re Croser; ex parte Rutherford
[2003] WASCA 8
•7 FEBRUARY 2003
RE CROSER; EX PARTE RUTHERFORD & ANOR [2003] WASCA 8
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 8 | |
| THE FULL COURT (WA) | 07/02/2003 | ||
| Case No: | CIV:1887/2002 | 21 NOVEMBER 2002 | |
| Coram: | MURRAY J TEMPLEMAN J ROLFE AJ | 21/11/02 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi made absolute | ||
| B | |||
| PDF Version |
| Parties: | G W RUTHERFORD B D RUTHERFORD |
Catchwords: | Certiorari Failure by Medical Assessment Panel to give sufficient reasons for its determination as required by s 145E(3) Requirement of such a panel to examine the worker Some matters such a panel may address in preparing a determination |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 |
Case References: | Craig v State of South Australia (1995) 184 CLR 163 Re Bannan; ex parte Suleski [2001] WASCA 289 Re Croser; ex parte Rutherford & Anor (2001) 25 WAR 170 Re Gillett; ex parte Rusich [2001] WASCA 111 Re McWilliam; ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996 Re Monger; ex parte Industrial Progress Corporation Pty Ltd [2001] WASCA 281 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE CROSER; EX PARTE RUTHERFORD & ANOR [2003] WASCA 8 CORAM : MURRAY J
- TEMPLEMAN J
ROLFE AJ
G W RUTHERFORD
B D RUTHERFORD
Applicants
Catchwords:
Certiorari - Failure by Medical Assessment Panel to give sufficient reasons for its determination as required by s 145E(3) - Requirement of such a panel to examine the worker - Some matters such a panel may address in preparing a determination
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Legislation:
Workers' Compensation and Rehabilitation Act 1981
Result:
Order nisi made absolute
Category: B
Representation:
Counsel:
Applicants : Mr C L Zelestis QC
Amicus Curiae : Ms J C Pritchard
Solicitors:
Applicants : Phillips Fox
Amicus Curiae : State Crown Solicitor
Case(s) referred to in judgment(s):
Craig v State of South Australia (1995) 184 CLR 163
Re Bannan; ex parte Suleski [2001] WASCA 289
Re Croser; ex parte Rutherford & Anor (2001) 25 WAR 170
Re Gillett; ex parte Rusich [2001] WASCA 111
Re McWilliam; ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996
Re Monger; ex parte Industrial Progress Corporation Pty Ltd [2001] WASCA 281
Case(s) also cited:
Nil
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1 MURRAY J: I have read the reasons to be published by Rolfe AJ. I agree with them. There is nothing I could usefully add.
2 TEMPLEMAN J: I also agree with the reasons to be published by Rolfe AJ.
ROLFE AJ:
The Order Nisi
3 This is the return of an order nisi for a writ of certiorari made by McLure J in chambers on 16 July 2002, whereby it was ordered that:
"1. Dr John Croser, Dr Ross Goodheart and Dr Slav Kostov (together 'the Medical Assessment Panel') do show cause before the Full Court of this Honourable Court why a Writ of Certiorari should not be issued out of this Court for the purpose of quashing the determination made by the Medical Assessment Panel pursuant to s 145A of the Workers Compensation and Rehabilitation Act 1981, ('the Act') dated 26 April 2002 that John David Stafford ('the worker') suffers permanent residual disability;
1.1 of the right shoulder pursuant to item 13 of schedule 2 of the order of 20% loss of effective use of the right upper limb
1.2 due to a psychiatric disability and pursuant to item 8 of schedule 2 of the Act of the order of 15%
upon the grounds that:
(a) the Medical Assessment Panel erred in law in failing to give adequate reasons for its determination as required by section 145E(3) of the Act and in accordance with the requirements of natural justice.
- (i) The Medical Assessment Panel erred in law in reaching the conclusion that the worker's disability of the right upper limb was of the order of 20% without explaining in its
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- reasons for decision how and why it reached that conclusion, the factual foundation for that conclusion and the reasons for which it rejected evidence to the contrary.
- (ii) The Medical Assessment Panel erred in law in reaching the conclusion that the worker's psychiatric disability pursuant to item 8 of Schedule 2 of the Act was of the order of 15% without explaining in its reasons for decision how and why it reached that conclusion, the factual foundation for that conclusion and the reasons for which it rejected evidence to the contrary.
