Re Malone;
[2003] WASC 266
RE MALONE & ORS; EX PARTE CASEY [2003] WASC 266
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 266 | |
| Case No: | CIV:1073/2003 | 19 JUNE 2003 | |
| Coram: | BARKER J | 19/12/03 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi for certiorari made absolute | ||
| B | |||
| PDF Version |
| Parties: | JOHN CHARLES CASEY |
Catchwords: | Administrative law Prerogative writ Certiorari Determination by a Medical Assessment Panel under Workers' Compensation and Rehabilitation Act 1981 (WA) Whether order nisi for a writ of certiorari should be made absolute Whether Medical Assessment Panel had jurisdiction to determine question referred by Review Office Whether Medical Assessment Panel gave adequate reasons for determination Whether determination of Panel challengeable on "no evidence" ground Whether Panel denied applicant natural justice Turns on own facts |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 (WA), s 5, s 84ZH(1), s 145A, s 145E(3) |
Case References: | Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Masters v McCubbery [1996] 1 VR 635 Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; 210 CLR 222 R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 Re Croser; Ex parte Rutherford [2003] WASCA 8 Re Minister for Immigration and Multicultural Affairs; Ex parte applicant S20/2000 [2003] HCA 30; 198 ALR 59 Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96 Re Narula; Ex parte Atanasoski [2003] WASCA 156 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Hamilton Hill Tavern v Maddox, unreported; Compensation Magistrate's Court; CM-72/98; 23 December 1998; Heath SA Re Gillett; Ex parte Rusich [2001] WASCA 111 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
JOHN CHARLES CASEY
Applicant
Catchwords:
Administrative law - Prerogative writ - Certiorari - Determination by a Medical Assessment Panel under Workers' Compensation and Rehabilitation Act 1981 (WA) - Whether order nisi for a writ of certiorari should be made absolute - Whether Medical Assessment Panel had jurisdiction to determine question referred by Review Office - Whether Medical Assessment Panel gave adequate reasons for determination - Whether determination of Panel challengeable on "no evidence" ground - Whether Panel denied applicant natural justice - Turns on own facts
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Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 5, s 84ZH(1), s 145A, s 145E(3)
Result:
Order nisi for certiorari made absolute
Category: B
Representation:
Counsel:
Applicant : Mr B L Nugawela
Solicitors:
Applicant : Bradley & Bayly
Case(s) referred to in judgment(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Masters v McCubbery [1996] 1 VR 635
Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; 210 CLR 222
R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456
Re Croser; Ex parte Rutherford [2003] WASCA 8
Re Minister for Immigration and Multicultural Affairs; Ex parte applicant S20/2000 [2003] HCA 30; 198 ALR 59
Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96
Re Narula; Ex parte Atanasoski [2003] WASCA 156
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
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Case(s) also cited:
Hamilton Hill Tavern v Maddox, unreported; Compensation Magistrate's Court; CM-72/98; 23 December 1998; Heath SA
Re Gillett; Ex parte Rusich [2001] WASCA 111
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1 BARKER J: This is yet another application by a worker attacking the determination and workings of a Medical Assessment Panel established under the Workers' Compensation and Rehabilitation Act 1981 (WA).
Background
2 On 26 September 2000, the applicant was working as a labourer for Rainbows End Salvage under the direction of a Mr Philip Brenton. Apparently, on that day, in the course of his work, a single leaf brick wall fell and he was injured. He says he suffered injury to his head, back and neck. He was hospitalised for a period of about 24 hours and then sent home. Since then, he has complained of continuing debilitating symptoms resulting from the physical injuries he suffered on that day. The applicant says that, whilst he tried returning to work after the accident, he was unable to cope, as a result of which his employment was terminated in or about September 2001.
3 The applicant applied to WorkCover for workers' compensation by an application dated 26 June 2001 and again on 19 November 2001. He sought weekly payments. The ground of each application was that he considered himself "totally unfit" to return to his pre-accident employment and to any other employment since the accident.
4 On 11 September 2002, the applications proceeded to a review hearing before a Review Officer under the Act. At the review hearing, the Review Officer made orders that:
(1) the dispute should be referred to a Medical Assessment Panel;
(2) the application be listed for a review hearing on 19 November 2002.
5 By letter dated 23 September 2002, the Director, Conciliation and Review Directorate, WorkCover notified the applicant that a Medical Assessment Panel would be convened on 9 October 2002 and advised him of the terms of the questions for determination referred to the Medical Assessment Panel. They are set out later in these reasons.
6 The Director's letter also specified the list of medical reports and certificates referred to the Medical Assessment Panel. They have been produced in the instant proceedings and are those documents annexed to the affidavit of the applicant in support of the application sworn 22 January 2003 and marked with the letters "JCC4".
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7 By letter dated 24 September 2002 to the Director, the applicant's solicitors requested that a medical report prepared by Dr Linda Hayward, neuro-psychologist, also be referred to the Medical Assessment Panel. Dr Heyward's report raised the question of further medical testing of the applicant. By letter dated 27 September 2002, the Review Officer advised the applicant's solicitors that the Chairman of the Medical Assessment Panel was of the view that the Panel could proceed without further medical evidence.
