Clough Engineering v Thomas
[2004] WASCA 36
•11 MARCH 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: CLOUGH ENGINEERING -v- THOMAS [2004] WASCA 36
CORAM: STEYTLER J
MCKECHNIE J
HASLUCK J
HEARD: 5 SEPTEMBER 2003
DELIVERED : 11 MARCH 2004
FILE NO/S: FUL 166 of 2002
CIV 2739 of 2002
MATTER :Section 84ZW of the Workers' Compensation and Rehabilitation Act 1981 (WA)
BETWEEN: CLOUGH ENGINEERING
Appellant
AND
GEOFFREY THOMAS
Respondent
ON APPEAL FROM:
Jurisdiction : COMPENSATION MAGISTRATES COURT
Coram :MR BROWN SM
File Number : CM70 of 2002
Catchwords:
Workers compensation - Dispute as to psychiatric condition - Assessment of disability in context of right to pursue common law claim - Meaning of "permanent" loss of mental capacity - Procedure for assessing percentage of disability - turns on own facts
Legislation:
Social Security Act 1991 (Cth)
Workers' Compensation and Rehabilitation Act 1981 (WA), s 18, s 24, s 25, s 84ZA, s 84ZH, s 84ZU(1), s 84ZX, s 93D, s 93E, Item 8 Sch 2, Pt III, Pt IV, Pt X, Reg 19J
Workers' Compensation and Rehabilitation Regulations 1982, reg 19J
Result:
Appeal dismissed
Case stated question answered in the negative
Category: B
Representation:
Counsel:
Appellant: Mr C L Zelestis QC & Mr J R Ludlow
Respondent: Mr M J McCusker QC & Dr J J Edelman
Solicitors:
Appellant: McAuliffe Williams & Partners
Respondent: Julian Johnson Lawyers
Case(s) referred to in judgment(s):
Accident Compensation Commission v Hawkins [1992] 1 VR 589
Binns v Gardiner [2002] WASCA 337
Brugnoni v Hydro Electric Commission (1957) 97 CLR 548
Horton v Burton [1999] WASCA 82
Jackamarra v Orr [2003] WASCA 278
Kinsella v Seton Catholic College, unreported; CM(WA) 112/00; 22 February 2001
Re Alexeef; Ex parte Paul [2002] WASC 291
Re Croser; Ex parte Rutherford & Anor (2001) 25 WAR 170
Re Croser; Ex parte Rutherford (2001) 25 WAR 170
Re Croser; Ex parte Rutherford [2003] WASCA 8
Re McWilliam; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996
Re McWilliams & Ors; Ex parte Juras, unreported; SCt of WA, Library No 960637; 11 October 1996
Re Monger; Ex parte Dutch (2001) 25 WAR 96
Re Monger; Ex parte Industrial Progress Corporation Pty Ltd [2001] WASC 281
Rydges Hotel v Tasovski, unreported; CM(WA) 116/01; 18 January 2002
Case(s) also cited:
Gillett; Ex Parte Rusicit [2001] WASCA 111
STEYTLER J: I have had the considerable advantage of reading, in draft, the judgment of Hasluck J. I agree with him that none of the grounds of appeal in matter FUL 166 of 2002 has been made good. I also agree with the conclusion at which he has arrived to the effect that the question the subject of the case stated in matter CIV 2739 of 2002 should be answered, "No". However, I wish to make some comments of my own.
The first of these arises out of what was said by Rolfe AJ (with whom Murray and Templeman JJ were in agreement) in Re Croser; Ex parte Rutherford [2003] WASCA 8. His Honour (in a passage which, as he acknowledged, was strictly obiter) said, at [19], after quoting what had been said by Anderson J in Re Monger; Ex parte Industrial Progress Corporation Pty Ltd [2001] WASC 281 at [9], that, if (as his Honour appeared to think was the case) Anderson J had there said that a psychiatric disorder arising from a physical injury might be "counted" in the physical injury if the physical injury was increased by the psychiatric disorder, then the converse of that was that "one cannot count a psychiatric disability which does not affect the physical injury". Mr Zelestis QC, who appeared on behalf of the appellant, informed us that, while what was said by Rolfe AJ might be thought to be apposite in this case (the worker seemingly not having advanced his psychiatric disorder as a disease for the purposes of the definition of "disability" in s 5 of the Workers' Compensation and Rehabilitation Act 1981 ("the Act")), he did not advance an argument to that effect, the point not having been taken at any time previously during the course of these proceedings. It is consequently unnecessary for us to consider that point.
Next, I wish to say something about the meaning of the word "permanent".
It is not in dispute that, on the proper construction of s 93D(2) of the Act, the reference to "the degree of disability of the worker" is one to the worker's degree of permanent disability: s 25, Sch 2 and s 93D(2)(b) and see Re McWilliam; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996. In Re Croser; Ex parte Rutherford (2001) 25 WAR 170, Olsson AUJ (with whom I was in agreement), after mentioning that the words "permanent" or "permanently" are not defined in the Act, said (at [94]) that "all of the dictionary definitions of those words convey the notion of that which is continuing indefinitely (ie for the foreseeable future), or enduring, as opposed to temporary". He found that the assessment made by the Medical Assessment Panel in that case did not meet that description. Of course, if a medical practitioner should express the opinion that only a relatively short‑term future medical prognosis might be made (for example, over a period of two to five years) upon the basis that what is likely to occur after that time is not presently foreseeable, then the disability in question could not be said to be permanent, notwithstanding that it was likely to persist for a "foreseeable" future of that kind. Rather, the "foreseeable future" to which Olsson AUJ referred was, as I understood his Honour (and my agreement with him was premised on that understanding), one which was expected to endure indefinitely. While it will often be difficult for a Panel, or a medical practitioner, to make a prognosis whether or not a particular disability is or is not of that kind, the effect of the Act is that it, or he or she, is required to do the best that can be done on the available information.
In this case the Review Officer appears to me to have applied the correct test in finding, on the medical evidence, that the psychiatric illness suffered by the respondent was permanent in the sense that it was expected to endure indefinitely into the future. It seems to me, for the reasons advanced by Hasluck J, that this is how pars 11 and 13 of the Review Officer's reasons, given on 26 March 2002, should be understood. It also seems to me that that factual finding was open on the evidence before the Review Officer and I will not repeat what has been said by Hasluck J in that regard.
Next, I should say something about the use, by Dr Burvill, of both the second schedule to the Act and of the AMA Guides. It is plain, from s 93D(2)(b), that resort might only be had to the AMA Guides to the extent to which Sch 2 does not apply. What Dr Burvill did, in the third of the three reports prepared by him (that dated 7 January 2002), was to have resort to item 8 of Sch 2 and to the AMA Guides in estimating the respondent's degree of disability arising out of his psychiatric impairment. While counsel for the appellant contended that Dr Burvill's impermissible use of the second schedule was inextricably interwoven with his assessment made under the AMA Guides, I am not persuaded that this was so. Rather, it seems to me that Dr Burvill made two alternative assessments, with neither being dependent upon the other. That conclusion follows from an ordinary reading of this third report. Also, it is apparent that the figure of 14.2 per cent, derived by reference to the AMA Guides, originated from the conclusions expressed by Dr Burvill in his first report, dated 6 September 2001, in which the only assessment made by him was one performed by reference to the contents of the Guides.
