IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 01361

JAMES DODDS	Appellant	
		
v  		
		
ATCORP INVESTMENTS PTY LTD & ORS
(according to the schedule)	Respondents	
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JUDGE:	Tsalamandris J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	27 May 2022	
DATE OF JUDGMENT:	14 July 2022	
CASE MAY BE CITED AS:	Dodds v Atcorp Investments & Ors	
MEDIUM NEUTRAL CITATION:	[2022] VSC 392	

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ADMINISTRATIVE LAW – Judicial review – Opinion of Medical Panel – Assessment of worker’s medical condition and work capacity – Whether Medical Panel committed a jurisdictional error – Whether Medical Panel failed to have regard to a relevant factual matter – Medical panel accepted that plaintiff suffered from pain – Pain as medical condition – Adequacy of Panel’s reasons – Appeal dismissed – Chang v Neill [2019] VSCA 151 – Richter v Driscoll (2016) 51 VR 95 – Sidiqi v Kotsios [2021] VSCA 187 – Didani v Downes-Brydon & Ors [2021] VSCA 281 – Emmelmann v Thomson Geer Services [2020] VSC 801 – Ayana v Qantas Airways Ltd [2021] VSC 500 – Moutray v The Union Pastoral Co [2021] VSC 723 – Akbari v Victorian WorkCover Authority & Ors [2022] VSC 84 – Miletic v ANZ Banking Group Limited & Ors [2022] VSC 240 – Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 – Calleja v Franet Pty Ltd [2000] VSC 339 – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
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APPEARANCES:
	Counsel	Solicitors	
For the Appellant	Mr G Uren QC with
Mr E Makowski	Arnold Thomas & Becker Lawyers	
			
For the First Respondent	Mr D Star QC with
Ms M Norton	Russell Kennedy	
			
For the Second to Sixth Respondents	No appearance	Victorian Government Solicitor’s Office	

