel not only listed those factors but, in several instances, offered an evaluation of whether the factor in issue might, would or would not restrict her “employability”. Further, if the panel considered that it would restrict her in this way, the extent of any such restriction was also described. Thus, the panel said that:[60]
[59]Reasons at [76].
[60]Reasons at [76] (my emphasis).

a) the existing physical dysfunction in Ms Zapparoni’s back and foot “may restrict her ability to perform some of the suitable employment options”;

b) her current medications “would not impede her ability to perform pre-injury and suitable duties”;

c) her chronic adjustment disorder with mixed anxiety and depressed mood “would not act as an impediment to undertaking suitable employment duties”;

d) her age of 60 years “may restrict her employment opportunities or viability of retraining”;

e) her place of residence in Melton West “would not restrict the potential range of employment options”;

f) her lack of education (only to Year 8) and her poor literacy and numeracy skills “would restrict her employability significantly”;

g) her work experience “would restrict her employability significantly”; and

h) her hearing loss “would not impede her ability to undertake suitable employment”.

In my opinion, that is a helpful and proper way for a panel to expose its path of reasoning in respect of evaluative matters such as these that go to whether a worker is able to return to work in suitable employment.

However, despite referring to the following factors in the same paragraph,[61] neither in that paragraph nor elsewhere in its reasons did the panel offer an opinion on their possible impact on Ms Zapparoni’s employability:
[61]Reasons at [76].

a) “her lack of transferable skills”;

b) “her absence from the workforce since 2011”;[62] or

c) “the lack of any recent return to work [plan] or completion of a retraining programme”.

[62]In the Reasons at [78], the Panel simply noted that, “[i]n May 2011, her employment was terminated and she has not worked since this time”.

While it might be inferred that the panel considered that these three factors told against her employability, it is impossible to decipher from the reasons what weight the panel placed on them, either as to the extent of the restriction (such as the factor would restrict her employability marginally, significantly or otherwise) or vis-à-vis the other considerations.

These three factors were not minor considerations. On the contrary, they were critical to an assessment of whether the role of picking team leader could be suitable employment for Ms Zapparoni. The fact that she had been out of the workforce for nine-and-a-half years, at her age of nearly 61, was a powerful fact telling against her employability. It is hard to understand why the panel, having acknowledged that her age “may restrict her employment opportunities or viability of retraining” (which strikes me as a gross understatement), did not also make both a qualitative and quantitative assessment of the impact of her very long absence from the workforce on her employability. That she did not have any recent return to work plan and that she had not completed any retraining programme only reduced her employability even further, and significantly so. Finally, even if it be accepted that her previous supervisory experience was transferable to the role of picking team leader — which strikes me as doubtful, at best — she was still a person with very low levels of education, minimal computer skills and little relevant work experience, which compounded the other impediments to her employability.

Usually, however, a complaint about the weight given to a relevant consideration would not articulate legal error. A medical panel is entitled to accord a mandatory consideration little or no weight as long as it can reasonably be inferred that in doing so the panel engaged in an “active intellectual process” in respect of it.[63]
[63]See, for example, Blacker v Boss Trailers [2017] VSC 538 at [18] (per Keogh J); Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664 at [79] (per Cavanough J). See also Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 41 (per Mason J).

But the complaint here is different. In circumstances where the panel has chosen expressly to explain whether certain matters impact on employability and, if so, to what extent, but has failed to do so in respect of other matters of importance, the reader is arguably left to guess at whether the panel has erred by failing to engage in an “active intellectual process” in its consideration of matters critical to whether it could be said that the role of picking team leader was suitable employment for Ms Zapparoni.

It might therefore be said that it is impossible to tell, from the reasons alone, whether the panel’s opinion in these respects does or does not involve any error of law.

However, for reasons that follow, I am not persuaded that the panel’s reasons are, in law, inadequate in this or any other respect.

A medical panel’s reasons are required to contain:[64]

medical reasons in sufficient detail, and only in sufficient detail, to show the court and the worker that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members’ medical knowledge and experience.

[64]Masters v McCubbery [1996] 1 VR 635 at 661 (per Callaway JA) (my emphasis). See also Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at 500[51]-501[53].

I also accept several other propositions urged upon me by Mr Fleming, none of which I took Mr Uren to dispute. Those propositions included the following. First, the standard of reasons required of a medical panel differs markedly from the standard of reasons required of a judge giving reasons for a final judgment in an action in a court.[65] Secondly, those reasons are to be read fairly and as a whole in the context of the material before the panel, and should not be subject to over-zealous judicial review.[66] Thirdly, the adequacy of reasons is to be determined by reference to the function conferred on the panel to form its own opinion on a worker’s capacity for employment using its own expertise.[67] In this regard, it must be remembered that the members of the panel usually will have met with and examined the worker for themselves. And, in this case, they did. Finally, a panel’s path of reasoning may be disclosed by a combination of what is expressly stated and any inferences necessarily arising.[68]
[65]Denham v Consolidated Herd Improvement [2014] VSC 520 at [24] (per T Forrest J) (citing Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at 502[56] (per French CJ, Crennan, Bell, Gageler and Keane JJ).
[66]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (per Brennan CJ, Toohey, McHugh and Gummow JJ).
[67]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at 498-499[47] (per French CJ, Crennan, Bell, Gageler and Keane JJ).
[68]Sidiqi v Kotsios [2021] VSCA 187 at [97]-[100] (per Beach, Kaye and Osborn JJA).

