Re Knezevic; ex parte Carter
[2005] WASCA 139
•2 AUGUST 2005
RE KNEZEVIC; EX PARTE CARTER [2005] WASCA 139
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 139 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CIV:2037/2003 | 19 MAY 2005 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA MCLURE JA | 2/08/05 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi discharged | ||
| A | |||
| PDF Version |
| Parties: | DEBOUREA ELIZABETH ANNE CARTER |
Catchwords: | Prerogative writs Certiorari Workers' compensation Medical Assessment Panel Degree of disability of worker Adequacy of Panel's reasons for determination Conflict of medical opinion |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 (WA), s 84ZH, s 93D, s 145A |
Case References: | Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567 Charleston v Smith [1999] WASCA 261 Garrett v Nicholson (1999) 21 WAR 226 Palazzolo v Brown [2002] WASCA 49 Re A Medical Assessment Panel; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998 Re Bannan; Ex parte Suleski [2001] WASCA 289 Re Croser; Ex parte Rutherford & Anor [2003] WASCA 8 Re Croser; Ex parte Rutherford (2001) 25 WAR 170 Re Gillett, Quintner & Moore; Ex parte Rusich [2001] WASCA 111 Re Harley White; Ex parte Hutt [2005] WASCA 32 Re McWilliam & Ors; Ex parte Pajdak [2002] WASCA 203 Re Monger; Ex parte Welsby [2003] WASCA 191 Re Narula; Ng & Hammersley; Ex parte Atanasoski [2003] WASCA 156 Re Wong; Ex parte Inghams Enterprises Pty Ltd [2004] WASCA 247 Shepherd v Swan (2004) WASCA 215 Craig v South Australia (1995) 184 CLR 163 Re Monger; Ex parte Dutch (2001) 25 WAR 96 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE KNEZEVIC; EX PARTE CARTER [2005] WASCA 139 CORAM : WHEELER JA
- ROBERTS-SMITH JA
MCLURE JA
DEBOUREA ELIZABETH ANNE CARTER
Applicant
Catchwords:
Prerogative writs - Certiorari - Workers' compensation - Medical Assessment Panel - Degree of disability of worker - Adequacy of Panel's reasons for determination - Conflict of medical opinion
(Page 2)
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 84ZH, s 93D, s 145A
Result:
Order nisi discharged
Category: A
Representation:
Counsel:
Applicant : Mr P A Nevin
Amicus Curiae : Ms J C Pritchard
Solicitors:
Applicant : Taylor Smart
Amicus Curiae : State Solicitor's Office
Case(s) referred to in judgment(s):
Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567
Charleston v Smith [1999] WASCA 261
Garrett v Nicholson (1999) 21 WAR 226
Palazzolo v Brown [2002] WASCA 49
Re A Medical Assessment Panel; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998
Re Bannan; Ex parte Suleski [2001] WASCA 289
Re Croser; Ex parte Rutherford & Anor [2003] WASCA 8
Re Croser; Ex parte Rutherford (2001) 25 WAR 170
Re Gillett; Ex parte Rusich [2001] WASCA 111
Re Harley White; Ex parte Hutt [2005] WASCA 32
Re McWilliam & Ors; Ex parte Pajdak [2002] WASCA 203
Re Monger; Ex parte Welsby [2003] WASCA 191
(Page 3)
Re Narula; Ex parte Atanasoski [2003] WASCA 156
Re Wong; Ex parte Inghams Enterprises Pty Ltd [2004] WASCA 247
Shepherd v Swan (2004) WASCA 215
Case(s) also cited:
Craig v South Australia (1995) 184 CLR 163
Re Monger; Ex parte Dutch (2001) 25 WAR 96
(Page 4)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.
2 ROBERTS-SMITH JA: As McLure JA says, the reasons of the Medical Assessment Panel ("the Panel") are not a model to be followed. However, the question is whether or not they are sufficient to satisfy the statutory requirement that reasons be given.
3 Some of the previous authorities are irreconcilable. Rather than attempting to reconcile them, the better approach is to take them as deciding no more than that the reasons given in the particular case were (or were not) adequate to comply with the statutory injunction.