HER HONOUR:
Preliminary
1	Mr Dodds is a 44-year-old man who suffered injury to his left knee when, on 23 July 2015, during the course of his employment, he slipped off the ledge of a bench top whilst removing a window (‘the incident’).  Mr Dodds seeks to claim pain and suffering and pecuniary loss damages for the injuries he suffered in this incident.  In order to do so, Mr Dodds must first satisfy the ‘serious injury’ definition contained in s 325(2)(e) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’).
2	Mr Dodds presently has an Originating Motion on foot in the County Court of Victoria, in which he is seeking leave to bring proceedings pursuant to s 335 of the Act.  At the request of the first defendant, the County Court referred certain questions to a medical panel, which were relevant to the determination of his serious injury application. 
3	On 4 March 2021, a medical panel composed of the second to sixth defendants (‘the Panel’) delivered its Certificate of Opinion (‘Opinion’) and written statement of Reasons for that Opinion (‘Reasons’).  The Panel found that as a consequence of the incident, Mr Dodds suffers persistent left knee dysfunction resulting from a surgically treated medial meniscus tear, aggravation of osteoarthritis, and a mild adjustment disorder.  The Panel also determined that Mr Dodds had a current work capacity, in that it found he was capable of working as a product assembler on a full-time basis. 
4	Mr Dodds seeks judicial review of the Panel’s decision on grounds of jurisdictional error.  In particular, Mr Dodds alleges that the Panel was erroneous in failing to find that his left knee pain was a medical condition, and that it did not take into account, or have regard to such pain when considering his capacity for suitable employment.  Further, Mr Dodds contends that in considering what constituted suitable employment, the Panel failed to have regard to the supplied material provided in relation to the requirements of employment as a product assembler, as well as Mr Dodds’ personal circumstances, including his places of residence.  If I am satisfied there was a jurisdictional error, Mr Dodds seeks an order quashing the Panel’s Opinion, together with an order remitting the referred questions to a differently constituted medical panel. 
5	For the reasons that follow, I dismiss the application. 
Background facts
6	The following are background facts, which were either agreed between the parties or do not appear to be in issue.  I will briefly summarise them to provide background to Mr Dodds’ claim and to give context to the issues that arise in this application.
7	Mr Dodds was born in New Zealand and attended school to the equivalent of Year 11.  He subsequently worked as a commercial fisherman for approximately 12 years.  Mr Dodds then obtained a divemaster’s certificate and worked in that industry for two years.  He later worked as a carpenter’s assistant.
8	In 2007, Mr Dodds migrated to Australia and obtained employment as a labourer for six months.  He then undertook an apprenticeship in carpentry which he completed in 2010,  and subsequently worked for numerous labour hire companies performing carpentry, labouring, and landscaping work.
9	Mr Dodds commenced employment with Atcorp Investments Pty Ltd (‘Atcorp’), a labour hire agency, in 2012.  Atcorp subsequently placed Mr Dodds with a host employer, Greenstar Demolition Pty Ltd (‘Greenstar’), as a demolition labourer.  On 23 July 2015, Mr Dodds suffered injury whilst working as a labourer with Greenstar. 
10	On 5 August 2015, Mr Dodds lodged a worker’s injury claim in which he claimed that in the incident, he suffered injuries which he described as ’left knee, tear to medial meniscus and microtrabecular fracture of the medial tibial plateau’.  His claim was subsequently accepted and he received weekly payments of compensation and reasonable medical and like expenses. 
11	On 8 October 2015, Mr Dodds underwent surgery to his left knee. 
12	In approximately February 2016, Mr Dodds returned to work on alternative duties, which included shredding paper, photocopying, preparing packs of papers, and filing.  Mr Dodds initially worked for two hours per day, twice a week.  Thereafter, Mr Dodds increased his hours and days of work but never returned to his pre-injury hours and duties. In April 2016, Mr Dodds was advised there were no longer alternative duties available and his employment with Atcorp ended.  
13	On 4 July 2016, Mr Dodds’ weekly payments of compensation and medical expenses were terminated on the basis that his incapacity for work was not materially contributed to by an injury arising from the course of his employment, and that the medical and like expenses he was claiming were not for an injury which entitled him to compensation under the Act.  Mr Dodds issued Magistrates’ Court proceedings in respect of that decision, which resulted in a referral from the Magistrate to a medical panel.  That medical panel examined Mr Dodds on 12 January 2018.  It was of the opinion that Mr Dodds suffered from continuing dysfunction of his left knee from aggravation of osteoarthritis in his knee which had been surgically treated, together with a mild adjustment disorder consequential to the accepted left knee injury.  The medical panel opined that as a consequence of the accepted left knee injury, Mr Dodds had a capacity for suitable employment, and thus a current work capacity.
14	On 5 August 2016, Mr Dodds lodged a claim for impairment benefits in respect of his left knee and psychological injury.  After being medically examined for this claim, Mr Dodds was dissatisfied with the statutory insurer’s determination as to his level of impairment, and that decision was referred to a differently constituted medical panel who examined him on 29 October 2018.  That medical panel concluded Mr Dodds suffered from persistent dysfunction of the left knee as a result of a surgically treated medial meniscal tear and aggravation of osteoarthritis of the left knee relevant to the injuries sustained on 23 July 2015.  The medical panel concluded that Mr Dodds had a 4% whole person impairment resulting from the accepted physical injury and that the degree of impairment was permanent.  
15	The medical panel also conducted a psychiatric examination and concluded that Mr Dodds suffered from an adjustment disorder with depressed mood relevant to the left knee injury and that there was a degree of psychiatric impairment of 14% secondary to the accepted physical injury.  The medical panel determined there was a 0% degree of psychiatric impairment when assessed in accordance with s 54 of the Act.  
16	On 20 June 2019, Mr Dodds lodged a serious injury application pursuant to Division 2 of Part 7 of the Act in respect of the impairment of his left knee, as well as a consequential mental or behavioural disturbance or disorder.  In his serious injury application, Mr Dodds relied upon pecuniary loss, as well as pain and suffering consequences.
17	Atcorp rejected Mr Dodds’ serious injury application and he subsequently issued proceedings in the County Court seeking leave to commence proceedings to claim common law damages.  Atcorp defended the application and applied to the Court to have questions referred to a medical panel.  
18	On 16 July 2020, pursuant to s 274 of the Act, the County Court referred questions to the Panel (‘the referral’).  
19	The Panel was composed of orthopaedic surgeon Mr Robert Pianta, rheumatologist Dr Maninder Mundae, rehabilitation physician Professor Peter Disler, and psychiatrists Dr Dennis Handrinos and Dr Dianne Kirby.  These medical practitioners are the second, third, fourth, fifth, and sixth defendants in the proceedings, however, as is the usual arrangement pursuant to the principles in Hardiman, they did not take an active role in the proceedings and indicated by way of correspondence that they would abide by the decision of the Court. 
20	The Panel examined Mr Dodds on 22 and 28 January 2021.  
21	The referral included a number of documents in a Schedule of Attachments.  Such documents included the Joint Statement pursuant to s 304 of the Act,  written submissions from both Mr Dodds and Atcorp,  Mr Dodds’  injury claim form, Mr Dodds’ serious injury affidavit, medical imaging, reports of treating practitioners, medico-legal opinions obtained by both Mr Dodds and the statutory insurer,  and a surveillance report and footage of Mr Dodds. 
22	The Schedule of Attachments also included vocational material, including a  vocational assessment report from Recovre, dated 9 September 2019  (‘the Recovre report’).  This report detailed five possible vocational options for Mr Dodds.  Of relevance to this judicial review was the product assembler role.  The Recovre report detailed a worksite assessment of a workplace offering such a position in Laverton North in May 2019.  At that workplace, eleven different positions across two assembly lines were described, and the nature of the tasks associated with such positions were detailed.  The Recovre report noted that workers were rotated across those positions, and across the assembly lines. The ‘summary of critical work demands’ outlined in the Recovre report stated that sitting was available in most positions along both assembly lines. In the three assembly line positions where standing was essential, the nature of the standing was described as dynamic, as workers were able to move about within small areas for a maximum duration of two hours.  Further, the report stated that it was feasible for workers who were unable to stand for two hours to negotiate a more frequent rotation with a seated worker.  The report also stated that product assemblers were not required to squat, bend for a sustained period, climb stairs or ladders, and the heaviest item handled was 2.5kg.  Further, it stated that most positions required constant dexterous fine manipulation of items such as screws and rubber seals.  
23	On 4 March 2021, the  Panel delivered its Opinion and Reasons.
24	On 29 April 2021, Mr Dodds filed an Originating Motion seeking judicial review in the nature of certiorari quashing the Opinion of the Panel, and an order in the nature of mandamus remitting the medical questions to a differently constituted panel.  
Medical Panel Opinion
25	The parts of the Opinion relevant to this application were as follows: 
Question 1. 	What is the nature of the medical condition/s of the Plaintiff’s:
(a)	left knee;
(b)	mind?
Answer: 	In the Panel’s opinion Mr Dodds has: 
(a)	persistent left knee dysfunction resulting from a surgically treated medial meniscus tear and aggravation of pre-existing osteoarthritis; 
(b)	a mild Adjustment Disorder.
Question 2: 	Does any medical condition of the Plaintiff’s 
(a)	left knee; or 
(b)	mind – 
continue to result from, or be materially contributed to by, the accepted left knee injury suffered by Mr Dodds in the course of his employment on 23 July 2015? 
Answer: 	In the Panel’s opinion the persistent left knee dysfunction resulting from a surgically treated medial meniscus tear, aggravation of osteoarthritis, and the mild adjustment disorder continue to result from and is materially contributed to by the accepted left knee injury.
Question 3. 	Is the medical condition of the Plaintiff’s
(a)	left knee; or 
(b)	mind – 
as identified by the Medical Panel “permanent” meaning “likely to last for, during or through the foreseeable future”?
Answer: 	(a) 	Yes
	(b) 	No
Question 4.	If ‘yes’ to question 2(a), does that left knee condition (excluding the psychological or psychiatric consequences of such conditions) result in or materially contribute to Mr Dodds having:
