Beer v Duracraft Pty Ltd
[2004] WASCA 192
•27 AUGUST 2004
BEER -v- DURACRAFT PTY LTD [2004] WASCA 192
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 192 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:52/2002 | 5 MAY 2004 | |
| Coram: | MURRAY J WHEELER J MCLURE J | 27/08/04 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| B | |||
| PDF Version |
| Parties: | REBECCA MARREE BEER DURACRAFT PTY LTD |
Catchwords: | Workers compensation Damages at common law Assessment of relevant degree of disability Psychiatric and physical disabilities Causation of psychiatric condition Proper method of assessment of psychiatric disability Permanence of disability |
Legislation: | Social Security Act 1991 (Cth) Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D, Sch 2 |
Case References: | Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Clough Engineering v Thomas [2004] WASCA 36 Kinsella v Seton Catholic College, unreported; CM (WA); No 112/00, 22 February 2001 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Pollock v Wellington (1996) 15 WAR 1 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 Re Croser; Ex parte Rutherford (2001) 25 WAR 170 Re Monger; Ex parte Cook's Construction Pty Ltd [2004] WASCA 165 Rydges Hotel v Tasovski, unreported; CM (WA); No 116/01; 18 January 2002 Bruce v Cole (1998) 45 NSWLR 163 HVAC Ltd v Trajkovski, unreported; CM 81/01 (Packington SM); 1 November 2001 Luxton v Vines (1952) 85 CLR 352 Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 Nominal Defendant v Owens (1978) 22 ALR 128 Oceaneering Australia v Dyke, unreported; CM 1/01 (Cockram SM); 26 June 2001 Ramsay v Watson (1961) 108 CLR 642 Warcon v Leighton Contractors, unreported; CM 7/99 (Cockram SM); 1 June 1999 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BEER -v- DURACRAFT PTY LTD [2004] WASCA 192 CORAM : MURRAY J
- WHEELER J
MCLURE J
- Appellant
AND
DURACRAFT PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : COMPENSATION MAGISTRATE'S COURT
Coram : COMPENSATION MAGISTRATE P G COCKRAM
File Number : CM 194 of 2000 and CM 195 of 2000
Catchwords:
Workers compensation - Damages at common law - Assessment of relevant degree of disability - Psychiatric and physical disabilities - Causation of
(Page 2)
psychiatric condition - Proper method of assessment of psychiatric disability - Permanence of disability
Legislation:
Social Security Act 1991 (Cth)
Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D, Sch 2
Result:
Appeal allowed in part
Category: B
Representation:
Counsel:
Appellant : Mr B L Nugawela
Respondent : Mr J J Sheldrick
Solicitors:
Appellant : D'Angelo & Partners
Respondent : Phillips Fox
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Clough Engineering v Thomas [2004] WASCA 36
Kinsella v Seton Catholic College, unreported; CM (WA); No 112/00, 22 February 2001
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Re Croser; Ex parte Rutherford (2001) 25 WAR 170
Re Monger; Ex parte Cook's Construction Pty Ltd [2004] WASCA 165
Rydges Hotel v Tasovski, unreported; CM (WA); No 116/01; 18 January 2002
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Case(s) also cited:
Bruce v Cole (1998) 45 NSWLR 163
HVAC Ltd v Trajkovski, unreported; CM 81/01 (Packington SM); 1 November 2001
Luxton v Vines (1952) 85 CLR 352
Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666
Nominal Defendant v Owens (1978) 22 ALR 128
Oceaneering Australia v Dyke, unreported; CM 1/01 (Cockram SM); 26 June 2001
Ramsay v Watson (1961) 108 CLR 642
Warcon v Leighton Contractors, unreported; CM 7/99 (Cockram SM); 1 June 1999
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1 MURRAY J: This appeal is against a decision of a compensation magistrate delivered on 29 November 2001. It is brought by leave under the Workers Compensation and Rehabilitation Act 1981 (WA), s 84ZW, which permits an appeal to this Court from a Compensation Magistrate's Court by leave "on a question of law". It is unnecessary for present purposes to discuss it, but that power of appeal may be narrower than the right conferred by s 84ZN(2) of the Act which confers a right of appeal from a review officer to a compensation magistrate "where a question of law is involved". It is clear that under s 84ZW, only questions of law may be ventilated on an appeal to this Court and the appeal will not be allowed unless an error of law is demonstrated.
2 The proceedings out of which the appeal arises are concerned with the assessment of the degree of disability of a worker, governing the capacity to obtain an award of damages for that disability at common law. The restrictions in that regard are set out in s 93E and s 93F of the Act.
3 A dispute arose between the appellant worker and the respondent employer as to the relevant level of the degree of disability of the worker in relation to work-related disabilities. The referral of the dispute to the Director of Conciliation and Review claimed a degree of disability of not less than 30 per cent in respect of injuries sustained on 31 October 1994. Physical injuries were identified to the neck, lower back, shoulder and knee. The claim which was made was later amended to add a psychiatric disability.
4 The employer took the view that the relevant level of the degree of disability was less than that claimed. The resulting dispute was not resolved by agreement and it was consequently referred by the Director for determination by a review officer. Ultimately, the review officer determined that the relevant level or degree of disability was not less than the 30 per cent claimed.
5 The employer appealed to the Compensation Magistrate's Court. The grounds particularly targeted the conclusion of the review officer that the worker had suffered a permanent psychiatric disability and the degree of that disability. It was asserted that the review officer had failed to assess all the evidence properly to determine the degree of disability, but had accepted medical evidence, the factual foundation for which was not established. That appeal succeeded and the compensation magistrate quashed the order of the review officer and remitted the dispute to him for further consideration.
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6 The worker's appeal to this Court alleges that the magistrate erred in law in holding that the review officer had erred in his conclusions about the cause of the psychiatric condition. Further, it is contended that the magistrate erred in law in relation to the cause of the neck injury by holding, without evidence, that a motor vehicle accident in 1999 could not be excluded as the cause. Then it is alleged that errors of law were made in relation to the question whether the psychiatric injury was permanent and, if it was to be assessed as part of the relevant level of the degree of disability, it is contended that the magistrate erred in holding that the review officer's approach to that process was wrong.
7 I need not refer to the respondent's notice of contention because, on the hearing of the appeal, reliance was not placed upon it.