I think it would be an overly zealous reading of the reasons to treat the deficiencies I have mentioned — if deficiencies they be — as rendering the reasons inadequate. These are not the reasons of a court, but those of members of a panel who are not judges but who are tasked with using their expertise to form an opinion, on the evidence, on whether, inter alia, the statutory tests for suitable employment and current work capacity are satisfied.

Against that background, I do not think that the panel’s reasons are inadequate on the basis that it cannot be determined whether it engaged in an active intellectual process in respect of the three matters identified. Despite the criticisms I have discussed, I think it can be inferred from what the panel said that, in its opinion, while Ms Zapparoni generally lacked transferable skills, her previous supervisory experience was something that would be transferable to the picking team leader role. Further, it can be inferred that the panel considered that Ms Zapparoni’s absence from the workforce since 2011 and the lack of any recent return to work plan or completion of a retraining programme would restrict her employability. While, in my view, it would have been preferable for the panel to disclose its opinion on the extent of the impact of these matters on her employability, I am not satisfied that this omission is sufficient to warrant a conclusion that its reasons are inadequate in the sense required by law.

Accordingly, Ground 2 fails.

Grounds 4 & 7: Unreasonable conclusions/No evidence

Grounds 4 & 7

Grounds 4 and 7 are pleaded in these ways:

[Ground 4] [The] Medical Panel’s conclusion that the occupation of picking team leader was suitable employment for her was not open on the evidence that the Medical Panel had, or there was no evidence on which such a conclusion could be properly reached.
…
[Ground 7] The Medical Panel’s conclusion that Mrs Zapparoni had a current work capacity, or that the occupation of picking team leader was suitable employment for her, is unreasonable, as it lacks an evident and intelligible justification, and the result or outcome itself is unreasonable.

Plaintiff’s submissions

Under Ground 4, Mr Uren submitted that findings or inferences of fact must be supported by logical grounds.[69] In his submission, however, there was an absence of logical grounds for the panel’s opinion on Ms Zapparoni’s suitability for employment as a picking team leader, and the evidence before the panel was not logically probative of that opinion.
[69]Mr Uren cited, inter alia, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 625[40] (per Gummow A-CJ and Kiefel J) & 649[132]-650[135] (per Crennan and Bell JJ); Liberal Party of Australia (Victorian Division) v Rae [2019] VSCA 13 at [9] (per Maxwell P, Beach and Forrest JJA); Ballina Shire Council v Knapp [2019] NSWCA 146 at [37] (per Payne JA); Amaba Pty Ltd v Dust Diseases Tribunal (2010) 9 DDCR 488 at 497[21]-498[24] (per Basten JA, Beazley JA and Giles JA agreeing); and Dionisatos v Acrow Formwork & Scaffolding Pty Ltd (2015) 91 NSWLR 34 at 57[98]-58[103] (per Gleeson JA, Basten JA and Macfarlan JA agreeing).

Under Ground 7, Mr Uren submitted that the panel’s opinion was also legally unreasonable because it lacks an evident and intelligible justification and because the result, on the evidence, is itself unreasonable.[70]

VWA’s submissions

[70]Mr Uren cited Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367[76] (per Hayne, Kiefel and Bell JJ).

Mr Fleming referred to the relatively recent decision in Sidiqi v Kotsios,[71] where the Court of Appeal set out some of the legal principles to be considered when an opinion of a medical panel is challenged on the grounds that it was not open or is legally unreasonable. Among other matters, the Court emphasised that the character of the panel’s function means that its opinions on medical questions of fact will necessarily be informed by expertise which the Court does not possess. It was submitted that it follows that the Court cannot approach judicial review in the same way which it would with respect to a non-expert administrative body and that it will be difficult to conclude that an opinion was not open to a panel if the opinion was materially informed by that panel’s expertise.
[71]Sidiqi v Kotsios [2021] VSCA 187 at [29]-[60] (per Beach, Kaye and Osborn JJA).

Further, a panel is not bound by the rules of evidence and may inform itself in any manner it sees fit. Accordingly, a panel is possessed of a broad discretion as to the manner in which it evaluates the facts in a particular case. It follows that establishing a ground of review based on no evidence may be very difficult; the bar is set very high.