- (b) the Medical Assessment Panel erred in law by misconstruing item 8 of schedule 2 of the Act by failing to recognise the item only applies when permanent and incurable loss of mental capacity results in total inability to work.
- The Medical Assessment Panel, purportedly but wrongly in applying item 8 of schedule 2 of the Act, assessed permanent psychiatric disability in the order of 15% when it failed to make a finding that the psychiatric disability resulted in total inability to work and in circumstances where there was no evidence to support such a finding.
- (c) the Medical Assessment Panel's assessment of permanent psychiatric disability is unreasonable and is not supported by the evidence which was presented to it.
- (i) The Medical Assessment Panel's determination is based upon a previous examination of the worker which occurred on 11 May 2001 and which resulted in the Medical Assessment Panel assessing
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- permanent psychiatric disability in the order of 15%-20% whilst at the same time indicating in its reasons for decision that in view of the nature and genesis of the psychiatric condition and the difficulties in foreseeing its course in the indefinite future, the assessment covered the present and foreseeable future (a period of 2-5 years from now). The Medical Assessment Panel further acknowledged in the future various factors could change the psychiatric disability in either direction.
- (ii) It was incumbent upon the Medical Assessment Tribunal to re-examine the worker for the purposes of making its assessment of permanent psychiatric disability in accordance with the law given its examination on 11 May 2001 did not satisfy the requisite test of permanency and made it clear the position could well change in the future.
(iii) The Medical Assessment Panel's failure to re-examine the worker for the purpose of its determination, despite the request by the applicant, was unreasonable and not in accordance with the law.
(iv) No reasonable tribunal could have lawfully concluded, on the evidence presented to the Medical Assessment Panel, that the worker was suffering from a 15% permanent psychiatric disability.
(v) Section 145E(2) of the Act requires that any determination must be made by the Medical Assessment Panel as soon as practicable but in any event within 28 days after the day on which the worker is medically examined. There is no provision in the Act which enables the Medical Assessment Panel to extend the 28 day period. The Medical
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- Assessment Panel has relied upon a medical examination of the worker which occurred on 11 May 2001, which fails to comply with the mandatory requirement of the Act and has accordingly failed to act in accordance with the law."
Some provisions of the Act
4 Section 145D of the Act provides:
"(2) The panel may, for the purposes of assisting it in determining the question, require the worker concerned to -
(a) Attend before the panel;
(b) Answer questions put by the panel;
(c) Produce documents to the panel, or consent to another person who has relevant documents producing them to the panel;
(d) Submit to medical examination by the panel,
but the panel is not authorised to treat the worker or require that the worker be treated."
"The determination and the reasons for making it are to be given in writing signed by the Chairman in a form approved by the Director, and are to be given to the Director within 7 days after the day on which the determination is made."
6 Item 8 of Sch 2 of the Act provides, under the heading "Nature of Injury,":
"Permanent and incurable loss of mental capacity resulting in total inability to work ..."
7 Under the heading "Ratio which the sum payable herein bears to the prescribed amount" appears 100 per cent.
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The return of the Order Nisi
8 Upon the return of the order nisi before this Court, Mr C L Zelestis of Queen's Counsel appeared on behalf of the applicants and Ms J C Pritchard of Counsel appeared as amicus curiae. The Medical Assessment Panel, ("the panel"), filed a notice of intention to abide the decision of the Court save as to costs.
9 As the Court had formed a tentative, preliminary view that the order nisi should be made absolute, at least on the basis of insufficient reasons, generally because of the matters to which I shall refer, Ms Pritchard was invited to address first. She conceded that the reasons were inadequate and that, accordingly, the order nisi had to be made absolute. In the light of this concession, which, in my opinion, was correctly made, the Court announced, after oral submissions, that the order nisi be made absolute and that it would publish its reasons later. These are my reasons.
10 However, Ms Pritchard submitted that, insofar as it was suggested that the panel was obliged to examine the worker, it is not strictly necessary for the panel to do so. I agree with Ms Pritchard that the panel has a discretion under s 145D(2) whether it requires the worker to attend before it for all or any of the purposes stated. However, if it does, it must, in my opinion, abide by the provisions of s 145E(2). The obvious intent of that section is to ensure that the determination is made within a reasonably short time after the examination has been completed, namely, "as soon as is practicable but in any event within 28 days after" the examination.
