Re Gillett; Ex parte Rusich - [2001] WASCA 111

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE ROBERT JOHN GILLETT, JOHN LOUIS QUINTNER and RODNEY MAXWELL MOORE as members of a Medical Assessment Panel constituted under the Workers' Compensation and Rehabilitation Act 1981 (As Amended); EX PARTE RUSICH [2001] WASCA 111

CORAM: IPP J
MURRAY J
MILLER J

HEARD: 24 NOVEMBER 2000

DELIVERED : 11 APRIL 2001

FILE NO/S: CIV 1139 of 2000

MATTER :An application for a Writ of Certiorari against ROBERT JOHN GILLETT, JOHN LOUIS QUINTNER and RODNEY MAXWELL MOORE as members of a Medical Assessment Panel constituted under the Workers' Compensation and Rehabilitation Act 1981 (As Amended)

EX PARTE
WALTER RUSICH
Applicant

Catchwords:

Prerogative writs - Certiorari - Degree of disability of worker - Workers' Compensation and Rehabilitation Act 1981 (WA), s 145E - Medical Assessment Panel - Whether jurisdictional error and error of law on the face of the record - Obligation of panel to give reasons for decision - Obligation to take into account all relevant medical evidence

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA), s 5, s 25, s 62, s 84, s 93, s 145

Result:

Order nisi made absolute

Representation:

Counsel:

Applicant: Mr M A Tedeschi
Intervener: Mr J R Ludlow

Solicitors:

Applicant: Taylor Smart
Intervener: McAuliffe Schwikkard

Case(s) referred to in judgment(s):

Bone v Mental Health Review Tribunal [1985] 3 All ER 330
Craig v SA (1995) 184 CLR 163
Dornan v Riordan (1990) 95 ALR 451
Ex parte Ivey & Monger [1999] WASC 250
Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996
Garrett v Nicholson (1999) 21 WAR 226
QBE Insurance Ltd v Moltoni Corp Pty Ltd (2000) 22 WAR 148
R v Compensation Court of WA; Ex parte State Planning Commission (1990) 2 WAR 242

Case(s) also cited:

Body Corporate Strata Plan No 4166 v Stirling Properties Ltd (No 2) [1984] VR 903
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Comcare Australia v Lees (1997) 151 ALR 647
CSR Ltd v The Medical Panel, Midalco Pty Ltd v The Medical Panel, unreported; FCt SCt of WA; Library No 9097; 11 October 1991
Derek Thorp v Wanneroo City Council, unreported; Compensation Magistrate (J R Packington); CM 49/00; 31 July 2000
Fremantle Foundry & Engineering Co Pty Ltd v The Medical Panel, unreported; FCt SCt of WA; Library No 9200; 17 December 1991
Hockey v Yelland (1984) 157 CLR 124
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Mountview Court Properties Ltd v Devlin (1970) 21 P & CR 689
O'Reilly v Mackman [1983] 2 AC 237
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
R v District Court of Queensland Northern District; Ex p Thompson (1968) 118 CLR 488
R v Mental Health Review Tribunal; Ex p Clatworthy [1985] 3 All ER 699
Ramskogler v The Director of Public Prosecutions (1995) 82 A Crim R 128
Re Poyser and Mills Arbitration [1963] 2 QB 467
Repatriation Commission v O'Brien (1985) 155 CLR 422
Rola Co (Australia) Pty Ltd v The Commonwealth (1944) 69 CLR 185

IPP J: I agree with Miller J for the reasons set out by him that the order nisi should be made absolute on grounds (b) and (g).
I understand ground (a) to assert that the panel failed to determine the question referred to it because the answer it gave was invalid for the reasons set out in the remainder of the ground. It is sufficient to say that, by reason of the upholding of ground (b), I would also uphold ground (a).
I would uphold ground (c). In view of the fact that I am in the minority on this issue it is sufficient for me to say that I regard the CT scans as being so important that the failure to deal with them compels the inference that the reasons of the panel were fundamentally defective.
I would also uphold ground (d). Again, because I am in the minority on this ground, it is sufficient for me to say that the panel was not required to decide what caused the injury, namely, whether the injury resulted from degenerative change or some other cause. By differentiating between degenerative change and disability the panel, in my view, took upon itself an inquiry which was irrelevant to its function.
Otherwise I agree with the reasons of Miller J and agree that the order nisi should be made absolute.
MURRAY J: In this matter I am greatly obliged to Miller J to have had access to his Honour's reasons for decision with which I am in substantial agreement. I too would make absolute the order nisi for a writ of certiorari. I would adhere to the view I expressed in Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996, with which view Franklyn and Owen JJ agreed, that the relevant determination of the panel under challenge in this case, its answer to the second question referred to it (as amended), is liable to be quashed by the process of certiorari upon the ground of an error of law patent on the face of the record of the panel. I agree that there is an error of law patent on the face of the record in respect of the manner in which the panel used the US Guide for the Evaluation of Permanent Impairment, a matter upon which I wrote in Juras. I also think that the panel's determination upon the second question is liable to be quashed upon the ground that it acted in excess of its jurisdiction because it failed to determine the question referred to it. The panel answered a question different to that which was referred under s 84R, concerning the assessment of the nature and extent of the physical disability to the applicant's back, by reason of its reliance upon evidence of impairment of function.