8 It is useful to attempt to discern how the various questions raised in the appeals arose in the context of the referral of the dispute as to the degree of disability of the worker in respect of the nominated physical disabilities and psychiatric disability allegedly sustained at work on 31 October 1994. As I understand it, it goes like this. The worker's capacity to obtain an award of damages depended upon her claim that the degree of disability was not less than 30 per cent: s 93E(3)(a). She was suing or wished to sue in respect of injuries and their consequences which were disabilities within the meaning of the Act, ie, compensation under the Act was paid or payable in respect of them.
9 That being the case, Division 2 of Part IV applied to her capacity to obtain an award of damages against the employer independently of the Act: s 93B and s 93C. Therefore to establish the relevant level of the degree of disability of 30 per cent, the worker sought to establish that both the physical injuries claimed and the psychiatric disease claimed were disabilities within the meaning of the definition of that term in s 5(1) of the Act. In that regard, issues of causation were raised.
10 The review officer concluded on the evidence and materials before him that in relation to the various physical disabilities they fell within both par (a) and par (d) of the definition. In other words, the review officer concluded that the worker had suffered personal injury by accident arising out of or in the course of the employment and the recurrence, aggravation or acceleration of a pre-existing disease to which the employment was a contributing factor and contributed to a significant degree. He also concluded that, although the worker had a pre-existing "psychological or psychiatric disease", she had sustained a recurrence, aggravation or acceleration of that disease to which the employment was a
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- contributing factor and contributed to a significant degree, again under par (d) of the definition of disability.
11 As I understand it, there was no contention between the parties that on 31 October 1994 the worker sustained a personal injury by accident to her right knee. The review officer, however, found an additional disability under par (d) of the definition in the form of loss of use of the worker's cervical spine and this aspect of her injuries was very much in dispute. The employer's case was that the worker should not be held to have established the relevant causal link to the employment because the injury to the spine might well be due to a motor vehicle accident which occurred in 1999, rather than being a disability compensable from 31 October 1994.
12 As to the psychiatric disability, the review officer found this to be compensable from 9 February 2000. Again, this was very much in issue, the employer's case being that the relevant causal link to the employment could not be established because the causes of any psychiatric illness and its aggravation or exacerbation could well lie in matters personal to the worker, rather than anything connected with the employment.
13 Having arrived at his conclusions as to the nature of the worker's compensable disabilities, the review officer turned to the assessment of the degree of disability of the worker. This required reference to s 93D(2), Sch 2, s 25 and s 93D(4). So far as the knee was concerned, the finding of the review officer was, applying s 93D(2)(a), s 25 and item 28 of Sch 2 and the ratio set out in column 3 of the Schedule, and making the calculation required by s 93D(4), that the appropriate percentage disability was 7 per cent; that was for permanent loss of the use of the leg at the knee.
14 In respect of the disability to the cervical spine, the review officer applied s 93D(2) and item 36B of Sch 2 to make an assessment of the permanent loss of the full efficient use of the neck, including the cervical spine. Applying the ratio provided in respect of that item in Sch 2 and making the calculation under s 93D(4) resulted in an assessment of disability of the worker in this regard of 6.4 per cent. Section 93D(2)(a)(ii) provides that where two or more items of Sch 2 apply to the disability, the sum of the percentages is to be taken and so thus far the percentage disability of the worker was assessed at 13.4 per cent.
(Page 7)
15 As to the psychiatric disability, items 8 and 9 of Sch 2 may have application. Item 8 refers to the "permanent and incurable loss of mental capacity resulting in total inability to work". Item 9 refers to "total and incurable paralysis … of mental powers". It appears to be common ground that neither item applied in this case. Therefore, by s 93D(2)(b), "the degree of disability of the worker is to be assessed … as the degree of permanent impairment assessed in accordance with the AMA Guides." Section 93A contains a definition which gives the meaning of the term "AMA Guides".
16 It will be noted that what is to be assessed is the degree of permanent impairment. The review officer concluded that the process of assessment in terms of these provisions resulted in a percentage disability of the worker attributed to the psychiatric disability, of 28.37 per cent. He then determined the relevant level of the worker's disability to be not less than 30 per cent. That conclusion necessarily implies an aggregation of the percentage disability arrived at in relation to the psychiatric disability with the percentage arrived at in respect of what I may describe as the physical disabilities, as required by s 93D(2).
17 A beneficial interpretation of s 93D(2) leads to the conclusion that the intention is that where the AMA Guides are used to yield a degree of permanent impairment, that is to be converted in some way to a percentage figure, and where other items of disability provided for in Sch 2 are also involved, all the percentage assessments are to be aggregated to arrive at the total degree of disability of the worker.
18 On the appeal to the compensation magistrate, the first question raised concerned the issue of causation. The complaint made by the employer was that the review officer had accepted medical opinion on the issue of causation without first satisfying himself that the foundation of primary fact upon which the opinion depended existed. The magistrate upheld that contention and before us the first ground of appeal is that he erred in law in doing so in relation to the cause of the worker's psychiatric condition.
19 The general principles are clear enough. In Pollock v Wellington (1996) 15 WAR 1, at 3, Anderson J observed, "Before an expert medical opinion can be of any value, the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts." The point was similarly expressed by Heydon JA, as his Honour then was, in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, at 743-4 [85] when, while providing a short précis of the
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- law in relation to the admissibility and reliability of expert opinion evidence, his Honour said:
" … so far as the opinion is based on facts "observed" by the expert they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it …"
"The review officer is to act fairly, economically, informally and quickly in resolving the dispute whether by bringing the parties to agreement or otherwise."
21 At a review hearing, s 84ZD(1) and (2) provide:
"(1) The review officer is not bound by rules of evidence, but may inform himself or herself on any matter in such manner as the review officer thinks fit.
(2) The review officer may refer any technical or specialized matter to an expert and accept that expert's report as evidence."
22 In relation to the cause of the current extent of the psychiatric disability of the worker, the compensation magistrate directed himself correctly as to the law. His Worship went on to consider the evidence led on the issue of the applicant's psychiatric or psychological condition, including that of the worker herself, and his Worship referred to the existence of psychological problems for which the appellant had received counselling in 1993 or 1994, prior to the accident at work on 31 October 1994. A close friend of the appellant, who also gave evidence before the review officer, confirmed that history.
23 The medical opinion on which the appellant relied was one given by a consultant psychiatrist, Dr McClure, on 9 February 2000. The opinion was that the worker suffered from a chronic major depression. As to the cause of the present severity of that illness, Dr McClure said:
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- "As there is no apparent pre-existing psychological history, and given the course of events described by the patient, I would think that it is more likely than not that her chronic depression has arisen directly out of her injuries and her resultant, ongoing symptoms and inability to function effectively."
