Casserly v Alcoa of Australia Ltd
[2006] WASCA 150
•1 AUGUST 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CASSERLY -v- ALCOA OF AUSTRALIA LTD [2006] WASCA 150
CORAM: STEYTLER P
WHEELER JA
PULLIN JA
HEARD: 23 MARCH 2006
DELIVERED : 1 AUGUST 2006
FILE NO/S: CACV 113 of 2005
BETWEEN: DANIEL CASSERLY
Appellant
AND
ALCOA OF AUSTRALIA LTD
Respondent
ON APPEAL FROM:
Jurisdiction : COMPENSATION MAGISTRATE'S COURT
Coram :PM HOGAN CM
File No :CM 129 of 2004
Catchwords:
Workers' compensation - Medical evidence - Whether compliance with s 93D(6) of Workers' Compensation and Rehabilitation Act 1981 (WA) a jurisdictional prerequisite - Where medical evidence did not link injury to nominated date of disability - Where aggregation of two injuries on one limb - KB Hutcherson Pty Ltd v Corriea (1995) 183 CLR 50 distinguished
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 5, s 25, s 84ZA, s 93D(2), s 93D(5), s 93D(6), s 93E(3), s 93E(4), s 93E(5), Sch 2
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant: Mr S A Walker
Respondent: Mr D R Clyne & Mr W G Spyker
Solicitors:
Appellant: Chapmans
Respondent: Cornerstone Legal
Case(s) referred to in judgment(s):
Baker v Crittenden, unreported; FCt SCt NSW; 17 July 1995
Girrawheen Tavern v Joseph [2003] WASCA 244
Hart v Griffin Coal Mining Co Pty Ltd [2005] WASCA 130
K B Hutcherson Pty Ltd v Correia (1995) 183 CLR 50
Re Burvill; Ex parte Bains Harding Industries Pty Ltd [2005] WASCA 181
Re Monger; Ex parte Dutch (2001) 25 WAR 96
Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253
Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129
Case(s) also cited:
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87
Fugen Holdings Pty Ltd v Brassington [1999] NSWCA 107
Hart v Griffin Coal Mining Co Pty Ltd [2005] WASCA 130
Jackamarra v Krakouer (1998) 195 CLR 516
Pilcher v HB Brady & Co Pty Ltd [2005] WASCA 159
Re Monger; Ex parte Velsberry Pty Ltd [2003] WASCA 9
Smith v Australian National Line Ltd (1998) 20 WAR 219
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
STEYTLER P: The appellant asserts that he was injured in the course of his employment with the respondent. He has commenced an action for common law damages against the respondent arising out of his injuries. He contends that they were caused by the respondent's negligence. However, the effect of s 93E(3), (4) and (5) of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("Act") is that damages can only be awarded to him in respect of any disability caused by the respondent's alleged tort if it is agreed or determined that the degree of that disability is not less than a specified percentage ("the relevant level"). It is not in dispute, for the purposes of this appeal, that, if the appellant suffered the injuries asserted by him, they gave rise to, or amounted to, a "disability" for the purposes of the Act (as to which see s 5). However there is a dispute concerning the question whether the degree of any such disability is not less than the relevant level.
Subsections 93D(5) to (10) of the Act read as follows:
"(5)If the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level the worker may, subject to subsection (6), refer the question to the Director [of Conciliation and Review].
(6)A question can only be referred under subsection (5) if the worker produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level.
(7)As soon as practicable after receiving a referral under subsection (5), the Director is to notify the employer in accordance with the regulations.
(8)If within 21 days after being notified under subsection (7) the employer notifies the Director in accordance with the regulations that the employer considers that the degree of disability is less than the relevant level, a dispute arises for the purposes of Part IIIA.
(9)The Director is to consider the dispute in consultation with the parties.