Mr Fleming pointed out that the availability of irrationality, illogicality and unreasonableness as grounds of review of a medical panel’s opinion remains uncertain.[72]
[72]Mr Fleming cited Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17 at [82]-[93] (per Neave JA, with whom Santamaria JA and Ginnane AJA agreed); Chang v Neill (2019) 62 VR 174 at 212[146]-[149] (per Maxwell ACJ, Beach and Kyrou JJA); and Sidiqi v Kotsios [2021] VSCA 187 at [56] (per Beach, Kaye and Osborn JJA).

He also observed that the test for legal unreasonableness is stringent.[73] In this connection, he referred to a passage in the judgment of French CJ in Minister for Immigration and Citizenship v Li, where his Honour said this:[74]

The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient weight or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.

[73]Mr Fleming cited, for example, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 376[108]-378[113] (per Gageler); and Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 551[11] (per Kiefel CJ).

[74]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 351[30] (per French CJ).

Question 2 asked the panel for its opinion on (inter alia) whether Ms Zapparoni had a current work capacity. In Mr Fleming’s submission, it was well open to the panel to reach the conclusion that she did indeed have a current work capacity. It is not to the point that a different panel could have reached a different conclusion or reasoned via a different route. A conclusion as to work capacity is often contestable and a matter about which reasonable minds will differ.[75]
[75]Mr Fleming cited Sidiqi v Kotsios [2021] VSCA 187 at [59] (per Beach, Kaye and Osborn JJA); and Bainbridge v Westside Meats Pty Ltd [2021] VSC 320 at [47] (per Gorton J).

In Mr Fleming’s submission, the panel’s opinion in this case was rationally open to it and supported by the following matters:

a) the panel’s findings as to the nature, extent and severity of Ms Zapparoni’s physical injuries which it concluded resulted in only minimal or mild dysfunction;

b) the panel’s findings as to the nature, extent and severity of her psychiatric injuries which it concluded did not impede her undertaking suitable employment duties;

c) information about her medication for her lower back condition which the panel did not consider would impede her ability to perform her pre-injury or suitable duties;

d) information about the nature of her pre-injury duties as a machine operator/supervisor and the extended period over which she had performed those duties both before and after her injury;

e) information about her promotion to her pre-injury role as a machine operator/supervisor and ability to carry out the duties of that role notwithstanding her limited literacy and numeracy skills;

f) information about Ms Zapparoni’s computer skills, including that she had used computers in the workplace[76] and that she was able to use email, the internet and Facebook;[77]
[76]“Vocational Assessment Report” by Ayres Management Services (1 April 2011), p 4.
[77]Medical report of Dr Weissman (24 January 2013), p 7.

g) the history obtained from Ms Zapparoni that she had completed a Certificate III in Food Processing and a couple of computer courses, and by implication was able to learn what the courses covered;[78]
[78]Mr Fleming added the following rider: “Albeit that she said had had some difficulty retaining what she was taught in the computer courses, which was unsurprising given the passage of time”.

h) a vocational assessment which identified employment as a picking team leader as suitable employment for her;

i) detailed information about the duties performed in a particular picking team leader role and the education and training requirements including that there were no formal education requirements and that only basic computer skills involving knowledge of rudimentary keyboard skills, basic email functions and mouse use were required, as the basic and simple data entry tasks were taught on the job;[79] and

j) medical opinions including those of specialist occupational physicians that supported the view that Ms Zapparoni had the capacity to return to work in employment, including the opinion of Dr Michael Baynes that she had the skills and physical ability to perform numerous work roles.[80]

[79]“Suitable Employment Report” by Recovre (30 October 2019), pp 20-23.

[80]Medical report of Dr Baynes (25 July 2019).

Mr Fleming also referred to Gorton J’s reasons in Bainbridge. There, after acknowledging that the mere fact that a worker is able to perform work duties does not mean that he or she has a work capacity and that, rather, the issue is whether the worker has the capacity to return to work, in the sense of having something to sell in the market for labour,[81] his Honour said this:[82]

[25] However, a capacity to perform work duties will, in many circumstances, correspond with a capacity to return to work in employment. There would have to be some feature of the individual worker arising from the relevant injury that justifies the distinction being drawn. One example is a worker being disfigured, such that they are not able to sell their labour in certain areas of work where disfigurement is in reality a disqualification from employment, notwithstanding an ability to perform the actual work duties.[83] Another example would be a worker who has a variable medical condition, such as a worker with a back injury, who would be able to perform work duties for the most part, but who suffers from periodic exacerbations that would prevent him or her from attending work with sufficient regularity to be able to obtain or maintain employment. Another might be a person who has developed a psychiatric reaction that, for practical purposes, would make that person unable to attend job interviews, or cause that person to present so badly that their labour is not, in fact, merchantable, despite their ability to perform the work if given the chance. Yet another might be someone who can perform the work duties, but those duties would unacceptably aggravate his or her injury, or involve an unacceptable level of pain or discomfort in their performance. However, these cases would be the exception, rather than the rule. It is only when features of this type are present that the distinction between a capacity to perform work duties and a capacity to return to work in employment would matter.