24 In other words, there were primary facts apparently relevant to the opinion as to causation which were before the review officer, but not before Dr McClure, whose opinion as to the cause of the psychiatric condition appears to be based, to a substantial degree, upon the history he was given, which related the worker's psychological state to her ongoing pain and physical disabilities together with the lack of concern for her shown by her supervisors at work after the accident.
25 Because Dr McClure had not been provided with a significant part of the appellant's history, the magistrate took the view that it would be unsafe to rely upon the opinion of the doctor, as the review officer did. That appears to me to express the view that the review officer mishandled this part of the fact-finding process by failing to consider the impact upon the opinion as to causation offered by the psychiatrist of the fact that a full relevant history had not been provided. In the view of the magistrate, it was not established that the opinion was based upon full consideration by the psychiatrist of all relevant facts.
26 The appeal was allowed on that ground, the result of which was to leave the worker in the position, relative to the establishment of this disability, that she had established a pre-existing "disease" within the meaning of that term as defined by s 5(1) of the Act. That disease was the illness constituted by her chronic depression, but there was then no expert evidence of a disability in the form of the aggravation of that pre-existing disease to which the employment (the accident at work) contributed to a significant degree.
27 There was, of course, the anecdotal evidence of the worker and the witness who was her friend and flatmate. It might have been proper to rely upon that evidence, together with any expert psychiatric opinion, to the extent to which that was properly to be considered to be reliable. Presumably it was for that reason that upon allowing the appeal the compensation magistrate remitted the dispute to the review officer for further consideration, after which it may yet be possible for the review officer again to make a finding that the worker's psychiatric condition constituted a disability within the meaning of the Act.
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28 However, so far as the appeal to this Court is concerned, in my opinion the first ground of appeal is not made out. I can detect no error of law in the approach taken by the compensation magistrate to his decision upon this aspect of the appeal to him, which appears to me to be entirely concerned with a matter of fact, presumably regarded as being properly before the compensation magistrate on the basis that the provisions of s 84ZN(2) were satisfied because a question of law was otherwise involved in the appeal.
29 There are similar problems, I think, in respect of the second ground of appeal relied upon by the worker in this Court. It concerns the injury to the cervical spine which the review officer found made a percentage contribution to the degree of disability sustained by the worker. Here an important question of causation before the review officer was whether the worker's current state of disability was caused by a motor vehicle accident she had in 1999, some 5 years after the accident at work.
30 The evidence about this accident was that given by the worker under cross-examination when she agreed that she had had a motor vehicle accident in 1999. She said that in the collision she hit the side of her head on the glass (presumably of a side window) and there was a bruise. Although she was taken to hospital, she was discharged as soon as her mother came to collect her. She thought this was of no significance and she therefore did not tell the doctors who asked her about her disability of the spine. The review officer found that the effect of this accident on the worker "was trivial". He considered that little weight was to be placed on the fact that the worker did not refer to this accident in reciting her history to medical practitioners. The compensation magistrate thought that conclusion was not supportable because the evidence was that the worker had suffered a "head injury" in the 1999 motor vehicle accident.
31 His Worship went on to note that the conclusion about the cervical spine to which the review officer came was based on the opinions of Dr Dowda, a consultant occupational physician, and Mr Harrison, an orthopaedic surgeon. Dr Dowda's opinion is provided in a lengthy report dated 20 April 2000. It records that he was told by the worker that she had never had "any significant motor vehicle accident". It appears that Dr Dowda concluded that there was mechanical irritability of the cervical spine, possibly the result of damage to facet joints in the cervical spine, but the doctor was unable to exclude "facet joint pathology", by which I take him to mean that there may have been some preceding degenerative changes in this area of the spine. His opinion was expressed in the following manner:
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- "I consider that she has ongoing mechanical irritability in the cervical spine which is probably the legacy of the injury she sustained in October 1994, considering the fact that she has not had other significant injury as given in the history."
32 The compensation magistrate considered that the opinion was made unreliable because Dr Dowda was unaware of the 1999 motor vehicle accident in which the worker had sustained a head injury. He thought the review officer should have reached this conclusion rather than simply dismissing the 1999 accident as being "trivial". It was clear also, the magistrate said, that the similar opinion of Dr Harrison was based, at least in part, on a history provided by the worker without reference to the 1999 motor vehicle accident. For the same reasons, his Worship considered that opinion could not be relied upon either.
33 These views produce the same outcome in relation to the injury to the cervical spine as in relation to the worker's claimed psychiatric condition. As I understand his Worship's reasons, he again considered that it was not open to the review officer to reach the conclusion, based upon the evidence upon which he relied, that the cervical spine injury was a disability because it was either a personal injury by accident arising out of or in the course of the employment under par (a) of the definition of disability or, if there was pre-existing pathology in this area of the spine, that there was a disability under par (d) of the definition in the form of an aggravation of a pre-existing disease of the spine to which the employment, by reason of the accident on 31 October 1994, contributed to a significant degree.
34 Again, the argument for the worker on the appeal to this Court is that it was open to the review officer to conclude that the 1999 motor vehicle accident was trivial and, in any event, there was nothing to show that this was the cause of the worker's symptoms. Again, I am unable to discern any error of law on the part of the compensation magistrate and I would not allow the appeal on this ground.
35 That is not an observation which approves the process of reasoning of the compensation magistrate. There was, I think, little to suggest that the 1999 motor vehicle accident had any significant impact upon a disability in the cervical spine, and there may well have been other evidence upon which the worker would be entitled to rely to require the review officer to draw a favourable conclusion about the cause of the degree of this disability. The point is, again however, that in the view of the compensation magistrate, the review officer mishandled this aspect of
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- the fact-finding process. Presumably again, the fact that there was a capacity to reach the same conclusion of fact properly, having regard to the evidence before the review officer upon which reliance was thus far not placed, led the compensation magistrate to remit the dispute to the review officer for further consideration generally.
36 Those conclusions are sufficient to dispose of the appeal, but it may be of use, if the proceedings in respect of the assessment of the degree of disability go further, to deal with the remaining grounds.