(a)	a “current work capacity” within the meaning of the Workplace Injury Rehabilitation & Compensation Act 2013 (“the Act”); or
(b)	“no current work capacity” within the meaning of the Act?
Answer:	(a) 	Yes
	(b) 	No
Question 5.	If ‘yes’ to question 4(b), is this incapacity “permanent” meaning “likely to last for, during or through the foreseeable future”?
Answer:	Not applicable.
Question 6. 	If “yes” to question 4(a), having regard to any physical consequences of the left knee injury (excluding the psychological or psychiatric consequences of such conditions):
(a)	What employment would or would not constitute suitable employment within the meaning of the Act and, if so, for how many hours and days per week?
(b)	Would employment as a:
(i)	Forklift driver;
(ii)	Traffic Controller;
(iii)	Ferry Master;
(iv)	Dive Master
(v)	Maintenance handyperson;
(vi)	Light delivery driver/courier;
(vii)	Product assembler; 
(viii)	Truck driver;
(ix)	Bus driver:
constitute suitable employment with the meaning of the Act and, if so, for how many hours and days per week?
Answer:	In the Panel’s opinion:
(a)	Employment that does not demand prolonged standing, walking, particularly over uneven surfaces, going up or down stairs and slopes, climbing ladders and doing heavy lifting would constitute suitable employment for Mr Dodds, and this could be carried out in a full-time capacity;
(b)	Employment as a Product Assembler would constitute suitable employment for Mr Dodds, and this could be carried out in a full- time capacity.
Question 7. 	In respect of any capacity for suitable employment identified in answer to question 6(a) or (b), is this capacity “permanent” meaning “likely to last for, during or through the foreseeable future”?
Answer:	In the Panel’s opinion Mr Dodds’ capacity for suitable employment is permanent.
Medical Panel Reasons
26	In its ‘Introduction’, the Panel noted the documents it had been provided and the facts that were agreed between the parties.  It also detailed Mr Dodds’ occupational history, the history of the incident, the treatment he subsequently received, and his return to work for a limited period in 2016.  
27	The Panel then noted the following in respect of Mr Dodds’ current status:
Mr Dodds said that his current symptoms comprise constant left knee pain which is increased by walking, kneeling or squatting. He said that on a good day he may be able to walk a kilometre on level ground, but he avoids stairs and hills. He said that at times the pain has increased markedly after he has had to walk fast to catch a tram and remained severe for about two days thereafter. He said that when the pain is severe he may limp when walking. He said that the knee pain may wake him from sleep at night.
He said that the knee may lock in a flexed position and this usually occurs at night in bed. The knee may also give way when he is walking and he wears an elasticised Velcro-fastening knee brace when walking. He said that he also has a more complex brace that a friend gave him but he tends not to use this.
28	The Panel noted that Mr Dodds consulted his general practitioner in Frankston from ‘time to time’, took over-the-counter Nurofen (up to nine tablets a day), and he used Voltaren gel.  
29	In respect of his social situation, the Panel noted that Mr Dodds spent half the week at his ex-girlfriend’s house in Albert Park, and the other half with a friend in Burwood.  The Panel noted that Mr Dodds did not have his drivers’ licence and commuted on public transport.  Further, it noted that Mr Dodds reported difficulty on trams with steps and that he needed to sit rather than stand on a journey. 
30	After conducting a physical examination of Mr Dodds, and reviewing the radiological investigations, the Panel found as follows:
Based on the history taken by the Panel, its physical examination of Mr Dodds and its review of the attached documents and radiological investigations, the Panel concluded that he has persistent left knee dysfunction and pain resulting from a surgically treated medial meniscus tear and aggravation of pre-existing osteoarthritis of the left knee, relevant to the accepted injury to the left knee sustained on 23 July 2015
The Panel considered that the Mr Dodds had evidence of osteoarthritis on the MRI scan of 28 July 2015, only a few days after the accepted left knee injury, which the Panel considered to be constitutional in origin. However, the Panel understood from Mr Dodds that he had not experienced pain in the left knee prior to the claimed injury of 23 July 2015, and had no functional limitation at home or work resulting from the osteoarthritis.
The Panel also noted that Mr Dodds has continued to experience left knee symptoms and functional limitation since the date of the claimed injury.
The Panel took all of the above into account in concluding that Mr Dodds’ current knee condition, with persistent left knee dysfunction and pain, is related to the surgically treated medial meniscus tear and aggravation of pre-existing osteoarthritis, which results from and is materially contributed to by his accepted left knee injury.
The Panel considered the extent of his left knee condition as well as the degree of osteoarthritis which Mr Dodds has in his left knee and concluded that his left knee condition can be considered to be permanent…
31	The Panel also conducted a psychiatric examination and concluded that Mr Dodds was ‘suffering from a mild adjustment disorder that has arisen following the injury to his left knee and the resultant financial hardship and diminished quality of life’. The Panel was of the opinion that Mr Dodds’ psychiatric condition did not cause him any current incapacity for full time work. 
32	In respect of his physical condition, the Panel stated as follows:
the Panel considered Mr Dodds’ description of the work that he carried out in the employ of Workforce Excess and Manpower (as detailed above) and noted that his duties were physically demanding, including the use of a jackhammer, crowbars, angle grinders, using shovels and pushing wheelbarrows. The Panel also considered the nature of Mr Dodds left knee condition relevant to the claimed injury with an aggravation of osteoarthritis and considered that he could be at risk from an exacerbation or aggravation of this condition if he were to return to his pre-injury duties at the present time.
The Panel thus concluded that Mr Dodds has an incapacity for his pre-injury employment on the basis of his physical condition relevant to the accepted left knee injury. For the same reasons, the Panel also concluded that this incapacity results from and is materially contributed to by his accepted left knee injury.
33	The Panel then stated that it considered the definitions of ‘no current work capacity’, ‘current work capacity’, and ‘suitable employment’ in answering the questions asked of it, and separately considered Mr Dodds’ physical and psychiatric conditions.  In respect of his physical condition, the Panel was of the opinion that:
with an aggravation of osteoarthritis in the left knee Mr Dodds could be at risk of an exacerbation or aggravation of his condition if he were to carry out work that demands prolonged standing, walking (particularly over uneven surfaces), going up or down stairs and slopes, climbing ladders or doing heavy lifting. 
34	In respect of its determination as to whether Mr Dodds had a current work capacity based on his physical condition alone, the Panel noted the following 9 considerations  (the ‘9 considerations’):
•	His age of 43 years which in the opinion of the Panel would not limit his employment options;
•	The severity of Mr Dodds’ left knee condition as detailed above;
•	His incomplete high school education with average literacy and numeracy and basic computer skills, which in the opinion of the Panel, could limit some employment options;
•	His completion of an apprenticeship in carpentry;
•	The relatively prolonged period that he has been out of the workforce;
•	His lack of a current car license but his use of public transport;
•	His few transferable work skills which would limit his employment options;
•	The lack of a return to work plan; and
•	The medical information in the referral material from those doctors who have treated or assessed Mr Dodds. 
35	The Panel considered the nine vocational options proposed in question 6 of the referral.  It concluded that eight of those options were unsuitable as they either involved: frequently getting in and out of a vehicle; prolonged sitting or standing; manual lifting; being on an unstable vessel; frequent lifting; climbing ladders whilst carrying a load; or required a drivers’ licence.
36	However, the Panel considered that the role of product assembler was suitable for Mr Dodds as ‘it does not demand heavy lifting, can be carried out in a sitting or standing position, does not demand walking for long distance or on uneven ground, or climbing steps or ladders’.  The Panel  considered that the role of product assembler was therefore ‘within Mr Dodds’ functional capacity and would not put him at risk of exacerbation or aggravation of his physical condition’.
37	The Panel stated that it reviewed all of the medical reports provided to it, including a report from occupational physician Dr Joseph Slesenger.  It expressly agreed with Dr Slesenger’s opinion as to why numerous vocational options were unsuitable for Mr Dodds, however disagreed with his opinion that the role of product assembler was unsuitable for Mr Dodds. In respect of this, the Panel said as follows:
…the Panel also noted that Dr Slesenger had considered that the role of Product assembler would demand sitting or standing for prolonged periods and could aggravate Mr Dodds’ symptoms. As noted above the Panel considered that the option for sitting and standing could be an advantage for Mr Dodds, who could then vary his position and did not demand heavy lifting, walking for long distance or on uneven ground, or climbing steps or ladders.
Based on its cumulative experience and expertise, the Panel considered that such work does lie within Mr Dodds’ functional capacity and would not put him at risk of exacerbation or aggravation of his physical condition. The Panel thus disagreed with the opinion of Mr Slesenger in this respect.
38	The Panel concluded that the role of product assembler constituted work for which Mr Dodds was currently suited and that he could perform such work on a reliable and consistent basis in a full-time capacity. 
Relevant statutory provisions
39	In reaching its Opinion, the Panel was required to consider the following definitions: ‘current work capacity’, ‘no work capacity’, and ‘suitable employment’.
40	These are defined in s 3 of the Act as follows:
current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment;
…
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre‑injury employment or in suitable employment;
…
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)	having regard to the following—
(i)	the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii)	the nature of the worker’s pre-injury employment;
(iii)	the worker’s age, education, skills and work experience;
(iv)	the worker’s place of residence;
(v)	any plan or document prepared as part of the return to work planning process;
(vi)	any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b)	regardless of whether—
	(i)	the work or the employment is available; or
(ii)	the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—