4 The principles are clear enough. The extent and content of the reasons required to be given by a panel will necessarily depend upon the circumstances of the particular case, including (but not limited to) the material before it, the nature of any conflict in the medical reports, the issue(s) in dispute and the findings of any examination by the Panel itself. The adequacy of the reasons is to be assessed against the statutory purpose for requiring them, which is to enable the persons concerned to understand why the Panel came to the conclusion it did and to enable them to discern whether there has been reviewable error (Re Bannan; Ex parte Suleski [2001] WASCA 289 per Kennedy J at [12] - [13]). Where provided with conflicting opinions, the Panel should explain the way in which it has dealt with those conflicts (Re Wong; Ex parte Inghams Enterprises Pty Ltd [2004] WASCA 247 at [30]; Re Narula; Ng & Hammersley; Ex parte Atanasoski [2003] WASCA 156). The reasons must be sufficient to enable the reasoning process to be followed (Re Monger; Ex parte Welsby [2003] WASCA 191; Re McWilliam & Ors; Ex parte Pajdak [2002] WASCA 203), by which is meant the essential intellectual process by which the conclusions are arrived at (Re Croser; Ex parte Rutherford (2001) 25 WAR 170). In considering whether the reasoning process is adequately disclosed, regard should be had to what is expressly stated and what can be reasonably inferred (Rutherford (supra) at 184). The reasons do not need to be lengthy nor elaborate nor take the form of a judgment of the court (Pajdak (supra)). They must lead to or explain the determination of the question actually referred to the Panel (Re Gillett, Quintner & Moore; Ex parte Rusich [2001] WASCA 111) and must explain each discrete determination made (Pajdak (supra)).
(Page 5)
5 Although the reasons in this case could desirably have been more expansive, the Panel's process of reasoning can be discerned from them in the context of the material and information before it.
6 I agree that the order nisi should be discharged for the reasons given by McLure JA.
7 MCLURE JA: This is the return of an order nisi for a writ of certiorari against the members of a Medical Assessment Panel ("the Panel") acting under Pt VII of the Workers' Compensation and Rehabilitation Act 1981 (WA) (the Act). The appellant challenges the adequacy of the Panel's reasons. The Panel abides the decision of the Court. Ms J Pritchard appeared as amicus curiae.
8 The appellant had suffered an injury to her lower left leg in the course of her employment. Under Pt IV Div 2 of the Act, common law damages can only be awarded if it is agreed or determined that the claimant's degree of disability is not less than 30 per cent or not less than 16 per cent. In July and November 2002 the appellant, acting under s 93D of the Act, referred to the Director of Conciliation and Review the question whether the appellant had a degree of disability of not less than 30 per cent. The referrals related to the appellant's claimed physical and psychiatric disabilities respectively. There was a dispute on those questions which were then referred for resolution under the provisions of Pt IIIA of the Act.
9 For the purposes of resolving a dispute under that Part, a review officer may, if permitted by s 145A of the Act, refer a question for determination by a panel. Section 145A relevantly requires 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. There was such a conflict in relation to the appellant's physical disability and that matter was referred to the Panel. The Panel was provided with 51 medical reports and four psychological reports. The questions referred by the review officer and the Panel's answers and the reasons under challenge are contained in a report to the Director. The report materially provides:
"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 Monday the 9th day of April 2003.
(Page 6)
- The determination took place at Dr W Knezevic's rooms, St John of God Medical Clinic, Suite 62, 100 Murdoch Drive, Murdoch and the worker was in attendance, did have questions put to her and was submitted to a medical examination by the Medical Assessment Panel.
QUESTIONS FOR DETERMINATION BY MEDICAL ASSESSMENT PANEL
The medical Assessment Panel determines as follows:
1. What is the nature of the disability?
ANSWER
The Panel considered that the disability was residual regional pain of the left lower limb secondary to soft tissue contusion above the left heel.
2. What is the worker's degree of disability as assessed in accordance with s93D of the Act?
ANSWER
The Panel considered that the worker had a moderate disability of the left lower limb.
3. Please provide an assessment of the following;
(a) Please comment on permanence of the condition.
ANSWER
Whilst not discounting the possibility of improvement in the long term the panel considered that the present degree of disability will persist for the foreseeable future.
(b) Loss of left leg below the knee (Item 29 Schedule 2).
ANSWER
Pursuant to Item 29 of Schedule 2 of the 'Act' the worker exhibits a permanent loss of efficient use of the left leg below the knee of 15%.