8 The Medical Assessment Panel duly convened on 9 October 2002 and saw the applicant. The applicant, in his affidavit in support of the instant application, provides an account of what occurred at the meeting with the Medical Assessment Panel. In these proceedings, no party other than the applicant has taken up the opportunity to participate in the proceedings, either for the purpose of making submissions on the law or to contradict any matters of fact, including the account the applicant has given of his meeting with the Medical Assessment Panel on 9 October 2002. I refer later to the substance of the account of this meeting provided by the applicant in his affidavit. In short, the applicant says he was asked many questions and answered them. He says only one of the doctors physically examined him. He says he was not asked to undertake any test or questionnaire of the nature that had been administered previously by Dr Hayward and Dr Stephen Proud, a consultant psychiatrist.
9 The applicant, at all material times before the Medical Assessment Panel, maintained that he was unable to return to his former employment by reason of the injuries sustained in the accident.
The Medical Assessment Panel's determination
10 By written determination dated 10 October 2002, the Medical Assessment Panel purported to determine the questions referred to it and provide reasons for its determination. The questions and the answers, so far as they are relevant, were as follows:
"1. What is the extent of the worker's disability?
It is the unanimous opinion of the Medical Assessment Panel that (the applicant) has a mild cervical spine pain condition … It is the unanimous opinion of the Medical Assessment Panel that there is no thoracolumbar disability present.
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- It is the unanimous opinion of the Medical Assessment Panel that (the applicant) does not have any degree of psychiatric disability.
2 What is the worker's capacity for work?
- Is the worker totally incapacitated?
- Alternatively, if the worker is not totally incapacitated, then is he fit for the full unrestricted duties of a master of a fishing boat, sales representative for a parts company, automotive parts interpreter, light factory process worker, service station console operator and, if so, for how many hours per week?
It is the unanimous opinion of the Medical Assessment Panel that (the applicant) has a full, unrestricted capacity for work allowing him to undertake duties of a master of a fishing boat, sales representative for a parts company, automotive parts interpreter, light factory process worker or service station console operator … It is the unanimous opinion … that (the applicant) could undertake a full working week. This assessment of the worker's capacity for work is undertaken from both a physical and psychological perspective." (Emphasis in original)
"REASONS
The Medical Assessment Panel has determined the extent of the worker's disability and his capacity for work following a thorough analysis of all reports provided to it. This included the provision of a report by Dr Linda Hayward, Clinical Psychologist, dated 07.10.2002 that was not attached to the original report list. The assessment was also undertaken following detailed questioning and examination of the patient.
The Medical Assessment Panel was advised by Mr John Charles Casey at the time of his assessment that he is currently undertaking household duties including cleaning, washing and food preparation for his family as well as undertaking site supervision of a building project which included driving. His
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- physical complaints did not interfere with the carrying out of these functions and therefore it would be likely that he would be able to perform similar duties in a paid employment position. It was noted that Mr Casey did perform work of a heavier nature than the listed occupations, (with the exception of the heavier end of the spectrum of skipper duties) in late 2000 and the first half of 2001. Furthermore it was the unanimous opinion of the Medical Assessment Panel that these activities were comparable to physical activities involved in the list of possible occupations that Mr Casey could perform.
Mr Casey admits to anger and frustration but there is no recent or current self-report of anxiety, depression or any associated psychiatric symptoms, including suicidal thoughts. He was passively hostile during the interview but was able to control his anger and was reactive to the interview. There is no evidence of psychiatric agitation or retardation or any other objective evidence of a psychiatric condition or disability. Although sometimes vague and evasive, his cognitive function, during the interview, was within normal limits."
Grounds of the application for certiorari
12 The applicant seeks an order that the order nisi for a writ of certiorari dated 13 February 2003 be made absolute, on the following grounds:
"1. The Panel had no jurisdiction to entertain all or part of the questions referred to it purportedly pursuant to s 84ZH of the Act.
2. The Panel's finding in relation to the Applicant's alternative capacity for work was:
(a) unreasonable and/or;
(b) made in the absence of evidence and/or;
(c) inadequately explained or supported by reference to the evidence before it and the detailed history given by the Applicant.
3. The Panel effectively prevented the Applicant from obtaining and putting before it important radiological evidence (such as the MRI and EEG test results) and
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- further evidence interpreting the significance of such radiological evidence, thereby effectively denying the Applicant natural justice.
- 4. The Panel failed to provide any or adequate reasons for decision why it (effectively) rejected the opinions of the psychiatrist (Dr Steven [sic] Proud) and the neuro-psychologist (Dr Linda Hayward) contained in their reports dated 8 May 2002, 6 June 2002 and 7 October 2002 respectively, and further failed to provide adequate reasons for deciding why the Applicant had no back disability in the light of the evidence adduced before it."
13 In arguing the applicant's case, counsel first dealt with ground 1, then ground 4 and finally grounds 2 and 3. Each ground was put in the alternative. I will deal with the grounds in that same order.
Ground 1 - No jurisdiction to determine questions
14 The Act makes it plain that 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, or each medical practitioner so provided and paid if there is more than one of them; and one of the parties wishes the proceedings to continue: s 145A of the Workers' Compensation and Rehabilitation Act 1981.
15 The applicant says that, at the time this referral was made by the Review Officer on 11 September 2002, there was no conflict of medical opinion in relation to the extent of the worker's disability or the worker's capacity for work within the meaning of s 145A.
