Marilyn Heather Gavranovic v Medical Assessment Tribunal
[1999] QSC 223
•30 July 1999
IN THE SUPREME COURT
OF QUEENSLAND
No. 3745 of 1998
Brisbane
Before Williams J
[Marilyn Heather Gavranovic v Medical Assessment Tribunal]
BETWEEN:
MARILYN HEATHER GAVRANOVIC
Applicant
AND:
SHIRLEY JOY COGHLAN, LEONARD NEVILLE YOUNG AND
JAMES ANTONY as members of the General Medical Assessment Tribunal
Respondents
CATCHWORDS: ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Powers - Abuse of Discretionary Power - Consideration of Irrelevant Matter or Refusal to Consider Relevant Matter - specific reference to compromise and medical reports - court not concerned with merits review - not entitled to review weight Tribunal attached to reports.
Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36; Concord Data Solutions Pty Ltd v Director-General of Education (1994) 1 Qd R 343 at 346-7, referred to.
ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Powers - Abuse of Discretionary Power - Consideration of Irrelevant Matter or Refusal to Consider Relevant Matter - whether applicant’s medical history relevant to determination - whether this matter materially influenced decision.
ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Powers -Abuse of Power - whether 1995 compromise left open the question of on-going incapacity - compromise only amounted to an acceptance of applicant’s incapacity for initial 9 month period - whether Tribunal incorrectly considered whether applicant was suffering from a “symptomatic organic medical condition”.
Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259, considered.
Workers Compensation Act s 171(1)(b), referred to.ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Powers -Abuse of Power - Error of Law - whether Tribunal in 1998 adopted the error of reasoning which may be found in 1995 decision - whether Tribunal incorrectly concentrated on whether there was a basis to depart from 1995 decision - Tribunal applied correct test - determined whether applicant was suffering from a permanent or partial incapacity as a result of her work in 1993 - 1995 compromise not determinative - error of law should not lightly be inferred if it is not obvious in the reasons.
Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259, considered.
Workers Compensation Act 1990 s. 171(1)(a), s. 171(1)(b), s. 171(3)(b) & s. 179, referred to.
Counsel: Mr S Keim for the Applicant
Mr G Gibson QC with Mr S McLeod for the Respondents
Solicitors:Macrossans Lawyers for the Applicant
Bradley & Co Lawyers for the Respondents
Hearing Date: 30th July 1999
JUDGMENT - WILLIAMS J
Judgment delivered 17th day of September 1999
1. The appellant, pursuant to the Judicial Review Act 1991, seeks a review of the decision of the respondents as members of the General Medical Assessment Tribunal constituted pursuant to the provisions of the Workers’ Compensation Act 1990 (WC Act). The specific decision in question was contained in a Statement of Reasons dated 26 March 1998.
2. The applicant worked as a teacher at the North Rockhampton High School in 1991 and 1992. She ceased work on 7 January 1993, and has not worked since then.
3. The medical condition, which she alleges she has suffered from since early 1993, has been described as neurasthenia or chronic fatigue syndrome. She lodged a claim for Workers’ Compensation on 3 May 1994 and medical certificates referring to neurasthenia and chronic fatigue syndrome were submitted to the Workers’ Compensation Board. The Board waived reliance on the application being out of time and dealt with it on the merits.
4. In a report to the Workers’ Compensation Board dated 24 June 1994 Dr J M Bradfield, a neuro-physician, expressed the opinion that the applicant’s symptoms fit into “the so-called chronic fatigue syndrome” but he did not consider that the “syndrome has an organic basis and [I] remain of the opinion that psychological factors and the psychodynamic make-up of the patient are important in its precipitation and perpetuation”. He went on to say that he “would not be of the opinion that there is any relationship between the condition and her employment”. Dr C J Alroe, a consultant psychiatrist, reported to the Board on 22 July 1994. He made a diagnosis of neurasthenia. He then went on to say: “I do not know of any cases of Chronic Fatigue Syndrome that have been brought on by work related problems. Work stress may have exacerbated some of the features of the problem but this would normally have little relationship and certainly even if it did it could no longer be a factor.” The Board also had other medical reports available to it.