(Page 7)
- REASONS
The reasons for this determination are as follows:
The history of the injury, the examination findings of atrophy of the left lower leg of 3cm, the persistent swelling of the ankle below and behind the left lateral malleolus were indicative of significant degree of pain and disability of the left lower limb. The Panel took note of the workers [sic] pre morbid [sic] personality as elicited in the interview and during the examination and also as reported in the psychological and psychiatric reports. The Panel found the report of Mr Alan Lazarus of July 1999 particularly helpful in this matter. The Panel considered that the pre-morbid personality was relevant to the workers [sic] presented degree of activity limitation. The Panel also preferred the report of Dr William Carroll of February 2002 with regard to the workers [sic] physical injury and degree of physical impairment."
10 The referral under challenge is confined to the nature and extent of the appellant's physical disability. Section 93D deals with the assessment of the degree of disability. It was common cause that Item 29 of Sch 2 of the Act ("loss of leg below knee") applied. A variable in the formula for determining the degree of disability is the percentage of the diminution of the full efficient use of the injured part of the body.
11 The appellant abandoned a number of grounds of appeal (1.1.7, 1.2 and 1.4) at the hearing of the appeal. The appellant relies on seven grounds in support of her contention that the Panel did not give adequate reasons for its determination. It is appropriate to set them out in full:
"1.1 The Panel did not give adequate reasons for its determination:
1.1.1 The Panel does not state what medical reports it relied upon and which were discounted, or give its reasons for relying on some medical reports and rejecting other medical reports;
1.1.2 The Panel does not explain how or why it arrived at its conclusion against the background of a volume of often conflicting medical reports;
(Page 8)
- 1.1.3 The Panel does not give its reasons for preferring the medical report of Dr William Carroll of February 2002 over medical reports of other medical specialists, even though Dr Carroll had reviewed the Applicant on only one occasion more than twelve months prior to Panel examining and assessing the Applicant and when other medical specialists had reviewed the Applicant more frequently and/or more recently than had Dr Carroll;
1.1.4 The Panel does not explain how its findings in relation to the Applicant which were 'indicative of significant degree of pain and disability of the left lower limb' translated into its conclusion the Applicant suffered a 15% loss of the efficient use of the left leg below the knee;
1.1.5 The Panel does not explain what questions were put to the Applicant, the answers that were given and what conclusions were reached based on those questions and answers and how its conclusions were reached nor does the Panel explain what information was elicited during the examination of the Applicant and what conclusions were reached on that information and the reasons for its conclusion;
1.1.6 The Panel does not explain what psychological and psychiatric reports were considered, what aspects of those reports were considered and how they affected or contributed to its conclusion as to the Applicant's degree of disability of her left leg below the knee;
1.1.7 (abandoned)
1.1.8 The Panel does not explain what it was about the Applicant's pre-morbid personality and how her pre-morbid personality were relevant to her degree of activity limitation and how those considerations affected or contributed to its
(Page 9)
- conclusion as to the Applicant's degree of disability of her left leg below the knee."
12 The other ground of appeal (1.3) is that the Panel erred in failing to take relevant material into consideration, namely, specified medical reports from doctors engaged by the appellant.
13 Before addressing the grounds of appeal it is appropriate to refer to the relevant provisions of the Act.
The Legislative Scheme
14 A review officer acting under Pt IIIA Div 3 of the Act may refer a question as to the nature or extent of a disability, whether a disability is permanent or temporary, or a worker's capacity for work for determination by a panel (s 84ZH(1)).
15 As there was a conflict of medical opinion on the questions the subject of the referral as required by s 145A(1), the questions asked of the Panel in this case fell within the scope of a review officer's power under s 84ZH.
16 A panel may comprise two or three medical practitioners included on a register maintained under the Act (s 145C(1) and s 145B). At least one of the members of the panel must be a specialist in the particular branch of medicine or surgery that is relevant to the question (s 145C(2)).
17 In determining the questions, a 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 (s 145D(1)).
18 Further, a panel may, for the purpose of assisting it in determining the question, require the worker concerned to attend before the panel, answer questions put by a panel, produce documents, or consent to another person producing documents, and submit to medical examination by a panel (s 145D(2)).
19 A person is not entitled to be represented in proceedings before a panel (s 145D(4)). A panel must make its determination 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 by the panel (s 145E(2)).
