Drysdale v WorkCover WA
[2014] WASC 270
•29 JULY 2014
DRYSDALE -v- WORKCOVER WA [2014] WASC 270
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 270 | |
| Case No: | CIV:2536/2013 | 26 JUNE 2014 | |
| Coram: | ALLANSON J | 29/07/14 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Writ of Certiorari issued quashing decision | ||
| B | |||
| PDF Version |
| Parties: | CARL JOHN DRYSDALE WORKCOVER WA DAVID McCOUBRIE KERRY HOGGETT JOHN PEARCE AGRICULTURE PROTECTION BOARD |
Catchwords: | Prerogative writs Certiorari Workers' Compensation Medical Assessment Panel Jurisdictional Error No apprehended bias Impermissible finding of causation beyond jurisdiction Whether inadequacy of reasons constitutes jurisdictional error |
Legislation: | Workers' Compensation and Injury Management Act 1981 (WA) s 5, s 18, s 145A, s 145B, s 145C, s 145D, s 145E, s 176, s 201, s 210 |
Case References: | Andreassen v Rural West Pty Ltd [2007] WASCA 265 CSR Ltd v The Medical Panel (Unreported, WASCA, Library No 9097, 11 October 1991) Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395 Ex parte Forward [1998] WASCA 340 Fremantle Foundry and Engineering Co Pty Ltd v The Medical Panel (Unreported, WASCA, Library No 9200, 17 December 1991) Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 Re Hales; Ex parte Barr [2001] WASCA 89 Re Knezevic; Ex parte Carter [2005] WASCA 139 Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 Sedden v Medical Assessment Panel [No 2] [2012] WASC 1 Seiffert v The Prisoners Review Board [2011] WASCA 148 United Construction Pty Ltd v Maketic [2003] WASCA 138 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
WORKCOVER WA
First Respondent
DAVID McCOUBRIE
Second Respondent
KERRY HOGGETT
Third Respondent
JOHN PEARCE
Fourth Respondent
AGRICULTURE PROTECTION BOARD
Fifth Respondent
Catchwords:
Prerogative writs - Certiorari - Workers' Compensation - Medical Assessment Panel - Jurisdictional Error - No apprehended bias - Impermissible finding of causation beyond jurisdiction - Whether inadequacy of reasons constitutes jurisdictional error
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 5, s 18, s 145A, s 145B, s 145C, s 145D, s 145E, s 176, s 201, s 210
Result:
Writ of Certiorari issued quashing decision
Category: B
Representation:
Counsel:
Applicant : Mr G T Stubbs
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Fourth Respondent : No appearance
Fifth Respondent : Ms K Pedersen
Solicitors:
Applicant : Chapmans
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Fourth Respondent : No appearance
Fifth Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Andreassen v Rural West Pty Ltd [2007] WASCA 265
CSR Ltd v The Medical Panel (Unreported, WASCA, Library No 9097, 11 October 1991)
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395
Ex parte Forward [1998] WASCA 340
Fremantle Foundry and Engineering Co Pty Ltd v The Medical Panel (Unreported, WASCA, Library No 9200, 17 December 1991)
Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112
Re Hales; Ex parte Barr [2001] WASCA 89
Re Knezevic; Ex parte Carter [2005] WASCA 139
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Sedden v Medical Assessment Panel [No 2] [2012] WASC 1
Seiffert v The Prisoners Review Board [2011] WASCA 148
United Construction Pty Ltd v Maketic [2003] WASCA 138
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43
1 ALLANSON J: The applicant was employed by the Agriculture Protection Board between 1975 and 1985. He is pursuing a claim for compensation under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) against his former employer. The claim is proceeding before the arbitration service established under that Act.