I have nothing further to add to what Miller J has written in respect of those matters and I would conclude that grounds a. and b. of the order nisi have been made out, but, as his Honour has concluded, I do not consider that grounds c. to f. inclusive have been made out in respect of the alleged failure to take into account considerations and factors relevant to the panel's determination.
I wish only to repeat what I said in Juras at 7 ‑ 8, that because s 145E(3) requires "the determination and the reasons for making it" to be given by the panel to the Director of Conciliation and Review for wider publication to the parties, the reasons for the determination are in my opinion part of the record of the panel available for consideration in respect of the questions whether the panel may be established to have acted in excess of its jurisdiction and/or whether it has committed an error of law in making the determination: R v Compensation Court of WA; Ex parte State Planning Commission (1990) 2 WAR 242; Craig v SA (1995) 184 CLR 163, 182.
I turn then to ground g. which Miller J also finds to be made out. It complains that the panel erred in law by failing to give adequate reasons for its determination, as required by s 145E(3). While I would endorse, with respect, what Miller J has written in respect of the desirable elements of the reasons which one might expect a panel to produce to explain its determination, I would prefer to leave for another day the question whether the asserted inadequacy of reasons might itself constitute an error of law on the face of the record such as would ground the issue of a writ of certorari. I would observe in passing that in this case, in my opinion, the reasons actually revealed the error and the misunderstanding of the panel's jurisdiction which I consider do ground the issue of the writ.
I would only add the observation that in the context of the exercise of a statutory right of appeal or review, it has often been said that the failure to give reasons for decision or the failure to give adequate reasons for decision, will only constitute appealable error in a case where the decision‑maker fails entirely to give reasons or gives reasons which are so inadequate that the essential reasoning process behind the decision is not exposed, thereby depriving the litigant of the capacity to know why the result occurred and effectively rendering nugatory the right of appeal: see Garrett v Nicholson (1999) 21 WAR 226 per Owen J at par [73] ‑ par [74] and QBE Insurance Ltd v Moltoni Corp Pty Ltd (2000) 22 WAR 148 per Murray J at par [112] ‑ par [113]. Although

these reasons lacked some desirable content to which Miller J has referred, in my opinion they were not inadequate in that sense so as to establish a failure by the panel to discharge the duty to give reasons imposed by the Act, if indeed that is a question which may ground the making of an order absolute.

MILLER J: The applicant was at all material times employed by George Weston Foods Ltd which company carried on the business of manufacturing and supplying bread products under the name Tip Top Bakeries. The applicant had been employed by Tip Top Bakeries over a period of years and had on numerous occasions sustained various injuries, including the onset of backache whilst unloading crates from the back of a van in July 1988. Thereafter, in November 198, June 1990, August 1992 and March 1993, the applicant sustained the onset of back pain and/or "strains" and "sprains" in the lower back area whilst in the course of his employment. In September 1994 he suffered an injury to the cervical spine whilst stacking bread crates and ultimately, on 17 January 1997, a further back injury which gave rise to a claim for compensation pursuant to the provisions of the Workers' Compensation and Rehabilitation Act 1981 ("the Act").
On 17 January 1997 the applicant was required to deliver bread products to various locations within the Perth and Northbridge area. At about 2am on that morning he was lifting crates at his place of work when he suffered a gradual onset of back pain. He continued to work after the incident but the pain did not resolve and he attended upon a general practitioner who certified him partially unfit to work. During the 1997 year he underwent a great deal of medical review and/or treatment, and although continuing with his work throughout that year, he was unable after January 1998 to carry out normal duties with his employer. He contends that he is unable to return to his previous employment and will never be able to work in that occupation. He has, however, been able to obtain other employment, working as a courier driver on a casual basis.
The applicant appears to have received weekly compensation under the provisions of the Act from January 1998 until 29 June 1999 when his employer, through its insurer, made an application in the Conciliation and Review Directorate to review those weekly payments. That application was made pursuant to the provisions of s 62 of the Act, which provides that any weekly payment may be reviewed by the Directorate at the request either of the employer or the worker and, on such review, may be discontinued, reduced or increased as the Directorate "having regard to the past or present condition of the worker" sees fit. It appears that the