[81]Bainbridge v Westside Meats Pty Ltd [2021] VSC 320 at [24] (per Gorton J).

[82]Bainbridge v Westside Meats Pty Ltd [2021] VSC 320 at [25] (per Gorton J). This passage was adopted by the Court of Appeal in Sidiqi v Kotsios [2021] VSCA 187 at [87] (per Beach, Kaye and Osborn JJA).

[83]His Honour cited Ball v William Hunt & Sons Ltd [1912] AC 496 as “a good example of this, although perhaps somewhat dated”. As Gorton J explained, in that case, “Mr Ball worked as an edge tool moulder. He was blind in one eye, but his employers did not know and it did not affect his ability to perform his work. He then suffered an injury to his bad eye, which resulted in it being removed, and it becoming obvious that he could only see out of one eye. He could, of course, continue to perform his work duties as he had before. But the evidence showed that no employer would employ him because he could only see out of one eye; rather than this condition making him less attractive to employers, the factual conclusion was that this condition meant that there was no market for his labour, notwithstanding his ability to perform the work tasks. Accordingly, his later injury had rendered his labour unsaleable.”

As I understood Mr Fleming, his submission was that Ms Zapparoni’s case was markedly different from the examples given by Gorton J.

Whether unreasonableness/irrationality ground available

While Mr Fleming was right to point to the uncertainty as to whether and how the principles of irrationality and illogicality should be applied to opinions of a medical panel as a distinct ground of judicial review, he did not submit that such a ground was unavailable.

In Sidiqi v Kotsios in 2020, Richards J said the following on that very issue:[84]

[34] Mr Sidiqi submitted that irrationality or unreasonableness is a ground of review of a Medical Panel opinion, relying on authorities including the Court of Appeal’s decision in Mailton Holdings Pty Ltd v Jussy.[85] WorkCover made a formal submission that the ground was not available, based on the observations of an earlier Court of Appeal in Ryan v The Grange at Wodonga Pty Ltd.[86]
[35] I am not sure that the Court of Appeal’s decision in Mailton Holdings resolved the doubts expressed in Ryan about the availability of legal unreasonableness as a ground of review of a Medical Panel opinion. However, for reasons I have given previously,[87] I accept that a Medical Panel’s opinion can be reviewed on the ground of legal unreasonableness, one form of which is illogicality or irrationality.
[36] That said, the test for legal unreasonableness is stringent,[88] and the ground is not a vehicle for challenging the merits of a Medical Panel’s opinion.[89] An opinion on a medical question is a matter on which logical or rational or reasonable minds might follow different routes and reach different conclusions.[90] The standard of legal reasonableness allows room for reasonable minds to differ.

[84]Sidiqi v Kotsios [2020] VSC 446 at [34]-[36] (per Richards J).

[85]Her Honour cited Mailton Holdings Pty Ltd v Jussy [2019] VSCA 281 at [48] (per Beach and Ashley JJA), where their Honours assumed, in the applicant’s favour, that illogicality or irrationality is an available ground of review.

[86]Her Honour referred to Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17 at [82]-[100] (per Neave JA, Santamiaria JA and Ginnane AJA agreeing).

[87]Her Honour referred to her decisions in Total Transport Pty Ltd v Tasiopoulos [2019] VSC 266 at [22]; and Mailton Holdings Pty Ltd v Jussy [2019] VSC 421 at [40].

[88]Her Honour cited Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 376[108]-378[113] (per Gageler J).

[89]Her Honour cited Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 351-352[30] (per French CJ) & 363[66] (per Hayne, Kiefel and Bell JJ).

[90]Her Honour cited Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647[130]-648[131] (per Crennan and Bell JJ).

As the Court of Appeal observed last year on the appeal from the decision of Richards J,[91] her Honour adopted the view on this issue that she had previously articulated at trial in Total Transport Pty Ltd v Tasiopoulos, where she said the following:[92]

[22] Illogicality and irrationality are subsets of the legal unreasonableness ground of review, where the focus is on the decision-maker’s reasoning process rather than on the outcome.[93] Hesitation about the availability of illogicality, irrationality or unreasonableness as a ground of review of a Medical Panel opinion is not easy to reconcile with other authority to the effect that legal reasonableness is a condition of the lawful exercise of statutory power.[94] As a matter of principle, it is difficult to see why the standard of legal reasonableness should not apply to the formation of an opinion by a Medical Panel, as much as to the exercise of a discretion[95] or satisfaction as to the existence of a jurisdictional fact.[96] Indeed, the standard has been applied in decisions of this Court concerning Medical Panels.[97]

[91]See Sidiqi v Kotsios [2021] VSCA 187 at [56]-[57] (per Beach, Kaye and Osborn JJA).