5. The application for workers’ compensation was rejected on 11 August 1994; the reason given was that the injury was not regarded as work-related. Thereafter, in accordance with the provisions of the WC Act, the applicant lodged an appeal to the Industrial Magistrates Court. Before that appeal was heard the Board and the applicant reached an agreed compromise on 6 June 1995; the compromise was in the following terms:
“1.That the Workers’ Compensation Board has accepted the claim on the basis of the medical certificates already provided to the Board;
2.That the Board has agreed to pay compensation to the Applicant for the first nine months of her incapacity for work from 27 January 1993 to 27 October 1993;
3.That the Applicant refund to the Government Superannuation Office the amount of the Temporary Disablement Benefit paid to her during the above mentioned period;
4.That the Board pay at its scheduled rates the medical expenses incurred by the Applicant in relation to her compensable condition as from 27 January 1993 to the date of finalisation of her claim and the Applicant will provide any further medical certification as soon as possible;
5.That the Applicant’s claim will be referred to the General Medical Assessment Tribunal for a determination of the degree of any permanent partial disability sustained by the Applicant due to her compensable condition as a matter of priority;
6.That the Board will pay the Applicant’s party and party professional costs agreed at $1,532 and reasonable non-medical outlays (including the travelling costs already incurred to arrange Dr John Whiting to appear on hearing if these costs cannot be fully avoided);
7.That the Board will pay as part of the Applicant’s party and party disbursements the cost of obtaining the medical report from Dr Whiting and will consider payment of a reasonable amount of costs in relation to the time set aside by Dr Whiting for his attendance at court.”
6. It can readily be seen that the agreement reached was a true compromise, each side giving and taking something. Paragraphs 1 and 2 indicate that the Board accepted that the applicant had sustained an injury which was work related, and that such injury incapacitated the applicant for work for the nine month period from 27 January 1993. [There is an error in paragraph 1 (ca)(iii) of the Amended Application for Review where the period is said to be six months; paragraph 16(b) of the affidavit of the applicant filed 9 September 1998 says nine months and that accords with the dates alleged]. By paragraph 4 the Board also agreed to pay the applicant’s medical expenses “to the date of finalisation of her claim”. Given paragraph 5, that date would appear to be the date of the determination by the General Medical Assessment Tribunal, which was to determine the degree “of any permanent partial disability ... due to her compensable condition”.
7. Just looking at the terms of the compromise, it would appear that the applicant was entitled to weekly compensation for nine months, payment of medical expenses incurred in relation to the compensable condition from 27 January 1993 to the date of the tribunal’s determination, and such amount as may be payable if the tribunal found that there was some further ongoing disability or incapacity occasioned by her compensable condition. In the circumstances I do not consider that the Board was admitting any incapacity for work beyond the initial nine month period by its agreeing to pay medical expenses incurred up to a later point in time. That was part of the compromise worked out between the parties. It was for the tribunal to determine “the degree of any permanent partial disability sustained by the Applicant due to her compensable condition”, that is any disability (or incapacity to work) existing beyond the initial nine month period referred to. The inclusion of the word “any” is of significance.
8. The reference to the tribunal was clearly to be pursuant to s.171 of the W C Act, which relevantly provides:
“1.The general manager may refer to the appropriate tribunal -
(a)any claim for compensation under this Act made in respect of an alleged injury; and
(b)the matter of the fitness for work of a worker whose claim for compensation under this Act has been allowed.
...
(3)On a reference to it under subsection (1)(a) -
(a)if the general manager has not admitted that an injury has been suffered by a worker to whom the claim relates, and the nature of the injury - the tribunal is to determine -
(i)whether the matters alleged in the claim constitute an injury to the worker to whom the claim relates and, if so, the nature thereof; and
(ii)whether any incapacity for work resulting from the injury -
(A)is total or partial; and
(B)is permanent or temporary; and
(iii)if the Tribunal determines that the worker has suffered an injury under the table of injuries resulting in permanent impairment and the general manager asks - the nature and extent of the impairment; and
(b)in any other case - the tribunal is to determine -
(i)whether any incapacity for work resulting from the injury -
(A)is total or partial; and
(B)is permanent or temporary; and
(ii)if the worker has suffered an injury under the table of injuries resulting in permanent impairment - the nature and extent of the impairment.”
