Finemores Pty Ltd v BRANDERHORST
[2002] WASCA 155
•13 JUNE 2002
FINEMORES PTY LTD -v- BRANDERHORST [2002] WASCA 155
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 155 | |
| THE FULL COURT (WA) | 13/06/2002 | ||
| Case No: | CIV:1488/2002 | 22 MAY 2002 | |
| Coram: | MURRAY J McKECHNIE J McLURE J | 22/05/02 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | FINEMORES PTY LTD RICHARD BRANDERHORST |
Catchwords: | Workers' compensation Assessment of degree of disability by review officer Employment of averaging process to reconcile differing medical opinions Adequacy of reasons for decision |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 (WA) |
Case References: | Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Innovative Pre-Cast Systems v Kulenovic CM 156/00 McNair v Press (1997) 17 WAR 171 Mifsud v Campbell (1991) 21 NSWLR 725 Palazzolo v Brown & Ors [2002] WASCA 49 Re Gillett & Ors; Ex parte Rusich [2001] WASCA 111 Re Monger; Ex parte Dutch [2001] WASCA 220 Re Monger; Ex parte WMC Resources Ltd & Anor [2002] WASCA 129 Roman Catholic Bishop of Broome v Watson [2002] WASCA 7 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 181 ALR 307 Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 Summit Homes v Lucev (1996) 16 WAR 566 X v Commonwealth (1999) 200 CLR 177 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : FINEMORES PTY LTD -v- BRANDERHORST [2002] WASCA 155 CORAM : MURRAY J
- McKECHNIE J
McLURE J
- Applicant
AND
RICHARD BRANDERHORST
Respondent
Catchwords:
Workers' compensation - Assessment of degree of disability by review officer - Employment of averaging process to reconcile differing medical opinions - Adequacy of reasons for decision
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA)
(Page 2)
Result:
Application for leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : Mr D W Williams
Respondent : No appearance
Solicitors:
Applicant : McAuliffe Williams & Partners
Respondent : No appearance
Case(s) referred to in judgment(s):
Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40
Case(s) also cited:
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Innovative Pre-Cast Systems v Kulenovic CM 156/00
McNair v Press (1997) 17 WAR 171
Mifsud v Campbell (1991) 21 NSWLR 725
Palazzolo v Brown & Ors [2002] WASCA 49
Re Gillett & Ors; Ex parte Rusich [2001] WASCA 111
Re Monger; Ex parte Dutch [2001] WASCA 220
Re Monger; Ex parte WMC Resources Ltd & Anor [2002] WASCA 129
Roman Catholic Bishop of Broome v Watson [2002] WASCA 7
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 181 ALR 307
Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247
Summit Homes v Lucev (1996) 16 WAR 566
X v Commonwealth (1999) 200 CLR 177
(Page 3)
1 JUDGMENT OF THE COURT: This was an unsuccessful application for leave to appeal against a decision of a compensation magistrate's court on a question of law. We refused leave after hearing argument and these are our reasons for that conclusion.
2 In Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40 at 54 – 7, Malcolm CJ, with whom Rowland and Walsh JJ agreed, discussed the principles which will generally guide this Court in the exercise of its discretion whether to grant or refuse leave. The decision is made against the background that the purpose of requiring leave to appeal is to reduce, so far as possible, appeals from inferior courts or tribunals. Hence leave will only be granted, generally speaking, where it can be shown that the decision of the court below is wrong or at least attended with sufficient doubt to justify the grant of leave and in addition that substantial injustice would be done by leaving the decision unreversed. In our opinion, this applicant's case did not satisfy either limb of that general test.
3 The case came before the Compensation Magistrate, Mr Brown SM, on appeal under s 84ZN of the Workers' Compensation and Rehabilitation Act 1981 (WA) against the decision of a review officer to whom had been referred, under s 93D(10), the question of the degree of disability of the respondent for the purposes of the Act. The review officer determined that the relevant level of the respondent's disability is not less than 30 per cent. Reasons were given for that determination, presumably on the request of a party, under s 84ZI. Those reasons were required to include the findings of fact made by the review officer and "the reasons for the officer's decision".
4 In passing we note that the determination was expressed in terms appropriate to the Act, s 93E(3)(a) which permits the award of damages to a worker at common law if "it is agreed or determined that the degree of disability is not less than 30 per cent". In that event, the worker is not required to make an election to retain the right to seek damages at common law and the making of the award of damages is not subject to the restrictions set out in s 93F.