[92]Total Transport Pty Ltd v Tasiopoulos [2019] VSC 266 at [22]. Her Honour did not, however, consider it necessary to resolve that question in that case, because she was not persuaded that the Panel’s opinion was illogical or irrational.

[93]Her Honour cited Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 645[124]-648[131] (per Crennan and Bell JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 365-366[72] (per Hayne, Kiefel and Bell JJ) & 375[105] (per Gageler J); Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445[43]-447[48] (per Allsop CJ, Robertson and Mortimer JJ); and Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 573[82] (per Nettle and Gordon JJ).

[94]Her Honour cited Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 (per Brennan J); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 350[26]-351[29] (per French CJ), 362[63]-364[67] (per Hayne, Kiefel and Bell JJ) & 370[88]-371[90] (per Gageler J); and Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 564[51]-565[53] (per Gageler J), 572-573[80] (per Nettle and Gordon JJ) & 583[131]-586[135] (per Edelman J).

[95]Her Honour cited Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 as an example.

[96]Her Honour cited Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 as an example.

[97]Her Honour cited Moore v Barton [2014] VSC 78 at [67]-[70] & [78] (per Dixon J); and City of Melbourne v Neppessen [2019] VSC 84 at [64]-[68], [87] & [148]-[154] (per Niall JA).

On the appeal in Sidiqi v Kotsios, after extracting the foregoing paragraph of Richards J’s reasons in Tasiopoulos, Beach, Kaye and Osborn JJA went on to say this:[98]

[58] There is, with respect, much to be said for this view. Given that the WIRC Act[99] vests in medical panels the power to form a binding opinion, it may be implied that it is intended that such an opinion will be reached by a rationally defensible path of reasoning. It is not sufficient simply that a panel arrives at an opinion which is open. In this regard, there may be many cases where differing and perhaps opposing medical opinions will be open.

[59] Moreover, it should be emphasised that acceptance of this basis of judicial review does not open the door to a merits review of the applicant’s case. …

[98]Sidiqi v Kotsios [2021] VSCA 187 at [58]-[59] (per Beach, Kaye and Osborn JJA).

[99]The Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The Accident Compensation Act 1985 (Vic), which applies in this case, equally vests in medical panels the power to form a binding opinion, as in this case.

In City of Melbourne v Neppessen, Niall JA applied the standard of unreasonableness as a stand-alone ground when considering an application for judicial review of a medical panel’s decision.[100]
[100]City of Melbourne v Neppessen [2019] VSC 84 at [64]-[68], [87] & [148]-[154] (per Niall JA).

In those circumstances, I consider it open to treat Ms Zapparoni’s complaint of legal unreasonableness under Ground 7 as an available ground of judicial review of the panel’s opinion.[101] If the opinion lacks an evident and intelligible justification or displays irrational reasoning, or if the result, on the evidence before the panel, is itself unreasonable, then the ground will be established.

Jordan v Kotsios

[101]Only recently, I considered, but found it unnecessary to decide, whether a similar ground was available on judicial review in respect of a decision of a County Court judge to find a person guilty of an indictable offence on an appeal (by way of a de novo hearing) from the Magistrates’ Court (see AB v Paulet [2022] VSC 414 at [150]-[168], especially at [157]-[163]).

Before turning to apply these principles to the complaint of legal unreasonableness in this matter, I should mention the decision of Cavanough J in Jordan v Kotsios & Ors.[102] His Honour’s judgment was handed down only recently, and since Ms Zapparoni’s application was argued.
[102]Jordan v Kotsios [2022] VSC 332.

Justice Cavanough engaged[103] in an analysis of the concept of employability within the definitions of suitable employment and no current work capacity, and discussed extensively the relevant authorities, including Richter v Driscoll,[104] Lang v Spendless Shoes Pty Ltd,[105] Bainbridge[106] and Sidiqi v Kotsios.[107]
[103]Jordan v Kotsios [2022] VSC 332 at [33], [36]-[39] & [60]-[64] (see also [84]-[86]) (per Cavanough J).
[104]Richter v Driscoll (2016) 51 VR 95 (Ashley, Osborn and Kaye JJA).
[105]Lang v Spendless Shoes Pty Ltd [2019] VSC 376 (Cavanough J).
[106]Bainbridge v Westside Meats Pty Ltd [2021] VSC 320 (Gorton J).
[107]Sidiqi v Kotsios [2021] VSCA 187 (Beach, Kaye and Osborn JJA).