In any event, it seems to me to be plain, from a reading of the Review Officer's reasons for decision, that he accepted that Sch 2 did not apply. He said so in par 14 of his reasons dated 26 March 2002 and went on, in the course of those reasons and again in the course of his 29 August 2002 reasons, to make an assessment under the AMA Guides.
As to the AMA Guides, these acknowledge that "it may be unrealistic to employ percentage figures for psychiatric assessment and that a properly illustrated opinion of disability should be provided with possible reference to the Commonwealth Social Security rating of impairment". That rating ("the SSA scale") is set out in the Guides. Various criteria are listed and these are given an impairment rating on a scale of between nil and 70. A note to the SSA scale records that the figures "are not percentages" and that "in individual cases a rating of twenty may be incompatible with work".
What Dr Burvill did, in his third report, was to conclude, as regards the application of the AMA Guides, that the respondent's psychiatric disability fell within the impairment rating of 10, which he translated to a permanent psychiatric impairment of 14.2 per cent (he had arrived at a figure of 15 per cent in the course of his application of the second schedule). Counsel for the appellant contended that this assessment was flawed because the figure of 14.2 per cent appears to have been derived by a direct mathematical process from Dr Burvill's finding that the applicable SSA rating was 10. What Dr Burvill seems to have done is to divide the figure of 10 by 70 (the maximum rating under the scale) and multiply the result by 100 in order to obtain a percentage of 14.2 (more accurately 14.26).
I agree with the contention that that assessment was flawed. As will be apparent, whoever drafted the SSA rating was at pains to record that the figures used were not percentages. Those figures could not, in my opinion, arbitrarily be converted to percentages by the means seemingly used by Dr Burvill. However, the Review Officer recognised that this was so. He said so, expressly, in par 18 of his reasons given on 26 March 2002 and in par 16 of those given on 29 August 2002. Consequently, what he did was to make his own assessment, utilising the criteria expressed in the SSA scale and the symptoms described by each of Dr Burvill and Dr Terace. By that means he arrived at the factual conclusion, which was not challenged in the grounds of appeal (and could not be so challenged: s 84ZN and s 84ZW of the Act), 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. As I read his reasons (brief though they are in this respect), this was a factual assessment made by him, as a matter of opinion, based upon all of the evidence before him and not upon some mathematical process relying upon the fallacious assumption that the figures in the scale were percentage figures. It is readily apparent from his reasons, and in particular his rejection of the mathematical process followed by Dr Burvill, that he appreciated that this kind of mathematical reasoning was inappropriate. In my opinion, he made no error of law in arriving at the conclusion reached by him.
These comments aside, I am content to rely upon the reasoning of Hasluck J in dismissing the appeal and in answering the case stated in the manner to which I have referred.
MCKECHNIE J: For the reasons expressed by Hasluck J with which I agree, and the additional reasons of Steytler J with which I also agree, I would dismiss the appeal and answer the stated question "No".
HASLUCK J:
Introduction
Two matters were brought on for hearing before the Full Court on the same occasion being, first, an appeal by Clough Engineering described as FUL 166 of 2002 and, second, a case stated for the decision of the Supreme Court described as CIV 2739 of 2002. Both matters arise out of rulings made by a Review Officer pursuant to provisions of the Workers' Compensation and Rehabilitation Act 1981 (WA) concerning an injury sustained on 28 September 1998 by the respondent, Geoffrey Thomas, an employee of Clough Engineering.
It is apparent from the papers that soon after the accident the respondent obtained a determination by a Review Officer that he had a disability of 9.75 per cent in respect of a foot injury and 9 per cent in respect of a low back injury making a total of 18.75 per cent permanent disability in respect of the injuries referred to in his initial application. Four years later he applied for a determination in respect of the injuries just mentioned and a further matter described as a psychiatric injury.
The respondent's claim with respect to the psychiatric injury was disputed and this eventually gave rise to the matters in issue at the
hearing before the Full Court. These issues included the question of whether the disputed injury met the requirement prescribed by s 93D(2) of the Act and the related Schedule that a disability be "permanent". There was a further issue as to whether, on the proper construction of the relevant provisions, an assessment of the degree of disability could be made both under Item 8 of Sch 2 and under the AMA Guides mentioned in s 93D(2)(b) of the Act.
Before turning to the circumstances giving rise to the dispute, it will be useful to look briefly at the structure of the Act and various provisions bearing upon the present dispute.
Statutory provisions
The liability of employers to pay compensation to workers for disabilities caused by accidents arising out of or in the course of the employment is addressed by Pt III of the Act. By s 18 of the Act, if a disability of a worker occurs, the employer shall be liable to pay compensation in accordance with Sch 1. A disability means a personal injury by accident arising out of or in the course of employment.
The Act also allows for lump sum payments for specified injuries. By s 24, notwithstanding Sch 1, if the worker so elects the compensation payable for the injuries mentioned in column 1 of the Table set out in Sch 2 shall be the percentage ratios of the prescribed amount indicated in column 2. The prescribed amount is defined elsewhere in the Act, and, in effect, is a means of limiting liability. Part X of the Act contains provisions imposing upon employers an obligation to obtain insurance.
Part IV of the Act is concerned with civil proceedings in addition to or independent of the Act. The intention is that both compensation and damages shall not be recoverable. Further, and more importantly for present purposes, Div II of Pt IV imposes constraints on awards of common law damages.
Section 93E(3) provides that damages can only be awarded if it is agreed or determined that the degree of disability is not less than 30 per cent or that the worker has a significant disability and elects to retain the right to seek damages in accordance with the prescribed procedures. The worker is said to have a significant disability if it is agreed or determined that the degree of disability is not less than 16 per cent. An election to retain the right to seek damages for a significant disability is to be made within a strict time limit.
In Re Monger; Ex parte Dutch (2001) 25 WAR 96 it was said by the Chief Justice at par 24 that the effect of these provisions is to create three categories of injured workers. The first is that of workers who have a disability of less than 16 per cent. They can claim workers compensation and have no right of action for common law damages. The second is that of workers who have a disability of between 16 per cent or more but less than 30 per cent. They are required to make an election within a strict time limit whether to receive statutory benefits or to exercise their right of action at common law. The third category comprises workers whose disability has been determined to be 30 per cent or more. Workers in this category are entitled to exercise their right of action at common law without any limitation on the amount of damages and are entitled to receive statutory benefits in the meantime.
Specific statutory provisions
Section 93D deals with the assessment of disability. Section 93D(2) reads as follows:
(2)For the purposes of section 93E, the degree of disability of the worker is to be assessed ¾
(a)so far as Schedule 2 provides for such a disability, as a percentage equal to ¾
(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."
I note in passing that by s 25 the term "loss of" includes permanent loss of the use of and permanent loss of the efficient use of the body part or faculty in question. In Sch 2, being the Table of Compensation Payable, Item 8 refers to "permanent and incurable loss of mental capacity resulting in total inability to work". It is apparent from column 2 (concerning the ratio which the sum payable bears to the prescribed amount) that the relevant figure with respect to Item 8 is 100.
I note also that s 93A provides with respect to s 93D(2)(b) that "AMA Guides" means the edition of the Assessment of Disability Guide published by the Western Australian Branch of the Australian Medical Association Incorporated which is prescribed in the regulations. The relevant AMA Guide was included in the appeal book. It purports to have been formulated utilizing a number of sources with modifications to reflect the requirements of the Act. As to Mental Disorders Chapter 14 of the Guide refers to the maximum percentages of disability in Sch 2 of the Act and states explicitly that "as the workers' compensation system is based on a percentage approach it will be necessary for medical practitioners to seek to determine the percentage of disability permanently suffered by the worker vis a vis Sch 2 and the 30 per cent common law threshold…".