2 In 2013 a medical assessment panel (the Panel) of three medical practitioners was convened to determine three questions referred by the arbitrator:
1. What is the nature and extent of the injury suffered by Mr Drysdale?
2. Is the injury permanent or temporary?
3. What is Mr Drysdale's capacity for work?
3 The Panel made its determination in writing on 18 June 2013.
4 In this application, Mr Drysdale seeks a writ of certiorari for the purpose of quashing the Panel's determination. There are three grounds for the application:
1. The Panel convened with the presence of two medical practitioner co-workers of Dr Daly a medical witness whose opinion the respondent employer relied upon so that a fair-minded person might reasonably apprehend or suspect that the Panel was influenced by that relationship in makings [sic] its determination.
2. The Panel acted beyond jurisdiction by making a decision as to the existence of the injury, whereas s 210(1)(a) of the Workers' Compensation and Injury Management Act 1981 limits the jurisdiction of the Panel to determine the nature and extent of the injury.
3. The Panel did not provide adequate reasons for its decision.
5 There were four named respondents to the application, including the members of the Panel. All abide the decision of the court. Only the employer has participated in the proceedings. Apparently by oversight, no order was made formally naming the employer as the fifth respondent. That order should now be made.
The legislative background
6 The Act provides in s 18 that, 'if an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1'. The term 'injury' is defined in s 5. Relevantly, it means:
(a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions; or
…
(c) a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree …
7 Subject to the Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes in connection with a claim for compensation, or the liability to pay compensation, under the Act: s 176. This includes the jurisdiction to determine whether an injury has occurred.
8 In hearing a dispute, an arbitrator may refer any technical or specialised matter to an expert and accept that expert's report as evidence. An arbitrator who obtains an expert's report is to call the expert for examination on the subject matter of the report if a party to the proceedings so requests: s 201.
9 An arbitrator may also, if permitted by s 145A to do so, refer a question as to:
(a) the nature or extent of an injury; or
(b) whether an injury is permanent or temporary; or
(c) a worker's capacity for work,
- for determination by a medical assessment panel: s 210 of the Act.
10 Section 145A permits referral of a question to a medical panel only if:
(a) there is a conflict of medical opinion on the question between -
(i) a medical practitioner engaged by the worker; and
(ii) a medical practitioner provided and paid by the employer, or each medical practitioner so provided and paid if there is more than one of them;
and
(b) one of the parties wishes the proceedings to continue.
11 Under s 145C, 'the relevant authority is to select three medical practitioners who are registered under s 145B to be the panel that is to determine the question'. At least one is to be a specialist in the particular branch of medicine or surgery that is relevant to the question. A medical practitioner who has treated or examined the worker concerned in a professional capacity is not eligible to be a member of the panel.
12 Section 145D provides:
(1) In determining the question the panel is to act speedily and informally, and in accordance with good conscience, without regard to technicalities or legal forms and, except as provided under this Act, is not bound by rules of practice nor evidence.
(2) The panel may, for the purposes of assisting it in determining the question, require the worker concerned to -
(a) attend before the panel;
(b) answer questions put by the panel;
(c) produce documents to the panel, or consent to another person who has relevant documents producing them to the panel;
(d) submit to medical examination by the panel,
but the panel is not authorised to treat the worker or require that the worker be treated.
(3) Powers given by subsection (2) to a panel are to be exercised in private unless the worker otherwise consents, and any information or document obtained from, or by the consent of, the worker is not to be disclosed or given to any other person, except the person from whom it was obtained, without the consent of the worker.
(4) A person is not entitled to be represented in proceedings before a medical panel.
(5) If the worker concerned, without reasonable excuse (proof of which is on the worker) -
(a) refuses to comply with a requirement made by the panel under subsection (2)(a), (b) or (c); or
(b) on being required to submit to examination by the panel, refuses to do so or in any way obstructs the examination,
the relevant authority may issue a certificate to that effect whereupon the worker's right to compensation or to take or prosecute any proceeding under this Act or, in the case of a worker in receipt of a weekly payment, to that weekly payment, is suspended until the relevant authority certifies that the suspension is removed.