Importantly, whatever Richter v Driscoll may have been thought to stand for in the past, Cavanough J doubted that the notion of employability extends to a worker’s being able to find or obtain employment.[108] Further, after setting out passages from Gorton J’s reasons in Bainbridge (including the passage extracted above), and also passages from the Court of Appeal’s reasons in Sidiqi v Kotsios, his Honour said this:[109]
[108]Jordan v Kotsios [2022] VSC 332 at [2]-[5], [21]-[22], [32]-[33], [36]-[42] & [60]-[64] (see also [84]-[86]) (per Cavanough J).
[109]Jordan v Kotsios [2022] VSC 332 at [40]-[42] (per Cavanough J) (footnotes included but edited).

[40] No mention was made in Bainbridge or in Sidiqi v Kotsios of the federal cases to which, in Lang,[110] I referred as arguably providing support for a wide interpretation of the relevant statutory provisions — in accordance with a wide reading of Richter v Driscoll — in relation to the ‘employability’ proposition. Nor was it expressly stated in Bainbridge or in Sidiqi v Kotsios that anything said in Richter v Driscoll was legally erroneous or otherwise in need of correction. However, it now seems that, in whatever way Richter v Driscoll might otherwise have been read, a limited interpretation of the relevant statutory provisions is to be adopted, so far as ‘employability’ is concerned, by virtue of the express adoption by the Court of Appeal in Sidiqi v Kotsios[111] of paragraph [25] of Bainbridge. More particularly, it seems to be the law, at least now, that a capacity to perform work duties will be sufficient to show that the worker has a ‘current work capacity’ within the meaning of the Act unless the worker has features of the kind referred to in paragraph [25] of Bainbridge, such cases being the exception rather than the rule. This seems to be so whether or not it can also be said that the Court of Appeal in Sidiqi v Kotsios approved the whole of what was said in Bainbridge.[112]
[110]Lang v Spendless Shoes Pty Ltd [2019] VSC 376 at [72] (per Cavanough J).
[111]Sidiqi v Kotsios [2021] VSCA 187 at [87] (per Beach, Kaye and Osborn JJA).
[112]Compare Akbari v Victorian WorkCover Authority [2022] VSC 84 at [62] (per Forbes J).

[41] Indeed it seems from Bainbridge and Sidiqi v Kotsios that a certain reading of Richter v Driscoll which was common ground in Lang, namely that Richter v Driscoll stands for, at least, the principles that are described in the first half of paragraph 19(5) of my judgment in Lang, is now to be seen as too wide a reading of that case. It seems that that description should be amended as follows:

… Richter v Driscoll requires, at least, that there be a consideration of whether there is an injury-caused inability to return to work in employment, ie as a settled or established member of the wage-earning work force, which in turn ~~requires~~ may, in certain kinds of circumstances of an exceptional nature, require more than a physical and psychiatric capacity to engage in a particular task or tasks that constitute that employment. Further, regard must be had to the entirety of the worker’s relevant personal circumstances, including both the injury-caused incapacity and other circumstances personal to the worker bearing on his or her ability to work in the particular form of employment as a settled member of the work force. The relevant personal circumstances of the worker (other than any which must by law be disregarded) should be comprehensively brought to account on the question of incapacity.

[42] On the other hand, I need not and do not express a concluded view about the effect of Bainbridge and Sidiqi v Kotsios (read together). …

As I read Cavanough J’s judgment and the authorities to which he referred, the following propositions are or remain correct.

First, a worker’s ability (or inability) to return to work in employment as a settled or established member of the wage-earning workforce is necessarily still a central component of the concepts of suitable employment, current work capacity and no current work capacity.

Secondly, it is still the case that ability to return to work in employment is not simply dependent upon a capacity physically to undertake particular tasks but, rather, that concept necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury.[113]
[113]Richter v Driscoll (2016) 51 VR 95 at 135[143] (per Osborn J).

Thirdly, in Sidiqi v Kotsios, the Court of Appeal did not purport to overrule or disapprove of Richter v Driscoll. On the contrary, before extracting the passage from Gorton J’s judgment in Bainbridge, Beach, Kaye and Osborn JJA said this:[114]

[85] As this Court held in Richter v Driscoll,[115] the concept of return to work conveys an intention that the mere fact that a worker is able to physically perform work duties does not necessarily mean that the worker has the ability to undertake work in employment. The relevant definitions require consideration of the entirety of the worker’s personal circumstances.[116]

[114]Sidiqi v Kotsios [2021] VSCA 187 at [85] (per Beach, Kaye and Osborn JJA).

[115]The Court referred to Richter v Driscoll (2016) 50 VR 95 at 114[73]-121[98] (per Ashley and Kaye JJA) & 135[143]-[145] (per Osborn JA).

[116]The Court there said that the background to these provisions is described by Ashley and Kaye JJA in Richter v Driscoll (2016) 51 VR 95 at 119[88]-120[93].