9. In accordance with that section the general manager of the Board referred the claim to the General Medical Assessment Tribunal (medical) on 29 August 1995. That tribunal made its determination in writing also bearing that date. The tribunal set out the questions for its determination as being:
“1.Whether any incapacity for work resulting from the injury is total or partial.
2.Whether any incapacity is permanent or temporary.
3.And, if the Worker has suffered a permanent partial disability resulting from the injury:
(a)The nature and
(b)The extent of that disability.”
10. Clearly the tribunal there stated the questions which derive from a reference pursuant to s.171(3)(b).
11. Dr J L Whiting had by then given a lengthy report on the applicant’s medical status to the applicant’s solicitors dated 31 January 1995, and a copy of that was submitted to the Board. He considered that sleep deprivation played a key role in the development of the applicant’s chronic fatigue syndrome. In his report he said: “Ms Gavranovic developed behaviourally-induced sleep deprivation during the course of her work in preparing her teaching program over an 18 month period, beginning in mid-1991, which subsequently has developed into a self-perpetuating, autonomous sleep disorder as evidenced both by her sleep symptoms since the onset of her illness and also by the very diagnosis of her having a chronic fatigue disorder and more especially one of fibromyalgia. It is my opinion that Ms Gavranovic would not have developed these disturbances in sleep were it nor for the workload she was responsible for between mid-1991 and late 1992, which resulted in the necessity for her to voluntarily curtail her number of hours of sleep in order to meet the demands of this workload. ... I believe that as she continued to work despite her symptoms, she therefore may inadvertently have aggravated her condition ... .”
12. The reasons for the determination of the tribunal contain a list of the various medical reports and statements to which it had regard; that included Dr Whiting’s report. The full claim file was available. The tribunal also heard representations from the solicitor acting for the applicant, and conducted “a clinical examination” of the applicant.
13. The findings of the tribunal were stated as follows:
“The Tribunal determined that the incapacity for work resulting from the injury is nil.
The claimant is a 42 year old teacher. Following obtaining her qualifications in this field the Claimant studied and worked for some time in the area of natural therapy before returning to teaching in 1985. Following the development of symptoms consistent with sub acute thyroiditis, the Claimant was absent from work for two years in 1988 and 1989 and at that time a diagnosis of adjustment disorder was made.
The Claimant then felt fully recovered and returned to teaching as a Resource Teacher in Remedial Teaching. In 1991 she undertook further work in a Human Relationships Program and towards the end of 1992 she relieved the Head of Department who went on leave.
During the early part of 1992 the Claimant developed symptoms particularly of fatigue. This caused her to cease her recreational activities and in due course to cease work when a diagnosis of chronic fatigue syndrome was offered.
The Claimant has not returned to work since ceasing early in 1993. She said at the Tribunal hearing that essentially her condition remained unchanged. She complains of fatigue, headaches, mood swings, intolerance of light and noise and poor concentration.
The Claimant remains underweight with solar pigmentation. There is a small thyroid nodule but no other abnormality on clinical examination and according to medical reports there has been no significant recognised abnormality found on investigation.
In the opinion of the Members of the Tribunal the Claimant has no symptomatic organic medical condition.”
14. When the tribunal findings are read with the terms of the compromise it follows that the applicant was entitled to nothing more than the nine months compensation provided for by paragraph 2 of the compromise, and payment of her medical expenses incurred in relation to her condition from 27 January 1993 to 29 August 1995. A consequence of the tribunal finding was that at least as and from 29 August 1995, and impliedly as and from October 1993, the applicant was not incapacitated for work either permanently or temporarily.
15. It was submitted on behalf of the applicant that the referral should have been pursuant to s.171(1)(b) and not s.171(1)(a) because of the acceptance by the compromise of the fact that the applicant had a compensable condition which was work related. That submission must be rejected. Subsection (3) makes it clear that the reference pursuant to s.171(1)(a) may be made whether there has been an admission by the general manager that the worker has sustained an injury or not; subsection (3)(a) applies where there has not been such an admission and subsection (3)(b) applies where there has been such an admission. Clearly the latter applied here and, as already noted, the tribunal directed its mind to the appropriate questions.
16. Section 179 of the W C Act provides that where a claimant for compensation within 12 months after a tribunal determination produces “factual medical data not known in relation to the complainant at the time of such determination” the general manager may again refer the claim “to the appropriate tribunal for further determination”. Subject to that, s.180 provides that a tribunal determination is “final”.