16 The applicant argues that, at the time of the referral, the nature of the disability he had was not in dispute on the applications he had made for compensation under the Act. The applicant says the employer had previously accepted workers' compensation liability for his claim for disability to the head, neck and back and did not, or could not, argue that his head, neck and back complaints were not attributable to the work accident of 26 September 2000.
17 The applicant also says that the workers' compensation liability of the employer for his psychiatric condition had not been accepted by the
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- employer and had not been determined by the Review Officer at the time of the referral, and would have required the hearing of evidence in relation to it before any consideration could have been given by the Review Officer to referring a question concerning it to the Medical Assessment Panel.
18 As to the ground that there was no conflict of medical opinion in relation to the extent of the worker's disability or capacity for work, the applicant says there are only two documents capable of constituting the requisite conflict, namely, progress medical certificates dated 24 January 2002 and 30 January 2002, and that neither was current at the time of referral of the questions to the Panel.
19 The applicant further says not only were these certificates not current, but they were not in the nature of medical "opinion", but mere certification. The applicant says that, in order for a referral to be valid, there must be a current, or at least relatively current, conflict of medical "opinion" on the relevant question referred.
20 No doubt, there must be a conflict of medical opinion on the relevant question to satisfy s 145A. However, that is not to say that opinion expressed at some time in the past may not currently remain the subject of conflicting opinion. Whether it does remain in conflict at the time of referral must be a question of fact in every case. For example, a medical practitioner who expressed the opinion two years ago that there is a degree of disability may, six months ago, have expressed the opinion that there no longer is. Thus, at the time of referral of a question to a Panel, all medical practitioners may be in agreement that the most recently-expressed opinion is right. In which case, there would be no conflict of opinion to refer to a Panel.
21 In this case, progress medical certificates stated that the applicant was totally unfit for work for specified periods of time. The "WorkCover Workers' Compensation Progress Medical Certificate" dated 24 January 2002 signed by Dr Robert Noll of Albany certified that the applicant was "totally unfit for work for 42 days from 24.01.2002 … ". The medical practitioner's further progress medical certificate dated 30 January 2002 certified the applicant in a similar way "for 42 days from 30.01.2002". However, while the second progress medical certificate was current, another medical practitioner expressed the opinion that there was only partial disability.
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22 In these circumstances, I do not consider it is open to contend that there was no conflict of medical opinion at the material time the Review Officer referred the question to the Panel.
23 I also consider that the progress medical certificate signed by Dr Noll in each case expressed his medical "opinion" and was not a mere "certificate". Where a medical practitioner has examined a patient or made observations of or conducted tests on a patient and articulated a diagnosis or medical condition, that expression of diagnosis or condition may properly be considered a medical "opinion" for the purposes of the Act: Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96 at [28] per Malcolm CJ. The form in each case noted that, upon the date in question, an "examination" had been performed by the medical practitioner. The progress report in each case expressly indicated that its content included "clinical findings/diagnosis at this consultation and possible barriers to return to work". Concerning the "fitness for work" of the person referred to in the certificate, the medical practitioner expressly indicated that "it is my opinion" as from the date of the certificate the worker is in the condition thereafter indicated. Accordingly, I consider the certificates to constitute a relevant expression of medical opinion in both form and substance for the purposes of the Act.
24 The applicant further contends, in relation to ground 1, that there was no underlying dispute between the parties as to the nature of the applicant's injury, that is to say, that the applicant had suffered an injury to his head and had a neck or a back disability.
25 It is true that there was no dispute about the fact that the applicant suffered such injuries in the accident. Thus, he had a "disability" as defined in s 5 of the Act arising out of or in the course of his employment. However, the question is whether there was any dispute about the nature or extent of the disability at the time of the reference of the question to the Panel.
26 In my view, it does not necessarily follow that, because there is no dispute that there was an accident and the worker at that time suffered injuries, there cannot later be a dispute as to the nature and extent of the worker's disability. The first question asked of the Medical Assessment Panel in this case is: "What is the extent of the worker's disability?" In my view, the Review Officer was entitled to refer that question to the Panel. That question is materially different from the question whether there is a "disability", that is to say, whether injuries were sustained in the accident.
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27 Indeed, it appears to me that the entitlement of the Review Officer to refer a question of the type asked in question 1 is expressly provided for by s 84ZH(1). This section provides that, if permitted by s 145A to do so, a Review Officer may 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."
- While this provision is subject to being permitted by s 145A to do so, once there is a conflict in medical opinion, as I consider there is here, then plainly questions concerning the nature and extent of the disability may be asked.
28 The applicant further contends under ground 1 that the Panel went beyond its jurisdiction in determining the nature and extent of the applicant's psychiatric disability or sequelae. The applicant says the Review Officer had not made any antecedent finding or determination that the worker's psychiatric disability or sequelae arose "as a result" of his physical disability. The applicant contends that only if there had been a finding that the psychiatric or psychological problem of the worker was caused by the work injury, could the Review Officer refer a question concerning it to the Medical Assessment Panel.
29 In answering a question concerning the "extent" of the worker's disability, it is clear enough that a Medical Assessment Panel should not purport to answer the ultimate question which is to be answered by the Review Officer, namely, whether the claimed physical or psychiatric or psychological incapacity was caused by the accident.
