Re Bannan; Ex parte Suleski
[2001] WASCA 289
•25 SEPTEMBER 2001
RE BANNAN; EX PARTE SULESKI [2001] WASCA 289
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 289 | |
| Case No: | CIV:2226/2000 | 14 MAY 2001 | |
| Coram: | KENNEDY J WALLWORK J STEYTLER J | 25/09/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi for a writ of certiorari made absolute | ||
| B | |||
| PDF Version |
| Parties: | BORIS SULESKI |
Catchwords: | Workers' compensation Medical assessment panel Failure fully to answer questions posed Obligation to give sufficient reasons for determination Prerogative writs Certiorari Obligation of Medical Assessment Panel to give sufficient reasons Error on the face of the record |
Legislation: | Workers' Compensation and Rehabilitation Act 1981, s 84ZH, s 145E |
Case References: | Masters v McCubbery [1996] 1 VR 635 Re A Medical Assessment Panel; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998 Re A Medical Assessment Panel; Ex parte Rusich [2001] WASCA 111 Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395 Cheatley v The Queen (1972) 127 CLR 291 Comcare v Mooi (1996) 69 FCR 439 Re A Medical Assessment Panel; Ex parte Barr [2001] WASCA 89 Re A Medical Assessment Panel; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998 Re A Medical Panel; Ex parte CSR Ltd, unreported; FCt SCt of WA; Library No 9097; 11 October 1991 Re A Medical Panel; Ex parte Fremantle Foundry & Engineering Co Pty Ltd, unreported; FCt SCt of WA; Library No 9200; 17 December 1991 Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- WALLWORK J
STEYTLER J
EX PARTE
BORIS SULESKI
Applicant
Catchwords:
Workers' compensation - Medical assessment panel - Failure fully to answer questions posed - Obligation to give sufficient reasons for determination
Prerogative writs - Certiorari - Obligation of Medical Assessment Panel to give sufficient reasons - Error on the face of the record
Legislation:
Workers' Compensation and Rehabilitation Act 1981, s 84ZH, s 145E
(Page 2)
Result:
Order nisi for a writ of certiorari made absolute
Category: B
Representation:
Counsel:
Applicant : Mr M D Cole
Intervener : Mr J R Ludlow
Solicitors:
Applicant : Terrace Law
Intervener : McAuliffe Williams & Partners
Case(s) referred to in judgment(s):
Masters v McCubbery [1996] 1 VR 635
Re A Medical Assessment Panel; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998
Re A Medical Assessment Panel; Ex parte Rusich [2001] WASCA 111
Case(s) also cited:
Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395
Cheatley v The Queen (1972) 127 CLR 291
Comcare v Mooi (1996) 69 FCR 439
Re A Medical Assessment Panel; Ex parte Barr [2001] WASCA 89
Re A Medical Assessment Panel; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998
Re A Medical Panel; Ex parte CSR Ltd, unreported; FCt SCt of WA; Library No 9097; 11 October 1991
Re A Medical Panel; Ex parte Fremantle Foundry & Engineering Co Pty Ltd, unreported; FCt SCt of WA; Library No 9200; 17 December 1991
Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482
(Page 3)
1 KENNEDY J: Boris Suleski, the applicant in these proceedings, was employed as a pit technician by Sons of Gwalia Ltd at its open cut mine near Southern Cross. He claims that he was injured on 9 May 1996. At the time, the applicant was working alone in a particular area of the mine and no one is said to have seen the accident. He can recall working on a ledge, but otherwise he claims to have no recollection of how he sustained his injuries. The suggestion is that he fell a distance of five metres from the ledge onto broken rocks.
2 The applicant made a claim for compensation under the Workers' Compensation and Rehabilitation Act 1981 ("the Act") on 31 July 1996. His claim was rejected by the employer and the applicant therefore commenced proceedings, seeking weekly payments for total incapacity.
3 The matter proceeded to review on 8 October 1996, when Sons of Gwalia Ltd was ordered to make weekly payments for total incapacity. On 29 November 1996, the company filed an application seeking an order that the weekly payments should cease. On 14 January 1997, the review officer, being satisfied that a genuine dispute as to liability existed, ordered that weekly payments should cease.
