Philip Brenton and Debbie Brenton t/a RAINBOWS End Salvage v Casey
[2006] WASCA 208
•12 OCTOBER 2006
PHILIP BRENTON and DEBBIE BRENTON t/a RAINBOWS END SALVAGE -v- CASEY [2006] WASCA 208
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 208 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:144/2005 | 5 SEPTEMBER 2006 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 12/10/06 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| B | |||
| PDF Version |
| Parties: | PHILIP BRENTON and DEBBIE BRENTON t/a RAINBOWS END SALVAGE JOHN CHARLES CASEY |
Catchwords: | Workers' compensation Medical Assessment Panel Inconsistent answers |
Legislation: | Workers Compensation and Injury Management Act 1981 (WA), s 93D(2), s 145 |
Case References: | Beer v Duracraft Pty Ltd [2004] WASCA 192 Re Croser; Ex parte Rutherford [2001] WASCA 422; (2001) 25 WAR 170 Clough Engineering v Thomas [2004] WASCA 36 United Construction Pty Ltd v Maketic [2003] WASCA 138 Warcon v Leighton Contractors Pty Ltd, unreported; CM 7/99 (Cockram PG); 1 June 1999 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PHILIP BRENTON and DEBBIE BRENTON t/a RAINBOWS END SALVAGE -v- CASEY [2006] WASCA 208 CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
- Appellant
AND
JOHN CHARLES CASEY
Respondent
ON APPEAL FROM:
Jurisdiction : COMPENSATION MAGISTRATE'S COURT
Coram : MS P M HOGAN CM
File No : CM 83 of 2005
Catchwords:
Workers' compensation - Medical Assessment Panel - Inconsistent answers
(Page 2)
Legislation:
Workers Compensation and Injury Management Act 1981 (WA), s 93D(2), s 145
Result:
Appeal allowed in part
Category: B
Representation:
Counsel:
Appellant : Mr M H Zilko QC & Mr D R Williams
Respondent : Mr T Lampropoulos
Solicitors:
Appellant : Mullins Handcock
Respondent : Bradley & Bayly
Case(s) referred to in judgment(s):
Beer v Duracraft Pty Ltd [2004] WASCA 192
Re Croser; Ex parte Rutherford [2001] WASCA 422; (2001) 25 WAR 170
Case(s) also cited:
Clough Engineering v Thomas [2004] WASCA 36
United Construction Pty Ltd v Maketic [2003] WASCA 138
Warcon v Leighton Contractors Pty Ltd, unreported; CM 7/99 (Cockram PG); 1 June 1999
(Page 3)
1 STEYTLER P: I agree with Wheeler JA.
2 WHEELER JA: This is an appeal from a decision of a Compensation Magistrate. The background to the decision was that the respondent was born in 1956. He alleged that he sustained injuries in the course of his employment with the appellant in 2000 when a single leaf brick wall fell on him. By a Form 22 application filed in September 2004, he sought a determination of his degree of disability of not less than 30 per cent, to enable him to commence common law proceedings in the District Court. The review officer considering the application held that a conflict in the medical evidence existed and that the question of the respondent's degree of disability, as assessed pursuant to s 93D(2) of what is currently known as the Workers' Compensation and Injury Management Act 1981 (WA) ("the Act"), and permanency of any such disability, should be referred to a Medical Assessment Panel.
Medical Assessment Panel
3 Members of a Medical Assessment Panel ("MAP") are selected from the register of names of medical practitioners approved pursuant to s 145B of the Act. The MAP is required to make a determination in writing and to give reasons for it, pursuant to s145E. Section 145F permits reconsideration of a matter by a MAP where there is new evidence. Section 145E provides that, unless rescinded or varied pursuant to s 145F, the determination of a MAP is final and binding on the worker and his employer and on any court or tribunal hearing a matter in which any such determination is relevant.
The answers of the MAP - 31 January 2005
4 The questions referred for determination, and the answers given by the MAP on 31 January 2005, are as follows:
"1. What is the nature of the worker's disability?
Answer:
(1) Degenerative disc disease associated with a soft tissue injury of the cervical spine
(2) Degenerative disc disease of the lumbosacral spine
(3) Major depressive illness
(Page 4)
- 2. What is the worker's degree of disability as assessed pursuant to s 93D(2) of the Act?
Answer: Permanent disability of the cervical spine is 10%.
- Permanent disability of the lumbosacral spine 5%
- Permanent disability as related to the depressive illness 30%
Answer: In respect to the disability in the cervical and lumbosacral spine, disability is permanent.