30 Counsel for the applicant says that if the Review Officer were to find that an accident had caused psychiatric or psychological injuries arising out of physical injuries, then it would be legitimate to ask the Panel and to expect from the Panel comment in relation to the nature and extent of the relevant sequelae.
31 The applicant contends that, in this case, the Review Officer failed to make any such finding and therefore it was not open to the Review Officer to invite the opinion of the Medical Assessment Panel on the question of psychiatric disability.
32 In my view, that cannot be correct. The Medical Assessment Panel, having been asked the extent of the worker's disability, simply answered
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- that question. It did not enter into the causation issue. If the Panel were to have found that there was a degree of psychiatric disability, then it would be a question for the Review Officer to determine whether that was something relevant to the applications before him.
33 I can see nothing in the posing of the question and the answer given by the Panel concerning the lack of psychiatric disability that involved the determination of a "causation" question falling within the exclusive province of the Review Officer.
34 For these reasons, I do not consider ground 1 can succeed.
Ground 4 - failure to provide any or adequate reasons for determination
35 In the alternative to ground 1, the applicant submits the Medical Assessment Panel did not provide any or adequate reasons for its determination, as it is required by law to do.
36 The obligation to give reasons arises under s 145E(3) of the Act. The nature and extent of the obligation of a Medical Assessment Panel to give reasons has been discussed in a number of decisions of the Full Court, most of which were referred to in the recent decision of the Full Court in Re Narula; Ex parte Atanasoski [2003] WASCA 156 per Roberts-Smith J, with whom Murray and Barker JJ agreed.
37 The applicant says the Panel did not provide any or any adequate reasons in relation to its answer that the applicant does not have any degree of psychiatric disability, or (as stated in the "Reasons") any anxiety, depression or any associated psychiatric symptoms, in the light of the evidence before it. In short, the applicant contends that the Panel failed to provide adequate reasons as to why it rejected the opinions of the psychiatrist, Dr Stephen Proud, and the neuro-psychologist, Dr Hayward, and their reports of 8 May 2002, 6 June 2002 and 7 October 2002 respectively.
38 The applicant also says the Panel did not give any, or any adequate, reasons as to why it concluded that the applicant had no back disability and why he was able to perform a range of work duties.
39 In this case, there is no doubt that the "Reasons" of the Panel are rather cursory. The Panel indicates that it has made a "thorough analysis" of all reports provided to it, including that of Dr Hayward dated 7 October 2002, but does not otherwise refer to them in its reasons.
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40 When one reads the "Reasons", little is provided by way of the reasoning process adopted to arrive at the conclusion that there is no psychiatric disability. The third paragraph of the reasons simply cites Mr Casey as admitting to anger and frustration, and states that there is no recent or current self-report of anxiety, depression or associated psychiatric symptoms, including suicidal thoughts. It seems that, on the basis of the interview with the applicant, the Panel concluded that "there is no evidence of psychiatric agitation or retardation or any other objective evidence of a psychiatric condition or disability." The Panel makes no express reference to any medical opinion on this topic to be found in the referred reports.
41 Perhaps, in some circumstances, a Panel can rely entirely on its own assessment in making a determination of questions referred to it. However, it still needs to give reasons for doing so and why it has not accepted any earlier medical opinions to the contrary or at odds with such a conclusion. In Re Croser; Ex parte Rutherford [2003] WASCA 8, Rolfe AJ suggested a decision-making process that a Panel might adopt. His Honour suggested that one task for the Panel is to determine which medical reports it accepts and which it does not. However, it is insufficient simply to make that statement. Rolfe AJ, at [46](f) - (i), noted in particular that:
"(f) In concluding which medical reports to accept or reject, the panel may have regard to matters such as the sufficiency of the history given to the doctor providing each report by the worker; the extent to which, if at all, the doctor has examined the worker and what the doctor has ascertained from that examination; whether the examining doctor has overlooked some matter, which the panel has observed on its examination and which it considers to be relevant; and whether the views expressed by the doctor accord with a respected body of medical opinion. There may be other reasons for rejecting some medical reports. They should be stated.
(g) Insofar as the panel questions the worker, the determination should set out, albeit briefly, the nature of the questioning and the effect that the answers and the manner in which they were given impacted upon the panel's determination.
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- (h) Insofar as the panel examines the worker, it should record what is found on examination and what the panel derives from such findings perhaps, more particularly, in the light of the history and complaints made by the worker.
(i) From all this information, although much will be contained in writing what I have said, the panel should disclose its reasons upon which it bases its conclusions."
42 It is clear enough that because a question can only be referred to a Panel where there is a dispute amongst medical practitioners concerning the answer to the question posed, the role of the Medical Assessment Panel is to resolve that dispute. Given that, in most cases, the relevant medical history and reports are forwarded to the Panel for their information and relied upon by the Panel in making a determination, as here, it seems to me that the Panel is obliged to note those opinions and where it relies on its own examination of the worker in coming to its view, to explain how the opinion formed on examination relates to the other opinions which have been expressed.