The Guide goes on to say that it may be unrealistic to employ percentage figures for psychiatric assessment and that a properly illustrated opinion of disability should be provided with possible reference to the Commonwealth Social Security rating of impairment which is then set out (known as the SSR or otherwise as the SSA scale). The impairment rating on the SSA scale runs from nil to 70 and upon the basis that the figures are not percentages. The 10 figure is said to present mild but regular symptoms which tend to cause subjective distress; minor interference with function in every day situations. The 15 figure represents moderate and regular symptoms or generally functioning with some difficulty.
With regard to s 93D(2)(c) reg 19IA(2) provides that to the extent, if any, that neither s 93D(2)(a) nor s 93D(2)(b) of the Act applies to the assessment of the degree of disability of a worker for the purposes of s 93E, the degree of disability is to be assessed in accordance with the American Medical Association Guide to the Evaluation of Permanent Impairment (4th ed). I will return to these points of reference in more detail later.
Section 93D(5) provides that if the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level, the worker may refer the question to the Director subject to provision of a medical opinion that the degree of disability is not less than the relevant level.
By s 93D(10), if there is any dispute between the parties as to the relevant level, and if the dispute is not resolved by agreement, the Director is to refer the question for resolution under the provisions of Pt III(A) of the Act. I note in passing that by Reg 19J of the Workers' Compensation and Rehabilitation Regulations 1982 a referral to the Director under s 93D(5) of the Act is to be made in Form 22 and the worker is required to nominate the relevant level of disability in respect of which the referral is made.
By s 84ZA (which lies within Pt IIIA of the Act concerning dispute resolution), review by a Review Officer is to be undertaken promptly and according to the substantial merits of the case without regard to technicalities or legal forms or precedents. By s 84ZH a Review Officer may refer a question as to the nature or extent of a disability for determination by a Medical Assessment Panel.
There are also provisions which allow for an appeal to a Magistrate against the decision of a Review Officer. Thus, by s 84ZN(2) a party who is dissatisfied with a decision of a Review Officer may, where a question of law is involved, appeal to a Compensation Magistrates Court. By s 84ZU(1) a Compensation Magistrate may state a case for the decision of the Supreme Court.
Section 84ZX provides if a case is stated or there is an appeal from a Magistrate's decision, the matter is to be heard and determined by the Full Court of the Supreme Court. It is pursuant to that provision that the present appeal and the discrete but related case stated come before the Full Court on this occasion as a consequence of the matters that I will come to in a moment. However, before doing so, it will be useful to look at a number of previously decided cases as an aid to understanding the relevant sequence of events.
Previously decided cases
In Re McWilliams & Ors; Ex parte Juras, unreported; SCt of WA, Library No 960637; 11 October 1996 the Full Court made absolute an order nisi for a writ of certiorari quashing a decision of a medical panel. The Full Court held that the panel had failed to assess the applicant's degree of disability as a percentage equal to the percentage of the prescribed amount provided for by Sch 2 as required by the Act. In the course of addressing the issues raised in that case Murray J reviewed the structure of the Act and touched upon certain of the provisions mentioned earlier.
His Honour noted that an injured worker may elect to take a lump sum which, under Sch 2, is expressed in relation to the injuries mentioned in column 1 of the Table set out in the Schedule as the percentage ratio shown in column 2 of the Table of a sum of money which is prescribed. The preferred mode of assessment of a disability for the purpose of considering whether or not it is serious within the terms of the Act is under Sch 2 (read with s 25) so far as in that way the Schedule and the section enable a percentage to be attributed to the particular injury suffered by the worker. That is a percentage of a prescribed amount, the primary relevance of which is in respect of an award of compensation under the Act. It is only if the assessment cannot be made by that process that the degree of permanent impairment is to be assessed in accordance with what is described as the "AMA Guides". By s 93A that term means the edition of the Assessment of Disability Guide published by the Western Australian Branch of the Australian Medical Association Incorporated which is prescribed in the regulations.
Justice Murray went on to observe that reading the items in Sch 2 together with s 25 makes it clear that in every case what is to be measured is loss which is a permanent loss, either of a limb itself or, more commonly, permanent loss of the use or efficient use of the facility or the part of the body which has been injured. In the latter case, what is to be measured is the percentage diminution of the full efficient use.
His Honour observed also that the task imposed upon a Medical Assessment Panel by the Act is an artificial one, and is difficult to translate into any meaningful observation about the degree of seriousness of the disability in terms which would have any practical relevance to a medical practitioner. The provision takes an assessment for workers compensation purposes of a lump sum entitlement which relates the degree of disability to the maximum entitlement of a worker under the Act in terms of a lump sum redemption of weekly payments and statutory allowances, expressing that degree of disability as a percentage of the prescribed maximum entitlement, and converts that into a percentage of the notional healthy efficient use of a faculty or part of the body which has been injured, again expressed in percentage terms. Where the injured faculty or part of the body appears in Sch 2, it is only actual loss or permanent loss of the use or efficient use of the faculty or part of the body which is to be recognised.
Justice Murray said further that where the loss of the faculty or part of the body is total, or there is a total loss of use, then that 100 per cent loss is to be expressed as the percentage disability set out in Sch 2. Where, however, the Panel assesses the permanent loss of use to be partial, it must assess the degree of that loss and apply that to the percentage disability set out in Sch 2.
If, for the sake of argument, the assessment was that an applicant had suffered a 50 per cent of the loss of the efficient loss of his lumbar spine, then that 50 per cent assessment would be applied to the figure of 60 per cent applicable to the spine as set out in Sch 2 (Item 36A) and thus be expressed as a percentage disability of 30 per cent.
Where there are a number of injuries identifiable in Sch 2 involved in the case of any given worker, the assessment is to be made of each injury individually and a total reached by adding each percentage together. The final result will be the percentage disability which must equal or exceed 30 per cent for it to be classed as a serious disability which will permit the claimant to exercise a right of action at common law without restraint.
I note in passing that Murray J made some further observations about the use to be made of the criteria for assessment of the relevant percentage of disability indicated by the Act such as the AMA Guides. However, I will put discussion concerning that aspect of the statute to one side for the time being.
More recently, Barker J had occasion to review the structure of the Act in Re Alexeef; Ex parte Paul [2002] WASC 291. That was a case in which the applicant sought to quash a decision of a Medical Assessment Panel. The Panel had found that the applicant retained a capacity for work because the psychiatric condition complained of was temporary. As to that issue, his Honour was not prepared to make the order nisi for certiorari absolute. In his view, the Panel had provided sufficient reasons for its decision and, having regard to the evidence, was entitled to hold that the psychiatric condition was not permanent. The claimant in that case (as in the present case) had a claim with respect to other injuries (the right shoulder and cervical spine) in addition to the claim concerning a psychiatric condition.
His Honour noted that Sch 2 of the Act is described as a "Table of Compensation Payable". It itemises particular injuries in the ratio which the sum payable bears to the prescribed amount. Section 93D(2)(a)(ii) provides that, where Sch 2 applies, in circumstances where two or more items of the Schedule apply to the disability, the degree of disability is to be assessed as the sum of the percentages of the prescribed amount provided for by those items, as read with s 25. Section 93D(4) provides guidance as to how the calculation is to be made. By s 93D(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 refer the question to the Director. The presence of a dispute may lead to a determination by a Review Officer or assessment by a Medical Panel and, ultimately, to activation of the appeal processes should that be necessary.