37 I should commence by briefly considering the ground by which it is alleged that the magistrate erred in law in his conclusion about the permanence of the psychiatric disability. It will be recalled that that was a necessary feature to be established if the degree of disability was to be assessed under the AMA Guides: s 93D(2)(b). The law is clear. "Permanent" in this context means enduring, continuing indefinitely or for the foreseeable future, not presently amenable to change for the better, whether as the result of treatment or not: Re Croser; Ex parte Rutherford (2001) 25 WAR 170 at 185, per Olsson AuJ, with whom, on this point, both Murray and Steytler JJ agreed; Clough Engineering v Thomas [2004] WASCA 36, per Steytler J, at [4], and Hasluck J at [87].
38 The opinion relied upon by the worker was again that of Dr McClure, dated 9 February 2000, given in these terms:
"Symptoms have now been present for several years and I would expect that, even with ideal treatment, they may well be permanent, to some degree at least. Improvement will depend, not only on effective psychological treatment, but also recovery of the physical conditions. Dr Wright, at least, considers the latter unlikely."
39 The review officer accepted the evidence that the worker's physical disabilities were permanent and he found, on the basis of Dr McClure's report, that her psychiatric/psychological problems "will continue unabated for the foreseeable future". The compensation magistrate thought that conclusion was not open to the review officer. His Worship remarked upon the fact that the possibility of effective psychological treatment was referred to in the report, together with an improvement in her physical symptoms, leading Dr McClure to express a view of permanency "to some degree at least". His Worship, in effect, considered that in those circumstances it was not open to take the view that the psychiatric disability of the degree assessed by Dr McClure was, on the
(Page 13)
- balance of probabilities, established to be permanent in the accepted sense of the word.
40 I respectfully agree. Under s 93D(2)(b), what is to be assessed in accordance with the AMA Guides is "the degree of permanent impairment". It is insufficient to establish that the worker is suffering from a psychiatric or psychological disability which is permanent in the sense that it will probably produce some symptoms, or afflict the worker indefinitely, for the foreseeable future. What has to be established is that the degree of disability assessed in accordance with the AMA Guides represents that degree of permanent impairment.
41 If improvement was not excluded, permanence of the degree of impairment referred to in the report of Dr McClure was not established. The manner in which Dr McClure's opinion is expressed makes it clear that there may be a degree of improvement in the symptoms of chronic depression. The relevant assessment was of the degree of impairment which was permanent in the accepted sense of the word, ie, the extent to which, in the opinion of the doctor, the worker would not improve, but would continue to be afflicted by the disease for the foreseeable future, whatever might be done by way of treatment and whatever might occur in the way of improvement in her physical condition.
42 In my opinion, the magistrate made no error of law in this regard and the ground of appeal is not made out. As it is particularised, in my view it involves a misapprehension as to the law when the ground asserts that, "The fact that a worker's condition may improve to an indeterminate degree does not mean that the condition is not permanent". It does mean, however, that there cannot be found to be "the degree of permanent impairment assessed in accordance with the AMA Guides".
43 Again, because the matter has been remitted to the review officer to be further dealt with by him and because relevant permanence might be established, I should comment on the remaining grounds of appeal. They assert that the compensation magistrate erred in law in concluding that the review officer's determination of the degree of psychiatric disability, expressed as 28.37 per cent, was erroneous.
44 The matter arises in this way. When Dr McClure responded to a request to explain his opinion as to the degree of disability, he said that the worker's impairment rating, assessed in accordance with the AMA Guides, was 20. The AMA Guides employ or incorporate the Social Security Rating of Impairment under the Social Security Act 1991 (Cth) as
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- a permissible way of expressing the degree of psychiatric impairment. The Guides indicate that a rating of 20 would be applicable where there is:
"Any serious symptomatology OR impairment in functioning that most clinicians would think obviously requires treatment or attention (eg, suicidal preoccupation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour)."
46 While, where the AMA Guides are employed, it may be sufficient for the medical practitioner to express his or her expert opinion in terms of the impairment rating, s 93D(2) requires an assessment as a percentage so that where a number of disabilities are present, even though some may be assessed under Sch 2 and some under the AMA Guides, they may be aggregated so as to arrive at an overall degree of disability of the worker. And this Court has held that where an impairment rating is used, it may not simply be converted mathematically into a percentage disability: Clough Engineering per Steytler J at [9] – [10] and Hasluck J at [98] and [112]. The process of assessment involves judgment in converting a degree of impairment expressed in terms of the Social Security Act rating into an assessment of percentage disability.
47 In this case, all the review officer did was make a mathematical conversion. He took the maximum impairment rating of 70 as equivalent to a percentage of 100 per cent. He therefore did the calculation 20/70 x 100 = 28.37 per cent, to which he added the percentages assessed in respect of what may be described as the orthopaedic disabilities of the knee and cervical spine. The compensation magistrate thought this was wrong as a matter of law and in that view, in my respectful opinion, his Worship was right.
48 The grounds of appeal are not made out, including that which suggests that at least the percentage degree of psychiatric disability was 20 per cent. If that figure was arrived at and the percentages achieved in
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- relation to the knee and cervical spine were added, it would be right to conclude that the worker had established the degree of disability claimed, not less than 30 per cent. This argument depends upon the fact that s 93D(2)(b) provides that the degree of disability of the worker is to be assessed, "as the degree of permanent impairment assessed in accordance with the AMA Guides" (my emphasis). The argument is that the use of the word "as" permits a direct conversion of the impairment rating into a percentage assessment.
49 There are two difficulties, I think, with that argument, which was rejected by the compensation magistrate. In the first place, it is, I think, inconsistent with the reasoning of this Court in Clough Engineering and, in the second place, it is inconsistent with the Guides themselves which, as I have noted, make it clear that the impairment ratings are not expressions of percentage disability.
50 For all these reasons, I would dismiss the appeal.
51 WHEELER J: I have had the advantage of reading in draft the reasons for decision of McLure J. I am generally in agreement with them, and with her Honour's conclusions. I wish to add only some brief comments of my own, identifying more specifically the legal issues which in my view arise in relation to his Worship's review of the decision of the review officer, to the extent that that review is concerned with the factual foundation of the various reports relied upon by the review officer. The issues I identify are not raised with clarity by the grounds of appeal, but in my view those grounds are wide enough to encompass them. Adopting McLure J's headings, I would make the following observations.