11 As has appeared in this case, the panel had examined Mr Stafford on 11 May 2001. The panel, in its determination, apparently relied on that examination. Mr Stafford's medical conditions were, at least prima facie, ones which could change, and perhaps change quite dramatically, over a period of 12 months. Therefore, prima facie, one would have anticipated that the panel would have required to re-examine him. However, it did not, nor did it give any reasons for not doing so.
12 One can imagine cases in which the panel, called upon to review its previous determination, may not find it necessary to re-examine the worker. For example, if the worker has had a limb amputated, and there is nothing more in the case than that that had happened, and the panel had examined the worker previously and ascertained that the limb has been amputated, there would seem no necessity to carry out a further examination unless, of course, the complaint related to the consequences
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- or sequelae of the amputation. In cases where the panel decides it is not necessary to re-examine, there is no reason why it should not state, briefly, its reasons for so deciding.
13 Mr Zelestis submitted that it was unnecessary, from his point of view, to rely upon any alleged failure to comply with s 145E(2). It was sufficient that the order nisi should be made absolute. Nonetheless, in deference to the very capable submissions of Ms Pritchard, it seemed appropriate that I should refer to the point.
14 In his supplementary submission, Mr Zelestis submitted that on the proper construction of ss 25, 93B - 93F and Sch 2 of the Act, disability is used in s 93B - 93F in the sense defined in s 5; that the degree of disability, as assessed by reference to Sch 2, refers to the percentage of the prescribed amount provided for by the relevant item, as read and applied to the worker as read with s 25; that the assessment of the percentage of each item of Sch 2 which refers to loss of, as read with s 25, is confined to the permanent loss of, permanent loss of use of, or permanent loss of the efficient use of, the relevant body part or faculty; and that that assessment does not include the extent of disablement from working caused or contributed to by a psychiatric disorder, which is consequent upon, but does not contribute to, the loss of use of or the loss of efficient use of, the relevant body part or faculty.
15 The submission continued that it is necessary to distinguish between physical disability, being loss of part of a faculty, including physical disability itself contributed to by psychiatric disorder, and psychiatric disorder, which is a consequence of, but does not contribute to, physical disability, but which affects capacity to work.
16 In these circumstances, he submitted that for the purposes of s 93B - 93F, the degree of disability, as assessed by reference to Sch 2, refers to the percentage of the prescribed amount provided for by the relevant item, as read and applied to the worker with s 25, and is not to be considered when assessing the degree of disability under Sch 2, save under item 8. He submitted that the degree of disability does not involve a general notion of disablement.
17 His concern was that in Re Monger; ex parte Industrial Progress Corporation Pty Ltd [2001] WASCA 281 at [9], it was held that an assessment of a degree of disability may take account of the disabling effect of symptoms or morbid conditions arising from the injury, and that that decision related to symptoms or conditions contributing to a
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- particular physical disability and not to psychiatric disorders, which do not affect physical disability, but only the capacity to work. He continued:
"Were the decision to be read as requiring all psychiatric disorders consequent upon disability to be taken into account in assessing degree of disability, it would not reflect the true construction of the Act and should not be followed."
"It would seem to me that a psychiatric disorder which is a consequence of a compensable back injury is as much a part of that injury as all of the other conditions and symptoms which follow upon the injury. It is true that Sch 2 to the Act, which is a table of compensation payable with respect to specific injuries, makes no reference to psychiatric or psychological disorders consequent upon the physical injury. But Sch 2 makes no reference to symptomology at all, not even to pain. This cannot mean that assessments are to be made without taking into account the disabling effect of symptoms or morbid conditions arising from the injury. There is nothing in s 93D(2) which supports the proposition that if sequelae is not referred to in Sch 2, it must be excluded from the assessment."
19 It seems to me that Anderson J was not purporting to say that which appears in the final submission made by Mr Zelestis. Mr Zelestis agreed that if, on its proper construction, Anderson J was saying that a psychiatric disorder arising from the physical injury may be "counted" in the physical injury, if the physical injury is increased by the psychiatric disorder, he would not submit to the contrary. The converse of that is that one cannot count a psychiatric disability which does not affect the physical injury.
20 In dealing with this submission, what I have said is, strictly, obiter dictum. However, it seemed to me that as the point had been raised, it was convenient to express a view on it.