(c)	employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
(d)	employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e)	suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education;
41	In Richter v Driscoll (‘Richter’) Ashley and Kaye JJA (with whom Osborne JA agreed) said of these definitions:
… we agree with the applicant’s submission that return to work in employment, so understood, requires more than that a physical capacity to engage in a task or tasks. That is because there is more to an ability to work in employment — ‘ability’ being converse of ‘inability’, which appears in the definitions of ‘no current work capacity’ and ‘current work capacity’ — than the ability to perform a task that happens to be required in that employment. The definition of ‘suitable employment’, which falls for consideration in the context of ‘no current work capacity’, plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise, paragraphs (a)(ii), (iii) and (iv) would have no work to do.
…whether a worker has ‘no current work capacity’, according to the definition, depends in the first place upon whether the worker has an inability to work in his or her pre-injury employment. It would be contradictory if, in determining that question, one was confined to an examination of the worker’s physical capacity to perform a particular task or tasks in that employment. For if it was concluded that there was such capacity in a particular case, one would never get to the question whether the worker was able to return to work in ‘suitable employment’, which specifically requires consideration of matters travelling beyond physical capacity to perform a task.
42	Ashley and Kaye JJA gave the following example:
Suppose that a worker was adjudged physically able to perform the tasks required by his or her pre-injury employment, but that the employer’s place of business was so far distant from the worker’s place of residence that the continuing level of incapacity precluded travel to and from that workplace. If inability to return to work in pre-injury employment began and ended with consideration of a worker’s physical capacity to perform the tasks required by the job, then the worker would be held to have the ability to engage in his or her pre-injury employment. But if the question was whether the worker had the ability to work in ‘suitable employment’, the worker’s place of residence would be relevant — either because there was simply no ‘suitable employment’ in the area where the worker resided — the ‘Melbourne residence/Mildura work’ situation — or else because the area in which ‘suitable employment’ must have existed was confined by incapacity-caused limits upon the worker’s ability to travel.
43	Further it was stated that:
whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances—these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce. 
44	The definitions of ‘current work capacity’ and ‘no work capacity’, were recently considered by Gorton J in Bainbridge v Westside Meats Pty Ltd.  In that decision, the principles from Richter were summarised in the following way:
the fact that both these definitions embrace the concept of returning to work in employment conveys an intention to maintain the established notion that the mere fact that a worker is able to perform work duties does not mean that they have a work capacity. Rather, the issue is whether they have the capacity to return to work, in the sense of having something to sell in the market for labour.
45	Justice Gorton went on to say: 
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. 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.
46	These observations were subsequently approved by the Court of Appeal in Sidiqi v Kotsios (‘Sidiqi’). 
47	Further, of relevance to this application are the terms ‘injury’ and ‘medical condition’.
48	Injury is defined in s 3 of the Act as follows:
injury means any physical or mental injury and, without limiting the generality of that definition, includes—
(a)	industrial deafness; and
(b)	a disease contracted by a worker in the course of the worker’s employment (whether at, or away from, the place of employment); and
(c)	a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease
49	The term ‘medical condition’ is not defined in the Act but is referred to under the definition of ‘medical question’.  Section 3 of the Act defines ‘medical question’ as including:
(a)	a question as to the nature of a worker’s medical condition relevant to an injury or alleged injury;
50	The parties referred me to several recent Supreme Court decisions which considered the terms injury and medical condition,  as well as the Court of Appeal decision of Didani v Downes-Brydon & Ors (‘Didani’).  
51	Commencing with the first of these decisions, in Emmelmann v Thomson Geer Services (‘Emmelmann’), Ms Emmelmann claimed she injured her back whilst working as a legal secretary.  Ms Emmelmann sought leave in the County Court to commence common law proceedings for damages.  The Court referred medical questions to a medical panel, which determined Ms Emmelmann’s soft tissue injury to her spine had since resolved and therefore, she suffered no physical medical condition.  The medical panel also determined Ms Emmelmann did not suffer a psychiatric or abnormal psychological condition.  As the panel found that she did not suffer a medical condition, it was not required to answer the subsequent questions which asked whether her employment materially contributed to any such condition.  Ms Emmelmann sought judicial review of the panel’s decision, and complained, inter alia, that the panel failed to have regard to her spinal pain.  Ms Emmelmann’s proceedings were heard by Moore J who was satisfied the panel had committed a jurisdictional error and quashed the panel’s decision. 
52	Justice Moore noted that in Ms Emmelmann’s application for leave to commence proceedings, she relied solely upon consequences in respect of her pain and suffering.  Justice Moore considered that ‘a person’s continuing experience of pain is capable of being described as a ‘medical condition’ within the ordinary meaning of that term’.  He concluded that the medical panel had erred in adopting an unduly narrow approach to the meaning of the term ‘medical condition’.  Justice Moore held that as the medical panel did not consider Ms Emmelmann’s accepted history of pain was a manifestation of her mind, it presumably followed that her experience and history of pain was a physical condition.  Justice Moore concluded the panel misdirected itself by conflating the different subject matters of two distinct questions, namely, the relevant medical condition and its  cause.  
53	In Didani, Mr Didani’s weekly payments of compensation were terminated on the basis that he had a work capacity.  Mr Didani disputed this decision and referred it to the Accident Compensation Conciliation Service (‘the ACCS’).  As the dispute was not resolved there, the ACCS referred two medical questions to a medical panel.  In the referral documents, the conciliator from the ACCS stated that Mr Didani’s injury was ‘Lower back pain which radiated to the left leg as cited on the worker’s injury claim form sustained on 6/8/16’.  The referral material noted that the claim was accepted.  The first question asked of the panel was ‘What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?’.
54	The medical panel determined that Mr Didani’s soft tissue injury had resolved and that any pain he suffered was not a symptom of his claimed medical condition.  Mr Didani sought judicial review of this decision – in part on grounds similar to that claimed by Mr Dodds – that the medical panel erred in that it misunderstood the meaning of ‘medical condition’ and failed to take into account his lower back and leg pain in answering the first question.  It was contended that, as Mr Didani had been suffering pain since the date of the work incident, and as pain was a medical condition (as well as an injury as defined in the Act), the only answer the panel could have given was that the medical condition relevant to the claimed injury was the continuing lower back and left leg pain.  The application was heard by Keogh J who dismissed the proceedings (‘Didani at first instance’).  Justice Keogh held that in applying its own medical experience and expertise, the panel was required to consider the diagnosis of the claimed injury and any relevant medical condition, and was not obliged to accept that Mr Didani’s pain was still related to the claimed work injury.  
55	Mr Didani appealed that decision to the Court of Appeal (‘Didani’).  In a joint judgment of Beach JA, Emerton JA and Macaulay AJA, consideration was given to two decisions of Military Rehabilitation and Compensation Commission v May (‘May’) and Calleja v Franet Pty Ltd (‘Calleja’).
56	In May, the High Court considered the meaning of ‘injury’ and ‘disease’ under the Safety and Rehabilitation and Compensation Act 1998 (Cth) and the Court of Appeal in Didani considered those terms were similar to those defined terms under the Act.  In May, the High Court rejected a proposition that ‘subjectively experienced symptoms without accompanying physiological or psychiatric change’ constituted an ’injury’ as defined under the Safety and Rehabilitation and Compensation Act. 
57	Further, the Court of Appeal noted that in Calleja, Ashley J said:
If the worker has particularised — in medical rather than legal terms — the injury he or she claims to have suffered, the panel’s task is to opine whether some and what condition is then present which can be related to the injury alleged. But if the worker specifies injury only in the most general terms (as here: ‘injury to the right elbow …’) the panel cannot sensibly answer a question in the form of [the question] without first assessing — in a medical, not legal sense — the likely nature of the claimed injury.
58	In considering the aforementioned case law, the Court of Appeal said:
In our view, the propositions from these two cases (which we adopt) answer the applicant’s contentions on the question of how the Medical Panel had to approach the specified injury in Question 1. If a medical panel is asked for an opinion as to whether any present medical condition is relevant to an injury that is only expressed in terms of a subjectively experienced symptom of pain, it is plainly appropriate for that panel to approach the question applying its medical understanding of the physiological (or psychiatric) change that was likely to have accompanied that subjective experience of pain. That is what the Medical Panel did, identifying the relevant physiological change as injury to the soft tissue in the applicant’s lower back.
59	In dismissing the appeal, the Court held that it was for the medical panel to determine whether there was any present medical condition affecting Mr Didani that was relevant to his claimed injury.  Further, the Panel could not be constrained by the terms of the question put to it in a way that presumed Mr Didani’s complaint of pain was a medical condition relevant to the claimed injury.
60	In Ayana  v Qantas Airways Ltd (‘Ayana’), Mr Ayana suffered an onset of symptoms in his left knee and lower back while working as a baggage handler.  He made a claim for compensation under the Act which was subsequently accepted.  Approximately three years later, Qantas terminated Mr Ayana’s payments on the basis that he no longer suffered from a compensable injury.  The worker sought leave to commence common law proceedings for the recovery of damages in the County Court.  The Court referred questions to a medical panel.  The panel concluded that Mr Ayana was suffering from a chronic adjustment disorder with depressed mood, but no longer suffered from a medical condition of the left knee or back attributable to the initial injury. 