(10)Except in a case to which subsection (11) applies, if the dispute is not resolved by agreement, the Director is to refer the question for resolution under the provisions of Part IIIA (other than Division 2) … "
Because the appellant and the respondent could not agree whether or not the appellant's degree of disability was not less than the relevant level, the appellant, on 26 July 2004, lodged a Form 22 "Referral of Question of Degree of Disability" under s 93D(5). A Form 22 requires the worker to specify the date upon which the disability occurred and also the degree of disability as assessed by a medical practitioner. On the form, the appellant said that the disability occurred "In or about September 1998, June 1999, July 2000, September 2000 and September 2002". He also said that his degree of disability was not less than 30 per cent, being the relevant level for present purposes. He supported the Form 22 referral with a medical report prepared by Dr David Kennedy dated 14 June 2004. The relevant parts of that report read as follows:
"Mr Casserly states that he had been working as a trades assistant at Alcoa in Pinjarra for a total of twenty‑four years. In 1991 Mr Casserly was working twelve hour shifts, doing a job involving mill relines using a large jack hammer on a spring balance with his arms turned out and flexed at the elbows.
On one occasion he noticed a lump on the back of the left hand with pins and needles and numbness in the fingers of his left hand radiating up the left forearm into the elbow region. He reported this problem …
Mr Casserly underwent a nerve conduction test and other investigations before undergoing a carpal tunnel surgical release procedure on the left side in 1993 and had a further carpal tunnel surgical release procedure in 2003.
Mr Casserly also developed problems in his right forearm and hand and had surgery on the back of his right wrist because of problems involving the tendons and nerves and this was performed in 2003.
Mr Casserly also had a lump removed from the back of his left hand by Doctor Janes in 1995 as well as having arthroscopic surgery on his left elbow joint to remove bone fragments following which he had some time off work with post operative physiotherapy and exercises.
Mr Casserly over the last four years has been working as a foreman and has been taken off the heavy trades assistant work. Currently Mr Casserly is not receiving any specific medical treatment.
MR CASSERLY'S CURRENT COMPLAINTS AS EXPRESSED AT THE TIME THAT HE WAS ASSESSED are as follows:
1.Aching and pain in the left arm and hand.
2.Numbness and tingling in the tips of the fingers of the left hand.
3.The right arm and hand gets painful with extra load and stress.
4.Lacks strength in the left arm and hand.
5.Restrictions with respect to fine motor movements as well as manual handling activities involving the left arm and hand.
6.Uncomfortable in bed with sleep disturbances.
7.Restrictions with respect to domestic, social and recreational activities such as playing golf or any activities involving the use of his arms, particularly on the left side.
PHYSICAL EXAMINATION
On examining the left upper extremity at the elbow joint the arthroscopic surgical scars were noted medially. There was a significant reduction in the strength of flexion of the forearm at the elbow joint and to a lesser extent, extension, supination and pronation of the forearm at the elbow joint against resistance.
On examining the left wrist joint and hand the carpal tunnel surgical release scars were noted with a three centimetre dorsal horizontal surgical scar over the intercarpal joints. There was a significant reduction in the strength of dorsiflexion and palmar flexion of the hand at the wrist joint and a decrease in the grip strength in the left hand. There was a reduction in the strength of the intrinsic muscles supplied by the median nerve in the left hand and also sensation in the distribution of the median nerve in the left hand.
On examining the right wrist joint and hand there was a dorsal surgical scar horizontally of approximately five centimetres over the distal radius of the wrist joint. There was a decrease in the strength against resistance of dorsiflexion and palmer flexion of the hand at the wrist joint."
Then, after referring to radiological reports in respect of Mr Casserly's left elbow, Dr Kennedy expressed the following opinion:
"Mr Casserly as a consequence of his occupational duties in the 1990s specifically in 1991, has sustained repetitive overuse injuries involving his left upper extremity at the elbow joint extending to also involve the forearm, wrist and hand for which he has undergone a number of surgical procedures.
Mr Casserly also developed repetitive overuse work related injuries involving his right wrist joint and hand for which he has also undergone an operative procedure. The persistent problems involving both upper extremities have affected not only his occupational capabilities but also social, sporting and domestic activities. Mr Casserly over the past four years has ceased the heavy, repetitive work as a trades assistant and now works as a foreman for Alcoa, Pinjarra.
Mr Casserly has sustained a permanent disability involving both upper extremities as a consequence of the work related injuries sustained in 1991.