(6) To the extent that the practice and procedure of a medical assessment panel are not prescribed under this Act, they are to be as the panel determines.
13 The question is to be determined in accordance with the opinion of at least two members of the panel: s 145E(1). The determination is to be made as soon as possible but in any event within 28 days after the day on which a medical examination of the worker concerned is carried out by the panel: s 145E(2). The determination and the reasons for making it are to be given in writing signed by the Chairman in a form approved by the relevant authority: s 145E(3). Unless rescinded under s 145F, the determination is final and binding on the worker and the worker's employer and on any court or tribunal hearing a matter in which any such determination is relevant: s 145E(6).
14 By s 145E(8) and s 145E(9):
(8) A determination of a medical assessment panel is not —
(a) to be vitiated because of any informality or want of form; or
(b) subject to an appeal.
(9) A decision of a medical assessment panel or anything done under this Act in the process of coming to a decision of a medical assessment panel is not amenable to judicial review.
Procedural history
15 Mr Drysdale commenced his application for compensation in 2001.
16 On 20 May 2013, the registrar of the WorkCover Arbitration Service wrote to Mr Drysdale and advised him that the Panel had been convened for 17 June 2013, and a notice requiring him to attend would be forwarded before that date.
17 On 14 June 2013, solicitors acting on behalf of Mr Drysdale wrote to the registrar, advising that Mr Drysdale would not attend the Panel on the basis that:
[Given] the respondent is the government:
• He questions the independence from government of the process of the appointment of the members of the Panel
• He questions the independence from government of the Panel members, and hence the lack of impartiality of the Panel as constituted
• In light of the above, he now questions the use of the Medical Panel as a valid way of determining this matter, including the inability now to have the respondent's medical evidence (particularly but not limited to Dr Daly's report) properly tested and challenged.
18 Despite Mr Drysdale's refusal to participate, the Panel proceeded and made its determination on 18 June 2013. The arbitrator then advised the parties that, in her opinion, as a result of the determination it would be appropriate for the application to be dismissed. She did not, however, dismiss the application, but gave the parties the opportunity to make submissions regarding that matter. Mr Drysdale's application was then adjourned pending the result of the current proceeding.
The conflict in medical opinion
19 Section 145A of the Act permits referral to a medical panel only if there is a conflict of medical opinion on one or more of the questions set out in s 210. The material before the Panel included:
1. A medical report of Dr Andrew Harper, Occupational and Public Health Physician, dated 8 November 2009.
2. Three medical reports by Professor Frank Daly, dated 30 August 2004, 20 March 2010, and 4 July 2012.
3. Six medical reports of Dr R M Spargo, Physician, dated on various dates between 1986 and 1997.
5. A report of Dr Michael McComish, Consultant Physician, dated 22 October 2002.
6. Two reports of Dr Jack Edelman, Consultant Rheumatologist, dated 24 March 2011 and 8 September 2001.
7. A medical report by Dr M McKinnon, District Medical Officer, dated 9 January 1990.
20 There were also reports by various surgeons, primarily directed to injuries suffered by Mr Drysdale in an accident in 1977, although one of them refers also to 'a multitude of symptoms but dominantly lethargy and inability to work' and depression (Professor A K House, letter dated 5 February 1990). In 1988, Professor B N Catchpole reported that, apparently as a result of his injuries, it was doubtful whether Mr Drysdale would be able to return to work.
21 The report from Dr Harper is addressed to the Director General of the Department of Premier and Cabinet. It follows a review conducted on 5 November 2009. In summary, Dr Harper's opinion was that the symptoms experienced by Mr Drysdale are consistent with poisoning by the herbicide 245-T, and his illness is attributable to exposure to the chemicals used to spray weeds. No alternative medical diagnosis to explain Mr Drysdale's condition had been identified. In expressing that opinion, Dr Harper noted that there is no diagnostic test available to prove the causal relationship between exposure to the chemicals and the symptoms reported by Mr Drysdale.