applicant's employer was contending that the applicant was fit for work as a courier driver and therefore had no continuing entitlement to weekly payments of compensation.

The application thereafter proceeded to a conciliation conference under the provisions of Part IIIA, Div 2 of the Act. Pursuant to s 84N of the Act, any party to a dispute may by application refer the dispute to the Director for Conciliation. The Director thereafter (s 84O) makes arrangements as to the Conciliation Officer who is to conciliate in connection with the particular dispute and (s 84P) conciliation by a conciliation officer is then to commence within 14 days of the day on which the dispute is referred to the Director. The officer is required to Act "fairly, economically, informally and quickly in making all reasonable efforts to bring the parties to the dispute to agreement". Section 84R gives to the conciliation officer the power to refer a question as to
"(a)the nature or extent of a disability;
(b)whether a disability is permanent or temporary; or
(c)a worker's capacity for work,
for determination by a medical assessment panel."
Section 145A of the Act makes provision for questions to be referred to the medical assessment panel and is in the following terms:
"145AQuestions that have to be referred
(1)Subject to subsection (2) a question may be referred for determination by a medical assessment panel under section 84R, 84ZH or 84ZR only if -
(a)there is a conflict of medical opinion on the question between -
(i)a medical practitioner engaged by the worker; and
(ii)a medical practitioner provided and paid by the employer, or each medical practitioner so provided and paid if there is more than one of them;
and
(b)one of the parties wishes the proceedings to continue.
(2)A question as to the degree of permanent loss of the full efficient use of the back, neck or pelvis may be referred for determination by a medical assessment panel under section 84R, 84ZH or 84ZR if -
(a)the employer does not agree to pay an amount claimed by the worker by way of an election made for the purposes of section 24; and
(b)the worker requests that the question be so referred."
In the present case the conciliation officer formulated the questions for determination by the medical assessment panel as follows:
"1.The worker is currently employed as a light courier for 25 hours per week.
In his report of 15 September 1999 Dr K Maguire expresses a view that the worker will need to continue with only his part‑time duties.
Conversely, Dr J Rosenthal in his report of 14 September 1999 expresses a view that the worker has the capacity to work full time as a courier.
QuestionWhat is the worker's capacity to undertake the duties of a courier driver?
2.In the report of Mr J Bell dated 20 April 1999 he indicates that he does not expect the worker's injury to leave the worker with any degree of permanent disability.
Dr K Maguire in his report of 24 February 1999 estimates the worker has a loss of 30% of normal spinal function.
Dr J Rosenthal in his report of 30 June 1998 expresses an opinion that the worker has a 10% permanent loss of function of the lumbar spine.
QuestionWhat is the worker's percentage permanent loss of function of the lumbar spine?"
It appears that the medical assessment panel was to convene on 6 December 1999 to answer these questions. By letter dated 3 December 1999 the Director wrote to the Chairman of the Medical Assessment Panel advising that a report had been received from the applicant's solicitors which required reformulation of the second question for the panel. The letter from the Director was (relevantly) in the following terms:
"Please find enclosed a letter recently received from the worker's solicitors, enclosing a further report from Dr Ken Maguire.
You will note that Dr Maguire has amended his opinion in respect of the worker's permanent residual disability, and that certification is contained in the report 26 October 1999.
In light of the concerns raised in Mr Rusich's solicitor's correspondence, Question 2 should be amended as follows:
2.In the report of Mr J Bell dated 20 April 1999 he indicates he does not expect the worker's injury to leave the worker with any degree of permanent disability.
Dr K Maguire in his report of 24 February 1999 estimates the worker has a loss of 30% of normal spinal function. However, further, in a report of 26 October 1999 he estimates the worker has a permanent loss of efficient use of the back (including thoracic and lumbar spine) equalling 60 percent of and (sic) 'Prescribed Amount' - Item 36A, Second Schedule.
Dr J Rosenthal in his report of 30 June 1998 expresses an opinion that the worker has a 10% permanent loss of function of the lumbar spine.
QuestionWhat is the worker's percentage permanent loss of function of Item 36A (permanent loss of the full efficient use of the back) (including thoracic and lumbar spine)."
By report dated 7 December 1999 the medical assessment panel answered the questions put to it in the following terms:
"The Medical Assessment Panel constituted pursuant to section 145C of the Workers' Compensation and Rehabilitation Act 1981 ('the Act') to determine the question referred to it, concluded its determination on the 6th day of November (sic December) 1999.
The determination took place at Murdoch and the worker was in attendance, did have questions put to him and was submitted to a medical examination by the Medical Assessment Panel.
DETERMINATION
The Medical Assessment Panel determines as follows:
1.The worker is currently employed as a light courier for 25 hours per week.