4 In June 1999, the workers' compensation proceedings were revived when the applicant's solicitor sought an order for weekly payments of compensation for total disability since 9 May 1996. The application came on for review on 10 March 2000. There was at this time a significant conflict in the views of a number of doctors who had examined the applicant. By way of illustration, Dr P Stevenson, a consultant physician, expressed his opinion as follows:
"There are obviously two alternative hypotheses that can be put forward about Mr Suleski's present state. The first is that he had several cerebral and cervical effects of trauma and a profound reactive depression to a terrifying experience, and that his condition and his prognosis have been grossly worsened by the failure of the insurer to recognise his claim and fund the proper treatment.
The alternative hypothesis is that Mr Suleski shows gross symptom magnification of relatively minor or non-existent residual effects, and that his condition has been exacerbated and his prognosis worsened by the desire for financial compensation.
(Page 4)
- Faced with a choice, I find myself much more sympathetic to the second hypothesis. …."
- Other reports, including those of Dr O Kay, a psychiatrist, and of Dr H Derham, a general practitioner who was the first doctor to see the applicant after he claimed he had been injured, took a strong view to the contrary. It was therefore agreed that the matter should be referred to a Medical Assessment Panel under s 84ZH of the Act to determine the applicant's disability, whether his disability was permanent or temporary, and his capacity for work. The panel was duly constituted pursuant to s 145C of the Act.
5 The Panel interviewed the applicant in the presence of his wife and a Macedonian interpreter. He is said to be have been examined by Dr R Gillett, with Dr P Bannan observing. The Panel also reviewed three videos. No x-rays were reviewed, presumably because they had all been reported as showing no abnormality. It appears from the Panel's reasons that the members also reviewed the numerous medical reports submitted to it.
6 The panel made the following determinations:
"Q1. What is the nature of the disability?
ANSWER: There was no evidence of any physical disability.
Q2: What is the extent of the disability?
ANSWER: No evidence of physical disability.
Q3: What is the worker's work capacity?
ANSWER: The worker is fit.
Q4: Is he fit to undertake his pre-accident occupation as a pit technician, either on a full-time or part-time basis and if so, how many hours per week?
ANSWER: Yes, on a full time basis.
Q5: Is he fit to work as a gatekeeper, storeman, sales assistant, service station driveway attendant, security officer, cleaner, courier or taxi-driver, either on a full-time or part-time basis and if so, how many hours per week?
(Page 5)
- ANSWER: He is fit for all the above on a full-time basis."
7 The Panel provided the following reasons for their determinations:
"The panel found there was gross inconsistency in the way this man presented to the panel today. On the history, there was no identifiable head injury. This accident was never observed. There was no documented loss of consciousness. His CT Scan was normal and we cannot identify any clinical evidence of a significant head injury. This man was noted to have a fractured nose. The panel has not been able to explain why this man has not improved over the approximate four years since his injury.
On reviewing the video surveillance, there does not appear to be any physical limitation to this man's movement or gait. He walks with a stick but does not use it and again, this is in stark contrast to the way he presented to the medical panel today with the appearance of being quite physically disabled and needing help to dress and undress. Based upon the evidence before the panel including review of the accompanying medical reports and reviewing the video evidence, it is felt that any physical injury related to his work accident on 9/5/96 is extremely mild. In contrast to his physical findings, this man appears to have a significant psychological presentation for which the panel was unable to determine a cause."
8 It is apparent that, in its reasons, the Panel was using the expression "head injury" as referring to a neurological injury. The applicant's fractured nose was not such an injury.
9 A determination by a Panel can be of considerable importance both to a worker and to an employer. Unless it is rescinded on a reference back to the Panel by the Director of Conciliation and Review under s 125F of the Act, a determination is final and binding on both the worker and his employer, as well as on any court or tribunal hearing a matter in which any such determination is relevant - see s 145E(5).
10 The applicant obtained an order nisi for a writ of certiorari to remove the Panel's determinations into this Court for the purpose of being quashed, upon the following grounds:
"(a) The Medical Assessment Panel in answering the question, 'What is the nature of the disability?', confined its answer
(Page 6)
- to 'Physical disability' and in doing so demonstrated error of law.
- (b) The Medical Assessment Panel's conclusion, 'There is no evidence of physical disability', is inconsistent with the Panel's reasons for decision.
(c) In answering the question, 'What is the nature of the disability?', the Medical Assessment Panel confined itself to considering the disability the applicant had as at the date of assessment and thereby erred in law.