22 Professor Daly had been briefed by RiskCover in 2004 and asked to review Mr Drysdale with respect to his workers compensation claim and the symptoms which Mr Drysdale believed were due to his exposure to herbicides during his employment with the fifth respondent. The earliest and most detailed of his reports was prepared after Professor Daly met Mr Drysdale for a period of 2.5 hours in August 2004 and examined his medical records at Derby Hospital. The two later reports were made without further examination or interview with Mr Drysdale.
23 In the earliest report, after describing the many symptoms reported by Mr Drysdale, Professor Daly stated (2004 Report, 10):
Nearly 20 years after leaving APB, it is difficult to state with certainty the aetiology of the above symptoms. Mr Drysdale's chronic back pain and thoracic outlet syndrome are attributed to physical trauma.
24 In effect, Professor Daly reported that, while Mr Drysdale was exposed to potential harm by his daily contact with these chemicals and was convinced his exposure to the herbicides had been detrimental to his health and caused residual effects, Professor Daly could not find any evidence that the exposure had actually caused real harm over the last 29 years. Investigation over that period had failed to find a single unifying cause for the multiple disabling symptoms. He wrote (2004 Report, 11):
Mr Drysdale also has a number of perplexing symptoms without any associated objective medical signs or pathological abnormalities … This is despite exhaustive medical review and investigation over many years. Some of these unexplained symptoms are apparently triggered by diverse environmental factors, which are tolerated by a majority of people, and are not explained by any known medical, psychiatric or physiologic disorder that has been found …
25 Professor Daly stated that Mr Drysdale appeared to have symptoms consistent with chronic fatigue syndrome (an opinion with which Dr Jack Edelman agreed in his report dated 8 September 2011).
26 He concluded that Mr Drysdale's employment may have contributed to the development of contact dermatitis, but the contribution would have been temporary. While Mr Drysdale had incapacitating symptoms, and the incapacity appeared to be permanent, Professor Daly concluded that his employment had not caused or contributed to a significant degree to Mr Drysdale's current symptoms or conditions.
27 The 2010 Report is primarily a comment upon the reasoning in the report prepared by Dr Harper. Professor Daly referred, in particular, to the conclusions in the Final Report of the Expert Medical Panel to Evaluate Recommendations of the Kimberley Chemical Use Review (December 2003):
The expert panel concluded that chlorphenoxy herbicides cause chloracne, a characteristic skin rash. The expert panel concluded that the chlorphenoxy herbicides probably caused an increased risk of cancer in general and were also casually [sic] associated with soft tissue sarcomas and Non-Hodgkin's lymphoma in particular. The expert panel concluded that there was only weak scientific evidence of a cause-effect for the chlorphenoxy herbicides and immune system disorders, diabetes, lipid disorders and porhyria cutanea tarda.
Mr Drysdale does not have any of the conditions attributed to the chlorphenoxy herbicides.
Moreover, although Mr Drysdale has many chronic perplexing symptoms attributable to multiple organ systems, no medical practitioner has ever been able to find or document any objective evidence of any underlying physical abnormality to explain them, either through detailed physical examination or repeated thorough investigations.
Although Dr Harper has documented the same constellation of subjective symptoms in 2009 as documented in 2004, no diagnostic progress has been made and he has not been able to demonstrate any objective evidence of any underlying physical abnormality (2010 Report 3 - 4).