61	Mr Ayana sought judicial review of the panel’s decision, and his application was heard by Gorton J.   One of the questions before the Court was whether the panel failed to have regard to  whether or not the plaintiff had a ‘chronic pain syndrome’ or ‘genuine non-organic pain condition’ in circumstances where the issue was ‘squarely raised’ by the material before the panel.  The panel noted that aspects of Mr Ayana’s presentation were inconsistent with video surveillance, but made no express finding that he had a pain disorder nor whether or not he was feigning symptoms.
62	Justice Gorton stated that in circumstances where there may be a suspicion a worker was feigning symptoms, but the reasoning of the panel avoided the issue, it was a ‘matter of inference’ as to whether, in all the circumstances of the case, the panel failed to consider the relevant issue when forming its opinion.  
63	In his judgment, Gorton J observed that there is a: 
tension that can arise between the principle that a panel must set out its reasoning process in sufficient detail and the principle that a panel is not obliged to give reasons to explain why it did not reach an opinion it did not form.
64	The Court noted that the panel’s reasons included ‘too many references to his pain’ and the inconsistent and unusual way that he presented to support a finding that the issue was simply overlooked.  However, the Court was not satisfied that the panel considered the issue at the stage that it was formulating its diagnosis – there was nothing explicit in its reasons that showed the panel had considered and excluded a diagnosis of genuine non-organic pain syndrome, or that Mr Ayana’s ‘exaggerations’ precluded the existence of such a condition.  Justice Gorton set aside the decision of the panel on the basis that that the panel’s reasons failed to explain its path of reasoning in sufficient detail for the Court to determine its opinion on Mr Ayana’s diagnosis and therefore contained an error of law. 
65	In Moutray v The Union Pastoral Co (‘Moutray’), Ms Moutray suffered an injury to her hand after she was kicked by a cow whilst working as a herd manager.  Ms Moutray lodged a claim for compensation, which was accepted.  After approximately two and a half years, her weekly payments were terminated and she issued Magistrates’ Court proceedings seeking the reinstatement of such payments. The Magistrate referred questions to a medical panel.  That panel was of the opinion that the soft tissue injury to Ms Moutray’s hand had resolved and she did not suffer any other medical conditions, including complex regional pain syndrome or a psychiatric condition.  Ms Moutray sought judicial review of this decision, claiming that the panel erred in finding that she did not suffer a psychiatric condition.   The Court dismissed Ms Moutray’s submission that the medical panel should have concluded she had a diagnosed pain condition based on her subjective report of pain in the absence of any diagnostic criteria. 
66	In rejecting Ms Moutray’s grounds and associated arguments in relation to the panel’s determination of question 1, O’Meara J noted that:
… if mere complaints of pain not engaging relevant diagnostic criteria in respect of recognised psychiatric disorders were to require serious consideration as constituting a ‘psychological injury’ for present purposes, manifold questions abound. If the ‘psychological injury’ concerned is not a recognised psychiatric condition with defined criteria, what is ‘it’? What are the recognised features of ‘it’ and what may be said to differentiate it from a defined psychiatric chronic pain disorder? What pattern of symptoms might be said to present over time? How long might ‘it’ be expected to last? How can ‘it’ be best treated?
67	In Akbari, v Victorian WorkCover Authority & Ors (‘Akbari’), the worker suffered a lower back injury whilst working as a machine operator.  Mr Akbari sought leave in the County Court to commence proceedings for the recovery of common law damages.  The Court referred questions to a medical panel. The panel concluded that Mr Akbari had sustained a soft tissue injury to his lower back which had resolved, his persistent lower back pain was ‘secondary to deconditioning, consequent to inactivity’ from the soft tissue injury, and that he also had  a mild adjustment disorder.  The panel determined that Mr Akbari had a current work capacity.  Mr Akbari sought judicial review of the decision of the panel.  In part, Mr Akbari contended that in accordance with the reasons of the Moore J in Emmelmann, pain symptoms were a medical condition. It was then put that the panel’s determination that he suffered pain from deconditioning, involved the diagnosis of a medical condition which was not referred to in the medical material supplied to the panel, and Mr Akbari alleged he was therefore denied procedural fairness.  In rejecting Mr Akbari’s submission, Forbes J said on the meaning of ‘medical condition’:
Pain may be a symptom or a consequence of many and varied medical conditions. It may be a product of physical or mental medical conditions or a combination of both. It may result in a psychiatric diagnosis if otherwise unexplained. In Emmelmann, a medical panel accepted the plaintiff suffered ongoing pain. Similarly, in a referral in the context of a serious injury application, the contest was one of pain from exacerbated degenerative changes on the one hand or a resolved musculoligamentous strain on the other. His Honour was concerned with the meaning of the term ’medical condition’ as that term is contained in the first of the medical questions prescribed in the Act, but itself not defined. He concluded that a medical condition embodied both physical and mental conditions. In circumstances where that panel found neither a physical condition nor a mental condition, it took an unduly narrow interpretation. In my view, the Panel’s conclusion in this case avoids the error identified in Emmelmann which did not address an explanation for the persisting pain that it accepted was still present.
68	Justice Forbes stated that the panel ‘joined the dots’ to conclude that Mr Akbari’s pain was a consequence of the soft tissue injury, despite the injury having resolved some time before the panel’s examination.  The injury resulted in Mr Akbari’s inactivity, a consequence of which was deconditioning, and his continuation of pain was secondary to that.  Justice Forbes held that the answer from the panel assisted the court determining the serious injury application to understand that the pain was to be considered under the paragraph (a) claim for impairment of body function, and not the paragraph (c) claim. As such, the Court was not persuaded that the conclusion of the panel in respect of this was adverse to Mr Akbari.  Further, it was not satisfied that Mr Akbari was denied procedural fairness, as the panel’s explanation fell within the parameters of the dispute before it.
69	In Miletic ANZ Banking Group Limited & Ors (‘Miletic’), Ms Miletic suffered injuries to her right wrist, elbow, and arm due to overuse of a computer mouse at work.  Her employer, ANZ Banking Group Ltd, accepted liability and made payments in respect of her injuries. Ms Miletic’s payments subsequently ceased and she sought leave in the County Court to commence common law proceedings for the recovery of damages.  The Court referred questions to a medical panel.  The panel opined she no longer suffered from any intrinsic medical condition but had a mild adjustment disorder with depressed mood and anxiety.  Ms Miletic sought judicial review of that opinion on the basis that, in addressing the medical questions, the panel did not lawfully deal with the plaintiff’s complaints of pain.  Justice Cavanough heard the application and was not satisfied that any of Ms Miletic’s grounds of challenge to the opinion were made out.
70	Ms Miletic contended that the panel unduly limited the scope of question 1 to ‘intrinsic’ medical conditions.  The Court determined there was no merit in Ms Miletic’s complaint as statutory medical questions are ‘subject to limitations as to form and are required to be relevant’.  The Court noted question 1 asked ‘only’ about Ms Miletic’s physical or anatomical condition of the specified parts of her body.  Further, his Honour stated that medical questions should be read against the relevant statutory scheme relating to the referral of medical questions and making of serious injury applications under the Act.  The Court stated that in doing so, question 1 is understood as a question about the nature of the medical condition (if any) directed to the worker’s injury or alleged injury. 
71	Ms Miletic also contended that it was not open to the panel not to conclude that she was suffering from pain, relying on the decision of Emmelmann.  The Court noted that Ms Miletic relied heavily on comments included in the panel’s reasons relating to her complaints of pain, however rejected that such comments constituted the panel’s acceptance of her pain as being ‘actual products of any persisting physical injury’.  In distinguishing Emmelmann, Cavanough J said: 
In Emmelmann, Moore J observed that a person’s continuing experience of pain is ‘capable’ of being described as a ‘medical condition’ within the ‘ordinary meaning’ of that term. Putting together the acknowledged pain in Ms Emmelmann’s spine and the ‘ordinary meaning’ of ‘medical condition’, Moore J concluded that it had not been open to the Panel in that case to determine (as it had purported to do) that Ms Emmelmann had no physical medical condition of the spine. As already mentioned, the present case is very different, because the Medical Panel did not accept Ms Miletic’s complaints of actual physical pain. Further and in any event, I would not treat the judgment in Emmelmann as laying down any universal proposition that wherever a Medical Panel is asked about the medical condition of a person in relation to an injury or alleged injury of the person, the Panel is obliged, if it finds actual pain associated with such injury, to answer the medical question by expressly and separately referring to the pain as a medical condition. 
72	In respect of the panel’s application of its own medical expertise and experience to the circumstances of the case, Cavanough J said the following:
… depending perhaps on the precise wording of the medical question, it may well be sufficient for the Panel to give a diagnosis of the relevant body part in anatomical terms. It may well be open to the Panel merely to take into account the accepted pain as being an indicator or symptom of a particular medical condition. These are matters on which a Medical Panel is entitled to apply its own medical expertise and experience.
General principles relevant to judicial review of a medical panel decision
73	In considering this application, I am bound by the following principles:
(a)	this is a matter of judicial review, and not merits review;
(b)	the statutory function of the medical panel is an essential consideration in conducting the review.  It is to form an opinion in respect of questions referred to it, and to state the reasons for its answers to those questions.
(c)	a medical panel will make a jurisdictional error if it identifies the wrong issue, asks itself the wrong question, or fails to take into account relevant material.