17. The question whether or not there is fresh medical evidence calling for further determination by the tribunal is to be decided in accordance with s.179(2) of the W C Act. When the WorkCover Queensland Act 1996 came into force those persons responsible for making the decision pursuant to s.179(2) of the W C Act became known as the “review panel” (s.454 of the 1996 Act).
18. The applicant submitted to the Board a further report from Dr Whiting dated 31 January 1996 and asked that it be treated as fresh medical evidence pursuant to s.179. The matter was referred to a “review panel” which gave a decision on 25 March 1996. In its written decision of that date the “review panel” held that the “material presented does not constitute medical evidence not known to the Tribunal at the time of its determination on 29 August 1995".
19. Then the applicant submitted a further report from Dr Whiting dated 15 April 1996. It is not clear from the material before this court that a “review panel” gave further consideration to the matter but on 11 December 1996 the general manager of the Board again referred the applicant’s claim under s.171 to a tribunal; on this occasion it was a psychiatric tribunal.
20. In its written determination that tribunal set out the questions for its determination as follows:
“1.Whether the Claimant’s incapacity for work is the result of an injury within the meaning of the Act, and, if so;
2.The nature of the injury; and
3.Whether any incapacity for work resulting from the injury is total or partial.
4.Whether such incapacity is permanent or temporary.
5.And, if the Worker has suffered a permanent partial disability resulting from the injury:
(a)The nature; and
(b)The extent of that disability.”
21. It will be seen that on this occasion the Tribunal added question 1, which is more in keeping with a reference pursuant to s.171(3)(a) than a reference pursuant to s.171(3)(b). The explanation may possibly be that this tribunal was considering whether or not there was any injury of a psychiatric nature which went beyond what had been admitted in the compromise.
22. On 11 December 1996 that tribunal heard representations on behalf of the applicant from her solicitor, conducted a clinical examination of the applicant, and had regard to the numerous medical reports detailed in its determination.
23. The first paragraph of that tribunal’s determination is as follows: “The Tribunal determined that the Claimant’s incapacity for work is not the result of an injury within the meaning of the Act.” It may well be that finding related to an injury of a psychiatric nature. It is not necessary to set out in these reasons the other five paragraphs of the decision of 11 December 1996; if anything they indicate that tribunal was focussing on psychiatric aspects of the case.
24. The applicant then submitted to the Board a number of medical reports in 1997 and early 1998. A “review panel” apparently indicated that the test prescribed by s.179 had been satisfied and in consequence the general manager again referred for determination by a medical tribunal the questions:
“(1)Whether any incapacity for work resulting from the injury is total or partial;
(2)Whether any incapacity is permanent or temporary;
(3)And, if the worker has suffered a permanent partial disability resulting from the injury:
(a)The nature; and
(b)The extent of that disability.”
25. Those questions were considered by a medical tribunal on 24 March 1998 and it is that decision which is the subject of this review application.
26. On this occasion the tribunal had before it the full workers’ compensation file, heard representations from the solicitor for the applicant, and carried out a “clinical examination”. The determination referred to 27 medical reports, including 6 from Dr Whiting. The reasons for decision were as follows:
“The Tribunal determined that the incapacity for work resulting from the injury is nil.
Ms Gavranovic worked as a research teacher and support teacher until February 1993 when she ceased work in this capacity and has not returned. At that stage a diagnosis of Chronic Fatigue Syndrome had been made. Her problems had developed in 1991 and 1992 when she was working full-time and said that the excessive amount of work and overtime complicated by infections had resulted in severe sleep problems and deprivation and this led to deterioration in her health. She developed many symptoms which fitted into the pattern of so called Chronic Fatigue Syndrome. She started attending Dr Whiting in mid 1993 and has continued under his guidance and she continues to see him on a 3 monthly basis. In 1993 and 1994 there were a series of personal problems following which she was started on Aropax to help her and she has continued to take this in a therapeutic dose since. She said the Aropax had helped her cope with some of the stress but her symptoms of muscle aches, fatigue, headaches and impaired cognitive capacity had persisted. She had learnt to cope with these problems and currently lived a restricted life style with her son. She stated that she manages her 4 acre block growing trees and some gardening and looking after the general work at home but continues to need long rest periods. She drives to Rockhampton once a week for social and business purposes and is exhausted for a couple of days on return. Prior to 1991 she led a very active lifestyle both physically and mentally but felt the excessive demands placed on her and the flu-like symptoms led to her current problems. The Medical Tribunal in 1995 rejected her claim but on appeal to the Industrial Magistrate the claim was allowed and she was paid full compensation for a period of 9 months and compensation for medical expenses for a further 19 months. In recent times she has had a MRI Scan performed which shows non specific changes the significance of which is uncertain and the relation to organic pathology is debatable. Dr Bradfield in his report at 3 March 1998 stated that in his opinion he would tend to consider the changes are long standing and not related to her present symptom complex. Dr McLaughlin in his report at 27 November 1997 indicated that many conditions could produce the changes as seen on the MRI.