In his report of 15 September 1999 Dr K Maguire expresses a view that the worker will need to continue with only his part‑time duties.
Conversely, Dr J Rosenthal in his report of 14 September 1999 expresses a view that the worker has the capacity to work full time as a courier.
QuestionWhat is the worker's capacity to undertake the duties of a courier driver?
AnswerMr Rusich has a capacity for Full time Courier duties
2.In the report of Mr J Bell dated 20 April 1999 he indicates that he does not expect the worker's injury to leave the worker with any degree of permanent disability.
Dr K Maguire in his report of 24 February 1999 estimates the worker has a loss of 30% of normal spinal function. However further, in a report of 26 October 1999 he estimates the worker has a permanent loss of efficient use of the back (including thoracic and lumbar spine) equalling 60% of prescribed amount - Item 36A, Second Schedule.
Dr J Rosenthal in his report of 30 June 1998 expresses an opinion that the worker has a 10% permanent loss of function of the lumbar spine.
QuestionWhat is the worker's percentage permanent loss of function of Item 36A (permanent loss of efficient use of the back) (including thoracic and lumbar spine).
Answer:Mr Rusich has a permanent loss of efficient use of the back (including thoracic and lumbar spine) in the range of 6-7%.
REASONS
The reasons for this determination are as follows:
The panel was unanimous in its belief that Mr Rusich has demonstrated an ongoing ability for driving duties with restrictions on repetitive bending and heavier manual handling activities.
The panel acknowledges that Mr Rusich has primarily mechanical low back pain, together with evidence of long‑standing degenerative change radiologically. There are no demonstrated abnormal neurological signs in this case.
The determination of the loss of the efficient use of the back was undertaken with the use of the US Guide for the Evaluation of Permanent Impairment - 4th Edition in conjunction with the AMA Assessment of Disability Guide - 1st Edition 1994.
The panel wishes to acknowledge Mr Rusich's assistance and co‑operation in this matter whilst recognising he has recently had an exacerbation of his pain.
The panel wishes to record that without his assistance it would have been hampered in arriving at its determination."
On 23 February 2000 Scott J made an order nisi for a writ of certiorari calling upon the members of the panel to show cause before this Court why a writ of certiorari should not issue against the panel to remove into this Court for the purpose of being quashed the determination made on 7 December 1999. The grounds upon which the order nisi were made (as amended at the hearing of the appeal) were that there had been error of law on the face of the record and excess of jurisdiction in that:
"a.The Panel failed to determine the question referred to it under Section 145A(1) of the Act, namely, 'what is the worker's percentage permanent loss of function of item 36a (permanent loss of efficient use of the back) (including thoracic and lumbar spine)'.
b.The Panel made an error of law in determining the loss of the efficient use of the back by using the US Guide for the Evaluation of Permanent Impairment - 4th Edition, in conjunction with the AMA Assessment of Disability Guide - 1st Edition, instead of determining the loss of efficient use of the back in accordance with Section 25 and Item 36A of the Workers Compensation and Rehabilitation Act 1981 (as amended) and have applied the wrong test in making the determination.
c.The Panel failed to take into account relevant considerations namely the results of further CT scanning on 7 April 1998 which showed some deterioration of changes in the lumbar spine with evidence of slight compromise of the right L5 nerve root entering the right lateral recess due to posterior bulging at L4/5 and the results of a further CT scan on 9th of June 1999 showing progression of changes at L3/4 with a very mild spinal canal stenosis at that level. Facet arthritis at L3/4 was noted as well as changes at L4/5 with again mild spinal canal stenosis. At L5/S1 gas was seen within the intervertebral disc with evidence of ongoing disc bulge and bilateral facet osteoarthritis, which was before the Panel.
d.The Panel took into account an irrelevant consideration by referring to evidence of long standing degenerative change radiologically in the Applicant's low back, without considering whether such degenerative change was caused or contributed to by the Applicant's employment.
e.Alternatively to ground d, the Panel failed to take into account relevant considerations namely, it failed to consider that the long standing degenerative change radiologically in the Applicant's low back was caused or contributed to by his employment and/or had been aggravated as a result of the work injury on the 17th of January 1997, which matters are relevant to the assessment of the permanent loss of function of the spine, suffered by the Applicant.
f.The Panel failed to take into account relevant considerations namely the reports of Dr K McGuire, Pain Relief Specialist of the 24th of February 1999 and the 26th of October 1999 which had assessed the Applicant had a permanent loss of 30% of normal spinal function and a permanent loss of efficient use of the back (including thoracic and lumbar spine) of 60% of prescribed amount - Item 36A, Second Schedule, both of which were put before the panel.
g.The Panel failed to give adequate reasons for its determination as required by Section 145E(3) of the Act."