(d)	I should be mindful that each medical panel is comprised of medically qualified professionals, not lawyers or judges; 
(e)	I should not be overly zealous in considering the Reasons of the Panel; 
(f)	the Reasons of the Panel should be given a beneficial construction;
(g)	it will be difficult to conclude that an opinion was not open to a medical panel if that opinion was materially informed by the expertise of that medical panel, in terms of both general and specialist medical expertise.
(h)	there are often differing and sometimes opposing medical opinions contained within the material before a medical panel, and reasonable minds may differ about the answers to medical questions. 
74	In considering this application, I am also assisted by the High Court’s description of the Medical Panel’s statutory function in Wingfoot Australia Partners v Kocak: 
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
Mr Dodd’s submissions as to why the Panel committed jurisdictional error
(1) 	Pain as a medical condition
75	Mr Dodds submitted that the Panel made a jurisdictional error on the basis that it had not answered question 1, had misunderstood question 1, or had misunderstood or misapplied the meaning of the term ‘medical condition’ as contained in the question.  In short it was contended that given the Panel’s apparent acceptance of Mr Dodds’ reports of left knee pain, the Panel was required to include Mr Dodds’ left knee pain as part of his medical condition in its answer to question 1.  As it did not do so, Mr Dodds submitted that the Panel made a decision which was not open to it.  It was then said that the Panel’s answers to questions 2 and 3, were dependent on the answer to question 1, and so too were answered in error.  Finally, it was submitted that questions 4, 6 and 7 were also dependent upon the answers to questions 1 and 2, and that the Panel did not take into account, or have regard to, or give proper, genuine or realistic consideration to, Mr Dodds’   left knee pain in deciding whether he had a current work capacity.  It was put that Mr Dodds’ incapacity included that which resulted from his left knee pain, and it was said that the Panel did not have regard to that incapacity in answering the question. 
76	As the term ‘medical condition’ was not defined in the Act, Mr Dodds contended that  it should be given its ordinary meaning. Mr Dodds relied upon the decision of Emmelmann, and Moore J’s acknowledgement that pain is capable of being considered a medical condition within the ordinary meaning of that term. 
77	It was claimed by Mr Dodds’ counsel in oral submissions that the pain must be due to ‘some effect on his nervous system resulting from the injury that occurred’ and therefore his pain constituted a medical condition. 
78	Further, it was noted that in its answer to question 1, when the Panel identified Mr Dodds’ injury to the left knee, it also included his left knee dysfunction resulting from the anatomical defects referred to in the answer.  It was put that the term ‘dysfunction’ should also be given its ordinary meaning, that is, the malfunctioning or failure of that body part to perform.  It was contended that, just as the Panel had referred to the medical condition of dysfunction, the Panel was also required to include the medical condition of Mr Dodds’ left knee pain.  
79	 It was put that in answering question 1, the Panel was required to consider the sequelae to Mr Dodds’ injuries, even though it was not specifically asked to do so.  As Mr Dodds’ left knee pain and restrictions were a sequelae to his left knee injury, the Panel was required to refer to this in identifying his medical condition in answer to question 1, just as it had referred to the dysfunction in the knee. 
80	It was emphasised that the Panel’s answer to this question had very serious consequences to Mr Dodds’ claim for damages, as in considering his application for leave to commence common law damages, the County Court judge would be required to apply the Opinion of the Panel and not the Reasons.  It was noted that although the Reasons indicated that the Panel accepted that Mr Dodds suffered left knee pain, there was no reference to that in its Opinion.  It was then contended that as the Panel’s answer to question 1 did not include Mr Dodds’ left knee pain,  the judge hearing his application for leave to seek pain and suffering damages  could not consider his left knee pain, as it was not identified by the Panel as a medical condition.  It was put that the judge could only consider persistent left knee dysfunction, and  that the ordinary meaning of the word dysfunction  does not mean ‘pain’, or ‘the experience of pain’.
81	In addition to Mr Dodds’ submission that the Panel committed jurisdictional error in its answer to question 1, he also contended that the Panel erred in its answer to question 4 in relation to his work capacity. This was because question 4 was predicated on previous answers which did not include reference to Mr Dodds’ left knee pain.  When considering the definitions of ‘suitable employment’, ‘current work capacity’ and ‘no current work capacity’ the Panel must have regard to both the worker’s incapacity caused by the compensable injury, and the medical information provided to it.  It was submitted that in doing so, the Panel was required to have regard to Mr Dodds’ left knee pain and its consequent restrictions. As in Mr Dodds’ submission these were mandatory considerations, he contended that its failure to do so constituted an error in accordance with the principles outlined in Minister for Aboriginal Affairs v Peko-Wallsend Ltd.
82	Mr Dodds contended that for the panel to fulfill its obligation to have regard to such matters, it was required to engage in ‘an active intellectual process’ in which each of the prescribed circumstances were given ‘genuine’ consideration.  Further, it was said that the Panel must have, as a matter of substance, given appropriate consideration to the centrality of the matter in issue, and any consequences.
83	Mr Dodds submitted that the Reasons show the Panel did not comply with such requirements.   It was submitted that the issue of Mr Dodds’ capacity for work in suitable employment required an assessment by the Panel of his incapacity which resulted from the medical conditions, including his left knee pain and consequent restrictions.  It was contended that this aspect was not taken into account at all by the Panel in its reasoning process (notwithstanding reference to it in the Reasons) or alternatively was not given the consideration required by law.  Instead, it was said that the Panel confined its  assessment of Mr Dodds’ work capacity to a consideration of a physical condition of aggravation of osteoarthritis in the left knee, and the risk of an exacerbation in relation to this condition if he were to perform duties that demanded prolonged standing, walking (particularly over uneven surfaces), going up or down stairs, climbing ladders, or doing heavy lifting. 
84	In respect of the Panel’s statement that it had regard to the  9 considerations, Mr Dodds submitted that the reference to ‘the severity of Mr Dodds’ left knee condition as detailed above’ did not encompass the references to pain ‘three of four pages back’ in the Reasons, but rather was limited to what was stated directly above (in that part of the Reasons), which referred only to dysfunction and not pain.  Mr Dodds contended that the Reasons were silent as to the effect of pain on his ability to undertake employment, which in turn demonstrated that the Panel failed to have regard to it.  
85	Mr Dodds submitted that his left knee pain and consequent restrictions were not genuinely considered, or indeed considered at all, when the Panel concluded that the role of a ‘product assembler’ constituted suitable employment.  Mr Dodds submitted the Panel’s finding that he had capacity to work as a product assembler on the basis that such work would not put him ‘at risk of exacerbation or aggravation of his anatomical condition’ was evidence that the Panel only considered the anatomical condition of his left knee in relation to his suitability for that role, and did not consider his pain.  It was said that this narrow focus constituted an error by the Panel. 
86	In addition, Mr Dodds submitted  that the Panel was required to consider ‘personal circumstances’ in determining his capacity for suitable employment in accordance with the principles in Richter.  He contended that  his left knee pain and consequent restrictions fell under that requirement.  Mr Dodds submitted that despite knowing of and accepting his left knee pain, the Panel did not have regard to this when forming its answer to question 4, and this also constituted a jurisdictional error on its part.
(2)	Product assembler was not suitable employment
87	In the alternative, Mr Dodds submitted that there were four additional grounds upon which the Panel had committed jurisdictional error in reaching its Opinion that the role of product assembler was suitable employment for him.  These were on the basis that the Panel had: erred in its understanding of the requirements of the role;  failed to take into account whether Mr Dodds could perform tasks which required manual dexterity;  failed to take into account his places of residence;  and failed to have regard to his capacity to obtain and then work in such employment as a settled member of the workforce.  
(i) Mr Dodds submitted that in considering what constituted suitable employment, the Panel failed to take into account or have regard to the material it was supplied as to the requirements of employment as a product assembler, in particular the Recovre report.  It was submitted that this led the Panel in to error in respect of its answer to question 6 regarding suitable employment.
88	Mr Dodds submitted that the Panel made an erroneous and material finding of fact in considering that the role of product assembler could be carried out in a sitting or standing position, such that it was within his functional capacity.  He submitted that the Recovre report (which he said was the only evidence the Panel had as to the role of product assembler) demonstrated the role required prolonged sitting and standing, as well as some assembly line positions that required dynamic standing.   
89	It was asserted by Mr Dodds’ counsel that the workplace assessment was conducted at a ‘showplace establishment’ such that it was not a realistic indication of the role of product assembler.  
90	In support of Mr Dodds’ submission that such error constituted a jurisdictional error, I was referred to the Court of Appeal decision in Chang v Neill where it was stated that: 
The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material — properly construed — is an essential feature of a valid exercise of the function.
91	Mr Dodds submitted that the Panel erred in respect of its factual finding that the product assembler role could be carried out in a sitting or standing position, and that such a finding was an essential feature of its opinion that the role constituted suitable employment.
