Re Harley White;
[2005] WASCA 32
•4 MARCH 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: RE HARLEY WHITE; EX PARTE HUTT [2005] WASCA 32
CORAM: TEMPLEMAN J
MILLER J
MCKECHNIE J
HEARD: 18 NOVEMBER 2004
DELIVERED : 4 MARCH 2005
FILE NO/S: CIV 1284 of 2004
MATTER :An application for a writ of certiorari against HARLEY WHITE, a Conciliation Officer of the Conciliation and Review Directorate constituted under the Workers' Compensation and Rehabilitation Act1981 (WA)
An application for a writ of certiorari against DR WALLY KNEZEVIC, DR CHRISTOPHER HAMMERSLEY and DR KATRINA MARSHALL as members of a Medical Assessment Panel constituted under the Workers' Compensation and Rehabilitation Act 1981 (WA)
EX PARTE
MANDY JAIN HUTT
ApplicantROBE RIVER MINING CO PTY LTD
Intervener
Catchwords:
Prerogative writs - Certiorari - Jurisdictional error - Workers' compensation - Medical assessment panel - Claim that no statutory basis for insurer to apply for review in its own name - Whether dispute existed on which to base application - Whether panel made non-medical findings of fact
Prerogative writs - Procedural fairness - Whether reasons adequate
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 62, s 84N, s 145A
Result:
Order nisi discharged
Category: B
Representation:
Counsel:
Applicant: Mr M S Macdonald
Intervener: Mr M W Schwikkard
Solicitors:
Applicant: Macdonald Rudder
Intervener: Jackson McDonald
Case(s) referred to in judgment(s):
Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395
In Re Croser; Ex parte Rutherford [2003] WASCA 8
Re Wong; Ex parte Inghams Enterprises Pty Ltd [2004] WASCA 247
Case(s) also cited:
Allesch v Maunz (2000) 203 CLR 172
Geary v Heupeden [1992] 2 Qd R 475
Re Bannan; Ex parte Suleski [2001] WASCA 289
Re Croser; Ex parte Rutherford & Anor (2001) 25 WAR 170
Re Hales & Ors; Ex parte Barr [2001] WASCA 89
Re Malone & Ors; Ex parte Casey [2003] WASC 266
Re Monger; Ex parte Welsby [2003] WASCA
Re Poyser & Mills' Arbitration [1964] 2 QB 467
Re Wong; Ex parte Hays, FCt SCt of WA; Library No 980575; 5 October 1998
Turner v Kowloon Holdings Pty Ltd [2003] WASCA 276
United Constructions Pty Ltd v Maketic CM-148/01, 17 January 2002
Weerappah v Nisselle [1999] VSC 249
TEMPLEMAN J: The applicant claimed to have sustained injuries to her right arm on two occasions during the course of her employment with the respondent as a dump truck driver. The first occasion was 18 September 2000: the second was 31 October 2001.
The employer's insurer is Insurance Australia Ltd, trading as CGU Workers' Compensation ("CGU").
The applicant claimed that as a result of her injuries she was unfit for work. This was accepted: and the applicant was paid workers' compensation by CGU, on behalf of the employer.
On 23 September 2003, CGU wrote to the applicant's solicitors informing them that "based on the medical evidence held on file we are seeking a cessation of your client's weekly compensation payments pursuant to s 62 [of the Workers' Compensation and Rehabilitation Act 1981]". CGU went on to ask whether the applicant would agree to this course.
On 25 September, the applicant's solicitors replied to CGU. They said the medical evidence on their file indicated that the applicant remained wholly unfit for work. The solicitors asked to see the medical reports on which CGU relied. They said that until they had seen the reports they did not think it appropriate to take the applicant's instructions.
On 6 October, CGU wrote to the applicant's solicitors saying it intended to rely on three medical reports, which it identified.
On the following day, CGU lodged an "application referring dispute for conciliation" with the Conciliation and Review Directorate established under the Workers' Compensation and Rehabilitation Act 1981 ("the Act").
In due course, a review officer who had the conduct of the matter referred it to a medical assessment panel.
The applicant contends that the review officer's decision to refer the matter to a medical assessment panel should be quashed on the basis that it was made without jurisdiction. There are two grounds for this contention.
The first ground arises from s 62 of the Act which provides (so far as relevant to this application):
"Any weekly payment may be reviewed by the Directorate at the request either of the employer or of the worker …"
The proposition advanced by the applicant is that because the section makes no provision for a request to be made by an insurer, a review of weekly payments may be requested only by an employer or by a worker.