(Page 10)
20 Section 145E(3) imposes a duty to give reasons. It provides:
"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 …".
21 Subject to a limited power to review its decisions, the determination of a panel 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 …".
Adequacy of Reasons (Ground 1.1)
22 The Court has considered the nature and scope of a panel's duty to give reasons on at least 11 occasions in the period October 1998 to March 2005. Not all of the decisions can be reconciled.
23 The appellant placed great weight on "guidelines" in the judgment of Rolfe AJ in Re Croser; Ex parte Rutherford & Anor [2003] WASCA 8 at [46] (Rutherford No 2). Rolfe AJ, with whom Murray and Templeman JJ agreed, held that the Panel's reasons were insufficient. This was the Panel's second unsuccessful attempt to provide sufficient reasons. The first was the subject of the decision in Re Croser; Ex parte Rutherford (2001) 25 WAR 170 (Rutherford No 1). The particular guidelines on which the appellant relied are as follows:
"(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.
(e) … 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
(Page 11)
- 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."
24 However, Rolfe AJ made it clear he was not to be taken as suggesting that he was laying down any formula, let alone a rigid one, within which a panel must seek to structure a determination. Thus, Rolfe AJ was not purporting to state the minimum requirements of a sufficient statement of reasons. If he was, the guidelines would be inconsistent with prior authority. In Re McWilliam & Ors; Ex parte Pajdak [2002] WASCA 203 a court comprising Murray, Anderson and Parker JJ rejected as untenable a submission that a panel was required in every case to state or analyse what medical reports or evidence was relied on or what weight was attached to any of the medical reports and, if so, why. Moreover, subsequent challenges to the sufficiency of reasons based on a failure to comply with the guidelines relating to medical reports have failed: see Re Wong; Ex parte Inghams Enterprises Pty Ltd [2004] WASCA 247 and Re Harley White; Ex parte Hutt [2005] WASCA 32. Templeman J, who agreed with Rolfe AJ in Rutherford No 2 wrote the lead judgments in Re Wong and Re Harley White. He said in Re Wong at [30] and [36]:
"30. The position is, therefore, that although the Court in [Rutherford No 2] 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.
…
36. Thus, while the reasons given by the panel did not follow the pattern proposed by Rolfe AJ in … in my view, the
(Page 12)
- panel discharged its obligation to provide adequate reasons."
25 Helpful (and unchallenged) statements of principle are collected in the judgment of Olsson AUJ (with whom Steytler J agreed) in Rutherford No 1. Olsson AUJ adopts the statement of principle by Kennedy J in Re Bannan; Ex parte Suleski [2001] WASCA 289 at [12] as follows (citing Wheeler J in Re A Medical Assessment Panel; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998 at 6 - 7):
"The essence of reasons for decision is that they disclose the reasoning processes of the [panel]. Fulfilment of the obligation to give reasons ensures that a person whose interests may be adversely affected by a decision understands why the decision has been made, and allows a party dissatisfied with a decision to determine whether there has been a reviewable error."
26 Thus, adequacy or sufficiency of reasons is assessed by reference to their function and purpose. In that regard, the scope for judicial review is much narrower than in an appeal in which the Court can properly consider the merits of the case. Judicial review is confined to errors of law of specific kinds and categories.
27 There has been a suggestion that the Panel's reasons have to be written in a way as to be understood by a layman alone without reference to his legal and medical advisers. There is no warrant for such a requirement. It is contraindicated by the composition of the panels. Moreover, there is no similar requirement on judicial officers who have a more onerous duty in the provision of reasons.
28 As Olsson AUJ points out, what is sufficient has to be assessed by reference to the fact that the panels are comprised of medical practitioners (not lawyers) who have a large number of cases coming before them and who are required to act with expedition. A panel is not obliged to give full and detailed reasons. Reasons may be stated shortly without being developed in detail provided they disclose the essential intellectual process by which the conclusions are arrived at. On the issue of medical reports Olsson AUJ said (at 184) that, at least in a general way, the panel should indicate its independent assessments in light of the various medical reports and the reasons why it has arrived at them.
29 In considering whether the reasoning process is adequately disclosed, regard should be had to what is expressly stated and what can reasonably be inferred: (Rutherford No 1 at 184).