(ii) Mr Dodds submitted that the Panel failed to take into account or have regard to the material with which it was supplied, namely the Recovre report, in relation to the fine manipulation requirements of the role of a product assembler.  Mr Dodds contended that the role required dexterous handling of small items such as screws and rubber seals.  He submitted there was no evidence that he was capable of such work and there was nothing in the Panel’s Reasons to indicate that it gave consideration, or any proper consideration to this.  It was said therefore that the Panel failed to consider his ‘personal circumstances’ as it was required to when considering the definition of suitable employment, consistent with the principles outlined in Richter. 
(iii) Mr Dodds submitted that the Panel did not have regard to his two places of residence in deciding that the role of product assembler constituted suitable employment for him.  It was submitted that the definition of suitable employment required the Panel to consider whether opportunities for such employment existed within a reasonable distance of Mr Dodds’ places of residence.  It was said that the absence of reference to Mr Dodds’ residential locations in the 9 considerations, was evidence that the Panel had not taken this mandatory consideration into account.  It was said that this was a further jurisdictional error by the Panel.  
(iv) Mr Dodds submitted that in answering question 6, the Panel only had regard to his physical condition, as defined in its answer to question 1.  He submitted the Panel did not take into account, or give proper, genuine or realistic consideration to whether his injuries or medical condition would inhibit his ability to obtain employment, and if so, his capacity to work in employment as a settled member of the workforce, as required by Richter.  It was submitted that these were material matters which the Panel was bound to consider in answering question 6.  
Atcorp’s submissions as to why the Panel did not commit any jurisdictional error 
(1)	Pain as a medical condition
92	Atcorp urged me to reject Mr Dodds’ submission that the Panel committed a jurisdictional error by not concluding that his left knee pain was a medical condition in itself.  It was said that on any fair reading of the Reasons, it was plain that the Panel both accepted and considered Mr Dodds’ symptoms of pain and its consequent restrictions.  It was noted that the word pain appears multiple times throughout the Reasons.  Further, it was noted that the Panel accepted that Mr Dodds had not experienced pain in the left knee and had no functional limitations at home or at work resulting from his pre-existing osteoarthritis prior to the work incident.  The Panel accepted that Mr Dodds  ‘had continued to experience left knee symptoms and functional limitation’ since that time.  
93	Atcorp emphasised that in explaining its answer to question 1 (a), the Panel expressly stated that:
The Panel took all of the above into account in concluding that Mr Dodds’ current knee condition, with persistent left knee dysfunction and pain, is related to the surgically treated medial meniscus tear and aggravation of pre-existing osteoarthritis, which results from and is materially contributed to by his accepted left knee injury.
94	In view of those matters, it was said that there was no basis for Mr Dodds to contend that the Panel ‘ignored’ his left knee pain and its consequential restrictions. 
95	It was put that the Panel’s conclusion that Mr Dodds was suffering ‘persistent left knee dysfunction resulting from a surgically treated medial meniscus tear and aggravation of osteoarthritis’, was both open on the evidence and represented an entirely orthodox approach to the term medical condition.
96	Atcorp submitted that there is a distinction between pain as a symptom and pain as a condition, with the latter being either organically based or a psychiatric chronic pain syndrome.  It was put that there was no evidence before the Panel that Mr Dodds’ pain was an organic or psychiatric based condition, and therefore, it was proper for the Panel to take Mr Dodds’ left knee pain into account as a symptom of the diagnosed medical condition of his left knee. 
97	Atcorp referred me to several cases in which the Court had found that it was open to a medical panel not to include a worker’s pain as a medical condition.  It was said that this was a matter of medical opinion, and that in conducting this judicial review I should be mindful of the principles outlined in Sidiqi (included in paragraph [73] above).
98	It was put that the Panel’s answer to question 1 was within its expertise, was open on the evidence and was consistent with the view of other doctors, as well as the two previous medical panels who had examined Mr Dodds.
99	In response to Mr Dodds’ submission that the Panel was bound to treat his left knee pain as a medical condition, Atcorp relied upon the Court of Appeal decision in Didani.  It was said that the Court of Appeal reasoned that questions concerning medical conditions require a medical panel to consider ‘any relevant conditions and in doing so, to apply its own medical expertise and experience’.  Further, a presumption that pain (simpliciter) is a medical condition would ‘constrain the approach of the expert Medical Panel in answering the question such that no medical expertise was required to perform the task’.
100	Atcorp suggested it was unclear what the consequence to Mr Dodds was by the Panel not including left knee pain as part of his medical condition, when it had otherwise accepted that the medical condition of his left knee was both causally related to his compensable injury and permanent.  It was put that this was distinct from the workers in Emmelmann, Didani, and Moutray, as the respective medical panels in those cases were not satisfied that the workers had persisting medical conditions relevant to their accepted work injuries, despite the workers’ complaints of ongoing pain.  Therefore, any attack on this error (which was disputed) was not material.
(2) 	Product assembler was not suitable employment
101	Atcorp submitted that there was no error by the Panel in its finding that Mr Dodds had a current work capacity to perform the role of a product assembler. 
102	In relation to the assertion that the Panel erred in its findings as to the requirements of the product assembler role, Atcorp disputed this and submitted that it was open for the Panel to conclude that work as a product assembler was within Mr Dodds’ functional capacity and constituted a suitable full-time employment option.  Atcorp contended that the Panel was not mistaken as to the requirements of the product assembler role.  Further, it contended that Mr Dodds’ submission that the Panel erred in this respect required a selective reading of the position descriptions contained in the Recovre report. 
103	In support of the assertion that the Panel correctly understood the position description, Atcorp noted that in a report from orthopaedic surgeon, Associate Professor Esser dated 30 October 2019, the standing requirements were described in the following way:  ‘sitting is available on most positions along the assembly line. Standing is required on occasions. When standing is essential, workers are apparently able to move around’.  As such, it was said that the Panel’s conclusion that the work as a product assembler ‘can be carried out in a sitting or standing position’ was similar to Associate Professor Esser’s conclusion, and was not in error.
104	The Panel noted that occupational physician Dr Wyatt and Associate Professor Esser reached the same conclusion in relation to Mr Dodds’ capacity for work as a product assembler. Further, the Panel acknowledged the opinion of occupational physician Dr Slesenger, and explained why it reached a different conclusion.  As such, Atcorp submitted that there was no basis to contend that the Panel had erred in this finding. 
105	Atcorp noted that in explaining its answer to question 6, the Panel, in its Reasons, expressly stated that it had considered the relevant statutory definitions, and  noted 9 considerations relevant to its determination of Mr Dodds’ current work capacity based on his physical conditional alone.  In response to Mr Dodds’ allegation that the Panel had failed to have proper, genuine, and realistic consideration of Mr Dodds’ left knee pain and his personal circumstances, Atcorp submitted that this was not borne out in the Panel’s Reasons.  In particular it emphasised that three of the 9 considerations included: 
•	The severity of Mr Dodds’ left knee condition as detailed above;
•	His lack of current car licence but his use of public transport;
•	The medical information in the referral material from those doctors who have treated or assessed Mr Dodds.
106	Atcorp submitted that on a beneficial reading of the Reasons, the reference to the severity of Mr Dodds’ left knee condition included consideration of his consequential pain, as was detailed in the Panel’s Reasons on multiple occasions.  Further, this was evident in the Panel forming the view that 8 of the 9 suggested jobs were not suitable for Mr Dodds.  
107	In relation to Mr Dodds’ assertion that the Panel did not give proper consideration to the fine manipulation requirements of the job, Atcorp noted that in Mr Dodds’ submissions to the Panel, he took no issue with this aspect of the product assembler role.   Further, aside from a single reference to ‘a fine tremor in his hands’ in the 18 February 2019 report of Dr Wyatt, the materials before the Panel did not raise any issue with Mr Dodds’ fine motor skills or capacity for tasks involving ‘fine manipulation’.  In any event, it was noted that Dr Wyatt considered that Mr Dodds could work as a product assembler, notwithstanding the fine tremor in his hands.  In these circumstances, it was said that the Panel did not err for not expressly considering this aspect of the product assembler role in its Reasons. 
108	In relation to Mr Dodds’ places of residence, it was noted that the Reasons referenced two locations within Melbourne where Mr Dodds resided. Further, in the Panel’s 9 considerations,  it expressly noted that, although Mr Dodds did not have a license, he was able to use public transport.  As such, it was said that an  inference could be drawn from the Reasons that the Panel considered that Mr Dodds’ places of residence in suburban Melbourne did not limit his opportunities for suitable employment. 
109	Finally, Atcorp denied the assertion that the Panel had not given proper consideration as to whether Mr Dodds was able to obtain employment and be a settled member of the workforce. It submitted that the Reasons were consistent with the principles outlined in Richter.  Atcorp noted one of the Panel’s concluding remarks was that it was satisfied the role of product assembler was work for which Mr Dodds was currently suited and could perform on a ‘reliable and consistent basis’ in a full-time capacity, noting the terms ‘reliable and consistent’ was the precise language of the Court of Appeal in Richter.  
Analysis
(1)	Pain as a medical condition
110	In reviewing a medical panel decision, it is helpful to consider the nature of the dispute between the parties and the purpose of the questions asked of the panel.  The questions asked and the answers given by the medical panel must serve the purpose for which the referral was made. 
111	In this application, the referral was made by a County Court judge to answer medical questions relevant to Mr Dodds’ application for leave to commence common law proceedings.  To assist in the determination of Mr Dodds’ serious injury application, the Panel was asked to form an opinion and answer medical questions as to the nature, cause, and permanency of Mr Dodds’ knee injury and psychological condition, and to assess the consequences of any such medical conditions in terms of his ongoing capacity for work.  