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Re Croser; ex parte Rutherford & Anor (2001) 25 WAR 170
21 The obligations imposed upon a Medical Assessment Panel, constituted under the Act, and its amenability to a writ of certiorari were considered very recently by this Court in Re Croser; ex parte Rutherford & Anor (2001) 25 WAR 170, which was concerned with the panel's first determination in relation to Mr Stafford. This, unfortunately, is the second round of that litigation dealing with the panel's second determination, raises essentially the same issues and suffers the same fate.
22 In that case, Murray J stated [5] that there was no doubt that certiorari will lie for error of law on the face of the record, and quoted from the decision of the High Court in Craig v State of South Australia (1995) 184 CLR 163 at 175 - 176:
"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud, and internal "error of law on the face of the record". Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the "record" of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record".
23 Although, in the result, his Honour was of the view that only a portion of the determination should be quashed, whereas the majority was of the view that the whole of the determination should be, there was no disagreement between his Honour and the other members of the court, Steytler J and Olsson AUJ, that as there was a statutory obligation to give
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- reasons imposed by s 145E(3), such reasons formed part of the record of the panel in respect of the determination made: Re McWilliam; ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996 and Re Gillett; ex parte Rusich [2001] WASCA 111.
24 Olsson AUJ gave a detailed judgment, with which Steytler J agreed. His Honour was of the view that whilst there had been some judicial difference of opinion on the point, there is now firm authority for the proposition that the failure of a judicial officer to give adequate reasons for decision will normally constitute an error of law [67]. He said:
"The rationale of that conclusion is that, when inadequate reasons are given, the function which the law calls upon the judicial officer to exercise has not properly been fulfilled: see also the discussions of the relevant authorities by Doyle CJ in R v Keyte (2000) 78 SASR 68 at 77 - 79."
25 His Honour was of the opinion that the same reasoning:
"... is no less apposite to a situation in which a tribunal such as the MAP is bound by statute, in arriving at its determination, to publish reasons for making it. An identical rationale is plainly applicable. It is such a rationale which properly founds the line of reasoning evidenced by the decision in Dornan."
The second determination
26 The panel's determination is dated 26 April 2002 and signed by Dr Croser. It stated that the panel had reconvened in accordance with the direction of the Full Court to consider:
"What is the relevant level as to the degree of disability of this worker in accordance with Section 93D of the Worker's Compensation & Rehabilitation act 1981 (the act)? In particular what is the permanent percentage disability assessment in relation to the worker's right shoulder pursuant to item 13 of schedule 2, his back pursuant to item 36A of schedule and psychiatric disability pursuant to item 8 of schedule 2 or chapter 14 of the AMA Guide?"
27 The determination continued:
"When reconvened on 12 April 2002, the Medical Panel had available to it:
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- the letter from Conciliation & Review of 17 January 2002
the determination of the Full Court of Western Australia delivered on 20 December 2001 and the letter of Phillips Fox of 22 February 2002.
- In its initial determination arising from the meeting of 11 May 2001, the Medical Panel had read the comprehensive medical reports pertaining to this case and had discussed various opinions expressed.
The panel had met with the applicant, John David Stafford, at Joondalup on that date.
It had taken a comprehensive history from Mr Stafford and he had been medically examined in the presence of all three members.
On the basis of the information gathered from these sources, the members of the panel had reached a determination which were (sic) subsequently published.
When convened on 12 April 2002, members of the panel had already had the opportunity to consider the letter from Phillips Fox of 22 February 2002 and the determination of the Full Court of Western Australia delivered on 20 December 2001. In the light of this determination, it reviewed the notes of this matter and the medical reports provided prior to 2001.
As a result of these further deliberations, we are pleased to submit the following determination and clarification of our previous report.
We are of the opinion that the worker suffers permanent residual disability:
a. of the right shoulder pursuant to item 13 of schedule 2 of the order of 20% loss of effective use of the right upper limb.
b. permanent residual disability of the back pursuant to item 36A of schedule 2 of nil.
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- c. permanent psychiatric disability pursuant to item 8 of schedule 2 of the order of 15%. The reasons for this determination are as follows:
1. Based on a comprehensive review of the medical reports provided, our questioning of Mr Stafford and our clinical examination of Mr Stafford on 11 May 2001, our assessment of residual disability in the right shoulder is based on the presence of ongoing tendonitis involving the infra supraspinatus, supraspinatus and biceps tendons as demonstrated by restricted active motion of the right shoulder and the presence of a painful arc with restricted flexion. There was evidence of residual arthropathy of the acromia clavicular joint.