43 The alternative is that one might have Medical Assessment Panels examining workers in one-off situations and forming instant assessments without regard to the detailed histories and assessments which have preceded the examination. The Act plainly intends that a Panel should have regard to opinions that have been expressed before a matter is referred to it. The statement in the Act that the Panel is to act with appropriate speed and informality does not provide a reason for truncating reasons. If a case is complicated, perhaps because of some complex psychiatric history, then one would expect a Medical Assessment Panel to deal with the opinions in conflict with the appropriate degree of complexity.
44 Dr Stephen Proud, consultant psychiatrist, in a report dated 8 May 2002, expressed the opinion that the applicant "suffers from symptoms consistent with a DSMIV diagnosis of a Major Depressive Disorder of moderate to marked severity with features of anger." He also suggested that the "Major Depression is related to the ongoing pain, disability and loss of function from his work injury. There may be a few other factors at play." He further expressed the view that the applicant "is totally incapacitated for work at the moment from a psychiatric and cognitive point of view."
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45 By report dated 6 June 2002, Dr Proud confirmed that, in his opinion, "on the balance of probabilities, the Major Depressive Disorder suffered by the applicant is 'sufficient in its own right' to totally incapacitate Mr Casey for work."
46 Dr Linda Hayward, neuro-psychologist, by report dated 7 October 2002, noted that the applicant was " presenting with significant difficulties with working memory, processing speed and significant emotional difficulties relating to increased depression, anxiety, and difficulties with anger control and emotional regulation." She observed that the extent of his emotional difficulties were such that it was difficult to ascertain whether there is any organic contribution to his cognitive difficulties. Further pre-existing factors, along with his current significant psychological distress could account for the test findings earlier noted. She then added:
"However, his report of symptoms which could be suggestive of seizure activity have not been investigated, neither does it appear that appropriate investigations to rule out a head injury have been conducted ie he has not had an MRI of the brain and neither has he had an EEG. The latter particularly is warranted, given his report of brief bouts of blurred vision, experience of smells and the outbursts of rage which he finds hard to control."
47 So far as the back disability is concerned, the Panel was provided with a report from Murdoch Vocational Health, dated 7 February 2002 (Dr Alan Home). Dr Home noted "neck and lower back injuries" and expressed the view that there was a level of disability in respect of those injuries that was "very mild, based on the objective clinical findings". He also expressed the opinion that the applicant "is capable of undertaking rehabilitation to full-time employment of a sedentary, semi-sedentary and light manual nature. Here I am relying largely upon the objective clinical findings."
48 Mr George T Wong, neurosurgeon, by report dated 9 May 2002, stated that examination shows "moderate limitation of cervical movement particularly lateral rotation and extension. There is tenderness in the cervical musculature but no hard neurological deficit. MRI scan of the cervical spine shows degeneration particularly at C6/7 on the left side but no evidence of neural compromise." Mr Wong further expressed the view that the applicant's physical disability had stabilised and that he believed the "permanent physical disability would be 10% of the cervical spine. However, I would not be able to comment on his psychological situation."
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49 Mr Nick J Batalin, orthopaedic surgeon, by report dated 14 August 2002, noted as follows:
"At present, the patient is convinced that he has no work capacity but I do not share his conviction. Whereas I agree that he should not return to work as a labourer, I would like to stress that if we were aware of his previous x-rays and CT scan of the cervical spine before the accident on 26.09.00., the advice would have been the same. The corollary to this is that there is no contra-indication for other alternative occupations of a lighter nature and of a sedentary or semi-sedentary nature.
I saw no contra-indication for the patient working as a master of a fishing boat provided he is not expected to do labouring aspects of the job …
The patient does have some permanent disability. I felt that this amounts to approximately 10% permanent disability expressed as percentage disability of his cervical spine as a whole and 5% attributable to the pre-existing degenerative, post-traumatic factors and 5% to possible soft tissue neck injury resulting from the 26.09.00. incident.
The patient also has approximately 10% permanent disability of the thoracolumbar spine as a whole and again 5% of that is likely to be due to pre-existing, well established degenerative changes and 5% due to possible effect of superimposed soft tissue strain injury."
50 In light of the expression of such medical and psychological opinion, the Panel interviewed and examined the applicant on 9 October 2002 about 3.30 pm at the rooms of Mr Malone, neurosurgeon, at 34 Ord Street, West Perth. In his affidavit in support of this application, the applicant sets out his account of the interview and examination. He says he provided information to the Panel about the nature of work he had done in the past, including the lengths of timber he carried in a salvage yard about which he could not remember a lot. He says the psychiatrist questioned him about the motor vehicle he drove and the provision he had made for himself for superannuation. He felt as if he were being ridiculed by some of the questions or comments made by members of the Panel. The applicant says he told the Panel about his feelings of confusion and tried to illustrate what he was saying by reference to difficulties he had, after
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- seeing Dr Linda Hayward, in making an appointment for an EEG and MRI scan.
51 The applicant believes the psychiatrist on the Panel did not ask him many questions and did not administer any test or questionnaire of the nature administered by Dr Linda Hayward and Dr Stephen Proud. He felt the members of the Panel "badgered" him and treated him "aggressively" and treated him "like I was lying".