Mr Casserly was assessed in accordance with the Workers' Compensation and Rehabilitation Act of WA 1981 (as amended in October 1999) utilising the Second Schedule of the Act.
Mr Casserly as a consequence of the work related injuries sustained to his left elbow joint, pursuant to Item 13, has a permanent loss of efficient use of his left arm at and above the elbow joint of 16%. As a consequence of the work related injuries sustained to his left wrist and hand, Mr Casserly, pursuant to Item 14 has a permanent loss of efficient use of the left arm below the elbow joint of 22%. Mr Casserly as a consequence of the work related injuries sustained to his right wrist and hand, pursuant to Item 14, has a permanent loss of efficient use of the right arm below the elbow joint of 14%."
Proceedings before the review officer
The question whether the appellant's degree of disability was not less than the relevant level was referred by the Director to a review officer. The respondent challenged the review officer's jurisdiction to determine that question, contending that the medical evidence from Dr Kennedy was insufficient to satisfy s 93D(6). It offered two reasons for this. The first was that Dr Kennedy's report could only be regarded as having provided medical evidence that the degree of disability was not less than the relevant level if the two assessments of permanent loss of efficient use made by Dr Kennedy in respect of the appellant's left arm were aggregated and, having regard, in particular, to what had been said by the High Court in K B Hutcherson Pty Ltd v Correia (1995) 183 CLR 50, it was not permissible to aggregate the assessments made in respect of that arm at or above the elbow and below the elbow. The second reason was that Dr Kennedy's report did not provide any evidence that linked the disabilities referred to in it with the dates of disability provided in the Form 22. The review officer upheld both contentions. He found that the provisions of s 93D(6) had accordingly not been satisfied, with the result that he lacked jurisdiction to determine the question that had been referred to him.
The appeal to the Compensation Magistrate
The appellant appealed to a Compensation Magistrate pursuant to the provisions of s 84ZN(2) of the Act. He contended, amongst other things, that the review officer had failed to apply the test provided for by s 93D(2)(a)(ii) of the Act when considering whether or not the evidence of Dr Kennedy met the requirements of s 93D(6) of the Act. Section 93D(2) reads as follows:
"(2)For the purposes of section 93E, the degree of disability of the worker is to be assessed —
(a)so far as Schedule 2 provides for such a disability, as a percentage equal to —
(i)if only one item of that Schedule applies to the disability, the percentage of the prescribed amount provided for by that item, as read with section 25; or
(ii)if 2 or more items of that Schedule apply to the disability, the sum of the percentages of the prescribed amount provided for by those items, as read with section 25;
(b)to the extent, if any, that paragraph (a) does not apply, as the degree of permanent impairment assessed in accordance with the AMA Guides;
(c)to the extent, if any, that neither paragraph (a) nor (b) applies, in accordance with the regulations,
or if more than one of paragraphs (a), (b) and (c) applies, as the cumulative sum of the percentages assessed in accordance with those paragraphs."
Schedule 2 of the Act is headed "Table of compensation payable". It lists a number of different injuries, ascribing to each the "Ratio which the sum payable herein bears to the prescribed amount". The "prescribed amount" is defined by s 5(1) of the Act as a specified sum payable by way of compensation in respect of the disability in question. So, by way of example, Item 1 of Sch 2 provides for the total loss of the sight of both eyes and specifies that 100 per cent of the prescribed amount is payable in respect of that item. The relevant items in this case are, as Dr Kennedy noted in his report, Items 13 and 14, which appear under the heading "ARM". Item 13 refers to "Loss of arm at or above elbow" and prescribes a ratio of 90 per cent. Item 14 is "Loss of arm below elbow" and the prescribed ratio is 80 per cent. Section 25 of the Act provides that, for the purposes of the table, "loss of" includes:
"(a)'permanent loss of the use of'; and
(b)'permanent loss of the efficient use of', but in such case such percentage of the appropriate amount payable as is equal to the percentage of the diminution of the full efficient use, may be awarded, in lieu of the full amount."