28 The conflict in opinion between the two medical practitioners is in attributing the symptoms described by Mr Drysdale to a chemical or toxicological cause. This is exemplified in this passage from Professor Daly's 2010 Report, 4:
Dr Harper states that authorities are using scientific uncertainty around the chlorphenoxy herbicides to avoid acting, and cites the tobacco and asbestos industries as similar examples. This is not a valid argument for two reasons. Firstly, as stated above, there is a significant peer-review medical literature regarding the chronic health effects of the chlorphenoxy herbicides, and this has been analysed locally by an independent expert panel with a view to properly and fairly assessing Western Australian workers. Secondly, Dr Harper cannot imply avoidance of recognition of health effects attributable to chlorphenoxy herbicides in Mr Drysdale's case when no actual objective physical, physiological or pathological abnormalities related to his subjective symptoms can be demonstrated over a period of more than 25 years.
Causation analysis is a formalised process with principles and methods within the advancements of scientific knowledge, and cannot advance beyond current scientific knowledge. The process must be rigorous and defensible. It is not a matter of personal opinion or personal experience in the absence of well-defined robust scientific methodology or evidence. The current set of criteria for the scientific basis of causation analysis include strength of association, consistency, specificity, time course, dose-response, biological plausibility, experimental association, analogy, confounders, and the coherence of evidence.
29 Professor Daly's 2012 Report is, essentially, a response to some comments made by Mr Drysdale.
30 In these circumstances, it is difficult to identify the questions which, under s 145A of the Act, were properly to be referred to a medical panel. There was no dispute about the symptoms, or the absence of objective physical abnormalities. The conflict of medical opinion was about whether the symptoms described by each of the doctors constituted an injury caused by exposure to herbicides.
The determination
31 The determination and reasons of the Panel are quite short, and can be reproduced in full. After reciting its constitution and the material before it, the determination states:
The Medical Assessment Panel determines as follows:
1. What is the nature and extent of the injury suffered by Mr Drysdale?
With respect to the exposure to herbicide sprays the Medical Assessment Panel determined that there was no evident disease process that would constitute an injury resulting from these compounds.
Justification:
• The worker's syndrome consists of a self-reported symptom complex, with no evident measurable alteration in biology, despite extensive and thorough investigation over a period of 17 years. Hence it was not possible to conclude an injury had occurred.
• The Panel concurred with the expressed opinions of Professor Frank Daly, Dr Michael McComish, and Dr Jack Edelman. Namely that there was no evidence of a measurable disease process.
• The worker had not had a diagnosis that corresponded to the documented target conditions caused by the herbicide sprays as detailed in Professor Daly's report.
• The Panel did not concur with the reasoning and rationale contained within Dr Andrew Harper's report, which was the only conflicting opinion. Chiefly the assertion that the symptoms reported were sufficient to conclude that chemical injury had taken place. The panel was unanimously of the view that the presence of symptoms does not prove disease or injury in the absence of objective physical or biological abnormality and as such could not support Dr Harper's conclusions.
It was the opinion of the panel that given the determination expressed in 1 above, this question was not applicable.
3. What is Mr Drysdale capacity for work?
In relation to the herbicide sprays it was the opinion of the panel that there ought to be no reduction in work ability.
It was noted by the panel that the worker had not worked for 25 years after being approved for a disability pension in 1988. This followed surgery in 1987 to attempt to correct a complication of previous significant traumatic injuries. The panel acknowledged that at the age of 68 and given the above factors, the worker was likely to have limited capacity to work. It was also acknowledged by the Panel that these factors did not relate to the herbicide sprays.
The application for review
32 Section 145E(9) of the Act, on its face, excludes judicial review. That may be effective to exclude review for non-jurisdictional error of law: see Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 [100]. But the power of the court to make an order of certiorari for jurisdictional error is entrenched by the Commonwealth Constitution: Kirk v Industrial Relations Commission [98]; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 [26]. In effect, to obtain relief on any ground the applicant must demonstrate jurisdictional error.
Ground 1
33 In the absence of a clear legislative intention to the contrary, a statutory power must be exercised with procedural fairness to a party whose interests might be adversely affected by its exercise. The Act does not disclose any intention to exclude the requirements of natural justice. The requirements of natural justice include the bias rule which forbids those making decisions which are subject to the rules of natural justice from being actually biased, or from appearing to be so. Where a tribunal is affected by bias, there is a failure to exercise jurisdiction and certiorari will lie to quash a purported determination.