His Honour noted at par 9 of his reasons for judgment that, by reason of s 25 of the Act, where the expression "loss of" is used in Sch 2, it includes the "permanent loss of the use of" and "permanent loss of the efficient use of". In the latter case, a lump sum payment may be made that represents "such percentage of the appropriate amount payable as is equal to the percentage of the diminution of the full efficient use".
His Honour went on to observe at par 10 that the expression "permanent loss of the efficient use of" is not expressly used in respect of any particular item in Sch 2, although the expression "permanent loss of the full efficient use of" is used in Items 36A, 36B and 36C of Sch 2. Item 8 of Sch 2, which refers to "permanent and incurable loss of mental capacity resulting in total inability to work", is the only other item in Sch 2 that expressly includes the word "permanent".
His Honour then turned to Item 8 of Sch 2 of the Act. He observed that workers compensation legislation has long employed the technique of listing particular injuries and providing for lump sum payments in respect of them, including where there is less than a 100 per cent occurrence of the listed injury. In Australia, such legislation has also long included an item concerning permanent and incurable loss of mental capacity, although the particular description of the injury has differed from place to place and time to time.
His Honour drew attention to Brugnoni v Hydro Electric Commission (1957) 97 CLR 548. In that case, Williams J commented that it is not easy to determine what is an injury to a lesser but substantial degree of an injury described as the total and incurable loss of mental powers involving inability to work. The relevant provisions must be examined closely to establish whether what is being referred to is a total or partial incapacity resulting from the injury or a total or partial incapacity for work resulting from an injury. The importance of the words actually used in the statute was emphasised in Accident Compensation Commission v Hawkins [1992] 1 VR 589.
Barker J then observed that Item 8 of Sch 2 of the Act in Western Australia refers to permanent and incurable loss of mental capacity resulting in "total" inability to work. The full injury so described therefore seems to require a permanent and incurable loss of mental capacity, whether involving total or partial loss, being a loss that results in a total inability to work. Section 25 of the Act helps to produce this result. Therefore, if a question relating to an Item 8 Sch 2 injury arises, an important aspect of the assessment to be made is whether the loss of mental capacity is "permanent", whether or not the loss is complete or partial. I note in passing that if it be found that Item 8 Sch 2 does not apply, with the result, pursuant to s 93D(2)(b), that an assessment is to be undertaken in accordance with the AMA Guides the requirement of "permanence" continues to be important, for what is to be assessed under that provision is the degree of "permanent" impairment.
It is apparent from Barker J's review that in Kinsella v Seton Catholic College, unreported; CM(WA) 112/00; 22 February 2001 the Compensation Magistrate had to deal with a number of questions bearing upon the proper interpretation of the expression "permanent impairment" in s 93D(2)(b) of the Act. The Compensation Magistrate noted that permanent impairment or a permanent degree of disability might possibly be characterised as one that will last forever, that will last or continue indefinitely, that is more likely than not to persist in the foreseeable future or that is stabilised, and unlikely to change substantially.
The learned Compensation Magistrate in Kinsella (supra) had regard to the overall purpose of the Act (which he considered to be beneficial in light of the limitation by the Act of a general law right to take action for damages) and expressed the opinion that the most appropriate interpretation to be placed upon the concept of "permanence" for the purposes of s 93D(2) was "more likely than not to persist in the foreseeable future". It followed that it was open for the Review Officer or the Medical Assessment Panel to consider the impact of aggressive (or, indeed, any) treatment on that likelihood.
In the subsequently decided case of Re Croser; Ex parte Rutherford & Anor (2001) 25 WAR 170 a finding of permanent psychiatric disability by a Medical Assessment Panel was expressed as covering: "the present and the foreseeable future (a period of 2‑5 years from now). In the future various factors could change the psychiatric disability in either direction." The Full Court held that an order nisi for certiorari should be made absolute to quash that part of the determination concerning psychiatric disability on the grounds that it did not amount to a determination in relation to a permanent disability. Olsson AUJ referred at par 94 to the Compensation Magistrate's interpretation of the words "permanent" and "permanently" in Kinsella (supra) and, without expressly approving or contradicting it, observed that all of the dictionary definitions of those words encompass the notion of that which is continuing indefinitely (ie for the foreseeable future), or enduring as opposed to temporary. Murray J appeared to adopt a similar interpretation of "permanent" upon the basis that some weight had to be given to the concept of the injury being "incurable".
Having regard to these authorities, Barker J in Alexeef (supra) was of the view at par 66 that the touchstone of the test of whether or not a psychiatric condition is "permanent" or "temporary" is to be found in the observation of Olsson AUJ at par 94 in Re Croser (supra) that a condition will be permanent if it is considered likely to continue indefinitely, that is, for the foreseeable future, or enduring, as opposed to temporary. If a Review Officer or Medical Assessment Panel arrives at a conclusion that the condition is temporary, this precludes the possibility of the applicant suffering from a "permanent and incurable condition" described in Item 8 of Sch 2. It followed that if an assessment, as in the Croser case, was said to cover a period of 2‑5 years, and that the disability in question could change in either direction, that would indicate that the determination was not one in relation to a permanent disability.
Barker J was also of the view at par 79 that nothing in Kinsella (supra) affected the proposition that was implicit, if not express, in Re Croser (supra) that it is the responsibility of a Medical Assessment Panel to make a proper judgment at the time of assessment as to whether or not, having regard to available medical treatments and medication, a particular psychiatric condition should be considered permanent or temporary.
I pause to say that, in my view, the observations of Barker J in Alexeef (supra) construe the relevant provisions correctly. It follows that as to a claim under Item 8 Sch 2 determinations must be made as to whether a particular psychiatric condition should be considered permanent or temporary and as to the percentage figure which represents the degree of diminution of mental capacity resulting in total inability to work. The concept of a permanent disability means a disability which will continue indefinitely (ie for the foreseeable future) or which will be enduring, as opposed to temporary. It does not strike me that there is any significant difference between this opinion as to the meaning of the concept and the view expressed by the learned Compensation Magistrate in Kinsella (supra) that a permanent disability is one that will last or continue indefinitely or that is more likely than not to persist in the foreseeable future, for a claimant in civil proceeding is only obliged to establish his claim on the balance of probabilities. I note in passing that the test in Re Croser (supra) conforms to the meaning attributed to "permanence" in the context of road traffic and firearms licensing provisions: Horton v Burton [1999] WASCA 82; Binns v Gardiner [2002] WASCA 337; Jackamarra v Orr [2003] WASCA 278.
It follows from this review of the decided cases that, in dealing with the "permanence issue" in the present case, I will treat the approach reflected in Re Croser (supra) as the decisive point of reference in regard to the interpretation of s 93D(2) of the Act and of the language used in Item 8 of Sch 2.
As to the "percentage of disability" issue which also arises in the present case, it is apparent from a number of previously decided cases that the obligation upon a Review Officer to come up with a percentage figure is an exercise fraught with difficulty. One of the difficulties is the problem of converting benchmarks prescribed in the legislation to a degree of disability percentage. In addition, it is a rather artificial exercise. The formation of a medical opinion does not usually bring with it the fixing of a percentage estimate. Issues of this kind were dealt with by the Compensation Magistrates Court in Rydges Hotel v Tasovski, unreported; CM(WA) 116/01; 18 January 2002. I will return to this case later.