5 Brown SM dismissed the applicant's appeal. The application for leave to appeal to this Court was brought upon grounds which are set out at some length in the draft notice of appeal. We do not propose to repeat them verbatim. In summary, it is alleged that Brown SM erred in law in finding that a review officer may utilise a process of averaging different medical assessments of the degree of disability in determining the relevant
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- level of disability. The argument is that merely to average various medical opinions as to the degree of disability is to make no determination of what that degree of disability is in fact. If that is all that occurred, we think that argument is sound. The obligation imposed upon the review officer, put broadly, is to review a dispute referred to him, make the necessary findings of fact and give his decision upon the dispute, providing reasons for that decision if required. Under s 84ZF the decision may be embodied in an order made in terms appropriate to give effect to it.
6 The other grounds of appeal are dependent upon that mentioned above. In them the point is made that there was a considerable divergence between the three medical opinions provided to the review officer and it was incumbent upon the review officer to make a decision about the relevant level of the degree of disability, having regard to those opinions and their worth, and to give adequate reasons for the decision ultimately made.
7 The Compensation Magistrate concluded that the review officer adequately explained in his reasons that he accepted the evidence of the respondent and he reviewed and noted the opinions variously expressed by three medical practitioners upon one or more of whom the parties respectively relied. Those opinions were expressed in reports tendered in evidence before the review officer. None of the medical practitioners was required to attend for cross-examination. Neither party appears to have requested that under s 84ZD(3). Brown SM said it was evident from the fact that the case of each party and the evidence as a whole had been summarised that the review officer had "read, examined and considered all of that material." His Worship held that the review officer's reasons revealed no error of law in the failure to accept one body of medical evidence in preference to another. His Worship said that it was apparent that the review officer "accepted the evidence of all three medical reports" and he went on to explain that this was not a case, in his Worship's view, in which to make a determination of the relevant level of the degree of disability it was necessary to expressly accept one opinion and reject another.
8 The review officer's conclusions were briefly expressed. Referring to the three authors of medical reports he said:
"I observe that both Dr Faigenbaum and Dr Kennedy assessed the relevant disability of the worker to be not less than 30%. Mr Prosser assesses it at 28%. It would be open to me, taking
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- into account the proximity of these assessments, to find that on the balance of probability the relevant level of the worker's disability is not less than 30%. Alternatively, it is open to me to add all three assessments and strike an average. This again, would result in a finding of a relevant level of disability of not less than 30%."
9 In our opinion, it was open to Brown SM to conclude that what the review officer did was to have regard to all the evidence and to conclude on the balance of probabilities that the relevant level of the degree of disability was not less than 30 per cent. The review officer went on to say that he could arrive at the same result by a process of averaging the assessments derived from the opinions expressed by the medical practitioners, but his decision about the degree of disability did not depend on that process.
10 Brown SM considered that the review officer was right to say that it would be open to average the three assessments because they were relatively close. As we have said, in our view a decision which depended merely upon such a process would involve an error of law because the function of the review officer is to resolve the dispute by determining the relevant level of the degree of disability. To note that a number of opinions have been expressed about that by expert witnesses and to average the percentage assessments is a process which arrives at no conclusion as to what on the balance of probabilities the relevant level of the degree of disability is in fact.
11 The evidence was that the respondent, a road train truck driver, fell from a step of a truck while it was stationary and suffered injuries which were a broken right arm above and involving the elbow, injuries to the right shoulder, injuries to the neck and injuries to the lumbar region of his spine.
12 His orthopaedic surgeon was Mr Prosser. He expressed the opinion that having regard to s 93D of the Act, s 25 and the relevant items in Sch 2, being 13 in respect of the injuries to the right arm at and above the elbow, 36A with respect to the injury to the lumbar spine and 36B with respect to the injury to the cervical spine, the total permanent disability was 28 per cent, being 18 per cent for the right arm, 5 per cent for the lumbar spine and 5 per cent for the cervical spine.
13 The respondent was referred for assessment to Dr Kennedy, a musculoskeletal specialist physician and surgeon. His assessment of the
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- total permanent disability calculated in accordance with the statutory procedures was 40.2 per cent, being 27 per cent for the right arm, 7.2 per cent for the lumbar spine and 6 per cent for the cervical spine. Finally, the respondent relied upon the opinion of his general medical practitioner, Dr Faigenbaum, whose assessment, calculated in terms of the relevant statutory provisions, was 41.5 per cent, being 31.5 per cent for the right arm, 6 per cent for the lumbar spine and 4 per cent for the cervical spine.
14 The overwhelming preponderance of the evidence, having regard particularly to the opinions of Dr Kennedy and Dr Faigenbaum and their "proximity", as the review officer put it, well supported his conclusion that on the balance of probability, the relevant level of the worker's disability is not less than 30 per cent. In our opinion, while the reasons of the review officer upheld by Brown SM might have been more expansively expressed, they are adequate to expose the reasoning employed, which did not in truth involve the impugned process of averaging the assessments. If there are arguable inadequacies in the reasons, then in the circumstances of this case it is apparent that no substantial injustice will be occasioned by leaving the decision of the Compensation Magistrate unreversed.
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