The applicant accepts that an insurer who is subrogated to an employer is entitled to request a review pursuant to s 62, provided the insurer does so in the employer's name. The applicant contends, however, that there is no statutory basis on which an insurer could apply for a review in its own name.
In my view, the answer to the applicant's contention is that where an insurer is subrogated to the employer, any application for a review of weekly compensation payments made by the insurer should be regarded as being the employer's application, irrespective of the name in which it is made. In this case, CGU is subrogated to the employer because of the payments made on the employer's behalf. CGU is therefore entitled to stand in the employer's shoes.
It is accepted by the applicant that the point is a technical one, upon which nothing turns for any practical purpose. That being so, even if the applicant was technically correct, I would not grant the discretionary remedy sought.
The applicant's second contention arises from s 84N of the Act which provides that:
"Any party to a dispute may, by application, refer the dispute to the Director for conciliation."
The applicant contends that in the present case, there was no "dispute" when CGU made its application.
In my view, there are two answers to this contention. First, although the form on which CGU made its application required details of a dispute to be provided, the relevant space contained the following:
"We seek a review of weekly payments pursuant to s 62."
Thus, no dispute was identified. However, unlike s 84N, s 62 does not require there to be a dispute before a request may be made to review weekly payments of compensation. In my view, therefore, whether or not a dispute existed, CGU was entitled to make the application.
Secondly, having regard to the definition of "dispute" in the Act, it is clear, in my view, that a dispute existed when CGU made its application for review. In s 84A, "dispute" is defined to include a dispute as to liability to make or to continue to make weekly payments of compensation.
In the present case, CGU asked the applicant's solicitors on 23 September 2003 to inform them within seven days whether the applicant would agree to the cessation of weekly payments. In their response of 25 September, the applicant's solicitors procrastinated: but they did not agree. Nor had they agreed by 7 October when CGU lodged its application for review. In my view, a person who does not agree within a reasonable time to accede to a request, must be taken to dispute the validity of that request.
The two‑week period here was, I think, a reasonable one in which to allow the applicant to consider her position.
I therefore see no basis on which to quash the decision of the review officer to refer the dispute to a medical assessment panel.
The determination of the Medical Assessment Panel
The members of the Medical Assessment Panel ("the panel") were Dr Wally Knezevic (a neurologist), Dr Christopher Hammersley (an occupational physician) and Dr Katrina Marshall (a psychiatrist).
The panel was provided with some 60 medical reports and certificates in advance of its determination, which took place on 19 January 2004. The applicant was present and was examined by the panel.
Apparently in answer to specific questions asked of the panel by the review officer, it determined as follows:
"1.What is the nature of the worker's disability from a physical perspective?
ANSWER
The panel recognises the worker's complaint of pain but the panel did not consider that the worker had any evidence of physical disability.
2.What is the nature of the worker's disability from a psychiatric perspective?
ANSWER
There was no evidence of a major depressive disorder and no evidence of any psychiatric disability.
3.What is the worker's capacity for work from a physical perspective:
a)Does she have a capacity to undertake pre‑accident duties?
ANSWER
(a)The worker has the capacity to undertake full pre‑accident duties as a haulpak driver. The panel considered that no restriction need to be placed upon her.
b)Does the worker have the capacity to undertake alternative duties on a full‑time unrestricted basis? What restrictions should be placed upon her?
ANSWER
(b)The panel considered the worker had the capacity to undertake alternative duties on a full‑time unrestricted basis. It is the panel's opinion that no restrictions need to be placed upon her.
4.What is the worker's capacity for work from a psychiatric perspective?
a)Does she have the capacity to undertake pre‑accident duties as a haulpak driver in full‑time unrestricted basis?
ANSWER
The worker does have the capacity to undertake pre‑accident duties as a haulpak driver on a full‑time unrestricted basis. No restrictions need or should be placed upon her from a psychiatric point of view.
b)Does the worker have the capacity to undertake alternative duties on a full‑time restricted basis or what restrictions should be placed upon her?
ANSWER
The worker has the capacity to undertake duties on a full‑time unrestricted basis without any restrictions placed upon her."
The panel gave written reasons for its determination. In its reasons, the panel said it had undertaken "a full medical, occupational and psychiatric history and made observations of general movement, demeanour and function and specific examination of the right upper limb, including a neurological and musculo‑sketal assessment". The panel said also that it had read and evaluated all previous medical records and assessments.