Against this background, let me now turn to the circumstances of the present case. In that regard it will be useful to draw upon the case stated dated 13 December 2002 in which certain facts and matters concerning the dispute are said to be agreed.
Background
The respondent has worked for many years as a heavy truck driver and also as an underground bogger driver in various mines. At the time of the accident complained of, he was working for Clough Engineering as a bogger/truck driver at the Mt McLure Gold Mine.
It is an agreed fact that on 28 September 1998, the respondent suffered a "disability" in the course of his employment with Clough Engineering when the truck he was driving skidded out of control on a wet mine road, and failed to negotiate a bend, causing the truck to roll on its side. This has given rise to a dispute between the parties as to the nature and extent of the "disability". However, it is agreed that Clough Engineering was liable to pay the respondent, and has paid the respondent, workers compensation in respect of the "disability".
On or about 13 December 1999, the respondent lodged a Form 22 Referral dated 13 December 1999 seeking a determination of a degree of disability of not less than 16 per cent in respect of alleged right foot and lower back injuries. Injuries of this kind were referred to expressly in the Form 22 Referral of that date.
Clough Engineering objected to that level of disability in a Form 23 dated 11 January 2000. The dispute created by the objection was heard by Review Officer Cocker who held that the respondent's degree of disability was not less than 16 per cent. The ruling in that regard is reflected in Review Officer Cocker's reasons for decision published on 25 October 2000. I note in passing, as appears from earlier discussion, that the reasons for decision contain no reference to and do not purport to make any finding in regard to an alleged psychiatric condition. The issue had not arisen at that stage.
One year later, on or about 31 October 2001, the respondent lodged a fresh Form 22 Referral seeking a determination of a degree of disability of not less than 30 per cent in respect of alleged cervical spine, psychiatric, right foot and lower back injuries. In other words, about four years after the accident, the respondent complained of psychiatric injury referrable to the accident and sought to add the injury in that regard to the injuries previously described.
By a Form 23 dated 2 November 2001, Clough Engineering objected to the alleged not less than 30 per cent level of disability. On 26 March 2002, Review Officer Warwick determined that the level of disability was not less than 30 per cent. His reasoning in that regard is reflected in his reasons for decision dated 26 March 2002.
The 26 March reasons
Review Officer Warwick noted in his reasons for decision of 26 March 2002 that the respondent relied on three reports by Dr Burvill. Clough Engineering relied upon a single report by Dr Terace dated 3 February 2002. Having referred to two earlier reports dated 6 September 2001 and 11 December 2001, the third report of Dr Burvill dated 7 January 2002 concludes in this way:
"In accordance with the Western Australian AMA Guidelines and the Social Security Act Psychiatric Impairment Rating Guide and particularly the table at the rear of the AMA document for use in evaluating psychiatric disability, I am of the opinion that Mr Thomas has a permanent psychiatric disability falling within the Impairment Rating of ten. As the maximum Impairment Rating in the guide is seventy this equates to a permanent psychiatric impairment of 14.2%. This is the same estimate I made in my two earlier reports.
In my opinion, in accordance with the Second Schedule of the Workers' Compensation and Rehabilitation Act, his permanent psychiatric disability is 15% of his whole body. In my earlier report of 11 December 2001 to Bradley and Bayley I quoted this disability as 10%. The latter was an error and should have been stated as 15%."
The report of Dr Terace dated 4 February 2002 concluded in this way:
"3.Therefore, permanent psychiatric disability may be assessed by reference to '100% of the whole person, according to the AMA Guides (page 35 of the AMA Guide, penultimate paragraph, second last line) and or on the following basis:
3.1using the AMA Guide to arrive at an ordinal or numeral scale indicating percentage disability in a series ('ordinal' as per its use in the Oxford Concise Dictionary),
and or
3.2By corresponding percentage disability with the Social Security Act Criteria Impairment rating. Although the role of the Social Security Scale states that the impairment ratings are not percentages, there is nothing in the scales, or the Act, to exclude a percentage being equated with a specific rating when the criteria justifies [sic] it.
4.On the basis of the above criteria (2.1 to 2.3) and arguments (3.1 and/or 3.2), I will express the relevant level of permanent psychiatric disability as a percentage disability of the whole body: 10%"
Put shortly, then, Dr Burvill purported to assess the respondent's psychiatric condition at 14.2 per cent under the AMA Guides (which seems to assume that s 93D(2)(b) applies because the application of Item 8 Sch 2 allowed for by s 93D(2)(a) does not apply) and at 15 per cent under Item 8 Sch 2 (that is, if it be thought Item 8 Sch 2 applies). On either view of the matter, these percentages exceeded the 12.5 per cent figure required to place the respondent in the not less than 30 per cent category (when added to the undisputed figure of 18.75 per cent previously attributed to his physical injuries, that is, the right foot and lower back). The figure of 10 per cent calculated by Dr Terace pursuant to the AMA Guides was not sufficient to place the respondent in the upper category. It is implicit in the conclusions to both reports that the condition could be characterised as "permanent" but, in the end, of course, that was a matter to be determined by the Review Officer.
Review Officer Warwick was of the view, having regard to Kinsella (supra), that when considering whether a disability is permanent or not, the test to be applied is whether or not the disability is more likely than not to persist in the foreseeable future. He did not refer to the decision of the Full Court in Re Croser (supra), probably because that decision was very recent. He was of the view that inherent in both Dr Burvill's and Dr Terace's opinions was the fact that the respondent was suffering from a hardcore of psychiatric illness referable to the accident which, despite treatment, would persevere for the foreseeable future. He went on to hold at par 13 that:
"The symptomatology which is extraneous to this hardcore will gradually disappear with the treatment to be administered over the foreseeable future but the hardcore will persist and it is in respect of that that I consider both doctors have given their assessment. I therefore find that the evidence satisfies me that the worker's psychiatric condition is both a consequence/symptom of the nominated disability within the meaning of s 5 of the Act and that it is permanent in the Kinsella sense."
The Review Officer then turned to the question of determining a percentage of disability and the difficulty of converting the relevant criteria into a percentage rating. He noted that, notwithstanding the difficulties associated with that task, Dr Burvill had expressed his assessment of whole body disability as being 15 per cent and therefore found that the figure of 15 per cent was the percentage of psychiatric disability which Dr Burvill considered to be appropriate.
Ultimately, Review Officer Warwick held that the whole body disability attributable to the worker's psychiatric condition (described as major depression) was not less than 12.5 per cent with the result that the relevant level of the worker's disability was not less than 30 per cent, bearing in mind the earlier determination concerning the respondent's foot and back injuries which were not under challenge. In other words, when the finding of not less than 12.5 per cent in respect of the psychiatric condition was added to the determination of 18.75 per cent previously made in respect of the foot and low back injuries (which were not under challenge) there was an overall degree of disability of not less than 30 per cent.
Subsequent events
On or about 24 April 2002, Clough Engineering filed a notice of appeal with the Compensation Magistrates Court against the decision of Review Officer Warwick made on 26 March 2002. The outcome of that appeal is reflected in the judgment delivered by Magistrate I G Brown on 22 July 2002. By Order 3 of the Court's orders in that appeal, the matter was remitted to Review Officer Warwick for further determination.