2. Based on a comprehensive review of the medical reports provided, our questioning of Mr Stafford and our clinical examination, the determination of permanent residual disability of the back pursuant to item 36A of schedule 2 was made on the basis that Mr Stafford had no residual complaints of spinal pain in the cervical, thoracic or lumbar spine and there was no clinical evidence of ongoing pathology.
3. The determination of permanent psychiatric disability was based on a comprehensive review of the medical reports provided, questioning of Mr Stafford and clinical examination of Mr Stafford on 11 May 2001.
Perusal of the previous medical reports contain documented evidence of depressive illness. There was no indication that treatment had resulted in any improvement up to the time of his examination. The panel was of the opinion that Mr Stafford satisfied the DSM IV criteria for a Major Depressive Disorder.
The panel was of the opinion that Mr Stafford suffered a Major Depressive Disorder with strong reactive components stemming from the physical problems and the associated consequences on work, social, personal and family levels."
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The extent to which reasons must go
28 Murray J said, in relation to reasons, in Re Croser at [17]:
"Putting to one side the fact that the nature of reasons where they form part of the record may reveal jurisdictional error in some way (which is not this case, in my opinion,) the question is whether it may be said that the reasons for decision, where they are part of the record, disclose error on their face when they omit reference to some material consideration. I am inclined to think not and to think further that to approach the reasons with that degree of strictness is consistent with the fact that Australian courts, from the High Court down, resist any tendency to treat the return of an order nisi for certiorari as if it was an appeal grounded on errors of law.
[18] But in my opinion, this case does not provide the occasion to authoritatively determine the question and I would decline to do so. With respect for the contrary view expressed by Steytler J and Olsson AUJ, I am of the opinion that, if it is open to ground an application for certiorari upon the proposition contained in ground (a) in this case, the ground has not been made out."
29 At par [70], Olsson AUJ quoted a passage from Kennedy J in Re Bannan; ex parte Suleski [2001] WASCA 289 in which his Honour explained that the essence of reasons for decision is to disclose the reasoning process of the tribunal, and that fulfilment of the obligation to give reasons ensures that a person whose interests may be affected adversely by a decision understands why the decision has been made, and allows a party dissatisfied with it to determine whether there has been reviewable error. His Honour also said that the applicant should be able to understand, from the reasons of the decision, why he has had his claim dismissed, ie, he should be told in clear and unambiguous language why he has lost. Kennedy J continued:
"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 ..."
30 At par [72] and [73], Olsson AUJ continued:
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- "I would merely wish to add to what fell from Kennedy J that it needs to be borne in mind that Medical Assessment Panels are constituted of medical practitioners who have a large number of cases before them. It is not to be expected that they will produce the closely reasoned decision of a lawyer. What is required is the writing of a determination which, on a fair construction of it, does convey the basis of the decision arrived at, with sufficient particularity to satisfy the above dicta.
[73] What will suffice will, no doubt, vary from case to case, dependent on the nature of the areas of contention to be addressed. Some situations will permit of a fairly brief statement of reason. Others may require a somewhat more detailed analysis of the medical evidence, the findings on examination and other aspects as, for example, adverted to in Gillett at [39]."
31 His Honour continued, [74]:
"In the instant case, the MAP had before it a plethora of medical reports extending back over a lengthy period of time. These express widely varying assessments of disability, due to both physical and psychiatric factors. Some of them were in considerable conflict and impossible to reconcile with one another. At the end of the day, it was necessary for the MAP to make an independent assessment based on its own examination of Stafford, with what assistance could be derived from the many medical reports."
32 I think it is necessary to set out what his Honour considered the determination ultimately conveyed, namely, that:
(a) The panel had before it a quantity of "pre-reading material".
(b) Mr Stafford attended before the panel, was questioned by its members and then subjected to a medical examination by them.
(c) The panel assessed that its task was to focus on the permanent percentage disability assessment in relation to Mr Stafford's right shoulder, his back and his psychiatric disability.
(d) The panel was of the opinion that there was a right shoulder item 13 permanent residual disability "of the order of 20 per cent loss of effective use of the right limb" arising from the physical
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- conditions detailed in the determination. His Honour added at page 183:
- "[The description of those conditions can be read as inferring that their existence has been accepted as a result of the medical examination by the Panel, albeit against the background of the relevant medical report. However, the MAP does not expressly say so.]"