Part VII of the Act sets out the constitution, powers and procedures of medical assessment panels. On a question being referred for determination by a medical assessment panel the Director is to select two or three medical practitioners from a register which contains the name of medical practitioners approved under s 145B(2) of the Act. The panel so constituted is to determine the question or questions put to it (s 145C).
The procedures to be adopted by panels are set out in s 145D. The panel is to act "speedily and informally and in accordance with good conscience without regard to technicalities or legal forms and is not bound by rules of practice nor evidence". The panel may, for the purpose of assisting it in determining the question put to it, require the worker concerned to attend before it, answer questions and submit to medical examination by the panel.
Section 145E of the Act deals with determinations of the panel. Such a determination is to be made as soon as practicable but in any event within 28 days after the day on which a medical examination of the worker is carried out (s 145E(2)). 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 seven days after the date on which the determination is made (s 145E(3)). The Director is required to give the determination and reasons to the person who referred the question to the panel and the worker concerned, within three days after the day on which he receives them (s 145E(4)). Unless rescinded under s 145F, a determination (or a varied determination under s 145F) is final and binding on the worker and employer and on any court or tribunal hearing a matter in which any such determination is relevant. It is "conclusive evidence as to the matters determined". Section 145E clearly envisages that the panel will give written reasons for the determination it reaches. The content of those reasons is not specified.
In this case it is only question 2 and the answer to that question in the determination of the panel which is the subject of the order nisi. The first ground upon which the order nisi was granted contends that the panel failed to determine the second question asked of it. However, the argument in support of this ground was essentially the same as that advanced under the second ground. That is, the panel in making the determination of loss of efficient use of the back did so by reference to inappropriate materials and "came to a wrong and unauthorised conclusion as a result". Looked at literally, the panel did in fact answer the second question referred to it. The complaint is related to the methodology used to answer it. I am therefore unable to say that the first ground is made out.
The primary challenge to the determination (ground (b))is based upon the panel's use of the US Guide for the Evaluation of Permanent Impairment ("US Guide") in conjunction with the AMA Assessment of Disability Guide ("AMA Guide") in the determination of the loss of the efficient use of the back. The challenge to the panel's use of the US Guide is based upon the fact that what the panel was required to do was determine the permanent loss of the efficient use of the applicant's back within the meaning of s 25 of the Act when read with Item 36A of Schedule 2 to the Act. This schedule sets out the table of compensation payable for certain injuries and prescribes a ratio which the sum payable bears to the prescribed amount in relation to each item. For Item 36A ("permanent loss of the full efficient use of the back (including thoracic and lumbar spine)") that ratio is 60 per cent.
The applicant's argument is that the relevant basis for establishing the permanent loss of the efficient use of the back under Item 36A is the medical evidence made available to the panel and not otherwise. It is contended that s 145A makes clear the need to refer to that medical evidence - although s 145D clearly also authorises the panel to conduct its own examination. What is argued is that there is no basis for use of the US Guide or indeed the AMA Guide, with the result that the panel acted here in such a way as to answer the question put to it using criteria it was not permitted to use under the Act. In relying upon the US Guide and the AMA Guide, it is contended that errors of law on the face of the record and an excess of jurisdiction are apparent.
Counsel for the applicant contended that decisions of this Court have made it clear that there is no basis for use of the US Guide or the AMA Guide. Reliance was placed upon Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996 where Murray J (at 11 ‑ 12) made reference to a panel having used an American guide in reaching a final expression of percentage disability in terms of Schedule 2, but for the purposes of s 93D of the Act. That section, which prescribes a "relevant level" of degree of disability for a worker as a threshold for the commencement of an action for damages does, in s 93D(2)(b), make reference to the degree of permanent impairment "assessed in accordance with the AMA Guides". In dealing with that issue, Murray J said:
"The possibility that this particular panel may have, albeit erroneously, reached its final expression of percentage disability within Schedule 2 is thrown into doubt by the observation that the determination was made according to the Guides for the Evaluation of Permanent Impairment, Fourth Edition, of the American Medical Association. If that is a reference to the process of assessment referred to in the Act, s93D(3)(b), then it reveals error in two respects. In the first place there appears to be no reason why the assessment could not have been carried out by the statutorily preferred method involving the application of Schedule 2 and in the second place, the reference to the "AMA Guides" in the Act has a defined meaning under s93A. The Guide identified in the determination is not that identified in s93A. The definition there refers to the Assessment of Disability Guide published by the WA Branch of the Australian Medical Association which is prescribed in the regulations.
The regulations referred to are the Workers' Compensation and Rehabilitation Regulations 1982, of which reg 3 prescribes the first edition of the relevant Assessment of Disability Guide. That is self evidently not the Guide which appears to have been utilised by this particular panel in this case, although it should be said that the statutorily prescribed Guide does refer to the fourth edition of the American Guide, emphasising however that the Guide published by the WA Branch of the Australian Medical Association is to prevail over the American Guide. The error of law is patent on the face of the determination."
His Honour went on to add (at 12):
"It is not necessary for the purposes of these reasons to do more than air, without resolving, a concern I feel about the utility for the purposes of s93D of the AMA Guide itself. It will be recalled that under s93D(3)(b) it is only to be used to the extent, if any, that Schedule 2 of the Act does not provide for a particular disability, and yet the AMA Guide starts from the particular disabilities provided under Schedule 2 and gives a formula by which the American Guide referred to may be used to convert what is described as a maximum percentage disability under Schedule 2 into a conclusion, expressed as a percentage, about the degree of disability. At first sight the Guide does not seem to be describing a process relevant to the statute, but as I say, it is not necessary for the purpose of these reasons to resolve that question, given my view that it appears that the total disability of the applicant could be dealt with within the framework of Schedule 2."
Reliance was also placed upon Ex parte Ivey & Monger [1999] WASC 250 which was a decision of my own dealing with the "relevant level" for the purposes of s 93D of the Act. I there made the point (at [18] ‑ [19]) that a medical practitioner had not indicated the degree of disability to be permanent as required for an assessment of disability under s 93D and Schedule 2 and s 25 of the Act. However, I can find nothing in the decision which goes to the point in issue in the present case. The question is whether the panel acted beyond power in determining loss of efficient use of the back with the use of the US Guide in conjunction with the AMA Guide.
The argument for the applicant was that the panel had simply taken from Table 53 of the US Guide a percentage of impairment of the whole person by reference to a reduced dislocation of one vertebra (unoperated upon) and with various symptoms. The range of 6 ‑ 7 per cent determined by the panel was said to have come from the fact that for the reduced dislocation of one vertebra 6 per cent is prescribed in Table 53 and for an unoperated condition with various symptoms there set out, 7 per cent is prescribed.
I do not accept that this was the necessary conclusion of the panel. However, if the panel utilised the US Guide for the purpose of reaching a percentage of permanent loss of efficient use of the back it was, in my view, in error. I have no difficulty with a medical assessment panel informing itself on all available medical literature on the musculoskeletal system, but for a panel to simply utilise recommended impairment figures for certain aspects of lumbosacral spine impairment (such as those contained within the US Guide) is fraught with danger. Certain aspects of the US Guide (the introductory section and general principles of measurement in relation to the spine) are entirely uncontentious and a panel would be at liberty to make reference to those sections. Where the danger exists is if a panel adopts the recommended percentage impairment of the lumbar spine contained within a table such as Table 53 of the US Guide. There is a real possibility that that is what the panel did in this instance. Further, there appears to have been a reference to the AMA assessment of disability guide which also details "maximum disability ratings on a bodily organ/function and/or permanent loss of function basis for the purpose of establishing the degree of permanent disability" under the Act. The basis for the AMA Guide seems to have been in part the US Guide and in part a paper on "assessment of disability" by Dr F B Webb in February 1978. The AMA Guide does emphasise that it prevails over the US Guide. It does, however, set out a formula for the assessment of permanent disability which has no statutory authority. By way of example, there is the following "hypothetical example" at page 8 of the AMA Guide:
"Hypothetical
Example:   50% Loss assessed using US Guide methodologies
1.  Max % Disability (WA Act)  =  75%
2.  Max % permanent loss of function impairment (US Guide) =  35%"
