Re Anastas; Ex parte Welsby
[2002] WASCA 83
•21 MARCH 2002
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
TITLE OF COURT : THE FULL COURT (WA)
| CITATION | : | RE ANASTAS & ORS; EX PARTE WELSBY [2002] WASCA 83 |
| CORAM | : ANDERSON J |
STEYTLER J
MILLER J
| HEARD | : 21 MARCH 2002 | ||
| DELIVERED | : 21 MARCH 2002 | ||
| PUBLISHED | : 16 APRIL 2002 | ||
| FILE NO/S |
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| MATTER |
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EX PARTE
JOHN WELSBY
Applicant
Catchwords:
Prerogative writ - Certiorari - Workers' compensation - Degree of worker's disability - Medical Assessment Panel - Duty to give reasons for determination of degree of disability - Adequacy of reasons
[2002] WASCA 83
Legislation:
Workers' Compensation and Rehabilitation Act 1981, s 84ZH, s 93D, s 145C, s 145E
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | Mr B L Nugawela |
| Amicus Curiae | : | Ms J C Pritchard |
Solicitors:
| Applicant | : | Leonard Cohen & Co |
| Amicus Curiae | : | Attorney General for Western Australia |
Case(s) referred to in judgment(s):
Re Anastas & Ors; Ex parte Welsby [2001] WASC 178
Case(s) also cited:
Ansett Australia Ltd v The Medical Assessment Panel (1998) 19 WAR 395
Craig v South Australia (1995) 184 CLR 163
Palazzolo v Brown & Ors [2002] WASCA 49
R v Gillett & Ors, Members of a Medical Assessment Panel; Ex parte Rusich
[2001] WASCA 111
R v McWilliam & Ors, Members of a Medical Assessment Panel; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996
[2002] WASCA 83
R v Wong & Ors, Members of Medical Assessment Panel; Ex parte Maria Stella
Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998
Re Babban; Ex parte Suleski [2001] WASCA 289
Re Croser; Ex parte Rutherford & Anor [2001] WASCA 422
[2002] WASCA 83
JUDGMENT OF THE COURT
JUDGMENT OF THE COURT: This is the return of an order nisi for a writ of certiorari granted by McLure J (Re Anastas & Ors; Ex parte Welsby [2001] WASC 178) on 6 July 2001. The order nisi called upon the three members of a medical assessment panel constituted under s 145C of the Workers' Compensation and Rehabilitation Act 1981 to show cause before the Full Court why a writ of certiorari should not issue against the panel to quash its determination of 23 November 2000 that the applicant's degree of disability, as assessed in accordance with s 93D of the Act, was 15 per cent.
2 The Court came unanimously to the view that the order nisi should be made absolute and that order was made on 21 March 2002, with reasons to be delivered later. These are the reasons of the Court.
3 The applicant, an injured worker, sought an order quashing the
determination of the medical assessment panel on a number of grounds which may be distilled into the single complaint that the medical assessment panel failed to give adequate reasons for its determination, contrary to the requirements of s 145E(3) of the Act. The applicant had made a claim for compensation in respect of injuries sustained on or about 30 July 1999 in the course of his employment. He claimed that his disability was "back injury and psychological illness" and claimed that his level of disability was "not less than 30 per cent" and provided medical evidence in support of that claim. There was a conflict of medical evidence and the matter was referred to a medical assessment panel under s 84ZH of the Act. The panel convened on 23 November 2000, having been provided with 14 medical reports written by a number of doctors between August 1999 and October 2000. The panel made its determination in the following form:
[2002] WASCA 83
JUDGMENT OF THE COURT
[2002] WASCA 83
JUDGMENT OF THE COURT
[2002] WASCA 83
JUDGMENT OF THE COURT
4 The complaint is that the statements that are made under the heading
"Reasons" are not reasons at all and we consider that this submission must be accepted. Items 1 and 2 do not contain any reasoning or any findings. Item 3 is a finding of discrepancies or "inconsistencies" on clinical examination, which implies that the applicant's subjective complaints concerning the extent of his mechanical disability were exaggerated. However, it is not apparent why this should lead to a finding of any particular level of disability. Item 4 conveys no more than that there is no evidence of disease of the roots of the spinal nerves; ie, radiculopathy. It is not apparent why this should lead to any particular conclusion as to the extent in percentage terms of the applicant's spinal disability.
5 The finding that 10 per cent (more accurately ten-fifteenths) of the
applicant's overall disability was "contributed to by his mood disorder" appears to be an acceptance of Dr Skerritt's assessment in his report of 8 August 2000 that the applicant has a permanent psychiatric disability of 10 per cent, but the medical panel does not actually say so.
6 Whilst we agree with Ms Pritchard, who appeared for the Attorney
General as amicus curiae, that the Court should bear in mind that the medical assessment panel are doctors, not lawyers or judges, and cannot be expected to produce long or elaborate reasons, still the Act requires the panel to give written reasons for its determination. That obligation is not fulfilled unless the reasoning process can be followed. The obligation was not fulfilled in this case.
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