There is no need for present purposes to examine the reasoning of his Worship Mr I G Brown at length. The learned Magistrate noted that both parties seemed to accept that the Review Officer was bound by the earlier findings of 9 per cent disability due to the low back condition and 9.75 per cent disability in respect of the foot injury, making a total of 18.75 per cent permanent disability. The matter principally in contention concerned the percentage of disability to be attributed to the psychiatric condition.
The learned Magistrate held that the finding of the Review Officer of "not less than 12.5 per cent" was unsatisfactory because such a finding did not identify the precise percentage of disability attributable to the psychiatric condition of the appellant. This meant that the appeal had to be upheld and the matter was to be remitted to the Review Officer for reconsideration and further determination in accordance with the law. The learned Magistrate dismissed those grounds of appeal in which Clough Engineering sought to assert that a finding that the psychiatric condition was permanent was not open on the evidence. He accepted that the Review Officer acted correctly in applying the principles set out in Kinsella (supra) and disagreed with the suggestion that a more stringent test was to be found in Re Croser (supra) along the lines discussed by Olsson AUJ.
I pause to observe that Clough Engineering then appealed to the Full Court against that part of the learned Magistrate's decision delivered on 22 July 2002 whereby he dismissed the appeal against the Review Officer's decision in regard to the "permanence" issue. Clough Engineering also sought to overturn the learned Magistrate's order remitting the matter to the Review Officer for reconsideration. The appeal comes before the Full Court as FUL 166 of 2002. I will return to the grounds of appeal later. However, in essence, Clough Engineering asserts that the learned Magistrate erred in failing to conclude that the Review Officer had erred in law in determining whether the respondent's degree of disability (if any) was permanent. It is said he should have applied the so‑called "more stringent" test formulated and applied by the Full Court in Re Croser (supra). The grounds of appeal refer also to the "percentage of disability" issue.
In the meantime, pursuant to the order for remission made by the learned Magistrate, the matter had been referred back to the Review Officer Warwick for reconsideration. On 29 August 2002, Review Officer Warwick again determined that the respondent's disability was not less than 30 per cent. His reasoning is reflected in his reasons for decision dated 29 August 2002.
The 29 August reasons
Review Officer Warwick noted in his 29 August reasons for decision that as a consequence of the learned Magistrate's ruling he was required to make a finding as to the precise percentage of disability to be attributed to the respondent as a result of his psychiatric condition and as to the reasoning process by which the precise percentage was arrived at.
The Review Officer observed that Clough Engineering as employer sought to raise what had become a familiar refrain, namely, that the Review Officer was unable to assess percentage psychiatric disability in accordance with the AMA Guides under s 93D(2)(b) of the Act from an assessment of psychiatric impairment under the Social Security Act: Impairment Rating Scale (known as "the SSA Scale") contained in those Guides. The employer submitted also that as a Review Officer is required to assess a worker's degree of disability for the purposes of s 93E of the Act as a percentage, and as a psychiatric impairment rating cannot be converted to a percentage, the subject condition (ie a psychiatric condition) could not form part of a Review Officer's assessment of the worker's percentage degree of disability for the purposes of s 93E of the Act.
Put shortly, the employer argued that a degree of psychiatric disability could only be assessed by reference to Item 8 of Sch 2. In the present case, there was no evidence before the Review Officer to indicate that the worker suffered from "permanent and incurable loss of mental capacity resulting in total inability to work" and therefore Item 8 of Sch 2 did not apply. Thus, no decision could be made that the worker had a permanent psychiatric degree of disability.
The respondent submitted that an argument to this effect was an attempt by the employer to raise again issues that had already been argued out at the earlier review and on appeal. In the end, Review Officer Warwick accepted this view of the matter. Further, and in any event, as to the "permanence" issue, he affirmed the view he had previously expressed which was later upheld on appeal by the learned Magistrate. The Review Officer therefore confined his attention to a reconsideration of the "percentage of disability" issue.
As to that issue, the Review Officer gave weight to the reasoning of the learned Magistrate in Rydges Hotel v Tasovski (supra) where the learned Magistrate said at par 17:
"For my own part, I would have thought that as a matter of commonsense, given the criteria accompanying SSR Ratings (especially the higher rating starting at, say, 20) it would be safe to assume that a SSR Impairment Rating would translate into a percentage degree of disability of at least the same number. That is to say, for example, that a SSR Rating of 30 must necessarily give rise to a degree of disability of not less than 30 percent."
The Review Officer noted that the reference to the SSR Ratings are the same as that which he had elsewhere referred to as the SSA Scale. The tenor of his reasoning therefore seemed to be that this approach was sufficient to justify an adoption of the assessment made by Dr Burvill that the respondent had a 15 per cent whole body disability as a consequence of his psychiatric condition. The Review Officer was therefore prepared to determine that the relevant level of the respondent's disability was not less than 30 per cent when the percentage of disability figure contended for by Dr Burvill in respect of the psychiatric condition was added to the percentage of disability previously attributed to the foot and lower back injury.
Further appeal
By notice of appeal dated 20 September 2002, designated appeal number CM‑168/02, the appellant appealed again to the Compensation Magistrates Court against the order of the Review Officer made on 29 August 2002. The notice of appeal again raised the "permanence" and "percentage of disability" issues. According to the case stated document, the grounds of appeal in respect of the Full Court appeal FUL 166 of 2002 are essentially identical to grounds 1 to 4 of appeal CM‑168/02 in the Clough Engineering appeal to the Compensation Magistrates Court. The parties agree that ground 5 of appeal in CM‑168/02 in the Compensation Magistrates Court invites that Court to refuse to follow the earlier decision of the Magistrates Court in Rydges Hotel v Tasovski (supra).
It was against this background that the learned Magistrate stated a case for the decision of the Supreme Court, being case stated CIV 2739 of 2002. The case stated document invites a decision of the Full Court on a question of law which is expressed as follows: "Is ground 5 of appeal CM‑168/02 in the Compensation Magistrates Court made out?" Ground 5 of the notice of appeal reads as follows:
"Further or alternatively, 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."
In essence, then, the two discrete appeals to the learned Compensation Magistrate instituted by Clough Engineering eventually came together at the hearing before the Full Court in regard to this matter. It is not presently an issue that, in respect of his right foot and lower back, the respondent has a degree of disability of 18.75 per cent. The controversy relates to the respondent's psychiatric condition and, in particular, whether that has produced a permanent disability and, if so, how that disability should be assessed. Ultimately, the crucial question is whether the respondent's total degree of disability is not less than 30 per cent under the relevant provisions of the Act. If so, the respondent will be at liberty to pursue a common law action without restraint.
It will be apparent from the narrative that, broadly described, there are two principal issues before the Full Court, namely, first, the "permanence" issue, and, second, the "percentage of disability" issue.
Before turning to the issues raised more specifically by the grounds of appeal in FUL 166 of 2002 and by the case stated in CIV 2739 of 2002 it will be useful to make some general observations about the two principal issues. These general observations will assist the resolution of the more specific issues.