There is a distinct danger that medical assessment panels in using either or both the AMA and US Guide are abdicating their responsibility of an independent medical assessment of permanent loss of the efficient use of part of the body as required in Items 36A ‑ 36C of Schedule 2 to the Act. All that is required of a panel is that from the medical information in its possession and/or the results of its own medical examination of a worker, the questions put to it be determined on general medical knowledge and expertise. In reaching the determination the panel may draw on various publications but must, in my view, refrain from adopting specific formulae prescribed in schedules such as those to be found in the US and AMA Guides. It is the adoption of a pre‑determined formula which, in my view, constitutes an erroneous approach by a medical assessment panel. The danger in the present case is that the panel may have taken that course. For this reason I am of the view that the second ground upon which the order nisi was granted has been made out.
The third ground upon which the order nisi was granted contends that the panel failed to take into account relevant considerations by way of additional medical evidence which was before the panel, but which was not referred to by it. Criticism is made that the results of CT scanning on 7 April 1998 were not referred to by the panel, nor further CT scanning on 9 June 1999. The significance of the CT scans was the subject of report by Dr K Maguire and also Dr J Rosenthal, to both of whose reports the panel made reference in its determination. For my part, I do not consider that the panel was obliged to cover every aspect of the medical evidence, as long as consideration was given to the totality of it. The mere absence of specific reference to the CT scanning in the determination does not, in my view, invalidate it.
The next challenge to the panel's determination is the contention that it took into account an irrelevant consideration by referring to evidence of longstanding degenerative change radiologically in the applicant's lower back, without considering whether that degenerative change was caused or contributed to by his employment. Specifically, it is contended that the "reasons" contained within the determination make it clear that longstanding degenerative change radiologically is being relied upon to reduce the assessment of the permanent loss of efficient use of the back, without there being any justification for concluding that this degeneration was caused by non‑employment or non‑compensable factors. It is therefore said that an irrelevant consideration has been taken into account. In the alternative, it is said that the panel failed to take into account relevant considerations namely, failing to consider that the long standing degenerative change in the applicant's lower back was caused by or contributed to by his employment, and/or aggravated by his injury at work on 17 January 1997.
The question asked of the panel was the percentage of permanent loss of efficient use of the back (including the thoracic and lumbar spine) for the purposes of Item 36A of the Second Schedule. Item 36A refers to "permanent loss" of the full efficient use of the back (including thoracic and lumbar spine) under the general heading "nature of injury". Compensation under Schedule 2 is governed by Part III, Div 2 of the Act and s 24 provides that a worker may elect to accept compensation payable for "the injuries" mentioned in column 1 of the table set out in Schedule 2. Clearly it is intended that any assessment for the purposes of Schedule 2 is to be an assessment of disability caused by injury. Section 3 of the Act provides that the purposes of the Act itself are firstly to make provision for the compensation of workers who suffer a disability. A "disability" is defined in the Act (s 5) to include a personal injury by accident arising out of or in the course of the worker's employment. It includes the recurrence, aggravation or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation or acceleration and contributed to a significant degree.
It is difficult to discern the reasons for the panel "acknowledging" that the applicant had primarily mechanical low back pain together with evidence of longstanding degenerative change. If the panel was concluding that the applicant had longstanding degenerative changes rather than disability related to an injury caused in the course of his employment, it did not say so. However, it is difficult to say that by this conclusion alone the panel erred in its determination. True it is that inadequate explanation is given in relation to the finding made in this respect, but of itself it does not, in my view, invalidate the determination.
Ground (f) upon which the order nisi was granted contends that the panel failed to properly take into account reports of Dr K McGuire dated 24 February and 26 October 1999. However, specific reference was made by the panel to each of those reports in the preamble to the answer to question 2, and it cannot be said that they were not taken its account. The panel may not have reached the same view as Dr McGuire, but I fail to see how the ground advanced can be made out.