At interview Ms Gavranovic emphasised her ongoing lethargy, cognitive impairment, muscle aches and pains. She was able to give a very lucid account of her health problems dating back over many years. Physical examination showed a thin woman. She had a thyroid nodule which is long term but no evidence of current thyroid dysfunction and no other significant physical abnormality. She states that she does some work around the house at home but avoids getting exhausted. She is able to read mainly ancient history and self help and attitudinal literature. She is able to help her son who is studying at high school with his homework and use a computer which she purchased after her retirement on permanent incapacity grounds on April of 1996.
The Tribunal assessed that the new evidence provided did not change the initial medical decision made in August 1995.”
27. There is a minor error in that reasoning. It suggests that the appeal to the Industrial Magistrate was from the medical tribunal decision of 1995; as outlined in these reasons that is not so. However, that error is of no consequence for present purposes.
28. By the amended application for a statutory order of review the applicant contends that the decision of 26 March 1998 was “an improper exercise of the power conferred” on the tribunal by reason of:
(a)the failure to take into account relevant considerations;
(b)the taking into account of irrelevant considerations;
(c)the said decision was an exercise of discretionary power that was so unreasonable that no reasonable person would have exercised the power in that manner;
(ca)the making of the decision constituted an exercise of the power in a way which otherwise constituted an abuse of the power.
29. Particulars were provided of each of those grounds. The particulars of the allegation that there was a failure to take into account relevant considerations are as follows:
“(i)In 1995, the then Workers’ Compensation Board of Queensland accepted the Applicant’s claim for workers compensation based on a diagnosis of chronic fatigue syndrome.
(ii)The opinion of Dr John Whiting that the medical condition incapacitating the Applicant has remained unchanged since 1995;
(iii)The opinion of Dr John Whiting that the Applicant had a genuine symptomatic organic medical condition;
(iv)The opinion of Dr John Whiting that the MRI scan findings show injuries that are irreversible;
(v)The opinion of Dr Dan McLaughlin that the MRI scan results are not inconsistent with Chronic Fatigue Syndrome.”
30. The particulars of the allegation that the tribunal took into account irrelevant considerations are as follows:
“(i)that there were certain personal problems of the Applicant which she had experienced in 1993 and 1994 prior to the acceptance of the Applicant’s claim for workers’ compensation;
(ii)relying on evidence that proposed that the Applicant was incapacitated for work by a medical condition other than the accepted work injury.”
31. The applicant then relied on all of the matters particularised above in support of the contention that the decision was so unreasonable that no reasonable person would have exercised the power in that manner.
32. A number of particulars were alleged in support of the final allegation that there was an exercise of power in a way which “otherwise constituted an abuse of the power”. The first particular alleged that the respondents failed to comprehend that their function pursuant to s.171(2)(b) of the W C Act [presumably intending to refer to refer to s.171(3)(b)] was to determine the nature and extent of an incapacity for work and permanent partial disability arising from an injury the existence and nature of which had been accepted by the Board. The second particular was a restatement in slightly different language of the first. Then the applicant set out fully the terms of the compromise of 6 June 1995 and alleged that the respondents failed to comprehend that by that compromise the Board had admitted that the applicant had suffered an injury (chronic fatigue syndrome) contracted in the course of employment and that their function was to determine the nature and extent of the incapacity for work and permanent partial disability resulting from that injury. It was then alleged that the respondents failure to comprehend their role led to a failure to assess the medical evidence before them appropriately. Next it was specifically alleged that the respondents failure to comprehend their function led to their restricting their consideration to the question whether evidence emerging since August 1995 necessitated reversing or altering the decision of the tribunal dated 29 August 1995. Finally, it was alleged that the respondents reliance on the decision of the tribunal of August 1995 led to them addressing the question whether the applicant had a “symptomatic organic medical condition” which was not related to their role pursuant to s.171(3)(b) of the W C Act.