The degree of disability assessed in relation to the major depressive illness is not necessarily permanent for the reasons detailed below."
6 In summary, the answers to question 2 both implicitly (in purporting to answer a question framed by reference to s 93D(2)) and expressly (by use of the word "permanent") asserted that there was a permanent disability, related to the depressive illness, of 30 per cent. The answer to question 3, however, expressly asserted that the degree of disability in relation to that depressive illness was not necessarily permanent. Nothing in the answers appeared to address the question of whether, assuming that the 30 per cent disability was not permanent, there was any degree of disability related to the depressive illness, less than 30 per cent, which could be regarded as permanent.
(Page 5)
The MAP's reasons
7 There is an issue between the parties concerning the extent to which it is permissible to examine the reasons of the MAP. It is pointed out by counsel for the respondent, correctly, that s 145E distinguishes between the "determination" and the "reasons for making it", and that it is only the determination which is final and binding. It is true that the reasons themselves are not binding. However, in the case of an ambiguity in the wording of a determination, I see no reason why resort should not be had to the reasons to clarify that ambiguity if they can assist. Because of the binding effect which s 145E gives to the determination, it would not, however, be permissible to have regard to the reasons for the purpose of contradicting a determination, or any part of it, which was clear on its face. In the event, for example, of a clear contradiction between the answers to a question and the reasons for the answer, it would be necessary to quash the entire determination. That was the course adopted in Re Croser; Ex parte Rutherford [2001] WASCA 422; (2001) 25 WAR 170.
8 In the present case, in any event, the reasons of the MAP do not assist. They are capable, in my view, of being read either as indicating that the disability, in relation to the depression, was not permanent in any degree, thereby directly contradicting the answer to question 2, or as indicating some possibility of improvement, but without addressing the likely time frame or the likelihood of improvement, so as not to address the statutory concept of permanence at all. The statutory concept of permanence conveys a notion of that which is continuing indefinitely (ie, for the foreseeable future), or enduring, as opposed to temporary. A similar way of putting it is that a condition is permanent if it is more likely than not to persist in the foreseeable future (see Beer v Duracraft Pty Ltd [2004] WASCA 192, per McLure J, at [90] - [92]).
9 In the reasons, the MAP made a number of observations in relation to the question of the likely persistence of the disability as it related to the depressive illness. First, the MAP noted that the stress of the workers' compensation process was making a contribution to the persistence of the disability. The clear implication was that some portion, but not all, of that disability would be ameliorated by the conclusion of the workers' compensation process.
10 Next, the MAP suggested that "a proportion" of the respondent's headaches "may be" improved by ceasing analgesic drugs. The view was expressed that headaches experienced by the respondent were, or
(Page 6)
- included, narcotic resistant headaches, induced by those drugs. The comment was made that it was likely that any benefit received from those drugs was outweighed by their adverse effects. The MAP noted that that view had not been directly addressed by any of the previous medical reports, but suggested that such measures "may provide a potentially beneficial" avenue for treating the headaches. In summary, some proportion of the respondent's headaches might well disappear if analgesic drugs were ceased. Presumably, the question of whether those drugs could be ceased, or how far they should be reduced, would need to be the subject of a medical trial, during which pain management of the spinal disability would have to be monitored.
11 Further, the MAP considered that the respondent's memory and cognitive symptoms were "potentially" reversible. The observations are rather similar to the observations in relation to the narcotic resistant headaches, so that the overall suggestion is that a proportion of the headaches and of the memory and cognitive impairment could be resolved by decreasing or removing the drugs currently taken by the respondent, to the extent that proper pain management permitted. I would assume that the MAP referred to these matters on the basis that it considered that treatment of this kind would be more likely than not to succeed; however, missing from the reasons is an assessment of the extent to which the disability resulting from the depression would be ameliorated (that is, what the final permanent degree of disability remaining might be).
12 Finally, the MAP noted that the natural history of depression is that it tends to improve over a period of time. There then followed a very general discussion of the history of depression in the abstract. It appears, from the discussion, that a majority of cases involve spontaneous remission of a major depressive episode, but that half of those who do experience spontaneous remission are likely to relapse, with symptom-free episodes between relapses. Put another way, more than half of all sufferers of a major depressive episode either will not experience spontaneous remission or, if they do, will suffer relapses at intervals not indicated by the MAP.