52 The applicant says comments in the second paragraph on the reasons for the determination of the Panel are incorrect. He says the history set out there is not what he gave the Panel. The applicant says he told the Panel that:
(1) he performed some household duties but cannot sustain them for any significant period of time because he suffers from significant neck and back ache and has cognitive difficulties which cause a lot of confusion, memory loss and inability to focus and concentrate and information processing difficulties;
(2) that he has trouble performing even the simplest of tasks such as refuelling his motor vehicle;
(3) that he is involved in food preparation for his family but cannot complete a cooking task and his wife assists him to do that;
(4) that at no time following the accident has he performed work of any heavy nature;
(5) that following the accident he performed modified light duties for a period and worked for a couple of months on board a friend's boat;
(6) that he was asked to be on the friend's boat because he has a skipper's licence which his friend does not have and was paid $300 weekly, plus a retainer of 21 per cent of the catch;
(7) he did this work for approximately two months and did no labouring work on the boat and, indeed, suffered headaches, nausea and did not continue being on the boat.
53 The applicant also says he told the Panel he constantly feels anxious, depressed, angry, confused and agitated, contrary to the reasons expressed in the determination.
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54 In my view, the reasons provided by the Panel are inadequate. They appear to reflect only what the Panel determined during the interview with the applicant and on what the applicant purportedly told the Panel about the work he is capable of doing and as to his psychological or psychiatric state.
55 So far as the applicant's psychiatric condition is concerned, the reasons provided in the third paragraph state: "There is no evidence of psychiatric agitation or retardation or any other objective evidence of a psychiatric condition or disability." That this opinion was probably expressed on the basis of observations made at the interview is suggested by the following, and final, sentence of the reasons: "Although sometimes vague and evasive, his cognitive function, during the interview, was within normal limits."
56 While particular reference is made in the reasons to the existence of the report of Dr Linda Hayward dated 7 October 2002, in the opening sentence of the reasons, no express reference is made to the content of that report or the earlier reports of Dr Stephen Proud.
57 Indeed, generally speaking, no attempt has been made in the reasons to lay out anything of the history of medical treatment and opinion in respect of the applicant which appears to have caused the Review Officer to refer the conflicting opinion as to the condition of the applicant to the Panel for their determination.
58 No attempt is made to set out the opinion of other medical practitioners and psychologists concerning the applicant who had seen him in the past or relate it to what the Panel discovered on the occasion of the interview and/or examination.
59 Insofar as the Panel questioned the applicant, the determination does not set out even 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.
60 Insofar as the Panel may have examined the applicant, there is no record of what it found on examination.
61 The Panel expressly found that the applicant has a full unrestricted capacity for work allowing him to undertake duties as a master of a fishing boat. This seems to be at odds with what Drs Home, Wong and Batalin reported. The applicant says that, to the extent that he had recently acted as the master of a fishing boat, it was in the circumstances
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- set out in his affidavit before the Court, which he also explained to the members of the Panel at the interview, that he was not required to do any physical labour when he performed this role and he effectively lent his master's ticket to the fishing enterprise proposed by a friend.
62 There is no reference in the reasons for the determination to the fact that Dr Home in his report referred to above expressed the view that the applicant was capable of undertaking rehabilitation to full-time employment "of a sedentary, semi-sedentary and light manual nature" and appeared also to accept that "it may be reasonable to assess that he is unable to return to work at sea".
63 The difficulty with the Medical Panel stating whether a worker is fit for a particular type of work is that it has a tendency to border on the expression, not of a medical opinion, but a factual assessment, of what a person can do, having regard to the person's medical condition. If the expression of such an opinion is an expression of medical opinion, as it must be under the Act, then, given the important consequences flowing from the expression of such a medical opinion under the Act, it must be an informed opinion based upon material facts concerning the particular types of employment being considered and be supported by appropriate reasoning.
64 Here, there is no development of the reasoning, save that the Panel have presumed that, because the applicant had indicated to them an ability to do certain types of physical work, he would therefore have the ability to undertake the list of possible occupations referred to in question 2. The applicant says that the Panel have incorrectly stated what he informed them. Even if that were not in issue, it remains incumbent upon the Panel adequately to demonstrate that a worker has a full unrestricted capacity for work of a nominated kind. It must display in its reasoning some knowledge of the particular duties and skills required in the performance of particular occupations, otherwise its expression of opinion will be tantamount to speculation and not a considered opinion. The reasons for the answer to question 2 must disclose some appreciation of the work duties involved in the nominated jobs. In this case, the reasons of the Panel do not do that.
65 The suggestion made by Dr Hayward in her report of 7 October 2002, that the applicant had not had an MRI of the brain and had not had an EEG and that both would be useful to a proper assessment of the applicant's condition, was not referred to by the Panel in its "Reasons". If
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- the Panel thought that suggestion lacked merit, it may have considered it appropriate to say so, and why.
66 The letter earlier written by the Chairman of the Panel to the Director on that topic was insufficient for these purposes.
67 In the event, the "Reasons" provide more of a set of conclusions than considered reasons for determination, and for this reason must be considered inadequate for the purposes of the Act. For these reasons, the application succeeds on ground 4.
Ground 2 - Panel's finding unreasonable, etcetera
68 Ground 2 is put forward as an alternative to ground 1 and ground 4 that I have already dealt with. The applicant contends that if the Court finds the Panel had jurisdiction and that the reasons for the determination were adequate in the circumstances, then in effect, a question of denial of natural justice arises.