The appellant contended that, having regard for these provisions, it was open to Dr Kennedy to express an opinion in the form in which that was done in his report dated 14 June 2004 and that it was appropriate to aggregate the percentages provided by him in respect of the permanent loss of efficient use of the appellant's left arm at and above the elbow joint and in respect of the permanent loss of efficient use of his left wrist and hand. His counsel submitted that nothing said by the High Court in Hutcherson had any application to this case.
The Compensation Magistrate rejected these contentions. She relied, in doing so, upon Hutcherson. That case dealt with the construction of the Workers' Compensation Act 1987 (NSW). Section 66 of that Act read as follows:
"(1) A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker's employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $80,000 set out opposite to that loss in that Table.
(2) A worker who has suffered more than one of the losses mentioned in the Table to this Division as a result of the same injury is not entitled to receive as compensation under this section more than $80,000 in respect of those losses.
(3) Where by the operation of Division 6 the amount of $80,000 is adjusted, the compensation payable under this section shall be calculated by reference to the requisite percentage of the amount in force at the date of injury."
The table referred to in these provisions ("Table") included the following:
"Leg injuries —
Loss of either leg at or above the knee 75
Loss of either leg below the knee 70."
Section 65 of the Act defined "loss", in relation to a thing, as meaning the loss of that thing or the permanent loss of the use or of the efficient use, of that thing.
The evidence in Hutcherson established that the respondent had suffered a partial loss of the efficient use of his legs as a consequence of a back injury. The question arose whether he was entitled to compensation under the Table for loss of efficient use of each leg, both at or above the knee and below the knee, or whether he was entitled to compensation only for such loss at or above the knee. The Court (Brennan, Deane, Dawson, Toohey and McHugh JJ) said (at 56):
"In the end the question is a fairly straightforward one. The Table provides under the heading 'Leg injuries' for loss of either leg at or above the knee and loss of either leg below the knee. The points mentioned in the Table ([']leg at or above the knee' and 'leg below the knee') identify, in relation to loss of use, the same maximum level of compensation as the loss by amputation at those points and require the same factors to be considered in the assessment of compensation, namely, the extent to which the entire limb below the uppermost point of affection is lost or its use is lost. No doubt, medical opinions may differ as to the degree of loss in any case where the use of a limb has been affected. But nothing in the Table or in the Act itself warrants making two assessments in the case of one leg."
Applying that decision, the Compensation Magistrate concluded that, just as was the case in Hutcherson, an aggregation of the percentages in respect of the appellant's left arm, by the application of a literal reading of Sch 2 with s 93D(2)(a)(ii), would allow the worker to "double dip" and that the review officer was correct to find that the assessments for Items 13 and 14 could not be added together. She decided that Dr Kennedy's evidence consequently had not "indicated" that, in his opinion, the degree of disability was not less than the relevant level and that the requirements of s 93D(6) had accordingly not been satisfied.
In his appeal to the Compensation Magistrate, the appellant also challenged the decision of the review officer upon the ground that he had erred in concluding that he had no jurisdiction merely because there was no link between the medical evidence and the dates of disability contained in the Form 22. His counsel submitted that it was obvious from the Form 22 that the dates provided were the dates of the worker's condition or incapacity as a consequence of the injuries described by Dr Kennedy in his report. This contention, too, was rejected by the Compensation Magistrate. She said that, because Dr Kennedy's report did not link "relevant injury events" to the assessment of disability, there was no evidence to permit the Director to ascertain whether there was any basis to the appellant's claim, with the consequence that the appellant had, for this reason also, failed to produce evidence in compliance with s 93D(6).
The grounds of appeal to this Court
There are two grounds of appeal to this Court, a third having been abandoned. They read as follows:
"Ground 1
The Learned Compensation Magistrate erred in law in finding that the report of Dr Kennedy did not satisfy the jurisdictional requirements of s93D(6) of the Workers' Compensation & Rehabilitation Act by concluding that s93D(2)(a)(ii) of the Act did not permit the aggregation of percentages for loss of efficient use of the arm above the elbow and also for loss of the efficient use of the arm below the elbow.