112	The first question in the chain of questions put to the Panel asked what the nature of the medical condition of Mr Dodds’ left knee was.  To answer this question, the Panel was required to ‘consider the diagnosis of the claimed injury and any relevant medical condition.  In undertaking that function, it [is] necessary for the Panel to apply its own medical experience and expertise’.
113	The Panel, composed of medical experts from a range of specialities, was required to form its own conclusion as to Mr Dodds’ medical condition. There was no error in the Panel confining the medical condition to the physiological dysfunction  in the left knee.  The panel was not required to also list, as a medical condition, Mr Dodds’ subjective experience of pain.  It would appear from the Panel’s Reasons that it accepted that Mr Dodds suffered consequential pain, but in doing so, it was for the Panel to determine whether to treat such pain as a medical condition, or a symptom of his medical condition.   I therefore reject Mr Dodds’ submission that the Panel was compelled to include his left knee pain as a medical condition. 
114	As previously mentioned at paragraph [77] above, in oral submissions it was put by Mr Dodds’ that his pain arose from ‘some effect on [his] nervous system resulting from the injury’.  I consider such an assertion demonstrates the obviousness of this being a medical question, for the Panel, as a group of medical experts, to answer using their own experience and expertise. 
115	While in answering question 1, it may have been open to the Panel to include Mr Dodds’ pain as a medical condition in the way foreshadowed by Moore J in Emmelman, it was not obliged to do so.  As was observed by Cavanough J in Miletic, it was also open for the Panel to take into account the accepted pain as being an indicator or symptom of a particular medical condition, and not refer to it in the answer. 
116	I have considered the numerous cases the parties referred me to which considered whether a worker’s pain was or was not a medical condition.  This application was distinguishable from those cases as, unlike those workers, the Panel accepted that Mr Dodds suffered a persisting physical medical condition, which was still work related and a symptom of which was pain.   
117	Notwithstanding that the Panel did not find Mr Dodds’ complaints of pain to be a medical condition in the way he contended, the Reasons make it clear that the Panel accepted Mr Dodds’ symptoms included left knee pain.  There was no reason to infer that the Panel did not take into account Mr Dodds’ pain and functional restrictions when answering the questions as to suitable employment.  To the contrary, the Panel stated that based on the history reported by Mr Dodds, its physical examination of him, and its review of the material, it concluded that Mr Dodds suffered from pain symptoms and functional limitations relevant to his injury.
118	The Panel’s findings in respect of suitable employment evince a recognition by the Panel that Mr Dodds suffers from pain and restrictions in his left knee. The Panel considered that that 8 of the 9 proposed jobs were unsuitable employment options as they involved tasks which could exacerbate or aggravate Mr Dodds’ medical condition.  That medical condition does not exist in a vacuum - it is a condition which gives rise to pain and functional restrictions - both of which were expressly acknowledged by the Panel in its Reasons. 
119	I am satisfied that in answering the questions, the Panel gave proper, genuine and realistic consideration to Mr Dodds’ pain.  Further, I am not satisfied that the Panel was artificially focused on the anatomical structure of the left knee.  It was open to the Panel to form the Opinion  it did, and its Opinion was not unreasonable.   
120	Separate to my findings that there was no jurisdictional error, I also reject Mr Dodds’ contention that the absence of pain in the Panel’s answer to question 1 will prevent the County Court considering his reports of pain when determining the application for leave to commence common law proceedings for pain and suffering.   Pursuant to s 313(4) of the Act, the Court will be bound to adopt and apply the Panel’s Opinion as to Mr Dodds’ medical condition as expressed in the Panel’s answer to question 1.  Then, in considering Mr Dodds’ application under s 335(2)(d) of the Act, the Court will be required to determine whether the consequences of Mr Dodds’ impairment arising from that medical condition satisfy paragraph (a) of the definition of ‘serious injury’ contained in s 325(1) of the Act.  In doing so, the Court must be satisfied that, when judged in comparison with other cases in the range of possible impairment or losses of a body function,  the consequences to Mr Dodds from the impairment to his left knee can be fairly described as being ‘more than significant or marked’ and ‘at least very considerable’.  
121	In Haden Engineering Pty Ltd v McKinnon, Maxwell P detailed matters relevant to a court’s assessment of a plaintiff’s pain and suffering consequences.  It was stated that this ‘encompasses both the plaintiff’s experience of pain as such and the disabling effects of pain on the plaintiff’s physical capabilities, including capacity for work’.  As the Panel accepted that Mr Dodds suffered persisting left knee dysfunction, the Court will consider his claimed consequences arising from this, including his experience of left knee pain and the disabling effects of his pain.  The Court will have regard to what Mr Dodds says about the pain, what he does about the pain, what the doctors say about the extent and intensity of his pain, and what objective evidence indicates about the disabling effect of the pain.  This will ordinarily involve consideration of Mr Dodds’ oral evidence, reports of his treating medical practitioners, and the opinions of medico-legal specialists who have examined Mr Dodds. 
122	When a County Court judge comes to consider Mr Dodds’ application, they  may not receive the Panel’s Reasons, as these are not ordinarily admitted into evidence, unless the Reasons contain admissible opinion evidence about a fact in issue.  In deciding whether to admit the Reasons as evidence, the Court would need to consider whether either party is unfairly prejudiced by the fact that Panel members are not compellable witnesses and so any statements in the Reasons cannot be tested in cross-examination. 
123	In this judicial review, it was not for Atcorp to formally agree to the tender of the Reasons in the County Court proceedings. In any event, irrespective of whether or not the Panel’s Reasons are tendered, the relevant County Court judge will be able to properly conduct the analysis described in Haden Engineering  based upon the Panel’s answer to question 1, and will consider the evidence relevant to the consequences of that medical condition and its impairment to Mr Dodds’ left knee.  As such, I am not satisfied there can be any adverse consequence to Mr Dodds in the County Court’s assessment of his pain and suffering consequences, arising from the Panel not including pain as part of his medical condition.
(2)	Product assembler not suitable employment
124	In reaching its conclusion as to what constituted suitable employment for Mr Dodds, the Panel was obliged to consider the material before it, as well as Mr Dodds’ history and its findings on examination.  Having done so, the Panel was required to draw upon its own experience and expertise and apply all of those matters to the definition of ‘suitable employment’.  It was then required to determine whether there was any ‘practical’ suitable employment for Mr Dodds.
125	In Richter, the Court of Appeal stated that in determining whether a worker has ‘no current work capacity,’ consideration must be given to whether a worker is able to return to work in a ‘meaningful way’.  Capacity to return to work therefore requires more than a mere physical capacity to perform tasks, but also ‘consider[ation of] matters travelling beyond bare medical expertise’.  For the reasons explained below, I am satisfied that the Panel did so.
126	 The Recovre report was one of many documents before the Panel.  That report involved considerable detail as to the specific tasks associated with the job of product assembler.  I do not accept that the report conveyed that the role of product assembler  required prolonged standing.  
127	Criticisms by Mr Dodds that the workplace assessment was conducted at a ‘showplace establishment’ go to matters relevant to merits review and do not assist in this judicial review.  Just as medical experts such as Dr Wyatt, Associate Professor Esser, and Dr Slesenger considered the Recovre report in determining what constituted suitable employment for Mr Dodds, so too did the Panel, together with the other evidence before it, including reports from those three medical experts.   
128	It was open to the Panel reading the entirety of the Recovre report, as well as the other material before it and drawing on their own expertise, to conclude that the position of product assembler was a role that was suitable for Mr Dodds. As such, I am not satisfied there was a material error in the Panel’s findings in respect of this role.  
129	In relation to Mr Dodds’ complaint that the Panel did not have specific regard to his ability to perform tasks which involved manual dexterity, I am not satisfied this was required of it.  In the absence of a diagnosed medical condition regarding problems with manual dexterity, and given Mr Dodds’ written submissions to the Panel did not contend this was a reason the role of product assembler was unsuitable, there was no positive obligation on the Panel to have regard to this matter in determining whether the role constituted suitable employment.  
130	Further, in circumstances where the Panel noted that Mr Dodds lived in metropolitan Melbourne and was able to use public transport (albeit whilst climbing the entrance to tram steps slowly and needing a seat), the Panel was not required to have specific regard for the availability of product assembler jobs, when the Recovre report referred to the availability of such work in Melbourne.  The Panel expressly referred to Mr Dodds not having a drivers’ licence and using public transport in its Reasons. This is a sufficient indication that the Panel considered Mr Dodds’ personal circumstances were such that he was capable of accessing such jobs within a reasonable distance of his residences. 
131	Finally, I reject Mr Dodds’ submission that the Panel did not give proper consideration to his prospects of returning to work in a ‘meaningful way’ as a settled member of the workforce, in the way contemplated in Richter.  Overall, it is clear from the Panel’s Reasons that it applied the relevant statutory definitions to Mr Dodds’ personal circumstances, and concluded that he was capable of working full time in a product assembler role.  This was a finding open to the Panel, and there is no substance to this ground of review. 
Concluding remarks
132	I reject each of the grounds of review relied upon by Mr Dodds in this matter.  I will hear from the parties as to any consequential orders. 

SCHEDULE OF PARTIES
JAMES DODDS	Plaintiff	
		
v		
		
ATCORP INVESTMENT PTY LTD	First Defendant	
		
and		
		
DR DENNIS HENDRINOS	Second Defendant	
		
and		
		
DR DIANNE KIRBY	Third Defendant	
		
and		
		
PROFESSOR PETER DISLER	Fourth Defendant	
		
and		
		
MR ROBERT PIANTA	Fifth Defendant	
		
and		
		
DR MANINDER MUNDAE	Sixth Defendant