69 However, ground 2 expressly complains that the Panel's finding was unreasonable, or made in the absence of evidence, or inadequately explained and supported by reference to the evidence before it and the detailed history given by the applicant. In my view, none of these grounds expressly includes denial of natural justice. I would take ground 2(a) that the Panel's finding was "unreasonable" as meaning unreasonable in a Wednesbury sense, that is to say that no reasonable panel properly instructed could have come to that view: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. That proposition has not been argued before me and I do not think that it can be.
70 The second complaint is that the Panel's finding was "made in the absence of evidence". This is related to the third complaint that the Panel's finding was "inadequately explained or supported by reference to the evidence". In my view, the grounds raised in ground 2(b) and (c) are, in substance, aspects of ground 4, namely, that the reasons given by the Panel for the determination are not adequate. For these reasons, I do not need to further consider these aspects of ground 2, because I have dealt with the substantive question of the adequacy of the reasons in dealing with ground 4.
71 However, a particular contention is put forward by reference to the state of the evidence in this case. The issue concerns the determination of question 2 concerning the capacity of the applicant for full, unrestricted
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- work in a number of duties there set out. The applicant contends that there was no evidence that the Panel knew what the occupational tasks entailed. For example, the applicant says that there was no information concerning the duties of particular occupations or the skills required to perform them before the Panel. As there is no contradictor before me, I accept that on the face of the materials provided by the Review Officer to the Panel, this is so. The Panel seems to have relied by and large on information supplied by the applicant during the interview with him, or alternatively, some general knowledge or assumptions about what particular jobs entail: for example, the duties of a master of a fishing boat, sales representative for a parts company, automotive parts interpreter, light factory process worker or service station console operator.
72 I have dealt with this issue in relation to ground 4. I consider the contention is well made in relation to the inadequacy of the reasons. However, the "no evidence" ground requires further consideration as, on the face of it, there is force in the argument.
73 The question has arisen on a number of occasions whether the decision of a public decision-maker made in the absence of evidence may be impugned. The view for some years has been that there is no good reason why a "no evidence" ground of judicial review within the ultra vires umbrella should not be applicable to administrative decision-making generally as an additional safeguard against arbitrariness - provided that review is confined to the legality rather than the merits of the decision in question: see S D Hotop, Principles of Australia Administrative Law (6th ed) p 235.
74 In England in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, Lord Wilberforce, at 1047, considered that statutory provisions that conditioned an official's power upon satisfaction as to the existence of certain matters might lead to challenge in the absence of facts:
"Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary … alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the
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- judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the existence of judgment … becomes capable of challenge."
75 In Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; 210 CLR 222, at [25], Gleeson CJ accepted what Diplock LJ stated in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456, at 487 - 488, that the rules of natural justice to be observed by an administrative decision-maker could be reduced to two:
"First, he must base his decision on evidence, whether a hearing is requested or not. Secondly, if a hearing is requested, he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing."
76 The Chief Justice also at that paragraph appeared to affirm what Deane J said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 367, namely:
"If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to act arbitrarily, irrationally or unreasonably … When the process of decision-making is disclosed, there will be a discernible breach of the duty of findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision."
77 As Gleeson CJ emphasised, at [26], the decision in Bond (supra) shows that the identification of the "decision" may constitute an important step in deciding whether there has been an error of law in the form of a breach of duty to act in accordance with the requirements of procedural fairness. The requirement is to "base [a] decision on evidence"; a requirement as to the way the decision-maker is to go about the task of decision-making. The Chief Justice added:
"The distinction between judicial review of administrative decision-making upon the ground that there has been an error of
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- law, including a failure to comply with the requirements of procedural fairness, and comprehensive review of the merits of an administrative decision, would be obliterated if every step in a process of reasoning towards a decision were subject to a judicial correct [footnote omitted]. The duty to base a decision on evidence, which is part of a legal requirement of procedural fairness, does not mean that any administrative decision may be quashed on judicial review if the reviewing court can be persuaded to a different view of the facts."
- The Chief Justice in that regard made specific reference to what Lord Wilberforce had said, in the passage quoted above, in Tameside Metropolitan Borough Council (supra).
78 In Re Minister for Immigration and Multicultural Affairs; Ex parte applicant S20/2000 [2003] HCA 30; 198 ALR 59, at [163], Kirby J also referred to Lord Wilberforce's statement in Tameside Metropolitan Borough Council (supra) and said that he did not take it to mean that in every proceeding by way of judicial review a Court should engage in a detailed re-evaluation of the factual basis upon which the official acted:
"It simply reflects the general proposition that an administrative decision-maker may not assume authority or jurisdiction to act based on a process of fact-finding that is fundamentally flawed."
79 In Australian Broadcasting Tribunal v Bond (supra), Mason CJ (with whom Brennan J agreed) said, at 355 - 356, that the question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. So, in the context of judicial review, it has been accepted that the making of finding and the drawing of inferences in the absence of evidence is an error of law.
80 In my view, whether it should be said that, in a relevant case, the making of a decision in the absence of evidence is an error of law in the sense that the decision is ultra vires or beyond the power of the decision-maker or constitutes a denial of natural justice and for that reason constitutes an error of law, the making of a decision in such a way permits an aggrieved party to impugn the decision on an application for judicial review such as that before me.