Fourthly, it remains the case, as Ashley and Kaye JJA said in Richter v Driscoll, that employment is a relationship in which a prospective employee must have something — a capacity to work in employment — to sell.[117] In Bainbridge, Gorton J repeatedly emphasised the importance of this concept.[118]
[117]Richter v Driscoll (2016) 51 VR 95 at 121[97] (per Ashley and Kaye JJA, Osborn JA agreeing).
[118]Bainbridge v Westside Meats Pty Ltd [2021] VSC 320 at [24], [25], [28] & [32] (per Gorton J); see also [20].

Fifthly, I did not understand either Gorton J in Bainbridge or Cavanough J in Jordan to be suggesting that the categories of case in which a worker is able physically to perform work duties, but does not have the ability to undertake work in employment, are confined to those mentioned in the paragraph in Bainbridge which the Court in Sidiqi v Kotsios adopted.

These are among the principles on the basis of which this application was conducted. At the oral hearing, Mr Fleming submitted that the panel acted upon what it considered to be Ms Zapparoni’s “employability, in the sense of whether her labour would be saleable in the labour market”. As I understood him, Mr Fleming also therefore expressly accepted that the saleability of a worker’s labour remains a relevant consideration in determining whether the worker has a current work capacity.

As may be apparent from my reasons thus far, the foregoing principles also form the bases on which I have considered this matter. Further, as will be apparent from my reasons to come, to adapt and employ Cavanough J’s amended passage in Jordan (from Lang), I consider that Ms Zapparoni’s case involves an exceptional combination of circumstances which, despite her physical capacity to engage in the task of a picking team leader, leads inexorably to the conclusion that it was not open to opine that that role could be suitable employment for her. This is because, on the evidence before the panel, those circumstances mean that she had no capacity to work in employment as a picking team leader because she had no relevant labour to sell or because any labour which she might have been able to perform was not, in any meaningful or realistic sense, merchantable.

If it turns out that those principles are now considered wrong or that they should be qualified, that is a matter for the Court of Appeal, not for me (and not in this case).

Consideration of whether unreasonable/irrational (Ground 7)

I turn, then, to apply the principles concerning legal unreasonableness to the question whether the panel’s opinion concerning suitability of employment (and, in turn, its opinion on current work capacity) can stand.

As I foreshadowed in the overview to these reasons, I am satisfied that the panel’s opinion is legally unreasonable. There are several reasons.

There is no complaint about the panel’s opinion that Ms Zapparoni’s physical afflictions were such that she was not physically able to perform her pre-injury role or most of the roles said by the VWA to constitute suitable employment. Nor was there any complaint about the panel’s opinion that, insofar as she had the physical capacity to perform a few other roles suggested, her lack of education, skills and experience and inability to be retrained meant that those roles were not suitable employment for her either.

But then there is the role of a picking team leader, in respect of which, as we have seen, the panel said the following (among other things):[119]

[90] The Panel considered however that the Plaintiff would be able to undertake work as a picking team leader on a reliable and consistent basis as these positions would allow the Plaintiff flexibility in sitting, standing and walking, and would not require formal retraining. The Panel further notes the Plaintiff has had previous supervisory experience with her pre-injury employer which would be transferable to the picking team leader role.

[119]Reasons at [90].

In my view, that opinion is irrational or so unreasonable that no reasonable decision-maker could have formed it on the evidence before the panel.

In Ms Zapparoni’s case, there was no reason to think that her labour as a potential picking team leader was merchantable, and every reason to compel the opinion that it was not. She had only a Year 8 education and poor literacy and numeracy skills. She could read and understand only 20 percent of the newspaper. As the panel accepted, her work experience was ostensibly limited to work in factories and childcare. And she had no recent return to work plan. Nor had she completed a retraining programme.

Ms Zapparoni’s computer skills were minimal, at best. Of the computer courses she completed some years earlier, she retained very little. Yet, as we have seen, in the Recovre report, while it was said that the computer-based tasks performed by picking team leaders are “basic and involve simple data entry” into existing programmes and applications, workers are required to undertake computer-based tasks “for the bulk of the work day”. It appears unlikely in the extreme that Ms Zapparoni would be up to this task, or, given her other limitations, that she could learn it on the job.

Further, her only supervisory role was in respect of a different job performed many years ago. It is difficult, if not impossible, to conceive how that supervisory experience would be relevant to or could be transferred to the role of a picking team leader, particularly when it was so improbable that she could even perform the computer-based tasks required in that role in the first place.

But, even if it be accepted that her skills as a machine operator/supervisor at the biscuit factory in which she was injured were potentially transferable to the role of a picking team leader, she remained poorly educated, very limited in her literacy and numeracy skills, had very limited employment experience, had only minimal computer skills, and lacked any recent return to work plan or completion of a retraining programme. In those circumstances, there is no prospect that, with a straight face, she could say to a potential employer that she would learn the role of a picking team leader on the job, or perform at the level required.

Added to that are two overwhelming considerations: her age, of nearly 61 at the time of the panel’s decision; and the fact she had been out of the workforce since May 2011. Each of these impediments compounds the other, and also the other matters I have mentioned.