Causation of Psychiatric Condition (ground 1)
52 The principles relating to the admissibility of and weight to be given to expert evidence, having regard to the underlying facts, is summarised succinctly and accurately by McLure J at [78] of her Honour's reasons. When one looks, however, at what was done by the compensation magistrate, particularly at p 68 of the appeal book, his reasoning seems to have been as follows:
• The absence of pre-existing psychological history is a relevant factor in Dr McClure's report; and
• There was some pre-existing psychological history; therefore
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- • The opinion of Dr McClure is unsafe.
53 However, it appears to me that the compensation magistrate did not undertake an evaluation of the "psychological history", in order to ascertain, so far as could be done in the context of Dr McClure's report, whether a psychological history of that kind had such a potential impact upon the factual basis of the report as to render it unreliable. The review officer did undertake that task, albeit briefly, noting that the harassment at work had been, on the worker's evidence, simply "shrugged off" and that the other tragic events leading to the need to consult a psychiatrist had taken place a very long time ago. One can see how views might differ about the significance of such a psychological history, in the context of Dr McClure's report, but the error made by his Worship in my view was that of failing to evaluate it at all.
1999 Motor Vehicle Accident (ground 2)
54 This ground suggests that the compensation magistrate's conclusion about the 1999 motor vehicle accident was made without evidentiary basis. That allegation is clearly one giving rise to an issue of law. It seems to me that that is correct, both for the reasons outlined by McLure J and also for the reason that, when one looks at his Worship's reasoning, there seems to be an underlying assumption of fact that any vehicle accident in which one strikes one's head is medically significant in the context of an assessment of the cause of the condition of the cervical spine. In my view, that is a matter which is by no means self-evident, and it is a matter in relation to which one would expect some sort of medical evidence. However, the only evidence which seems to have been available (that of the worker) was that the effect on her was trivial.
55 MCLURE J: The appellant appeals under s 84ZW of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act") from a decision of compensation magistrate Cockram setting aside the decision of review officer Warwick that the appellant had a relevant level of disability of not less than 30 per cent under s 93D of the Act.
56 Part IV Div 2 of the Act provides constraints on awards of common law damages and contains a scheme whereby a worker must meet a statutory threshold showing a degree of disability of not less than a relevant level before the worker can obtain an award of common law damages against his or her employer.
57 Common law damages can only be awarded if it is agreed or determined that the degree of disability is not less than 30 per cent or it is
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- not less than 16 per cent and the worker elects, before the termination day, to retain the right to seek damages: s 93E. Section 93D(2) of the Act sets out the manner in which the degree of disability of the worker is to be assessed.
58 A party to proceedings before a Compensation Magistrate's Court may, with leave of the Supreme Court, appeal against a decision of the Compensation Magistrate's Court only on a question of law.
Background
59 In 1994 the appellant (plaintiff) was employed by the respondent (defendant) as a spray painter. On 31 October 1994 in the course of her employment the appellant whilst standing on top of a milk crate which in turn had been put on top of a 44 gallon drum over balanced, twisted her knee and fell, landing on the back of her head, neck and shoulders.
60 In December 1999 the appellant applied for a determination of her degree of disability under s 93D of the Act. The appellant claimed she suffered a neck, lower back and shoulder injury and a psychiatric illness as a result of the accident. The respondent had accepted liability for a knee injury suffered by the appellant in the accident but denied that the claimed injuries were employment related. The causation question was determined in an application made by the appellant under s 58 of the Act. The review officer found that the appellant had sustained an injury to her cervical spine and right knee as a result of the accident. He was not persuaded that the appellant sustained a permanent injury to her lower back. He also found that as a consequence of her employment by the respondent the appellant suffered, and continued to suffer, from a psychiatric ailment to which her employment contributed to a significant degree. He assessed the degree of her psychiatric disability at 28.37 per cent by reference to the social security rating of impairment contained in the relevant AMA Guides.
61 In the s 93 application the review officer relied on his findings in the s 58 application and determined that the relevant level of the appellant's disability to be not less than 30 per cent.
62 There was medical evidence before the review officer that the accident caused or materially contributed to the appellant's psychiatric condition and injury to her cervical spine. However, the appellant had not informed the relevant medical practitioners firstly, that some time before she commenced work with the respondent she received psychological counselling associated with a sexual harassment claim made by the
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- appellant in connection with her previous employment and secondly, that she was in a motor vehicle accident in 1999.
63 The compensation magistrate upheld the respondent's contention which was to the effect that the review officer had erred in accepting medical evidence on the issue of causation because the factual foundation for reliance upon that evidence had not been established. The compensation magistrate also concluded that it was not open on the evidence for the review officer to conclude that the psychiatric injury was permanent and that he had erred in his assessment of the degree of the psychiatric disability.
64 In my assessment, the issues that arise in this appeal are whether the compensation magistrate erred in:
1. concluding it was not open to the review officer on the evidence to find that:
(i) the appellant's psychiatric illness was relevantly connected with the accident;
(ii) the appellant's cervical spine injury was relevantly connected with the accident;
(iii) the psychiatric injury was permanent;
2. concluding that the review officer erred in his determination that the appellant's degree of psychiatric disability was 28.37 per cent; alternatively
3. failing to conclude that a permanent psychiatric impairment of 20 under the social security rating of impairment equated to or was not less than a relevant disability of 20 per cent.
65 All of the issues in this appeal raise questions of law. The issue as formulated in ground (1) is intended to raise the question whether there was evidence capable of establishing the facts found by the review officer which raises a question of law as does an alleged error in applying the law to the facts: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 - 356 per Mason J; 367 per Deane J; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 per Glass JA;
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Causation of Psychiatric Condition (ground 1)
66 The question is whether it was open to the review officer to find that the appellant's psychiatric condition was causally connected with the accident. In essence, the compensation magistrate concluded that the review officer could not rely upon the medical evidence on causation of the appellant's psychiatric condition because it was based on an incomplete history as a result of her failure to inform the medical practitioners of matters relating to her sexual harassment claim. In my opinion the compensation magistrate erred in law in his approach and conclusion.
67 It is necessary to go to the relevant findings made by the review officer and the evidence. The review officer found the appellant to be a credible and honest witness albeit with the reservation that at times she had a faulty memory and tended to answer questions in an economic manner offering no more than what she perceived to be specifically asked. He also had regard to the fact that in all of the many medical reports there was no adverse comment on the appellant's sincerity and no suggestion of any embellishment or exaggeration.