33. I should formally record before proceeding further that it was agreed that the applicant’s case before the respondents, and the application before this court, fell to be determined in accordance with the provisions of the W C Act; that is made clear by s.551(2) of the WorkCover Queensland Act 1996. Because the W C Act preceded the Judicial Review Act s.18 of the latter Act operates, and the decision of the respondents is open to judicial review notwithstanding s.180 of the W C Act.
34. I am not satisfied on the material that the respondents failed to take into account in arriving at their decision relevant considerations as alleged in the particulars. There was an acknowledgement in the reasons that the applicant had been paid workers’ compensation for a nine month period and that is tantamount to acknowledging that the Board had accepted her claim to that extent. There is also specific reference in the tribunal’s reasons to Dr Whiting and Dr McLaughlin; their reports (as noted above) are listed in the material considered by the tribunal. In those circumstances I cannot conclude that the tribunal failed to have any regard to the opinions of Dr Whiting and Dr McLaughlin.
35. This court is not, of course, concerned with the merits of the decision; the weight which the tribunal attached to the opinions of those doctors is not something which can be reviewed by this court. ( Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 and Concord Data Solutions Pty Ltd v Director-General of Education (1994) 1 Qd R 343 at 346-7.) That is particularly so when it is remembered that the respondents were medical practitioners and carried out their own clinical examination of the applicant as part of the “hearing”.
36. For those reasons I am not satisfied that the applicant has established that the tribunal failed to take into account the relevant considerations particularised.
37. I am also not satisfied that the material establishes that the tribunal took into account irrelevant considerations as particularised. In stating the applicant’s medical history the respondents made passing mention in their reasons of the fact that she had “a series of personal problems” in 1993 and 1994. The question for the tribunal was whether or not at any time after October 1993 the applicant was incapacitated for work because of the injury which had been accepted by the Board as so incapacitating her during the period January to October 1993. The applicant’s medical history after October 1993 was clearly relevant to a determination of that issue.
38. Further, the reasons published by the respondents canvassed some aspects of the applicant’s medical problems over the years in question, but I cannot conclude therefrom that the tribunal was materially influenced by the proposition that the applicant may have been incapacitated for work by a medical condition other than that accepted by the Board in the 1995 compromise. As already noted, it was necessary for the tribunal to have regard to the whole of the applicant’s medical history up to the date of the determination in order for the tribunal to make a finding with respect to the questions posed for it.
39. The contention that the respondents’ decision was such that no reasonable person could have exercised the relevant power in the manner they did was dependent upon acceptance by this court of the submissions that either relevant considerations were ignored or irrelevant considerations taken into account. Those conditions of precedent have not been established, and in consequence there is no substance in the third ground relied upon.
40. That leaves the contention that there was an exercise of power in a way which “otherwise constituted an abuse of the power”; oral argument was primarily directed to this issue. Ultimately this argument came down to two points; firstly, the respondents failed to recognise the consequences of the 1995 compromise in determining the extent of any incapacity for work resulting therefrom; and secondly, that the respondents directed their minds to whether or not there was a change in circumstances from August 1995 rather than to the question whether the applicant had proved permanent or partial incapacity for work.