34 The first ground of review is apprehended bias. Mr Drysdale did not argue for the extreme, and unsupportable, view expressed in his solicitor's letter of 14 June 2013. The ground pursued is based upon association, because the Panel included two medical practitioners who were (or had been) co-workers of Professor Daly.
35 On the affidavit material, admitted without objection, the following is not in dispute:
1. Professor Daly and Dr McCoubrie have co-authored several publications, including a Toxicology Handbook;
2. Dr Hoggett is also a co-author of the Toxicology Handbook;
3. Since December 2011, Professor Daly has been the Executive Director of the Royal Perth Group of Hospitals and has not participated in clinical practice in toxicology since then;
4. Professor Daly was Acting Chief Executive South Metropolitan Health Service, and he has no clinical practice; and
6. Professor Daly had no contact with any of the Panel members regarding the Drysdale case, and was unaware they had been on the Panel.
36 The contents of the Toxicology Handbook are not described, nor the nature of the co-authorship. The other joint publications are on topics related to poisoning by paracetamol, the ingestion of tablets by a toddler, and ingestion of stimulant drugs.
37 The general test for apprehended bias is whether a hypothetical fair-minded person who is properly informed as to:
(a) the statutory context and decision-making structure;
(b) the matters to be decided; and
(c) the objective facts which are material to the allegation of apprehended bias,
might reasonably apprehend that the decision-maker might not bring an independent and impartial mind to the resolution of the decision he or she is required to make: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 [27] - [29]; Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [273].
38 To succeed in relation to ground 1 the applicant needs to identify what it is that might lead to the members of the Panel to decide the case other than on its merits, and articulate the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 [8]; Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [274]. In Ebner, the majority said:
The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed [8].
39 The applicant relies upon the association between the Panel members and the witness (Professor Daly). He submits that it is a close working relationship and that Professor Daly is in a position of authority with respect to the two Panel members. This association, the applicant submits, clearly destroys the appearance of impartiality.
40 The question was referred to the Panel because of the conflict of medical opinion between Dr Harper and Professor Daly (among others). But the role of the panel is investigative, rather than adjudicative. It is to arrive at its own assessment, rather than determine which of the opinions in conflict is right. Had the matter proceeded as contemplated by the Act, the Panel would have questioned and examined Mr Drysdale, together with any relevant documents and medical reports, and determined the answer to the questions referred by the arbitrator based upon that examination.
41 Because Mr Drysdale refused to attend before the Panel and be examined, the determination became a review of the medical reports, including the conflicting reports of Professor Daly and Dr Harper. But neither Professor Daly nor Dr Harper appears as a witness before the Panel. Professor Daly's credit is not in issue. He has no interest in the outcome of the workers' compensation claim.
42 The applicant relies on the assertion that Professor Daly and the two Panel members had a 'close working relationship'. That is not sufficient, in my opinion, to establish an apprehension of bias. Their association as co-workers (to the extent it is revealed in the evidence) is not related to the particular questions before the Panel. There is no evidence that the role now occupied by Professor Daly puts him in a position of authority over the Panel members as hospital employees, and provides no basis to suggest that he has any authority over them as Panel members. And there is no basis in the evidence to conclude that a medical practitioner might be influenced in his or her assessment of the three questions posed in s 210 of the Act by association with a colleague who had expressed a view, except to the extent that a competent professional would have regard to the opinion of his or her peers.
43 Because I am not satisfied bias has been shown, I do not need to determine the alternative argument put by the respondent based on necessity: that is, the principle that ensures that a court or tribunal is not to be disabled from performing its statutory functions, so that a member who has some interest may sit in a matter when no member without such an interest is available to sit.