68 In cross-examination the appellant was asked whether she had received psychological counselling. She said that she had as a result of being sexually harassed by fellow workers during her previous employment with Windmill Repairs. She made a sexual harassment claim and it appears in that context she saw a psychologist between three to six times for an evaluation of her condition. She was asked about when she stopped having psychological counselling and replied: "I wasn't having the counselling. Just an evaluation type thing. Just stress, basically, that the job had caused me."
69 Ms Shipp, a witness called by the respondent, gave evidence that the sexual harassment case had upset the appellant.
70 The medical reports on which the parties relied were tendered in evidence without the medical witnesses attending to give oral evidence or for cross-examination. The appellant relied on the evidence of Dr McClure, a consultant psychiatrist and the respondent relied on another consultant psychiatrist, Dr Skinner. Dr McClure provided a report dated 9 February 2000. It set out in considerable detail the history given to him by the appellant. That history included details of the accident, her subsequent work-related and other activities and the nature and extent of her symptoms and their effect upon her.
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71 Dr McClure noted a past history of treatment by a psychiatrist (Dr Lafferty) for several weeks when the appellant was around 14 years that primarily related to her situation. Her father, an alcoholic, had died suddenly, her young brother was in hospital expected to die and she was left to help care for her younger siblings. However, her condition improved rapidly and she required no psychotropic medication. Dr McClure's opinion was in the following terms:
"The history given, corroborated in the letter from Mr Adam Carter, chiropractor, who refers to [the appellant] being 'obviously emotionally distressed with her symptoms, the frustration with the relentless nature of her headaches leading her to become teary, requiring reassurance and support,' as well as [the appellant's] presentation at today's interview, supports the diagnosis of a Chronic Major Depression. As there is no apparent pre-existing psychological history, and given the course of events described by the patient, I would think that it is more likely than not that her chronic depression has arisen directly out of her injuries and her resultant, ongoing symptoms and inability to function effectively."
72 Dr Skinner agreed with Dr McClure on causation. Dr Skinner also relied on the history given by the appellant. She noted that the appellant "has no previous history of serious medical problems or accidents". She was of the opinion that the appellant was suffering from major depression and noted that she came from a background of emotional deprivation and physical abuse which made her vulnerable to suffer depression and to experience difficulty in coping with pain. However, Dr Skinner concluded that on the balance of probabilities the accident "was one of a number of factors, but a significant contributing factor to [the appellant's] psychological condition, as this caused the back and neck problems that have become the focus for her complaints of pain and disability". That is, the appellant's psychological condition was a reaction to the long-term physical injuries and associated symptoms.
73 The history given by the appellant to the medical practitioners was consistent with the appellant's evidence to the review officer. The review officer accepted the appellant's evidence that after the sexual harassment case was over she shrugged it off and was able to function satisfactorily until the accident. The appellant's evidence was that her depression was caused by the pain she suffered as a consequence of the accident. She had made repeated attempts at obtaining suitable employment which met with no long term success because of the injury related pain.
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74 Of the appellant's failure to mention to the psychiatrists the episode of sexual harassment and her consultation with a psychologist, the review officer said:
"It preceded her employment with [the respondent] by some months and the worker's own testimony is that after it was all over she shrugged it off. Further there is no evidence as to how upset, in the clinical sense, she was. Ms Shipp, again, says the worker was upset. That, however, is not a term of art and Ms Shipp is not an expert. As for the omission from the history given by the psychiatrist of her needing to consult a psychiatrist, Dr Lafferty, at the time of her father's death and the other tragic events which confronted her, that again is surprising. However that also took place some time ago - in fact up to 26 years ago. Since then she has got on with her life. Dr Skinner is of the view, correctly I think, that [the appellant] has been scarred by this and other events from her past; she is a vulnerable personality. But nevertheless, she was able to function and, according to evidence, function fairly satisfactorily until the accident of 31/10/94. The situation today is different. Something has, therefore, happened to change her life."
75 The review officer was in error in stating that the consultation with a psychiatrist at the time of her father's death was not noted by the psychiatrist (apparently a reference to Dr McClure) in his statement of the history.
76 The review officer found on the balance of probabilities that the appellant's upbringing and early years were such that she developed a vulnerable personality but that she was able to function both in and out of the workplace and was doing so at the date of the accident. He also found that the worker had sustained both a personal injury by accident arising out of or in the course of her employment (the injury to her cervical spine and knee) and an aggravation or acceleration of a pre-existing psychological or psychiatric disease to which the employment was a contributing factor and contributed to a significant degree.
77 It is apparent from the review officer's reasons that he did not rely solely upon the opinion of Dr McClure on the issue of causation. To do so would be clearly erroneous.
78 The general principles relating to the admissibility of and weight to be given to expert evidence are not in dispute. An expert must either
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- prove by admissible means the facts on which the opinion is based or explicitly state the assumptions as to fact on which the opinion is based: Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; Pollock v Wellington (1996) 15 WAR 1; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
79 Further, the process of inference that leads to the formation of the relevant opinion must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about their reliability: Pollock v Wellington at 4 per Anderson J; Makita v Sprowles at 741 per Heydon JA.
80 In this case, as with the majority of cases involving medical expert evidence, the relevant history supplied by the claimant provides the factual foundation for the statement of expert opinion. In many cases there is not an exact correlation between the facts proven in evidence and the facts relied upon by the medical practitioner upon which his or her opinion is based. The role of the decision maker is to examine any variation between the two in order to assess whether any unproven fact relied on by the medical practitioner or any omission from the material given to him or her renders the opinion inadmissible or of no weight.
81 The relevant question is whether the failure to refer to the sexual harassment incident is a material omission which renders reliance on the expert psychiatric opinion on causation unsafe. If regard is had to all relevant evidence on the issue of causation the answer is in the negative. The appellant was found to be an honest and reliable witness who did not seek to embellish or inflate her claim. The review officer accepted her evidence that she had shrugged off the impact of the upset caused by the sexual harassment and found that she was functioning fairly satisfactorily until the accident after which she suffered physical injury causing long-term pain and distress. In light of those findings, it cannot be the case that the sexual harassment situation was a material omission such as to render the psychiatric opinion evidence unsafe or that the finding made by the review officer was not open. Accordingly, it was open to the review officer to make the finding that there was an aggravation or acceleration of a pre-existing psychiatric condition to which the employment contributed to a significant degree. I would uphold this ground of appeal.
1999 Motor Vehicle Accident (ground 2)
82 The appellant's evidence on this subject is summarised by the review officer. The appellant said that at an unspecified time in 1999 she had
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- been involved in a collision with another car in which she bruised her head and knee. She was taken to hospital but discharged later the same day.