The final ground upon which the order nisi was granted challenges the sufficiency of the reasons given by the panel. As I have already pointed out, s 145E of the Act requires a determination "and the reasons for making it". The question is whether the panel has provided sufficient reasons to enable the parties to discern whether any error of law was made in the findings of fact which the panel reached. In Bone v Mental Health Review Tribunal [1985] 3 All ER 330 Nolan J said in relation to the requirement of a Mental Health Review Tribunal in the United Kingdom to give reasons for its decision (at 333):
"… I should go further and amplify what I understand by the requirement that reasons should be given. I do so by quoting passages from two very well‑known authorities in which this matter has been considered. The first is a passage from the judgment of Megaw J in Re Poyser and Mills's Arbitration [1963] 1 All ER 612 at 616, [1964] 2 QB 467 at 478, where he said:
'… Parliament having provided that reasons shall be given, in my view that must clearly be read as meaning that proper, adequate, reasons must be given; the reasons that are set out … must be reasons which not only will be intelligible, but also can reasonably be said to deal with the substantial points that have been raised …'
In Alexander Machinery (Dudley) Ltd v Crabtree (1974] ICR 120 at 122 in the National Industrial Relations Court Donaldson P said:
'It is impossible for us to lay down any precise guidelines. The overriding test must always be: is the tribunal providing both parties with the materials which will enable them to know that the tribunal has made no error of law in reaching its finding of fact?' "
Reference might also be made to Dornan v Riordan (1990) 95 ALR 451, a case dealing with the requirement in the National Health Act 1953 (Cth) for a Pharmaceutical Benefits Remuneration Tribunal to set out the reasons for its determination. The Full Court of the Federal Court said (at 455):
"The trial judge found that the tribunal had failed to comply with the provisions of s 98BD in that it had not set out the reasons for making its determinations. We agree with the trial judge in this respect. The tribunal's obligation under s 98BD(1) and (2) of the Act and s 25D of the Acts Interpretation Act would not be breached by a failure to deal with every argument that may have been raised in proceedings before the tribunal or with every possibility that could be adverted to. The duty must be sensibly interpreted and applied with a view to achieving good and effective administration. As Wilcox J said in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 481; 77 ALR 577 at 593‑4 with respect to an analogous section, s 25B of the Broadcasting Act 1942 (Cth):
'There are, of course, limits upon the extent of the obligation arising out of s 25B. It is not necessary that the report deal with every matter which was, or which might have been, raised in the proceedings. It is enough that the findings and reasons deal with the substantial issues upon which the decision turned: see Tatmar [[1983] 3 NSWLR] at 385‑6 and Bisley Investment Corp v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 245. In Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507, Woodward J described the obligation under s 13 of the Administrative Decisions (Judicial Review) Act in these terms:
"The passages from judgments which are conveniently brought together in Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196 at 206‑7, serve to confirm my view that s 13(1) of the Judicial Review Act requires the decision‑maker to explain his decision in a way which will enable a person aggrieved to say, in effect: 'Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.
This requires that the decision‑maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation." "

In the present case, it is contended that the reasons of the panel should have included matters such as the history which the panel took from the applicant; the nature of the examination which it conducted; the findings on such examination; those findings that related to assessment of permanent loss of function; the nature of the injuries which caused the disability of the applicant; and whether the longstanding degenerative condition of the applicant had been caused by work and aggravated by specific incidents at work.
In my view there is substance in the contention that the reasons for the determination are inadequate. In my view the panel should in this case have included in its reasons
(a)an analysis of what medical evidence was accepted by it;
(b)the findings on examination of the applicant;
(c)the extent to which work caused injury had caused or contributed to the applicant's condition;
(d)the extent to which (if any) work‑caused disability had been aggravated by any specific work incidents and if so, to what extent;
(e)the specific distinction (if it existed) between non‑compensable disability and compensable disability;
(f)the ultimate disability in terms of Item 36A of Schedule 2 of the Act.
Although the panel gave reasons for its decision, those reasons were not, in my view, sufficient reasons. They failed to come to grips with the question which had been referred to the panel and omitted reference to a wealth of important medical evidence and/or results upon medical examination of the applicant himself.
For these reasons I am of the opinion that the order nisi should be made absolute on grounds (b) and (g).