(Page 13)
30 In determining the adequacy of reasons given by a judicial officer, regard is had to the reasons as a whole, and if necessary, in the context of the evidence: Garrett v Nicholson (1999) 21 WAR 226 per Owen J at 248; Charleston v Smith [1999] WASCA 261 per Malcolm CJ at 15. That principle equally applies to panel reasons. For example, it is clear from the approach taken by Courts when considering the adequacy of panel reasons that regard is had to the medical opinions particularly for the purpose of identifying the scope and cause of the relevant conflicts: see, for example, Re Harley White (supra) and Palazzolo v Brown [2002] WASCA 49. Courts quite properly go to considerable lengths to determine whether the reasons of judicial officers satisfy the purpose and function of the duty to give reasons (see Shepherd v Swan (2004) WASCA 215 at [26]). There is no justification for taking a different approach to the reasons of medical assessment panels.
31 Another uncontroversial point of principle is that the Panel is required to reach its own opinion on the questions for determination: Rutherford No 1 at 183. The Panel is also not bound to accept the opinion of any of the medical experts relied on by the parties: Re McWilliam; Ex parte Pajdak at [4]. The Panel does not perform an adjudicative function. Its function is investigative in nature; the Panel descends into the arena to make its own assessment, having regard to the medical opinions in the reports. However, it was common cause that the medical reports were, in administrative law parlance, a relevant consideration, being matters the Panel is obliged to consider: Re Bannan; Ex parte Suleski.
32 Finally, and perhaps most importantly, the content of the duty is not the same for every panel decision and no mechanical formula can be given for determining what constitutes sufficient reasons. As stated by Wheeler J in Palazzolo at [18]:
"It is … particularly important that any alleged failure to provide reasons or adequate reasons should be assessed against the circumstances of the particular case. It is not appropriate to extract from previous decisions of this Court lists of things which it was thought should have been done by medical assessment panels in those other cases, and to generalise from those decisions some list of matters which the reasons of every medical assessment panel must contain in order to be considered to be adequate."
(Page 14)
33 There is no challenge in this case to the proposition that certiorari is available where the reasons of a panel are insufficient so as to give rise to an error of law: Rutherford No 1. I turn now to the grounds.
34 Grounds of appeal 1.1.1, 1.1.2 and 1.1.5 are premised on the erroneous assumption that the omissions complained of constitute a breach of a general duty that is independent of the circumstances of the case. As the survey of authorities demonstrates, there are no such general duties; the alleged failures have to be assessed against the circumstances of the particular case. That assessment will often, as in this case, be affected by the nature and basis for the relevant conflicts in the medical opinions.
35 Counsel for the appellant was requested to provide the Court after the hearing with a schedule identifying the nature and cause of the relevant conflicts in the 55 expert reports. Although the appellant provided a schedule, it fell well short of what was requested. The schedule summarises symptoms observed by a number of experts on examining the appellant at different times and statements as to investigation results. It is of little assistance.
36 Ms Pritchard helpfully identified the relevant conflicts in the medical opinions on the question of the nature of the physical disability. There were three different positions. A majority of the experts diagnosed the appellant as having complex regional pain syndrome ("CRPS") secondary to a soft tissue and nerve injury, others diagnosed a soft tissue injury without CRPS and a minority concluded that the appellant did not have any physical disability, her symptoms having a non-organic (psychiatric) cause.
37 However, grounds of appeal 1.1.1, 1.1.2 and 1.1.5 do not expressly or impliedly relate to any specific question determined by the Panel. In substance, the Panel decided three questions, being the nature of the injury, whether it was permanent and the percentage loss of the full and efficient use of the appellant's leg. The first two questions were decided in the appellant's favour. Ms Pritchard contended, correctly in my view, that the Panel's assessment of the nature of the injury corresponded with the majority view. Assuming, without deciding, that the appellant can challenge individual determinations notwithstanding they were decided in her favour, I would in the exercise of the Court's discretion, refuse to grant prerogative relief in relation to those questions. As noted by the Court in Re Wong, it would be futile to remit a matter to the Panel in those circumstances even if the reasons were inadequate: [38].