13 Unfortunately, and no doubt unrealistically, the Act requires an assessment, in a case where it is known that a significant proportion of patients will improve and a significant proportion will remain with ongoing symptoms, of whether a particular worker with a disability falls into the category which is likely to improve, or the category which is not. When considering the question of whether it is more probable than not that the disability will be permanent, or in what degree it will be
(Page 7)
- permanent, it may be that only statistical information is available (ie, that no relevant individual factors can be identified). The prediction then must presumably be based on the statistics, so that if a majority of persons with that condition recover to a particular degree, then it must be assumed that that will be the case with the worker in question. On other occasions, some evaluation of the likelihood, based upon an assessment of the progress of the condition in the particular worker, may be possible.
Further answers of the MAP
14 After some consultation with the parties, the review officer wrote to the MAP in June 2005. She set out the answers already given to questions 2 and 3, and continued:
"Therefore, although the Panel has stated in its answer to question 2 that the worker has a permanent disability as related to the depressive illness of 30%, it goes on to state in answer to question 3 that the degree of disability assessed in relation to the major depressive illness is not necessarily permanent.
I would be grateful if you would clarify what the Panel's determination is in relation to Mr Casey's degree of permanent disability as related to the depressive illness."
15 In reply, she received the following from the Chair of the MAP:
"Thank you for your recent letter and I regret any misunderstanding occasioned by the terminology in the panel's report.
To answer questions 2 & 3;
2. What is the worker's degree of disability as assessed pursuant to s 93D(2) of the Act?
Answer: Permanent disability of the cervical spine is 10%. Permanent disability of the lumbosacral spine is 5%.
- Permanent disability in relation to the depressive illness is 30%.
3. Is the worker's degree of disability permanent?
Answer: In respect to the disability in the cervical and lumbosacral spine, disability is permanent. The
- degree of disability assessed in relation to the major depressive illness refers to the present disability and incapacity and is not necessarily permanent, in other words, this may well diminish or reduce with further time for the reasons detailed below.
- I trust this clarifies the panel's determination and should be pleased to elaborate as you direct."
16 It can be seen that, far from clarifying the previous answers, the response repeats the express contradiction between the answer to question 2 and the answer to question 3 so far as the depressive illness was concerned. The answer to question 3 does make it reasonably clear that the MAP did not consider that the respondent had a permanent disability related to the depressive illness of 30 per cent, notwithstanding the clear terms of the answer to question 2, but that answer leaves open the question of what degree of disability, if any, was to be considered permanent. Further, although the answer to question 3 makes it reasonably plain that the MAP did not intend to convey that there was a permanent disability of 30 per cent in relation to the depressive illness, the answer to question 2 was not corrected and, on its face, that answer still formed part of the determination and was binding on the review officer pursuant to s 145E.
The review officer's findings
17 Faced with a determination which the Act says is binding, but which, read as a whole, was completely unintelligible, the parties and the review officer took the following course. The respondent suggested that it might be desirable to write again to the MAP seeking a "more detailed and precise" response. In the absence of any further clarification, however, the respondent submitted that the finding of a permanent disability at 30 per cent was binding and that the answer to question 3, read with the reasons, tended to suggest that the MAP had had regard to matters which were too speculative, or too uncertain, to detract from the concept of permanence. The appellant submitted that it was not open to the review officer to further question the MAP and submitted that it was clear that the MAP did not intend to convey that the disability related to the depressive illness was permanent.
18 The review officer, carrying out the calculation required by s 93D(4) in relation to the cervical spine and lumbosacral spine disabilities, arrived at a figure of a 7 per cent disability. That calculation is not questioned.
(Page 9)
19 In relation to the depressive illness, the review officer was not prepared to seek further clarification from the MAP. Her view was that, read together, the two determinations (apparently including the reasons) led to the conclusion that the MAP had not made a determination of a permanent degree of disability in relation to the depressive illness. In my view, that conclusion was right as far as it went, in the sense that when one read the answers to questions 2 and 3 together, it was impossible to see that the MAP had made any determination of a permanent degree of disability.
20 However, the review officer went on to conclude: "I am unable to find therefore that the worker has a permanent psychiatric condition." This does not necessarily follow. It seems to me that the MAP's determination left open the possibility that there was some disability related to the depressive illness which was permanent, but which the MAP had not quantified.
Appeal to the Compensation Magistrate
21 The Compensation Magistrate noted that the MAP had, on the face of it, provided two inconsistent determinations, both of them, of course, binding. The Magistrate was of the view that, faced with the binding determination provided in response to question 2, it was not open to the review officer to conclude that the determination was not a determination of a permanent degree of disability. Nor, in her view, was it open to the review officer to place reliance on the reasons provided by the MAP.