General observations about the "permanence" issue
It will be apparent from the narrative that the "permanence" issue and evidence relating to the same including the reports of Dr Burvill and Dr Terace were brought before Review Officer Warwick pursuant to the Form 22 procedure initiated by the respondent on or about 31 October 2001. Review Officer Warwick's reasons for decision contain a careful analysis of the reports and that analysis led him to his conclusion at par 13 of the reasons which was expressed in these terms:
"Inherent in both Dr Burvill's and Dr Terace's opinions is the fact that the worker at the present suffers from a hard core of psychiatric illness which, despite treatment, will persevere for the foreseeable future. The symptomatology which is extraneous to this hard core will gradually disappear with the treatment to be administered over the foreseeable future but the hard core will persist and it is in respect of that that I consider both doctors have given their assessment. I therefore find that the evidence satisfies me that the worker's psychiatric condition is both a consequence/symptom of the nominated disability within the meaning of s.5 of the Act and that it is permanent in the Kinsella sense."
In an earlier passage at par 11 of his reasons Review Officer Warwick had indicated what he meant by "permanent in the Kinsella sense", namely, the test to be applied is whether or not the disability is more likely than not to persist in the foreseeable future.
When the matter was taken on appeal, the learned Compensation Magistrate addressed this issue in his reasons for judgment dated 22 July 2002. He referred to the Clough Engineering submission that there was an error in law in that a finding of permanence was not open on the evidence, being a submission which involved an attack on the approach reflected in Kinsella (supra) and a suggestion that the appropriate and more stringent test was the test described by Olsson J in Re Croser (supra). In the end, the learned Magistrate was not satisfied that any error of law was disclosed by the manner in which the Review Officer assessed the relevant evidence.
It follows from earlier discussion that, in my view, the operative test is to be found in Re Croser (supra). Thus, the notion of a permanent disability means a disability which will continue indefinitely (ie for the foreseeable future) or which is enduring, as opposed to temporary. However, as I have indicated, I am not persuaded that there is any significant difference in the way in which the notion of a permanent disability was described in Re Croser (supra) and the way in which it was described in Kinsella (supra). Thus, to my mind, when Review Officer Warwick purported to apply Kinsella (supra) to the circumstances of the present case, he was speaking essentially of a disability that was enduring in that it would continue for the foreseeable future.
His reasoning does not disclose an error of law as to the appropriate test to be applied.
The question then arises as to whether the conclusion reflected in par 13 of the Review Officer's reasons for decision can be said to conform to this test in circumstances where further treatment is contemplated and there is a suggestion that this may lead gradually to a disappearance or amelioration of some of the symptomatology.
In my view, it is clear from the passage in question that Review Officer Warwick has identified a hard core of psychiatric illness which will persevere for the foreseeable future, and his comments concerning treatment relate only to certain outward or extraneous manifestations of the underlying condition. This view appears to have been open on the evidence before him, and is consistent with the notion that medication will often relieve discomfort without necessarily curing or removing the underlying condition. I remind myself also that pursuant to s 84ZA of the Act a review by a Review Officer is to be undertaken promptly and according to the substantial merits of the case without regard to technicalities or legal forms or precedents.
Accordingly, I am not satisfied that any error of law is disclosed by the reasoning reflected in the written reasons for decision of Review Officer Warwick as to the "permanence" issue and, later, in the reasons for decision of the learned Compensation Magistrate dated 22 July 2002. Further, I am of the view that, for the reasons given by Review Officer Warwick, it was not open to Clough Engineering to revisit this issue when the matter was remitted to the Review Officer for further consideration. Accordingly, I do not feel obliged to make any observations about this issue in the context of Review Officer Warwick's 29 August reasons for decision.
General observations about the "percentage of disability" issue
I consider that s 93D(2) implicitly requires every degree of disability to be expressed as a percentage figure. The provision in question is a step in the process whereby, pursuant to s 93E(3), damages at common law can only be awarded without restraint if it is agreed or determined that the degree of disability is not less than 30 per cent. Moreover, the closing words of s 93D(2) clearly contemplate that the figures arrived at under sub‑pars 2(a), (b) and (c) will be percentage figures, for it is said that if more than one of these provisions applies, the adjudicator can turn to "the cumulative sum of the percentages assessed in accordance with those paragraphs."
To my mind, this suggests that if s 93D(2)(a) and Item 8 Sch 2 are found not to apply, with the result that an assessment is to be made pursuant to s 93D(2)(b) and the AMA Guides, it is the obligation of an expert medical witness and eventually the Review Officer or other adjudicator to arrive at a percentage estimate, notwithstanding that the AMA Guides and the related SSA scale do not contain a percentage scale in respect of the injury in question. Ultimately, the percentage estimate will be a matter of opinion having regard to the criteria in the relevant scale and the evidence bearing upon the condition of the claimant.
Clough Engineering submitted that on the proper construction of s 93D(2)(a) and s 93D(2)(b), an assessment of degree of disability, in relation to a particular condition, could only be made under either Item 8 Sch 2 or the AMA Guides. This was because s 93D(2)(b) is quite explicit that if par (a) concerning Sch 2 does not apply, then the degree of permanent impairment is to be assessed in accordance with the AMA Guides. In other words, the AMA Guides are only applicable if and to the extent that Sch 2 is inapplicable.
Review Officer Warwick draws attention to this line of argument in his reasons for decision of 26 March 2002. He says at par 14 that the employer had argued that the only means of assessment in terms of a percentage was by reference to Item 8 of Sch 2. The employer's position was that in this case the respondent's main incapacity resulted from physical injury with the result that it was not open to conclude that an assessment of disability could be made under Item 8 Sch 2. This meant that a finding or determination had to be made pursuant to the AMA Guides but, upon close analysis, they did not allow for a percentage assessment.
I remind myself that in his third report dated 6 September 2001 Dr Burvill purported to make two assessments, being one under Sch 2 and the other under the AMA Guides. He said that in his opinion, in accordance with Sch 2, the respondent's permanent psychiatric disability was 15 per cent of his whole body. He said that having regard to the AMA Guides and the related SSA Guide the respondent had a permanent psychiatric impairment of 14.2 per cent. I pause to say that I can see no objection to providing separate assessments of disability based on both Sch 2 and the AMA Guides. If the two assessments are independently made and then provided it will be open to the Review Officer to proceed with a finding based on the AMA Guides if he finds that Sch 2 does not apply (as appears to have happened in the present case).
When I examine the various reasons of the Review Officer and the learned Compensation Magistrate concerning the percentage of disability issue I am left with a degree of uncertainty as to the position they finally adopted in regard to the submission that an assessment has to be made under either Item 8 Sch 2 or the AMA Guides. This is possibly because there is a degree of overlap between application of Sch 2 and the AMA Guides, for, as I noted in earlier discussion, the AMA Guides have been prepared with modification to reflect the percentage approach of the workers' compensation system and, as to mental disorders, medical practitioners are exhorted to determine the percentage of disability suffered by the worker "vis a vis Schedule 2 and the 30% common law threshold". However, in essence, Review Officer Warwick and the learned Magistrate appear to have accepted the Clough Engineering submission that Item 8 Sch 2 did not apply because the respondent's main incapacity resulted from the physical injury, with the result that the matter had to be determined pursuant to s 93D(2)(b) by reference to the AMA Guides.
The AMA Guides, as I have indicated in earlier discussion, allow for reference to the SSA scale. The Review Officer recognised that the impairment ratings on the SSA scale (from nil to 70) are expressly said not to be percentages. However, in the Review Officer's view, it was a matter of opinion as to how the criteria described in the scale, when applied to the respondent's condition, could be translated into a percentage in order to meet the special requirements of the Act. This approach permitted the Review Officer, as a matter of independent assessment, to arrive at his own figure, being the figure he finally adopted of 15 per cent.