The panel recognised that the applicant's complaint of pain in the right upper limb centred on the right elbow. However, the panel said there was no evidence of any neurological abnormality on examination. There was no evidence of muscle wasting, swelling, colour change or temperature changes. Those findings indicated to the panel that there was no evidence to support a diagnosis of Complex Regional Pain Syndrome. This was contrary to the opinion expressed in earlier medical reports. Further, the panel found no evidence of significant joint, bone or muscular abnormalities.
The panel noted that there was "considerable non‑organic behaviour with give‑way in all muscle groups, which was clearly not anatomical". The panel said the applicant demonstrated "incongruous apparent weakness of hand grip" which was relevant in assessing the applicant's use of her upper limb as seen in two surveillance videos provided to the panel.
The panel noted that during their examination of the applicant she did not use the right upper limb. However, under informal observation, the applicant had demonstrated significantly greater movement and function of that limb than was apparent on formal examination. This indicated "incongruities between apparent or presented limitations and objective limitation".
The panel said it was "impressed" by the inconsistencies between the degree of disability reported by the applicant and that apparent on examination. This indicated to the panel:
" … an elaboration of the apparent degree of discomfort and disability and maximisation of disability which on objective assessment, in the opinion of the panel, was not evident."
The panel then turned to consider the applicant's psychiatric symptomatology. It found no evidence of a major depressive disorder. The panel said the applicant did not complain of a depressed mood and there was no evidence of anhedonia. The panel referred to a number of activities in which the applicant was involved. Those activities were said to be inconsistent with a major depressive disorder. Again, this was contrary to earlier medical opinions.
The panel reported that on mental state examination, the applicant maintained good eye contact, was alert, well groomed and co‑operative. Although she became tearful on occasions when complaining about her pain, on other occasions she was able to laugh at a joke. While she appeared anxious at the start of the interview, the panel thought this was consistent with and appropriate to the circumstances. The opinion of the panel was that:
"From a psychiatric point of view, on the basis of the psychiatric history and mental state examination, there was no evidence of psychiatric disability."
The panel then referred to the two surveillance videos, dated 2 August and 23 November 2002. The videos showed the applicant shopping in a supermarket and officiating at a school sports event. The panel noted that on the videos, the applicant "had normal activity" in relation to walking and swinging her right arm. However, the posture of the right arm shown in the videos "was in distinct contrast to the posture displayed on the day of assessment". The panel then set out in some detail the observations it had made and their significance.
The panel dismissed a suggestion contained in a report by Dr Ross Goodheart, the applicant's consultant neurologist, that the video might have shown the applicant at times when she was obtaining the maximum benefit of analgesics. At other times, Dr Goodheart suggested, the applicant might have been significantly impaired. The panel dismissed that suggestion because the applicant "attested only moderate analgesic affect". The reasons concluded with the following passage:
" … If the allegation of significant chronic pain and limitation were true, then the worker would be expected to have developed pain‑avoidant strategies and alternative methods. Such chronic behaviour became ingrained or habitual eg using the left hand mainly. She was vague in describing these, mostly asserting that she avoided the activity in question. In consultation she shook hands left‑handed, whilst her right arm hung inert by her side. Such alleged major limitation over such a long period would not disappear to revert to full normal right hand use depending on the day or time of day, nor in response to a dose of moderately effective analgesic. There was also absence of muscle wasting, which is inconsistent with the alleged disuse of the right arm. During these videos, there was no evidence of restriction or any habitual adjustment of chronic pain such as preferred use of the non injured limb or strategies to circumvent chronic pain or provocation of pain by the use of the right upper limb."
The applicant seeks to quash the determination of the panel on two grounds. First, it is said that the panel made "non‑medical findings of fact" and thereby exceeded its jurisdiction. By way of particulars, the applicant contends that the panel found "in effect" that the applicant was lying about her symptoms.
Secondly, the applicant contends that the panel gave inadequate reasons for its determination.
By s 145A of the Act, a question may be referred for determination by a medical assessment panel only if there is a conflict of medical opinion on the question between a medical practitioner engaged by the worker and a medical practitioner provided and paid by the employer. It is therefore clear that the role of the panel is to resolve conflicts of medical opinion by itself providing a medical opinion. As was said by this Court in Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395 at 399:
"The task of the Panel is essentially diagnostic in character."