It is of course understood that, today, we are living and working longer than in the past. Many older workers have much to offer. Even in the profession of judges, the statutory age of enforced retirement — or “the statutory age of senility”, as some like to call it — after being reduced some time ago for sitting judges, has increased in recent years for reserve judges. Experience is valuable. But, at the time of the panel’s decision, Ms Zapparoni was nearing retirement age and the experience she had was gained many years ago in a different role — that of machine operator/supervisor.

In any event, none of this alters the reality that the foregoing matters amounted to an exceptional combination of circumstances standing in the way of any reasonably or rationally formed opinion that the role of picking team leader was suitable employment for Ms Zapparoni. The panel must have reasoned irrationally at some point along the path to its decision in order to reach the conclusion it did. Accordingly, the panel’s conclusion in that regard was unreasonable.

As Cavanough J emphasised in Dias v Oakleigh Centre Industries, whether a worker has a current work capacity is an evaluative question on which medical opinions could reasonably differ.[120]
[120]Dias v Oakleigh Centre Industries [2016] VSC 115 at [29].

However, in considering this matter and in reaching the foregoing conclusion, I have been careful to refrain from simply substituting my own view of the merits of the case. Plainly, I would have decided the case differently, had it been up to me. But, instead of thinking in that way, I have approached the matter as a question law, as I must. And, even allowing fully for the role entrusted to medical panels and their expertise and experience in dealing with matters of this type, and also the evaluative nature of the questions the panel was asked to answer, as I have said, I am satisfied that, on the evidence, no reasonable or rational decision-maker could have reached the opinion that the role of a picking team leader was suitable employment for Ms Zapparoni.

Given the terms of the statutory definition and the way in which this matter was conducted, it follows that the panel’s conclusion that Ms Zapparoni had a current work capacity was legally unreasonable.

The panel’s decision is therefore vitiated by jurisdictional error and must be set aside.

Consideration of whether no evidence (Ground 4)

Despite the foregoing, if by Ground 4 Mr Uren is to be taken to have argued that there was no evidence — in the sense of not a skerrick of evidence — for the panel’s opinion, I reject that ground, or at least that limb of it.

True it is that whether there is any evidence to support a factual finding is a question of law, not of fact.[121] Accordingly, a finding made in the absence of evidence involves an error of law. If such an error appears on the face of the “record”,[122] it will be amenable to judicial review. An error of this kind may also amount to a jurisdictional error where the finding is a “critical step” in the decision-maker’s path of reasoning.[123]
[121]Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418[91] (per Hayne, Heydon, Crennan and Kiefel JJ). See also O’Connor v County Court (Vic) (2014) 67 MVR 66 at 76[39] (per Kaye J).
[122]A Medical Panel’s reasons will form part of the record in light of s 10 of the Administrative Law Act 1978 (Vic).
[123]See, for example, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at 407[19] (per Mansfield, Selway and Bennett JJ); and Moore v Barton [2014] VSC 78 at [65] (per Dixon J, quoting SZNKV v Minister for Immigration and Citizenship [2010] FCA 56 at [37] (per Kenny J)).

I do not think it can be said that there was no evidence that the role of a picking team leader was suitable employment for Ms Zapparoni. There was. For example, there was evidence that Ms Zapparoni was physically capable of performing the role, and, in any event, there was no challenge to the panel’s opinion to that effect. More importantly (given what was in issue), the Recovre report recommended that role as suitable employment for her. As thin and problematic as that recommendation was, it was still evidence.

That said, if Mr Uren’s complaint under Ground 4 is, in substance, a complaint that, on the evidence, no rational decision-maker could conclude that the role in question was suitable employment for Ms Zapparoni, then I accept that submission. But that is only to say that the complaint under Ground 4 is, in truth, no different from the complaint under Ground 7, which I have upheld.

In those circumstances, I need not determine this aspect of Ground 4.

ORDERS

It follows that Ms Zapparoni’s application should be granted and that the orders she seeks should be made.

Accordingly, I shall make the following orders:

1) The medical panel’s opinion dated 6 August 2020 is quashed.

2) The medical questions submitted for the opinion of a medical panel are referred to a differently constituted medical panel for redetermination in accordance with law.

I shall hear the parties on the question of costs.

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SCHEDULE OF PARTIES

S ECI 2020 03806

Between:
GILLIAN ZAPPARONI	Plaintiff
-and-
VICTORIAN WORKCOVER AUTHORITY	First Defendant
-and-
DR CHRISTINE KOTSIOS	Second Defendant
-and-
PROFESSOR LEANNE ROWE	Third Defendant
-and-
MR KEITH ELSNER	Fourth Defendant
-and-
DR ANDREA BENDRUPS	Fifth Defendant

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[2022] VSC 463

19 August 2022