On the hearing of the appeal before the Full Court Clough Engineering contended that the approach adopted by Dr Burvill and the Review Officer revealed a misunderstanding and misapplication of the scale, with the result that the percentage of disability found to exist, namely, 14.2 per cent by Dr Burvill and 15 per cent by the Review Officer reflected a fallacious conversion. This meant that the 26 March and 29 August reasons of the Review Officer, and the related reasoning of the learned Magistrate, disclosed errors of law.
I accept that it is necessary under s 93D(2) to determine which category of assessment applies. In the circumstances of the present case, in which the evidence did not establish clearly that the psychiatric condition had given rise to a total incapacity to work (having regard to the presence of the respondent's physical injuries), the Review Officer was entitled to conclude (as Dr Burvill seems to have concluded in the first of his two scenarios) that s 93D(2)(b) applied, with the result that the evidence had to be considered in the light of the AMA Guides and the SSA scale. I observed in earlier discussion that as each part of s 93D(2) implicitly requires the formulation of a percentage of disability estimate a percentage figure must be arrived at as a matter of opinion, even though the SSA scale does not purport to be a percentage scale.
In my view, the language used in the Dr Burvill reports establishes that by reference to various factors he had arrived at a percentage of disability figure which was intended to be expressed as a percentage for the purposes of the Act, as to both s 93D(2)(a) and s 93D(2)(b). The evidence appeared to be consistent with the figures he mentioned, and there was some support for this in the report of Dr Terace. It was by no means an extravagant assessment. It was therefore open to the Review Officer, having regard to the expert opinion and related evidence (and open to the learned Magistrate in due course) to make his own finding as to the appropriate percentage of disability pursuant to the AMA Guides. It follows from earlier discussion, that in my view, this process does not reflect an error in law. I therefore do not consider that it is open to the Full Court to set aside the assessment, simply because some other percentage might have been determined.
The grounds of appeal in FUL 166 of 2002
Against the background of these general observations, it will now be convenient to turn to the various grounds of appeal in this matter. As I indicated in earlier discussion the parties accepted that the issues reflected in the case stated were essentially of the same kind.
The first ground of appeal
The first ground of appeal is that the learned Magistrate erred in law in failing to conclude that the learned Review officer had erred in law in applying the wrong test in determining whether the respondent's "degree of disability" (if any) was permanent, when he should have held that the learned Review Officer should have applied the more stringent test formulated and applied by this Court in Re Croser (supra).
It follows from my general observations about the "permanence" issue that I am not satisfied that the appeal should succeed on this ground. I am not persuaded that Re Croser (supra) contains a more stringent test of the kind contended for by Clough Engineering. I consider that no error of law was made in the determination made by Review Officer Warwick, as approved by the learned Magistrate, that the respondent's degree of disability was permanent. I consider that the evidence before the learned Review Officer was reasonably capable of supporting the conclusion arrived at in regard to this issue.
The second ground of appeal
The second ground of appeal is that the learned Compensation Magistrate erred in law in failing to conclude that a worker's alleged "degree of disability" could not be assessed under both Item 8 of Sch 2 of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("Act") and the Social Security Act 1991 (Cth) scale ("SSA scale") referred to in the AMA Guides (as that expressed is defined in s 93A of the Act) when he should have held that an assessment could be made (if at all) under the latter only to the extent (if at all) that the former did not apply.
It follows from my general observations concerning the percentage of disability issue that there is a degree of ambiguity in the reasoning of the learned Magistrate concerning this matter. However, it appears that it was open to the Review Officer (and thus to the learned Magistrate) to proceed upon the basis that the appropriate category was pursuant to s 93D(2)(b) and that Review Officer Warwick in fact proceeded in this manner. It follows that in real terms, contrary to the suggestion in this ground of appeal, the Review Officer determined that the category reflected in s 93D(2)(a) did not apply and proceeded to make a determination in accordance with the criteria allowed for by s 93D(2)(b). Accordingly, I am not satisfied that the appeal should succeed on this ground.
The third ground of appeal
The third ground of appeal is that the learned Compensation Magistrate erred in law in failing to conclude that the evidence before the learned Review Officer was not reasonably capable of supporting the conclusion that the respondent had a "degree of disability" that could be assessed under Item 8, Sch 2 to the Act, and, in particular, the conclusion that the respondent:
(b)had loss of mental incapacity that was incurable; or
(e)was totally unable to work as a result of mental incapacity.
As to this ground of appeal, I repeat the observations I have made as to the first and second grounds of appeal. It follows that I am not persuaded that the appeal should succeed on this ground.
The fourth ground of appeal
The fourth ground of appeal is that the learned Compensation Magistrate erred in law in failing to conclude that the learned Review Officer had erred in law in failing to conclude that an assessment of a worker's "degree of disability" resulting from psychiatric illness could not be made under the SSA scale, and therefore could not be made at all (except under Item 8 of Sch 2 to the Act, if applicable), because:
(a)s 93D(2) of the Act implicitly requires every assessment of "degree of disability" to be expressed as a percentage;
(b)the ratings used in the SSA scale "are not percentages", and therefore are either ultra vires the Act, or cannot be used for an assessment unless the AMA guides, or the Regulations to the Act, contain some mechanism for converting those ratings into a percentage assessment;
(c)neither the AMA guides, nor the Regulations to the Act, contain any such mechanism;
(d)the Regulations to the Act do not separately provide for the assessment of a worker's "degree of disability" resulting from psychiatric illness in a manner expressed as a percentage; and
(e)the Act does not provide for any assessment at all unless an assessment expressed as a percentage can be made under Sch 2 to the Act, or, failing that, the AMA guides or, failing that, the Regulations."
It follows from my general observations concerning the "percentage of disability" issue that, in my view, s 93D(2) of the Act does implicitly require that every assessment of "degree of disability" be expressed as a percentage. However, in the circumstances of this case, for the reasons I have given, it was open to Dr Burvill and eventually to Review Officer Warwick to conclude that a percentage of disability determination could be arrived at as a matter of opinion by reference to the criteria in the AMA Guides and the SSA scale in the manner allowed for by s 93D(2)(b) of the Act. Accordingly, I am not persuaded that the appeal should succeed on this ground.
The case stated issue
I noted in earlier discussion that the question of law said to arise in the proceedings the subject of the case stated was expressed in this way: Is ground 5 of appeal CM/168/02 in the Compensation Magistrates Court made out? Ground 5 was to the effect that the learned Review Officer erred in law in holding that a 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 was nothing in the Act, nor in the AMA Guides, nor in the regulations to the Act, requiring such a conclusion.
I am not satisfied that ground 5 correctly reflects the critical finding made by the Review Officer. I am not persuaded that the Review Officer simply made a mathematical conversion. However, to the extent that the ground of appeal in question suggests that the Review Officer erred in arriving at his own independent assessment of 15 per cent in respect of the percentage of disability, it follows from my general observations about the "percentage of disability" issue that I am not persuaded that ground 5 of appeal CM/168/02 in this Court is made out. It was open to Dr Burvill and eventually to the Review Officer and the learned Magistrate to arrive at an estimate representing the percentage of disability as a matter of opinion. In the case of the Review Officer this percentage reflected his own independent assessment having regard to the symptoms and criteria reflected in the SSA scale. It follows that the question posed by the case stated, in my view, should be answered in the negative.
Summary
In summary, then, I consider that the appeal should be dismissed. The question of law arising in the proceedings the subject of the case stated should be answered in the negative.
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