The way in which a panel expresses its diagnosis must, in my view, depend to a large extent on the question(s) it is asked. In the present case, there was a clear conflict of opinion in the reports provided to the panel. For example, Dr Goodheart was of the view that the applicant was suffering from a complex regional pain syndrome (AB 55). Against that, Dr Andrew Marsden, a specialist in occupational medicine was "not convinced that she is as disabled as she claims or presents … she is now exaggerating her circumstances and the apparent lack of recovery" (AB 85). Dr Stephen Proud, a consultant psychiatrist was of the view that the applicant was suffering from Major Depression of moderate severity (AB 62).
In my view, the panel's determination must be viewed in this context.
As I have noted above, in answering the questions put to it by the review officer, the panel could find no evidence of physical disability; nor of a major depressive order, nor of any psychiatric disability. The panel reached that conclusion on the basis of a number of "incongruities" between the applicant's ability as she claimed it to be and as the panel observed it.
The panel might have said that a person suffering from significant chronic pain and limitation would be expected to perform in a particular way, which that person did not. What the panel actually said (in the final paragraph of their reasons) was that if the allegation of significant chronic pain and limitation "were true" then the applicant would be expected to perform in a particular way, which she did not.
In my view, the difference between these two forms of expression is purely semantic. If the opinion of a panel is that there is no physical or mental cause for the symptoms presented by a worker, the inference that the worker is lying or malingering may be overwhelming. However, that does not, in my view, alter the essentially diagnostic character of the panel's conclusion.
I am not persuaded, therefore, that the panel exceeded its jurisdiction in reporting its conclusions as it did.
I turn to consider the second issue raised by the appellant: whether the panel gave adequate reasons for its determination. In contending that it did not, the applicant relies on the following particulars:
"1.The Panel failed to address the various medical reports that expressed views contrary to the Panel's determination, or findings in those medical reports that were inconsistent with findings made by the Panel, or to consider an explanation for the Applicant's perceived lack of credibility in the way she presented herself to the Panel.
2.The Panel failed to give reasons why its various conclusions or observations led them to make their determination.
3.The Panel failed to set out the nature of the questions asked of the Applicant, or the effect that the answers and the manner in which they were given impacted upon the panel's determination.
4.The Panel failed to set out the history it obtained, the symptoms complained of, the examination carried out, what that examination disclosed, and what it derived from such findings in the light of the history and complaints made by the worker."
The obligation of a medical assessment panel to give reasons for its determination is not in doubt. However, there have been numerous cases in this Court in which it has been alleged that reasons given by a particular panel were inadequate. This has resulted in many decisions in which the Court has considered the nature and extent of the obligation to give reasons. In Re Croser; Ex parte Rutherford [2003] WASCA 8, Rolfe AJ with whom Murray J and I agreed, set out "some advice to panels" in relation to the giving of reasons.
In Re Wong; Ex parte Inghams Enterprises Pty Ltd [2004] WASCA 247 I reviewed many of the recent authorities in this area. My conclusion, with which Murray and Steytler JJ agreed, was that:
"The position is, therefore, that although the Court in Re Croser (supra) sought to give guidance to medical assessment panels, the only unassailable proposition to emerge from that and other decisions is that the reasons must be such as to enable the persons concerned to understand why the panel came to the conclusion it did and in particular, where it has been provided with conflicting opinions, to explain the way in which it dealt with those conflicts." (At [30])
With that principle in mind, I turn to the submissions on which the applicant's counsel relied at the hearing.
In its reasons, which I have summarised above, the panel referred at some length to surveillance videos of the applicant taken on 2 August and 23 November 2002. It was submitted by the applicant's counsel that the panel should not have "dissected" the video because it was not a medical document (TS 78).
I do not accept that submission. The videos were the subject of comment in various medical reports to which the panel referred. The videos were, I think, "documents" for the purpose of s 145D(2) of the Act – although there is no statutory definition of document for that purpose. Thus, in my view, the panel was entitled to require the applicant to consent to the videos being produced to it for the purpose of the assessment and was therefore entitled to view them.
In a report dated 17 September 2003, Dr Goodheart commented on the surveillance videos. He said:
"I did have the opportunity of discussing the video surveillance with [the applicant]. I was told that she had taken pain‑killing medication prior to the periods of video surveillance. She was taking pain‑killing medication during the children's sports carnival section of the video surveillance.
In my opinion, the activities undertaken by [the applicant] in the video material are consistent with her injuries, complaints and symptoms expressed to me.