Ground 2
The Learned Compensation Magistrate erred in law in finding that the report of Dr Kennedy did not satisfy the jurisdictional requirements of s93D(6) of the Workers' Compensation & Rehabilitation Act by concluding there was no medical evidence provided which linked the assessment of disability to the dates contained within the Form 22 referring the dispute to the Director, given:
(a)that the referral of the degree of disability is not a referral of the degree of disability as that term is defined in s5 of the Act, but is a referral of the degree of incapacity or loss of function of the worker no matter how or when arising; and
(b)the degree of incapacity or loss of function of the worker at the time disclosed in the Form 22 is a function of any degree of incapacity or loss of function that has occurred prior to [sic]."
I will deal with each of those grounds in turn. However, before doing so, it is necessary to say something concerning the questions whether or not compliance with s 93D(6) of the Act is a jurisdictional prerequisite and, if so, what is required in order to satisfy it.
The jurisdictional issue
These questions were considered by the Full Court of this Court in Re Monger; Ex parte Dutch (2001) 25 WAR 96. Malcolm CJ (with whom Wallwork and Owen JJ agreed) concluded (at [26]) that the Director's task, upon receipt of a referral, was not merely administrative but involved a limited adjudicative function in that he must, before referring the matter to a review officer, be satisfied that the medical evidence does "indicate" that the degree of disability is not less than the relevant level. He went on to say (at [28]) that, if the medical evidence was insufficient to be capable of supporting or justifying the opinion expressed, it followed that there would be a failure to establish that the degree of disability was not less than the requisite level. He said (at [30]) that the existence or otherwise of the relevant level of disability was a "jurisdictional fact" and (at [31]) that, as a consequence, "the decision of the relevant decision maker will be liable to be quashed for excess of jurisdiction because the non‑existence of the jurisdictional fact precludes a finding that there was jurisdiction".
Malcolm CJ went on to say (at [54]) that, on the proper construction of s 93D(6) of the Act, that section requires the provision of a medical report which, on its face, states the medical practitioner's opinion as to the degree of disability or contains information which permits a conclusion from the opinion expressed that the medical practitioner has formed a relevant opinion. He also said (at [46]) that the purpose of s 93D(6) is to ensure that the relevant dispute resolution procedure is only invoked where there has first been laid a proper foundation for the contention by the worker that he or she has suffered a degree of disability at not less than the level specified. He considered that, if all that is required by s 93D(6) is an expression of an opinion that the worker's "degree of disability" was not less than a stated percentage, it would be difficult to see what useful purpose would be served by the subsection. He went on to say (at [52]) that the purpose of the subsection is that the Director should carry out a "screening function" to ensure that frivolous, vexatious or fanciful assertions or claims of liability are not accepted. He said that the Director "is required to examine the medical evidence and to make some analysis of it so as to confirm whether it indicates a degree of disability not less than the relevant level". He commented (at [57]) that it was not necessary for the medical evidence to be comprehensive, or to set out any detailed clinical findings or the detailed process of reasoning by which the medical practitioner formed his or her opinion (see also at [59] ‑ [62]).
Owen J, while agreeing with Malcolm CJ, added a number of comments, including the following (at [114] ‑ [115]):
"Had the legislature intended that the obligation on the worker under s 93D(6) could be satisfied by the provision of nothing more than a written confirmation that a medical opinion existed, it could very easily have said so. If that were the case, I would have expected the section to read something like this:
'A question can only be referred under subsection (5) if the worker produces to the Director a certificate from a medical practitioner stating that the practitioner holds the opinion that the degree of disability is not less than the relevant level.'
That is not what s 93D(6) says. In my view the context that I have described compels the conclusion that something more is required. That 'something more' need not be the entirety of the material of a medical nature on which the worker intends to rely. Given the limited nature of the role which the Director is required to carry out at that stage it might be very brief indeed and it will certainly vary from case to case. But it must, in my view, be capable of being characterised as 'medical evidence'. I can do no better than to adopt the description used by the Chief Justice (at [44]), namely "material of a medical kind which is logically capable of supporting the opinion". His Honour has gone on to indicate, in a general sense, what should (and need not) be included. I repeat my concurrence with those remarks.
In Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129, both Anderson and Scott JJ raised some doubts as to whether the issue of the characterisation of the Director's role as an adjudicative one as opposed to an administrative one should be revisited by a five judge coram: see Anderson J at [78] and Scott J at [91]. A five judge coram was subsequently convened in Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253. However, the parties in that case did not ask the Court to reconsider the correctness of Dutch and it consequently proceeded upon the assumption that it still represented the law (at [21] per Anderson J, with whom Malcolm CJ, Wallwork J and Templeman J agreed). Dutch has not since been reconsidered: see Re Burvill; Ex parte Bains Harding Industries Pty Ltd [2005] WASCA 181 at [12] per McLure JA. We were not invited to reconsider it in this case.
Finally, in this respect, I should mention that the question of what is required in a report for the purposes of compliance with s 93D(6) was considered in Girrawheen Tavern v Joseph [2003] WASCA 244. In that case, Wheeler J (with whom McKechnie J agreed) said (at [32]):
"The later case of Re Monger; ex parte United Construction Pty Ltd [2002] WASCA 253 contains an analysis of why it is that considerations of fairness and convenience tell against too fine an analysis of the initial medical report. Those considerations include the lack of legal qualifications of review officers, the statutory requirement that they act informally and quickly, and the likelihood that the initial report will often play no significant role in the ultimate decision as to the worker's degree of disability (per Anderson J, pars [39], [45], [46]). To these, I would add what appears to me to be the unfairness inherent in having the availability of common law rights depend upon a close analysis of a document produced by a medical practitioner, who is not legally trained and whose primary focus must necessarily be diagnosis and treatment, rather than satisfaction of detailed legal requirements. All these considerations suggest that, as Malcolm CJ appears to have accepted in Dutch, a relatively non-technical and generous approach should be used in determining whether a report complies with s 93D(6)."
Ground 1 – the aggregation issue
That brings me to ground 1, which raises the "aggregation" issue.
As will be apparent, Dr Kennedy provided a detailed report, explaining the nature and consequences of the appellant's injuries. It will also be apparent that he referred to Items 13 and 14 of the second schedule of the Act which, as I have said, prescribe a percentage for a case of permanent loss of efficient use of an arm at and above the elbow joint and also for a case of permanent loss of efficient use of an arm below the elbow. Dr Kennedy provided percentages, in each case, as required by s 25(b) of the Act. He left the issue of aggregation to others. However, it is plain, from s 25(b), that, unless the percentages specified by Dr Kennedy (16 per cent of 90 per cent, 22 per cent of 80 per cent and 14 percent of 80 per cent respectively) are aggregated, the relevant level of 30 per cent cannot be achieved.
In my opinion, aggregation is appropriate in a case of this kind. As can be seen from Dr Kennedy's report, the injuries to the appellant's left elbow joint, and the separate injuries to the left wrist joint and hand, led to different consequences. The former led to a significant reduction in the strength of flexion of the appellant's forearm and, to a lesser extent, extension, supination and pronation of the forearm at the elbow joint against resistance. The latter led to a significant reduction in the strength of dorsiflexion and palmer flexion of the hand at the wrist joint and to a decrease in its grip strength. It also led to a reduction in the strength of the intrinsic muscle supplied by the median nerve in the left hand and in sensation in the distribution of the median nerve in that hand. This was consequently a case in which each of Items 13 and 14 was properly applicable, with the result that s 93D(2)(ii) required that the percentages in question be aggregated for the purposes of s 93E.
This case is, in this respect, unlike Hutcherson. Because loss of the efficient use of a limb was equated, under the New South Wales Act, with loss of the limb itself, and because the percentage ascribed to the loss of a limb above the knee necessarily comprehended loss of that same limb below the knee, as was the case with a loss of the efficient use of the whole of the limb through a single back injury, the Court, in that case, inferred that there could be no aggregation. In my opinion, that is not the position in a case such as this, in which there are separate and distinct consequences for each part of the limb as a result of separate injuries to those parts and in which the injuries to the upper part of the limb seemingly did not result in the loss of efficient use of the lower part (the wrist and hand) (cp Baker v Crittenden, unreported; FCt SCt NSW; 17 July 1995).