41. As already noted the terms of the compromise were such that it was for a tribunal to determine the “degree of any permanent or partial disability” sustained by the applicant. Properly construed the compromise amounted to no more than an acceptance by the Board of the fact that the applicant was incapacitated for work for the nine month period from January to October 1993. The task facing the respondents in March 1998 was a somewhat difficult one. They were looking at (including making a physical examination of) the applicant some five years after the critical events. They were able to make an assessment of the applicant’s then capacity to work in the light of her medical history over the intervening five year period. They came to the conclusion (and it is not for this court to say whether on the merits rightly or wrongly) that she was not permanently or partially incapacitated for work in a relevant sense. It was not sufficient for the applicant to show that in March 1998 she was then in such a medical condition that she was partially or permanently incapacitated for work; she had to establish that any such incapacity was related to her employment which ceased in January 1993 and the original injury admitted by the Board. The fact that the Board had, by the compromise, accepted that she was incapacitated for work from January to October 1993 in consequence of an injury sustained in the course of her employment prior to January 1993 was not determinative of that question. Given the reasons promulgated by the respondents for their decision in March 1998 I am unable to conclude that they erred in law in arriving at the conclusion that the applicant had no incapacity for work after October 1993 resulting from the injury accepted by the Board in the compromise.
42. The applicant argued that the only questions the general manager could have referred to a tribunal in the light of the compromise were the questions of the determination of the percentage incapacity and whether it was permanent or temporary. For the reasons already given that contention is rejected. The compromise did not involve acceptance by the Board of any on-going incapacity; that was expressly left to be determined by a tribunal.
43. Counsel also contended that in March 1998 the respondents should have dealt with the reference as one pursuant to s.171(1)(b) of the W C Act. That is rejected for the same reasons as that submission was not upheld with respect to the 1995 tribunal.
44. The respondents in their determination accurately set out the questions for their determination and answered them by the subsequent reasons delivered. It ought not lightly be inferred that there was some error of law not immediately obvious from a reading of those reasons. In Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 Brennan CJ, Toohey, McHugh and Gummow JJ said at 272: “the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.” To similar effect Kirby J in the same case said at 291: “The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb against the prospect that a verbal slip will be found warranting the inference of an error of law.”
45. It is true that in the very last sentence of their reasoning the respondents did say that the “new evidence” did not change the initial decision made by the tribunal in August 1995. The applicant contends that by so saying the respondents did not direct their mind to the real issue before them, but concentrated on whether or not there was some basis for departing from the August 1995 decision. That, to my mind, is but another instance of trawling through the reasons in an endeavour to find something favourable to the applicant. As already noted the respondents in March 1998 conducted a clinical examination of the applicant and they were obviously concerned with making an assessment of her medical condition and its relationship to her employment up to January 1993. They found that she had no relevant incapacity for work. Then they said in the very last lines of their reasons that they saw nothing to cause some change from the decision made in August 1995. That does not indicate that the only question they considered was whether or not there was a basis for departing from that earlier decision. The fact that in the very first sentence they answered the critical question is not without significance.
46. The applicant also contended that the August 1995 decision was flawed because that tribunal misdirected itself on an important issue. It is probably correct to say that it did not matter whether or not the applicant was suffering from a “symptomatic organic medical condition”; the question was whether or not the injury which the Board had accepted as incapacitating the applicant from work for the period January - October 1993 resulted in total or partial, permanent or temporary, incapacity for work after October 1993. That question was answered by the Board finding the applicant’s incapacity for work “resulting from the injury is nil”. The fact that the tribunal went on to make a further finding as to the applicant’s condition - she was not suffering from a “symptomatic organic medical condition” - does not mean that the decision was rendered erroneous.
47. The argument of the applicant was that the respondents by referring to the 1995 tribunal decision “adopted the errors” therein. That is not so. The “initial medical decision made in August 1995" was that the incapacity of the applicant for work resulting from the injury was nil. The respondents concluded that the applicant’s incapacity for work resulting from the injury was nil, and then observed that the “new evidence” was not such as to cause them to reach a different decision from that arrived at in August 1995.
48. Looked at in that way there was no adoption by the respondents of any error in reasoning which may be found in the 1995 determination. The respondents were exercising a wide discretion and they were entitled to consider previous tribunal determinations in conjunction with all the medical evidence, including their own clinical examination, in arriving at their decision.
49. It follows that even if there was some jurisdictional error in the tribunal’s determination of 11 December 1996 (answering a question not properly before it) that would not taint the subject decision with any error of law.
50. Having considered all of the material relied on by the applicant in support of her application I have come to the conclusion that in essence she is seeking a merits review. I am not satisfied that she has established any error of law on the part of the respondents in dealing with the matter such as would enable this court to set aside the decision of the respondents.
51. The application should be dismissed with costs.
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