(d) The Medical Assessment Panel in finding 'This accident was never observed' considered an irrelevant matter.
(e) In excess of its jurisdiction and in error of law, the Panel found it was unable to determine the cause of the applicant's 'significant psychological presentation'.
(f) Generally failed to give sufficient or adequate reasons to support its determination."
11 To determine that there was no evidence of any physical disability is not to answer a question asking what is the nature of the disability. A negative answer leaves open the possibility of a disability resulting from some psychological or psychiatric condition. The same difficulty attaches to the answer to question 2, which is that there is no evidence of physical disability. The answers to the remaining questions, however, might appear to suggest that the applicant at the time of his examination had no disability, as it was said that he was fit to undertake his pre-accident work on a full time basis. Although it was suggested to the contrary, I should add that, in my view, no reason has been shown for departing from the definition of "disability" in s 5 of the Act, no intention to the contrary appearing in the Act.
12 Section 145E(3) of the Act requires the Panel to give its determination and reasons in writing to the Director. The requirements for reasons have been discussed in a number of decisions of this Court. Thus, in Re A Medical Assessment Panel; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998, Wheeler J, with whom the other members of the Court agreed, said at 6 - 7 of her reasons:
"So far as the 'reasons' of the panel are concerned, it is fair in my view, to characterise the mere listing of matters allegedly
(Page 7)
- considered by the panel as a complete failure to provide reasons. The essence of reasons for decision is that they disclose the reasoning processes of the Tribunal. Fulfilment of the obligation to give reasons ensures that a person whose interests may be adversely affected by a decision understands why the decision has been made, and allows a party dissatisfied with a decision to determine whether there has been a reviewable error: see Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478, Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507, Telescourt v Commonwealth (1991) 29 FCR 227.
As has been said on many occasions, no standard of perfection is required in preparation of the reasons, and they are to be considered fairly and not combed through 'with a fine appellate toothcomb to find error': Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291, Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157. At a minimum, however, it seems to me that in a case of this kind the panel must not merely list the materials upon which it relied, without any hint as to what portions of those materials is considered particularly relevant or the way in which it reconciled any portions of those materials which might have been in conflict. It should at least have set out what it considered to be the material facts which emerged from the materials to which it referred, and its process of reasoning from those material facts to its conclusion. Although each case must be considered individually, having regard to the purpose of the obligation to provide reasons, it is generally sensible for a fact finding body of this kind to make a particular reference to material which would appear to be inconsistent with the conclusion which it reached (such as the EMG and nerve conduction study in this case) and to explain why such material was considered not to be relevant, or to be outweighed by other considerations."
- See also Re A Medical Assessment Panel; Ex parte Rusich [2001] WASCA 111.
13 The Panel, by contrasting in their reasons their physical findings, which produced no evidence of any physical disability, with the applicant's psychological presentation, might be thought, on the face of it, to be suggesting that the applicant had a significant psychological
(Page 8)
- condition. The Panel, it should also be observed, had no authority to attribute a cause to either a physical disability or a psychological disability. It was concerned only with the nature of the applicant's disability and his capacity for work.
14 It is important that the applicant should be able to understand, from the reasons for decision, why he has had his claim dismissed. He should be told in clear and unambiguous language why he has lost. What is required, at the least, in the Panel's reasons is that they give the medical reasons in sufficient detail to show that the questions referred to it have been properly considered according to law, and that the answers furnished are founded upon an appropriate application of the members' medical knowledge and experience - cf Masters v McCubbery [1996] 1 VR 635, per Callaway JA at 661. Measured by these standards, the report was inadequate and a reviewable error has been established.
15 The Panel did not fall into error in confining itself to considering the disability of the applicant as at the date of assessment. That was what it was asked to do. It does not follow from this, however, that it should not consider the medical history and earlier reports. On the contrary, it is bound to do so. Nor does any reviewable error arise from the Panel's reference to the accident not having been observed. That was the fact.
16 In my opinion, the applicant is entitled to have the order nisi made absolute.
17 WALLWORK J: I agree with the reasons for judgment and the decision of Kennedy J. There is nothing I wish to add.
18 STEYTLER J: I have read, in draft, the reasons for decision published by Kennedy J. I agree with them and with his Honour's conclusion that the order nisi should be made absolute.
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