44 The evidence on that issue was not convincing. In particular, I am not satisfied that the respondent could establish necessity by reference to the limited pool of specialist toxicologists in Perth, when the qualification for panel membership was not confined to medical practitioners who are resident in Western Australia.
Ground 2
45 The evidence in relation to this ground is found in the determination itself. In relation to question 1, the Panel determined:
1. What is the nature and extent of the injury suffered by Mr Drysdale?
With respect to the exposure to herbicide sprays the medical assessment panel determined that there was no evident disease process that would constitute an injury resulting from these compounds.
46 There is, however, some background that helps in understanding the terms of the determination. The claim was for weekly earnings as a result of Mr Drysdale's exposure to herbicide chemicals. That was not the only injury he had suffered. His history included surgery in 1987 to correct a complication of previous significant traumatic injuries. The qualification in question 1 may be read as excluding those traumatic injuries which were not the subject of the application.
47 A medical assessment panel may not determine a question of causation. Issues of causation are not issues as to the nature or extent of the disability and are beyond power: Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395, 399; Ex parte Forward [1998] WASCA 340; CSR Ltd v The Medical Panel (Unreported, WASCA, Library No 9097, 11 October 1991) 8 - 10 (Franklyn J); Fremantle Foundry and Engineering Co Pty Ltd v The Medical Panel (Unreported, WASCA, Library No 9200, 17 December 1991); Re Hales; Ex parte Barr [2001] WASCA 89. 'To the extent that the panel purports to deal with causation, in the sense of determining causation, the determination exceeds the jurisdiction of the panel and is of no legal effect': United Construction Pty Ltd v Maketic [2003] WASCA 138 [38], [42].
48 A panel may properly, in making its determination on a referred question, refer to and consider matters of causation. In Andreassen v Rural West Pty Ltd [2007] WASCA 265 [12] - [13], the Court of Appeal said:
It is submitted that the Panel is precluded from considering questions of causation. That is not the law. It is no part of the Panel's task to determine questions of causation, when it is asked to assess the degree of a worker's disability. However, on occasion, it will not be possible to determine whether a disability exists at all, or whether the disability is permanent, without ascertaining how the disability arose. In Bloomfield v Liebherr [2007] WASCA 154, for example, there was a question as to whether the applicant's cognitive problems and skin disorder in that case were or were not permanent. It seems to have been accepted that if those conditions arose from poisoning or chemical injury, they would be permanent, but if they stemmed from other causes, they would not. It was necessary to consider causation before the question of permanency could be decided.
In the present case, the Panel was considering the question of whether the applicant's loss of libido was permanent. If it stemmed from the use of Methadone, which he was able to cease, then it was plainly not permanent. The Panel addressed the correct question - whether the disability was permanent - and considered causation issues only as a step in the process of reasoning in relation to that question. There was therefore no error in that respect.
49 The Panel in this matter determined that 'there was no evident disease process that would constitute an injury resulting from these [herbicide sprays]'. That is not a determination of the nature and extent of Mr Drysdale's injury. To put it in terms of s 5 of the Act, the Panel has determined that Mr Drysdale does not have a disease to which his employment was a contributing factor.
50 Whether a disease was contracted in the course of employment and whether it is a disease to which the employment was a contributing factor are questions that the arbitrator must decide. On the determination made, the arbitrator could arrive at no other decision than that Mr Drysdale had not suffered an injury in the course of his employment by exposure to herbicides, and his claim must be dismissed. Any court or tribunal hearing a matter in which such a determination is relevant would be bound by the determination that he had not suffered an injury as defined.
51 The question of severance in relation to the determination on question 1 was not argued. I am not satisfied that any part of that determination could be retained. The determination of the Panel on question 2 directly relies on the answer to question 1. Question 3 appears to relate only to Mr Drysdale's current work capacity and it is unnecessary to consider it further - particularly given his age.