81 In the circumstances of the application before me, the Medical Assessment Panel was authorised by the Act to answer specific questions
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- put to it by a Review Officer. The second of the questions put to the Panel asked: "What is the worker's capacity for work? … Is the worker totally incapacitated?" An alternative question was put in the event the worker was found to be not totally incapacitated, as the Panel found him to be. The Panel was expressly asked:
" … is he fit for the full unrestricted duties of a master of a fishing boat, sales representative for a parts company, automotive parts interpreter, light factory process worker, service station console operator and, if so, for how many hours per week?"
The Panel purported to answer this question. However, in doing so, the Panel apparently had no information before it stating the duties to be satisfied in the various occupations identified in the question.
82 In circumstances where there is no evidence to show that the members of the Medical Assessment Panel in question had any particular knowledge concerning the duties to be performed by persons in these occupations and where there is no evidence the Panel was supplied with a statement of the duties of persons carrying out such duties, a decision purporting to state that in the Panel's opinion the applicant was fit for full unrestricted duties of a particular occupation would be, to use the observation of Kirby J, fundamentally flawed.
83 Unless there were evidence before the Panel as to the nature of the duties of each occupation, the Panel would simply not be in a position to answer the question. The Panel cannot answer the particular question without knowing - that is to say, without being told by the Review Officer - what the relevant duties entail. A purported answer to the question without relevant evidence, is a decision which fails to comply with the legal requirement of procedural fairness or is otherwise outside the function and powers of the Medical Assessment Panel.
84 In those circumstances, I consider the particular answer given to that question in the second question posed by the Review Officer for the Panel should be quashed in any event. For that reason, I would also uphold ground 2, to that extent.
Ground 3 - Denial of natural justice
85 The applicant says that he was denied natural justice by the Panel when it failed to obtain additional radiological evidence concerning his conditions before makings its determination.
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86 There is nothing in the Workers' Compensation Rehabilitation Act that authorises a Panel to make determinations without regard to the rules of natural justice or procedural fairness; and there is every reason why those rules must be observed, given the serious effect a determination of a Medical Assessment Panel can have on the rights of a worker. The decision of the Court of Appeal of the Supreme Court of Victoria in Masters v McCubbery [1996] 1 VR 635, albeit by reference to similar legislation of another State, supports this view, especially the reasoning of Callaway JA at 655 - 658.
87 In this case, the report of Dr Linda Hayward, which the Panel had before it, suggested it would be useful to obtain the results of MRI and EEG tests in order to further assess the condition of the applicant. That suggestion was made in her report dated 7 October 2002. As I noted earlier, the Medical Assessment Panel, while making reference to her report, made no reference at all to its content. By implication, her suggestion was rejected, but no reason was given for dismissing it.
88 To my mind, the failure of the Panel to make any reference to the suggestion is one aspect of the "Reasons" of the Panel which illustrates their inadequacy. One cannot be sure whether that suggestion was considered or not, because no account was given of the expressions of relevant medical opinion as at the date of the Panel's interview and examination of the applicant. The Panel thereby did not create for itself the opportunity to state whether such further testing would, in its view, be helpful.
89 However, of itself the failure to require such further testing would not necessarily bespeak a denial of natural justice - that is to say, a denial by the Panel to permit the worker's case to be fairly put; or a demonstration of bias against him. Only if, in all the circumstances, such further testing seemed obviously relevant, but the opportunity to obtain it was denied before a determination was made, could such an argument possibly succeed.
90 It cannot be said that Dr Hayward's suggestion falls into the latter category. The trouble is that, on a reading of the reasons, one cannot know whether the Panel noted the suggestion and, if they did, whether the Panel rejected it out of hand and, if so, for what reason.
91 The question about the Panel having available to it the results of EEG and MRI tests was earlier brought to the attention of the Director of the Conciliation and Review Directorate of WorkCover Western Australia
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- by letter of the applicant's solicitors dated 24 September 2002. This merely goes to highlight the nature of the request. It appears that the Chairman of the Panel advised the Director that the Panel "could proceed without the further medical evidence" suggested. It also appears that the Panel appreciated it had the authority to conduct any test, including an MRI test, should it be deemed necessary.
92 Perhaps, in these circumstances, it can reasonably be inferred that the Panel did not consider it to be necessary to undertake these further tests. However, in its reasons - the place where it should have dealt with the issue - it is silent on the issue.
93 In all the circumstances, it seems to me that the Panel was obliged to give its reasons in more detail than that which appears in the reasons provided with the determination. However, I do not consider that the Panel denied the applicant natural justice because it did not require further tests. That the Panel did not think further tests were required seems clear enough; why they thought this, though, is not explained in the "Reasons".
94 I would therefore not allow the application on ground 3.
Conclusion and order
95 The reasons provided by the Panel in this case were too conclusionary in nature and failed sufficiently to explain the reasons for the determination made. No attempt was made to set out past relevant medical opinion and the reasons why the Panel formed the determination it did, in relation to both questions 1 and 2. For this reason, the application should succeed on ground 4 of the application.
96 Further, in finding that the applicant was fit to undertake certain occupations referred to in question 2 of the questions referred to it, in the absence of any evidence as to what the duties of those occupations were, the Panel offended the "no evidence" rule. The application should succeed, at least in relation to that part of the decision, on ground 2 in any event.
97 For these reasons, I would make absolute the order nisi for certiorari.
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