I do not alter my opinions expressed in earlier reports with respect to [the applicant's] functioning. During clinical examination, [the applicant] is able to perform movements and tasks as seen on the video surveillance evidence. However, certain movements are associated with increase in her symptomatology." (AB 108)
The panel considered Dr Goodheart's opinion that the video may have recorded the applicant's activities at a time when her symptoms were alleviated by pain‑killing medication. The panel said it did not accept this interpretation "because the applicant attested only moderate analgesic effect, indicating that the function displayed on the video would not have been permitted by the degree of analgesia that she obtained from intake of analgesics" (AB 27).
The applicant contends that the panel failed to explain the meaning of "moderate analgesic effect". Further, it is submitted, the panel did not disclose the substance of the questions put to the applicant in order to obtain this information.
I do not accept that submission. In my view, the meaning of the expression "moderate analgesic effect" is clear. It means the panel was told by the applicant that she obtained moderate pain relief from taking analgesics but that such medication did not alleviate her pain completely.
In any event, the panel did not rely solely on the information provided by the applicant. As is clear from the final paragraph of its reasons, the panel considered that a person with pain as severe as that described by the applicant would develop strategies for avoiding pain and alternative methods of movement. These would persist to the point of becoming ingrained or habitual, whether or not the patient obtained relief from analgesics. That was not the panel's observation in the present case.
The applicant then contends that the panel failed to deal with medical evidence that the applicant was taking extremely high doses of analgesics. That level of medication was reported by several doctors who had examined the applicant. On 8 May 2001, Dr Andrew Marsden reported that the applicant was taking "rather a lot Panadeine Forte, up to six per day. Sometimes she uses Panadeine but tends to take 4 at a time" (AB 39). However, it is clear from the report that even this level of analgesic did not result in the applicant being pain free.
A similar inference may be drawn from Dr Marsden's report of 18 July 2001 in which he reported that the applicant was taking "inappropriately large amounts of Panadeine Forte, or Panadeine, …" (AB 41).
Nearly a year later, on 5 August 2002, Dr Stephen Adams reported that the applicant was taking Tramal 6 ‑ 8 x 150 mg a day and Panadeine Forte 2 ‑ 3 times each day. Dr Adams said:
"This extremely high analgesic intake is in fact less than she has previously taken, admitting to having become dependent on codeine, at times taking up to 12 Panadeine Forte per day." (AB 66)
Again, despite this level of medication, Dr Adams reported the applicant as suffering "constant pain, fluctuating in degree".
A little later, on 15 August 2002, Dr Andrew Harper reported that the applicant's current treatment was up to six Tramal per day but that the applicant had discontinued Panadeine Forte. It may be noted that the first of the surveillance videos was recorded on 2 August 2002. The second was recorded on 23 November 2002.
On 13 June 2003, Dr Gerhard Beukes reported that pain compromised the use of the applicant's right arm: that when she used that arm more repeatedly "she pays the price for it afterwards, after which she has to take Tramal or Panadeine Forte to ease the pain". Dr Beukes reported also that the applicant was using a lot more medication than prescribed usually for pain control.
Whether or not this evidence supported the view that the applicant was able to perform normally when under the influence of pain‑killing medication was a matter for the panel. The panel's conclusion was reinforced by the applicant's own response to the panel, that she derived only moderate benefits from analgesics. The reasons for that conclusion are clear.
The applicant then refers to the passage in the final paragraph of the panel's reasons in which it reported that in the assessment, the applicant "shook hands left‑handed whilst her right arm hung inert by her side" (AB 27). The applicant submits that the panel took this as a representation by the applicant that she never or rarely used her right hand and, from this, drew conclusions adverse to her.
In my view, it is not for this Court to say whether the panel was entitled to interpret the applicant's disinclination or inability to use her right arm on that occasion as being typical of her normal behaviour. As I have noted above, the point made by the panel was that if such behaviour was the result of a pain‑avoidance strategy, it would have become ingrained or habitual. The patient would not revert to normal behaviour, even if taking moderately effective analgesics. It was the disparity between the way in which the applicant presented herself at the assessment and the way in which she appeared to behave in the surveillance videos which the panel regarded as incongruous. Thus again, the reason for the panel's opinion is clear.
The applicant then complains about the fact that the panel did not refer to the opinion expressed by Dr Goodheart on 17 September 2003, that the activities undertaken by the applicant in the surveillance video were consistent with her injuries: and that while the applicant was able to perform the movements and tasks as seen on the videos, certain movements were associated with an increase in her symptomatology.