I should add that, even if I should be wrong in my conclusion that aggregation is permitted in a case of this kind, it seems to me to be plain enough from Dr Kennedy's report that he considered that the relevant level of disability was more than 30 per cent. The report seems to me to indicate that, had he not attempted to separate out the components for the upper and lower arm (as he had been asked to do), he would have arrived at a degree of disability of 32 per cent in respect of the left arm alone (16 per cent of 90 per cent (14.4 per cent) plus 22 per cent of 80 per cent (17.6 per cent).
Ground 1 has consequently been made out.
Ground 2 – the "causation" issue
As to ground 2, there is nothing in s 93D(6) which requires the medical practitioner to address the question of causation. Nor, in my opinion, should there be. That is a question to be determined by the trial Judge in the common law proceedings: Girrawheen Tavern at [52] ‑ [55] per Wheeler J. Of course, that does not mean that the medical evidence produced by the worker can be unrelated to the disability relied upon by him in the common law proceedings. Section 93D(6) plainly assumes that the medical evidence will relate to that, and only that, disability. However, there is nothing on the face of Dr Kennedy's report to suggest that it related to any other disabilities than those relied upon by the appellant. The report addresses the then current consequences of injuries
to the appellant's left arm, left wrist and hand and right wrist and hand, being the same injuries as are described by the appellant in the Form 22. The fact that Dr Kennedy referred to circumstances which prevailed in 1991 and that the appellant, on the other hand, said that the disabilities occurred in and after September 1998, does not have the consequence that the medical evidence relates to disabilities other than those relied upon by the appellant. He may have assumed that the relevant dates upon which his disabilities "occurred" were those upon which he was unable to work, rather than the date or dates of the events which led to his inability to work. Whatever may be the position in that regard, the medical evidence plainly related to the disabilities relied upon by the appellant in his Form 22, as I have said. That is all that was needed. Dr Kennedy was not required to ensure that, or even to consider whether, the disabilities occurred on the date or dates specified by the worker.
It follows, that ground 2 has also been made out.
Conclusion
I would allow the appeal and set aside the decision of the Compensation Magistrate. In lieu, I would order that the appeal against the decision of the review officer be upheld and that the matter be remitted to the review officer for reconsideration in the light of these reasons.
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P and the additional observations of Pullin JA. I agree with each of their Honours and have nothing to add.
PULLIN JA: I have read Steytler P's reasons in draft form. I agree with the orders that his Honour would make and the reasons for making them. I add the following brief comments.
The respondent resists ground 1 by relying on K B Hutcherson Pty Ltd v Correia (1995) 183 CLR 50. It contends that in that case the High Court considered "an identical issue" and that the outcome in that case supported the decision of both the Review Officer and the Compensation Magistrate. Hutcherson's case did not deal with the same issue which was under consideration in this case. Hutcherson's case was concerned with the issue about whether the worker was "entitled to compensation … for loss of efficient use of each leg, both at or above the knee and below the knee, or whether he was entitled to compensation only for such loss at or above the knee". See Hutcherson (supra) at 53.
This case is not concerned with the award of compensation at all. This case is concerned with a determination of the "degree of disability" which must not be less than 30 per cent if the worker is to have an unrestricted right to sue for common law damages. The determination was one made by a Review Officer who was obliged to act "fairly, economically, informally and quickly" and in doing so to act "according to the substantial merits of the case without regard to technicalities or legal forms or precedent" - see s 84ZA. The determination is the "threshold" or "gateway" over which, or through which, the appellant must pass if he is to be permitted to sue for damages. See Girrawheen Tavern v Joseph [2003] WASCA 244 at [52]. In making the determination, the Review Officer was obliged to apply the provisions of s 93D(2)(a)(ii) which states unambiguously that if two or more items of the Second Schedule apply to the disability, then the sum of the percentages of the prescribed amount provided for by those items will be the degree of disability expressed as a single percentage. Ground 1 must therefore succeed.
I agree also with Steytler P in relation to ground 2. Questions of causation do not have to be addressed by the Review Officer. As a result, the doctor was not required to consider whether the disability was sustained by events occurring on the dates specified by the worker. See Girrawheen Tavern v Joseph (supra) and Hart v Griffin Coal Mining Co Pty Ltd [2005] WASCA 130 at [14].
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