52 For these reasons, I would quash the determination on questions 1 and 2.
Ground 3
53 The reasoning of the Panel is brief, but in circumstances where Mr Drysdale had not attended before the Panel, the only information before it lay in the documents referred to it. The reasoning process, in my opinion, is relatively clear:
1. The worker's syndrome consists of self-reported symptom complex, with no evident measurable alteration in biology despite extensive and thorough investigation over a period of 17 years.
2. There is no evidence of a measureable disease process.
3. The worker has not had a diagnosis that corresponds to a documented condition caused by the herbicide sprays.
4. The presence of symptoms does not prove disease or injury in the absence of objective physical or biological abnormality and the reasoning in Dr Harper's report was not accepted.
54 There are many cases where the courts have determined the adequacy of the reasons given by a medical assessment panel. The principles are summarised in Re Knezevic; Ex parte Carter [2005] WASCA 139 [22] - [32].
55 In general, the extent and content of the reasons required to be given will necessarily depend upon the circumstances of a particular case, including the material before the panel and the nature of any conflict in the medical reports. In considering whether a reasoning process is adequately disclosed, regard is to be had to the reasons as a whole, in the context of the evidence, and include what is expressly stated and also what can reasonably be inferred.
56 In the present case it is reasonably clear how the Panel resolved the conflict in medical opinion. It regarded the presence of some objective changes as necessary to establish that there was a disease process.
57 There is also a threshold issue in relation to this ground. In 2004, the Parliament enacted s 145E(9) of the Act. Its effect is to confine judicial review by excluding review other than for jurisdictional error.
58 Failure to give adequate reasons is an error of law. Whether it amounts to jurisdictional error, or a non-jurisdictional error of law, depends upon the proper construction of the Act under which the decision is made, and whether that Act discloses an intention that the effect of such an error is to invalidate the determination of the panel: see Seiffert v The Prisoners Review Board [2011] WASCA 148; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112.
59 Relevantly, for the reasons of a panel under the Act:
1. There is nothing in the Act, or in a statute of general application in Western Australia, prescribing the contents of reasons.
2. The obligation to give reasons in writing is express: s 145E(3).
3. The panel is constituted by medical practitioners.
4. If the panel is not in unanimous agreement, the question is to be determined in accordance with the opinion of at least two members: s 145E(1); there is no provision for any dissenting reasons.
5. The determination is to be made as soon as practicable after the examination of the applicant.
6. The determination is conclusive evidence as to the matters determined.
7. There is no appeal or judicial review.
8. A determination is not to be vitiated because of any informality or want of form: s 145E(8).
60 The question whether inadequacy of reasons, in itself, is a jurisdictional error under the Act is not, so far as I am aware, subject to any authority binding me. There is one decision of a single judge of this court, Sedden v Medical Assessment Panel [No 2] [2012] WASC 1, where Edelman J accepted as a concession properly made that a failure to give adequate reasons would be a jurisdictional error [55]. It does not appear that the question was argued at all before his Honour, and he was not referred to the decision in Seiffert.
61 More recently, in relation to the Victorian legislation, the High Court considered the adequacy of reasons. There was, in that case, no exclusion of review for error of law in the face of the record and it was unnecessary for the court to determine whether that error might also be jurisdictional: see Wingfoot.
62 My preferred view is that the Act does not make adequacy of reasons a condition for the determination of the panel to be within jurisdiction. But because this application can be disposed of without expressing a concluded view on whether review still lies for inadequate reasons I am reluctant to do so, particularly when another judge has suggested a contrary view. That is not to say that inadequate reasons may not, in their terms, disclose some other jurisdictional error.
63 In my opinion the reasons in this case, whether adequate or inadequate, do disclose error in purporting to determine a matter outside the power of the panel. But the determination of whether adequacy of reasons, in itself, will ground judicial review of decision of a medical assessment panel should be determined on another occasion, and preferably by the Court of Appeal.
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