I do not regard this as a valid criticism. The issue is not whether the applicant was able to perform the movements in question, but whether she could do so without suffering an unacceptable degree of pain. The applicant presented as a person who was suffering from chronic pain which restricted her movements. However, the surveillance videos and the informal observations made of the applicant during the assessment revealed that she had a much greater right upper limb function than appeared to be the case during the formal examination.
The applicant contends that the panel has not explained why it concluded she did not suffer from a physical disability. However, in my view, the panel did explain that conclusion. It is based on the absence of any evidence of physical disability or of any psychiatric disability. The applicant's behaviour as shown on the surveillance videos provides only one basis for that conclusion. The physical and mental state examinations of the applicant provide another.
As I have noted in the summary of the panel's reasons, it found no evidence of neurological abnormality, muscle wasting, swelling, colour change or temperature changes in the affected limb. The applicant contends that these findings fail to take into account evidence of temperature change, colour change and swelling referred to in various medical reports. However, it is apparent from the reports relied on by the applicant (Dr Anderson of 20 March 2002 (AB 43), Dr Goodheart of 19 April 2002 (AB 54), 6 January 2003 (AB 87) and 17 September 2003 (AB 107)) that the evidence of temperature changes derived from the applicant herself. She reported these matters to the doctors concerned. They did not make their own observations. Further, these reports were written well before the examination by the panel.
On 17 June 2003 (some six months before the date of the assessment) the applicant presented to Dr Gerhard Beukes with her right arm "in agony again, mostly from elbow down to hand" (AB 106). Dr Beukes measured the circumference of the applicant's right hand at 21 centimetres. He then said this compared to 20 centimetres "on right hand". Clearly, there is an error here. However, it may be assumed that the second measurement to which Dr Beukes referred related to the applicant's left hand because he went on to say:
"I got the impression the right hand (indistinct) muscle is also thinner than left and the right hand was more sweaty than left." (AB 106)
This is some evidence that the applicant's right hand was slightly swollen and had a slightly wasted muscle. However, these were impressions gained by Dr Beukes. The applicant apparently did not present to the panel in the same way. Clearly, the panel placed greater weight on its own examination.
I make the same observation in relation to colour change. Dr Goodheart, in his report of 19 April 2002, referred to what appears to be the applicant's own observation that "there could be a patchy colour change" in her hand (AB 54). However, on 17 September 2003, Dr Goodheart said he did not notice any discolouration of the applicant's right hand during his examination (AB 107).
The panel noted no colour change. It relied on its own examination.
This observation may be made also about the significance the panel apparently attributed to the fact that when the applicant was seen on the surveillance video to be shopping in a supermarket, she at one stage held three objects "of some size" in her right hand. The panel said this obviously involved "a widespread grasp and would have had to have been with some power significantly greater than she displayed during the examination" (AB 27).
The applicant complains that the panel did not recite the results of the same or similar tests carried out during the examination of the applicant, nor did it explain why the observation made during the surveillance video meant that the applicant did not suffer from a physical disability.
In my view, the explanation is clear from the panel's reasons. It based its conclusion on the comparison between the applicant's ability to grasp objects as she did when under surveillance, and her "incongruous apparent weakness of hand grip" during the course of the assessment.
In an application such as this, it is not for the Court to form a view about the validity, in a medical sense, of an assessment made by a panel. Indeed, s 145E of the Act provides that unless rescinded under s 145F the determination is final and binding on the worker and his employer and on any court or tribunal hearing a matter in which any such determination is relevant.
A rescission under s 145 of the Act is for the panel only: and only on a review initiated by the Director on the basis that new evidence is available which could not have been submitted to the panel and would be likely to affect its determination.
Thus, the sole question for the Court is whether the panel has given adequate reasons for its determination and has explained the way in which it dealt with previously conflicting medical opinions.
In my view, the reasons given by the panel were adequate. Having regard to my interpretation of those reasons, I consider that whether or not the panel's diagnosis was correct, it is clear why the panel came to the conclusions it did. Further, I think the way the panel resolved conflicting opinions to be equally clear: it relied on its own examination. I therefore see no grounds for quashing the panel's determination.
I would discharge the order nisi.
MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Templeman J. I agree with those reasons and I agree that the order nisi should be discharged.
MCKECHNIE J: For the reasons given by Templeman J with which I entirely agree, the order nisi should be discharged.
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