22 The Magistrate considered that it was not open to the review officer to choose between the two determinations - that is, between the determination in relation to question 2 and that in relation to question 3. That observation, in my view, was correct. Faced with two inconsistent determinations, both of them apparently binding, there was no reason for the review officer to choose one rather than the other.
23 However, her Honour effectively then herself chose between the two determinations, by concluding: "I consider that the determination to question 2 was the appropriate determination for application." In the alternative, she considered that, if the determination was not that set out in the answer to question 2, the MAP had made no finding as to the degree of permanent disability in relation to the depressive illness, but had simply determined that the present degree of disability was not permanent. Her Honour went on to conclude:
(Page 10)
- "If it be the case that the MAP determination must be read as one that does not provide a determination as to the degree of any permanent psychiatric disability, then there is no binding determination from the MAP on that point, and the review officer was required to examine any other relevant medical evidence before her in order to determine the question referred."
24 The Compensation Magistrate then ordered that the orders of the review officer be quashed and that the respondent's degree of disability as assessed pursuant to s 93D(2) be determined as being not less than 30 per cent. That latter order reflects an application of the answer to question 2, disregarding the answer to question 3, in relation to the depressive illness.
The appeal and the notice of contention
25 It is not, in my view, necessary to set out either the grounds of appeal or the notice of contention. The parties, in effect, maintained before us the positions which they had taken throughout, the appellant asserting that it was clear that the answer to question 3, particularly when read together with the reasons, had the result that there had been a determination that the respondent's disability was not permanent, while the respondent relied upon the answer to question 2. The appellant further asserted that, since the answer to question 3, at least when read with the reasons, clearly indicated that the respondent's depressive illness would improve, there was no permanent disability in that respect.
26 In my view, for the reasons which I have set out when discussing the answers and the reasons provided by the MAP, the alternative conclusion reached by the Compensation Magistrate was correct. That is, in the face of two plainly conflicting determinations related to the depressive illness, the result was that there was no binding determination of the question of permanency which the review officer was able to apply. The answer to question 3, to the effect that the degree of disability was "not necessarily" permanent, particularly when read together with the reasons, was neither a determination that there was any permanent disability greater than 0 per cent and less than 30 per cent, nor a determination that there was not. It simply left that issue unresolved.
27 The options open to the review officer, then, were either to attempt to reach a view as best she could, based upon the conflicting medical evidence before her in relation to that question, or to point out to the MAP that what she had sought was not a determination of the current degree of disability, but an assessment of the permanent degree of disability, if any,
(Page 11)
- which was most probable in the light of the knowledge and experience of the MAP. The second of these courses is not one for which the Act expressly makes provision. However, given the statutory requirements that both the MAP (s 145D) and the review officer (former s 84ZA) act speedily and informally, it seems to me that the Act should be understood as conferring on the review officer a power to remind the MAP of its statutory task, and upon the MAP a power to correct a determination which is erroneous on its face. Neither party to this appeal suggested otherwise. The matter should have been remitted to her, for that purpose. To the extent that the Magistrate chose instead to apply the answer to question 2, the appeal must be allowed.
28 I would add only the observation that one cannot help sympathising with all those involved in this episode - the review officer, the Compensation Magistrate, the members of the MAP, and, of course, the unfortunate respondent. It is very likely that there are numerous medical conditions - and depressive illness may be one - in relation to which the assessment, at a particular point in the progress of the condition, of whether it is permanent, and of the extent of any disability likely to remain, is a task which is, in any sensible way, impossible in the light of current medical knowledge. Requiring highly qualified and skilled specialists to perform a task which may be virtually impossible and which will nevertheless have a significant effect on the worker before them, is something which they may well find frustrating. It is, however, the task required by reason of the statutory framework and the concepts embodied in s 93D.
29 I would allow the appeal to the extent of quashing order 5 of the orders made by the Compensation Magistrate, and in lieu thereof remit the matter to the review officer for further determination. The effect of that order would be to bring this matter within the definition of "pending proceeding" for the purpose of s 182 and s 183 of the Workers' Compensation Reform Act 2005 (WA) so that the proceeding would then continue before an arbitrator.
30 PULLIN JA: I have read the draft reasons prepared by Wheeler JA. I agree with those reasons and have nothing to add.
0
5
1