(Page 15)
38 In any event, I am not persuaded that the Panel failed to disclose its reasoning process on the first two questions. It is clear from the reasons that the Panel's conclusions are based on their findings on examination of the appellant on 9 April 2003 in the context of the history provided. The findings are stated in the reasons (atrophy of the lower leg and swelling in the places indicated). It is also apparent that the Panel accepted the appellant's history of persistent swelling. The inferences the Panel drew from the findings on examination were of pain and physical disability. Thus, the Panel made its own clinical assessment of the nature of the disability. Clinical assessments are, of their very nature, founded on actual observation of the patient. The reasonable inference from the reasons is that the Panel preferred its clinical assessment to that of the assessments of other experts at different times to the extent they were inconsistent.
39 Grounds 1.1.3, 1.1.4, 1.1.6 and 1.1.8 relate to the Panel's assessment of the extent of the loss of efficient use of the appellant's left leg below the knee. The question is whether the Panel has disclosed its reasoning process. It is necessary to start with the conflicts in the expert reports. Ms Pritchard's submissions were again of assistance in identifying those conflicts. They are as follows:
Expert |
| Date of Report (s) |
| 50 per cent |
|
| 80 per cent |
|
| None provided | |
| 20 per cent |
|
| 20 per cent |
|
| Nil |
|
| Unable to assess because of variability of condition |
|
(Page 16)
| No permanent residual disability |
|
| Nil |
|
40 Three points are noteworthy. Firstly, it is clear from the medical reports that the assessment is based on the clinical presentation of the appellant at the time of the assessment the subject of the report. Secondly, the opinions are contained in reports given over a period from June 2000 to February 2003. Thirdly, all the experts in all of the reports simply state a conclusion as to their opinion of the percentage loss. It is apparent from the reports that there is a significant component of subjective value judgment in quantifying the diminution in function. That being the case, there are significant limitations in articulating the link between the clinical assessment of symptoms and the percentage loss.
41 The Panel in its reasons refers to the appellant's pre-morbid personality, relying in part on the psychological and psychiatric reports. All of the psychological reports were provided by Mr Alan Lazarus. The psychiatric reports were by Dr D Shub. The appellant did not identify any relevant inconsistencies in the opinions of Mr Lazarus, Dr Shub or any other expert. From my reading of the reports, there appears to be no conflict. Both the psychologist and psychiatrist conclude that the appellant had a pre-existing psychological vulnerability with some histrionic features. It is clear from the Panel's reasons that they regarded the psychological vulnerability as impacting upon the appellant's "presented degree of activity limitation" which in turn impacts upon the assessment of the loss of full efficient use of the leg.
42 The reasonable inference to be drawn from the reasons is that the appellant's pre-existing personality vulnerability resulted in an overstatement of the extent of the loss of leg function. It is apparent from the words "presented degree of activity limitation" and the reported findings on examination that the vulnerability is not relied upon to explain the secondary CRPS which developed from a relatively minor soft tissue injury.
43 The inference of lack of reliability of the appellant's presentation is also consistent with the express preference for the report of Dr Carroll. His report is dated February 2002. He accepted that the appellant had secondary CRPS but noted that, at the time of assessment, the appellant
(Page 17)
- was not "exhibiting signs" of the condition and that it was resolving. He concluded that the injury was not permanent. The Panel concluded that the appellant had CRPS but did not agree with Dr Carroll's assessment that there was no permanent disability. However, Dr Carroll's statement that the appellant was not exhibiting signs of the condition which was resolving corroborates the Panel's lower assessment of the reduction in functioning. I infer that the coincidence in the two areas of agreement is the basis for the Panel's preference for Dr Carroll's opinion.
44 Finally, it follows that the Panel's reference to the appellant's pre-existing psychological vulnerability is to explain why it differed from the assessment of other medical experts which ranged between 80 per cent and 20 per cent.
45 The Panel's reasons are not a model to be followed. However, I am satisfied that, with a proper understanding of the content of, and conflicts in, the expert reports, they sufficiently disclose the Panel's reasoning process. I would dismiss ground 1.1.
Relevant Considerations (ground 1.3)
46 In my view, this ground is without merit. The appellant is required to establish by credible evidence that the Panel has failed to take into account the medical opinions in the reports: Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567 at 576. There is no direct evidence on the subject. The only basis relied on for an inference to that effect is that the reasons do not expressly refer to, or analyse the contents of, all of the reports. In the context of the circumstances of the case, that is incapable of supporting the inference. I would dismiss this ground.
Conclusion
47 For these reasons, I would discharge the order nisi.
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