- (e) The panel was of the opinion that Stafford had a permanent psychiatric disability pursuant to item 8 "of the order of 15 - 20%", based on a Major Depressive Disorder, with strong reactive components stemming from the physical problems and the associated consequences on work, social, personal and family levels.
33 His Honour said that presumably this was an independent assessment of the panel as it was expressed using language which had not simply been "culled" from the medical reports. He found it odd that the panel should go on to say:
"In view of the nature and genesis of the psychiatric condition and the difficulties in foreseeing its course in the indefinite future, the assessment covers the present and foreseeable future (a period of 2 - 5 years from now). In the future various factors can change the psychiatric disability in either direction."
34 Whilst his Honour said that his mind had vacillated as to whether the panel's determination met the requirements of reasons, notwithstanding that it was "very sparse in its expression" and left "a good deal to be desired", he considered that it left much to be inferred and that:
"It is small wonder that the applicants express difficulty in understanding the route by which the assessments have been arrived at": [79]
35 He continued:
"[80] The criticism which can fairly be levelled at the determination is that it does not indicate what view the MAP took of the conflicting medical reports and why it was, in the light of the diversity of opinions expressed, it arrived at the conclusions to which it came.
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- [81] Whilst it is important the panel such as this be not saddled with what, in practical terms, are unrealistic and unduly burdensome obligations, nevertheless there comes a point at which it can properly be said that what has been written fell short of meeting the minimum requirement.
[82] I have concluded that, in form, the determination of the MAP does not meet the minimum requirement in the present case. At the end of the day the MAP have to make its own independent assessment (Gillett at [30]). As to the psychiatric component, one member of the MAP was a specialist psychiatrist. However, there is simply no explanation of how and why the MAP arrived at its conclusions against the background of the conflicting medical reports.
[83] At the end of the day, it is impossible to see how the parties could discern, with any real degree of confidence, on what basis the assessments were arrived at. That being so, the MAP has not discharged its obligations, as spelt out in Babban & Wong."
A consideration of the second determination
36 The first question, which now arises, is whether in relation to the right upper limb and the psychiatric disability, the panel has now stated sufficient reasons.
37 In relation to the right shoulder, the panel remained of the same view as that expressed previously. In its first determination, it stated its reasons for the determination in the following terms:
"Residual disability in the right shoulder is based on the presence of ongoing tendonitis involving the infra supraspinatus, supraspinatus and biceps tendons as demonstrated by restricted active motion of the right shoulder, painful arc and flexion. There is evidence of residual arthropathy of the acromia clavicular joint. There are no residual complaints of spinal pain in the cervical, thoracic or lumbar spine."
38 What the panel has done now is, almost verbatim, repeat what it had said previously. What it has failed to do, and what, in my respectful
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- opinion, the previous decision in Re Croser made clear it was obliged to do, is to give the reasons, bearing in mind, inter alia, the conflicting medical evidence, for coming to the conclusions which it did. There was no attempt to analyse, or indeed identify, the medical reports to which regard was had; to identify those which supported the panel's view and why they were accepted, and those contrary to the panel's view and why they were rejected; to set forth the questioning of Mr Stafford and what assistance his answers gave; or to state the nature of the clinical examination, what was found on that examination, and how those findings supported the determination. Indeed, the examination on which reliance was placed was that carried out on 11 May 2001.
39 In these circumstances, I am of the opinion that the panel has totally failed to comply with this Court's requirements for the giving of reasons. I can only think that this stems from its failure to understand what this Court required.
40 In relation to the psychiatric disability, the reasons previously given were:
"The Psychiatric Determination is based on a Major Depressive Disorder with strong reactive component stemming from the physical problems and the associated consequences on work, social, personal and family levels. In view of the nature and genesis of the psychiatric condition and the difficulties in foreseeing its future and the indefinite future, the assessment covers the present and foreseeable future (a period of 2 - 5 years from now). In the future various factors could change the psychiatric disability in either direction."