83 A consultant occupational physician, Dr D Dowda, provided a report to the respondent that was adduced in evidence. Dr Dowda recorded that the appellant advised him that she had never had any illness of significance in the past, that her only operative history related to her right knee and that "she has never had any significant motor vehicle accident, fracture or dislocation".
84 In the context of commenting on the respondent's attempt to "destroy [the appellant's] credibility" the review officer said he did not place much weight on the fact that the appellant had not made reference to the 1999 motor vehicle accident in her recitations of her histories to the many doctors she had seen. However, the review officer did conclude that the effect on the appellant of the 1999 motor vehicle accident was trivial.
85 The compensation magistrate took a different view of the significance of the accident. He said "I would have thought that 'the 1999 MVA' gave rise to a 'significant injury' (the injury to the head being significant because of how it was sustained and because of its proximity to the cervical spine) and was therefore an incident which Dr Dowda should have been made aware of".
86 The review officer accepted the evidence of Dr Dowda and Dr Harrison that there was a causal connection between the accident and the injury to the appellant's cervical spine. The compensation magistrate concluded:
"The fact that Dr Dowda and Dr Harrison, when forming their opinions, were not aware of the 1999 motor vehicle accident in which the respondent sustained a head injury, makes it unsafe, in my opinion, to rely on their opinions."
87 It is the case that Drs Dowda and Harrison saw the appellant for the first time in 2000, that is, after the 1999 motor vehicle accident. However, there is a significant amount of medical and other evidence as to the injury related symptoms experienced by the appellant in the period between the 1994 accident and prior to the motor vehicle accident in 1999. The appellant gave evidence of those symptoms which is also reflected in the history she gave to Drs Dowda and Harrison. There being evidence accepted by the review officer as to the relevant symptoms of the physical injury before the 1999 motor vehicle accident which
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- symptoms continued after, the compensation magistrate erred in concluding that it was not open to the review officer to find that the accident resulted in an injury to the appellant's cervical spine. Further, and in any event, it was open to the review officer on the appellant's evidence to find that the injuries she suffered in the 1999 motor vehicle accident were minor. That is how the review officer understood the appellant's evidence. The compensation magistrate seems to be suggesting that the injury was forensically (as opposed to medically) significant as a line of enquiry rather than focussing on the extent of any injuries suffered. Accordingly, there would seem to be no intervening cause so as to break the chain of causation,
88 For these reasons I would uphold ground of appeal 2.
Whether Psychiatric Condition Permanent (ground 6)
89 It is not in dispute that any relevant psychiatric condition must be permanent: Re Croser; Ex parte Rutherford (2001) 25 WAR 170; Clough Engineering v Thomas [2004] WASCA 36 at [4] per Steytler J.
90 The word "permanent" is not defined in the Act. In Croser, Olsson AuJ expressed the view that the word "permanent" conveys the notion of that which is continuing indefinitely (ie for the foreseeable future), or enduring, as opposed to temporary.
91 The Compensation Magistrate's Court said the test of permanence is whether the worker's symptoms are "more likely than not to persist in the foreseeable future": Kinsella v Seton Catholic College, unreported; CM (WA); No 112/00, 22 February 2001 per Packington CM at [54].
92 It has been said that there is no material difference between the two tests: Clough Engineering (supra) at [87] per Hasluck J.
93 Dr Skinner and Dr McClure had differing opinions as to the permanency of the psychiatric condition. Dr Skinner said it was not permanent. The review officer found as a fact that the psychiatric condition was permanent, relying on Dr McClure's opinion which was in the following terms:
"Symptoms have now been present for several years and I would expect that, even with ideal treatment, they may well be permanent, at some degree at least. Improvement will depend, not only on effective psychological treatment, but also recovery
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- of the physical conditions. Dr Wright, at least, considers the latter unlikely."
94 It is necessary to read Dr McClure's opinion in context. He had earlier noted the appellant had been receiving treatment for depression but that it had not been effective in ameliorating her symptoms. In his view she needed adequate doses of effective anti-depressant together with regular sessions with a suitable qualified professional with experience in treating patients with a chronic painful physical disorder complicated by depression. He estimated that the appellant would need fortnightly sessions for one to two years. He also thought referral to an intensive comprehensive residential pain management programme might be beneficial. It is clear from Dr McClure's report that the appellant's psychiatric condition was related to her chronic pain from the accident caused physical injuries. In that context the first sentence of his opinion means that even with the ideal treatment he identified, the appellant's symptoms would on the balance of probabilities be permanent - at least to some degree. However, whether or not her current condition or symptoms improved depended on effective psychological retreatment and recovery from her physical injuries and symptoms. It is open to infer that in the absence of any significant improvement in her physical condition, there would be no material improvement in her psychological or psychiatric condition.
95 The review officer found that the appellant's injuries to the neck including the cervical spine and to the right knee were permanent. There was no appeal from that finding. On the subject of permanency the review officer said:
"Dr McClure considers that the worker's condition is permanent to some degree at least, as improvement will depend not only on effective psychological treatment but also recovery of the physical conditions. Dr Wright, he notes, at least considers the latter unlikely. In fact Mr Harrison considers that the disability to her cervical spine, lumbar spine and knee are permanent. Dr Dowda considers that the injury to her cervical spine and her knee are permanent. Given that her ability to return to her pre-accident occupation has had such a serious impact upon the worker's psychological condition the fact that her inability to return for the foreseeable future would seem to indicate that on the balance of probability her psychiatric/psychological problems will continue unabated for the foreseeable future. For
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- this reason I prefer the reasoning which Dr McClure has employed to that employed by Dr Skinner."
96 Thus, the review officer recognised the relationship between the finding of permanency of her physical condition and his finding on the permanency of her psychiatric condition. In my view the finding was open.
97 Further, the amelioration of psychiatric symptoms by the use of anti-depressant medication does not without more prevent or undermine a finding of permanency: Clough Engineering v Thomas (supra) at [84] - [90] per Hasluck J. Hasluck J noted that medication may relieve symptoms, whether they result from a physical injury or a psychiatric condition, without necessarily curing or removing the underlying condition. This is implicit in Dr McClure's conclusion.