41 In the present report, the panel stated that its determination of permanent psychiatric disability was based on a comprehensive review of the medical reports provided, without analysing the competing versions, identifying the version the panel preferred and the reasons for that preference. It referred to the questioning of Mr Stafford, without stating what questions were asked or how the answers impacted upon the determination of the psychiatric situation found. The report did not state what the clinical examination of Mr Stafford involved, what it disclosed or how it led to the conclusion to which the panel came.
42 To some extent, the next two sentences are indicative that the panel accepted those medical reports, which described a depressive illness and that treatment had not resulted in any improvement up to the time of the
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- examination. However, having stated that, the bald assertion was made that the panel was satisfied that Mr Stafford satisfied the DSM IV criteria for a Major Depressive Disorder, without giving reasons. The final paragraph on this point was merely, with a minor variation, a repeat of what had been stated in the first determination.
43 Once again, the panel failed to set out its reasons for the conclusions to which it had come. Further, it relied upon the clinical examination of 11 May 2001.
Some advice to panels
44 This is the second occasion when this matter has been before the Court. On each occasion, the panel's determination has been set aside on the ground that it did not disclose sufficient reasons. On the first occasion, the requirement for reasons was stated in strong terms. The Court raised with counsel, whether it would be desirable for the Court to make further suggestions as to how a panel might approach its task. Ms Pritchard was of the view that it would not, essentially because there is such a wide variety of circumstances which may come before a panel and which will be controlled by the specific question asked of each panel and, further, because it is for the panel to express its determination in its own words and based on its own assessment of the injury suffered. Mr Zelestis, on the other hand, submitted that some general observations may be of assistance.
45 It seems to me that there may be utility in suggesting some ways in which a panel may approach the formulation of its determination. In saying that, I am not to be taken as suggesting that I am laying down any formula, let alone a rigid one, within which a panel must seek to structure a determination. I make it clear that in every case, the determination must be that of the panel. Nonetheless, the present case has now been before the Court on two occasions with the consequences to which I have referred. This has not only had the effect of delaying the litigation and taking some hours of Court hearing, but also of requiring this particular panel to meet on a second occasion when, I have no doubt, their time could have been more usefully spent.
46 In my opinion, and I stress that I am speaking generally and by no means purporting to cover all the circumstances which may arise for a panel's consideration, it seems to me that a panel must keep in mind that:
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- (a) It is particularly suited by its medical training to furnish a determination on medical issues. In effect, the determination has some close similarity to a medico-legal report, which usually sets out the history obtained, the symptoms complained of, the examination carried out, what that examination discloses and a view of the extent, nature and severity of the medical condition supported by the doctor's reasons for reaching that conclusion.
(b) In relation to many medical issues, there may be, and often is, a legitimate difference of medical opinion as to the nature, extent and severity of the injury.
(c) The panel's task is to determine from all the medical reports before it, its examination of the worker and its own experience, the conclusion as to which of those differing opinions it favours in the case before it.
(d) The expression of the conclusion, however, is made insufficient by the Act. The Act demands that the panel gives reasons. The law does not demand that the reasons should extend beyond those sufficient to enable the lay reader and, in some cases, the medical reader, to determine how the panel reached its decision.
(e) In these circumstances, one task for the panel is to determine which medical reports it accepts and which it does not. However, it is insufficient to simply make that statement.
(f) In concluding which medical reports to accept or reject, the panel may have regard to matters such as the sufficiency of the history given to the doctor providing each report by the worker; the extent to which, if at all, the doctor has examined the worker and what the doctor has ascertained from that examination; whether the examining doctor has overlooked some matter, which the panel has observed on its examination and which it considers to be relevant; and whether the views expressed by the doctor accord with a respected body of medical opinion. There may be other reasons for rejecting some medical reports. They should be stated.
(g) Insofar as the panel questions the worker, the determination should set out, albeit briefly, the nature of the questioning and the effect that the answers and the manner in which they were given impacted upon the panel's determination.
(h) Insofar as the panel examines the worker, it should record what is found on examination and what the panel derives from such findings perhaps, more particularly, in the light of the history and complaints made by the worker.
(Page 21)
- (i) From all this information, although much will be contained in writing what I have said, the panel should disclose its reasons upon which it bases its conclusions.
Conclusions
47 As I have said, the Court announced its orders at the conclusion of the oral argument and these are my reasons for agreeing in those orders. At the time the orders were made, the view was expressed, with which I also agree, that it is not necessary for the panel, as presently constituted, to again be the panel which makes the next determination. It is open for another panel to be convened.
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