98 For these reasons I would uphold this ground of appeal.
Determination of Degree of Disability (grounds 3 and 4)
99 Section 93D(2) of the Act provides for the manner in which the degree of disability of a worker is to be assessed. In assessing the appellant's degree of disability for her psychiatric condition, the first question is whether Sch 2 of the Act provided for that disability. It was accepted that Sch 2 did not apply. In that event the "degree of disability of the worker is to be assessed ... as the degree of permanent impairment assessed in accordance with the AMA Guides": s 93D(2)(b).
100 The AMA Guides means the first edition of the Assessment of Disability Guide published by the Western Australian branch of the Australian Medical Association (s 93A and reg 19IA(1) of the Workers' Compensation and Rehabilitation Regulations 1982). The AMA Guides incorporate the social security rating of impairment for psychiatric impairment under the Social Security Act 1991 (Cth). Based on the evidence of Dr McClure, the review officer concluded that the appellant's permanent psychiatric disability was 20 under the social security rating of impairment.
101 The social security rating of impairment is on a scale of nil to 70. It is expressly noted that the impairment ratings are not percentages and in individual cases a rating of 20 may be incompatible with work.
102 The AMA Guides acknowledge that "it may be unrealistic to employ percentage figures for psychiatric assessment and that a properly
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- illustrated opinion of disability should be provided with possible reference to the ... Social Security rating of impairment ... ".
103 An impairment rating of 20 requires "any serious symptomatology or impairment in functioning that most clinicians would think obviously requires treatment or attention (eg suicidal pre-occupation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour)". A rating of 50 requires that the person be unable to function in almost all areas (eg stays in bed all day), or behaviour that is considerably influenced by either delusions or hallucinations, or serious impairment in communication. A rating of 70 is in terms "needs constant supervision to prevent injury to self or others".
104 Neither the Act nor the AMA Guides give any express indication as to the basis on which to convert an impairment rating under the social security rating and a degree of disability under s 93D of the Act.
105 The review officer converted the impairment rating of 20 to a degree of disability of 28.37 per cent on the basis that the highest impairment rating was 70. He therefore divided the impairment rating of 20 by the maximum rating of 70 and multiplied the result by 100 in order to obtain a percentage of 28.37. That approach to the assessment of disability is flawed: Clough Engineering v Thomas (supra) at [9] - [10] per Steytler J. Hasluck J did not specifically address this question however McKechnie J agreed with the reasons of both Steytler and Hasluck JJ.
106 The Full Court in Clough Engineering also held that the Act requires the review officer or other adjudicator to arrive at a percentage figure representing the degree of disability. The Full Court's decision necessarily involves rejection of the appellant's contention that on a proper construction of s 93D(2)(b) of the Act, the degree of disability expressed as a percentage directly corresponds with the impairment rating under the social security rating scale.
107 The appellant's alternative contention was that a social security impairment rating must necessarily give rise to a degree of disability of not less than the impairment rating. That is, a social security rating of impairment of 20 must convert to a degree of disability of not less than 20 per cent. That approach was taken by the compensation magistrate in Rydges Hotel v Tasovski, unreported; CM (WA); No 116/01; 18 January 2002. The Full Court in Clough Engineering was invited to reject this reasoning. Pursuant to a case stated the Full Court was asked to answer ground 5 of the relevant notice of appeal which was whether:
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- " ... the learned review officer erred in law in holding that an SSA scale impairment rating of '15' must necessarily give rise to a 'degree of disability' assessment of not less than 15 per cent when he should have held that there is nothing in the Act, nor in the AMA Guides, nor in the regulations to the Act, requiring such a conclusion."
108 The factual background to that question is as follows. A medical expert, Dr Burvill, concluded that the respondent's psychiatric disability fell within the social security impairment rating of 10 which he converted to a permanent psychiatric impairment of 14.2 per cent by the direct mathematical process used by the review officer in this case. However, the review officer in Clough Engineering concluded that the respondent's symptoms when compared with the scale criteria more realistically matched the criteria for an impairment rating of 15. He also concluded that a rating of 15 would translate into a percentage degree of disability of at least 15 per cent. However, the Full Court was not persuaded that the review officer had simply concluded that a social security impairment rating must necessarily translate into a percentage degree of disability of at least the same number. The court said the review officer's conclusion was based on a factual assessment made by him, as a matter of opinion, based upon all of the evidence before him. It is implicit in the reasoning of the Full Court that it rejected the "not less than" approach. See also Re Monger; Ex parte Cook's Construction Pty Ltd [2004] WASCA 165. That must be correct. The ratings are not percentages and there is no indication as to the nature of the progression between nil and 70. Further, the note to the effect that a rating of 20 may be incompatible with work illustrates that capacity for work may vary from person to person.
109 That leaves a dilemma - what is the basis for the conversion from impairment rating to percentage degree of disability. The Full Court in Clough Engineering was not asked to and did not volunteer any guidance on this question. It needs to be addressed in this case because this Court was asked to determine the degree of disability if (as I have concluded) the review officer had erred. Whether or not we could (or should) depends on what is required. Fundamental to the conversion process is an understanding of the statutory basis in s 93D of the Act for the calculation of the degree of disability. The various percentages in Sch 2 reflect a statutory assessment of the impact of the injury on a worker's ability to work. A percentage of 100 is intended to reflect total inability to work. Otherwise the percentages range from between 4 per cent (total loss of distal phalanx of the little finger) to 90 per cent (loss of arm at or above the elbow). The percentages reflect an objectively determined maximum
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- degree of disability reflecting reduced ability or capacity to work. The focus is on the reduction of options or opportunities to perform work of any kind. Where a particular injured worker fits on the scale up to the relevant maximum is a subjective question.
110 Under Item 8 which refers to permanent and incurable loss of mental capacity resulting in total inability to work, the relevant percentage is 100. I see no reason in principle why psychiatric impairment not provided for in Sch 2 should have a maximum less than 100. As the scheme of the Act is that 100 per cent reflects total (and permanent) incapacity to work, regard must be had to the extent to which the psychiatric condition in question has reduced the worker's ability to do work of any kind. That is a matter for the judgment of medical experts and review officers. It is not a matter for this Court.
111 For these reasons I would dismiss grounds of appeal 3 and 4. Ground 5 was abandoned at the hearing. I would not interfere with the compensation magistrate's order that the appeal be allowed. The matter should be remitted to the review officer for determination of the degree of disability in accordance with these reasons. In the course of that reconsideration the review officer can clarify an incidental matter that was raised during the appeal namely whether he found that the degree of disability for the injury to the appellant's cervical spine and knee was 9 per cent or 13.4 per cent.
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