Re McWilliam;
[1999] WASCA 128
•20 AUGUST 1999
RE MCWILLIAM; EX PARTE OLSEN [1999] WASCA 128
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 128 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:2039/1998 | 11 MARCH 1999 | |
| Coram: | MALCOLM CJ PIDGEON J WALLWORK J | 20/08/99 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi for certiorari made absolute | ||
| PDF Version |
| Parties: | ROBERT JOHN OLSEN MCMAHON CONTRACTORS (WA) PTY LTD |
Catchwords: | Workers' compensation Worker suffered partial permanent loss of use of two separate limbs Degree of disability of worker Referred to medical assessment panel Method of assessment Whether Schedule 2 provided for such a disability It did not Permanent impairment to be assessed in accord with AMA Guides |
Legislation: | Workers' Compensation and Rehabilitation Act 1981, s 93D |
Case References: | Craig v South Australia (1994-1995) 184 CLR 163 R v McWilliam; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 Hockey v Yelland (1984) 157 CLR 124 Public Service Board (NSW) v Osmond (1986) 159 CLR 656 R v District Court of Queensland Northern District; Ex parte Thompson (1968) 118 CLR 488 Re Judge Hammond; Ex parte Roddan (1996) 17 WAR 50 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE MCWILLIAM; EX PARTE OLSEN [1999] WASCA 128 CORAM : MALCOLM CJ
- PIDGEON J
WALLWORK J
EX PARTE
ROBERT JOHN OLSEN
Applicant
Catchwords:
Workers' compensation - Worker suffered partial permanent loss of use of two separate limbs - Degree of disability of worker - Referred to medical assessment panel - Method of assessment - Whether Schedule 2 provided for such a disability - It did not - Permanent impairment to be assessed in accord with AMA Guides
Legislation:
Workers' Compensation and Rehabilitation Act 1981, s 93D
(Page 2)
Result:
Order nisi for certiorari made absolute
Representation:
Counsel:
Applicant : Mr P W Martino
Macmahon Contractors (WA) Pty Ltd
(By Leave) : Mr J R Ludlow
Solicitors:
Applicant : D'Angelo & Partners
Macmahon Contractors (WA) Pty Ltd
(By Leave) : McAuliffe Schwikkard
Case(s) referred to in judgment(s):
Craig v South Australia (1994-1995) 184 CLR 163
R v McWilliam; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996
Case(s) also cited:
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
Hockey v Yelland (1984) 157 CLR 124
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
R v District Court of Queensland Northern District; Ex parte Thompson (1968) 118 CLR 488
Re Judge Hammond; Ex parte Roddan (1996) 17 WAR 50
(Page 3)
1 MALCOLM CJ: This was the return of an order nisi calling upon the members of the Medical Assessment Panel constituted under the Workers' Compensation and Rehabilitation Act 1981 (WA) to show cause why a writ of certiorari should not issue directed to them on the ground that an error of law was made in the method of assessment of the disability of the applicant under s 145E(5) of the Workers' Compensation and Rehabilitation Act 1981. In my opinion, the order should be made absolute and an order made that the decision of the Panel be quashed on the return of the writ without further order.
2 I have reached this conclusion for the reasons to be published by Wallwork J with which I agree.
3 PIDGEON J: I agree with the reasons to be published by Wallwork J.
4 WALLWORK J: The issue in this case is the method to be used to assess "the degree of disability of a worker" pursuant to s 93D of the Workers' Compensation and Rehabilitation Act 1981 as amended (the Act), where the worker has suffered a partial permanent loss of the efficient use of two limbs of his body.
5 On 12 April 1994 Mr Olsen suffered injuries to his right arm and right leg. He wished to bring an action for damages against his employer arising from his injuries. Pursuant to s 93D(4) of the Act, proceedings in which damages are sought are not to be commenced without the leave of the District Court. Leave is to be given if the parties agree that the degree of the worker's disability would, if assessed as prescribed in s 93D(3), be 30 per cent or more. Failing agreement, the question is to be referred for determination by a medical assessment panel pursuant to s 93D(7). That is what happened in this case.
6 An orthopaedic surgeon, Mr Michael Anderson, had initially assessed Mr Olsen's "…present disability at 15 per cent loss of function below the elbow in the right upper limb. The disability in the right lower limb I would rate at 20 per cent loss of function below the knee".
7 After the reference had been made to a medical assessment panel, on 16 April 1998 the panel determined as follows:
"Q. Would the degree of disability if assessed as prescribed in subsection 3 of s 93D of the Act be 30 per cent or more?
A. The disability is not 30 per cent or more."
(Page 4)
8 In the reasons for the determination of the assessment panel it was stated amongst other things that:
"The examination revealed some limitation of flexion of the right wrist with mild restriction of supination of right wrist and clicking on passive movements. In relation to the right foot we note restriction of inversion eversion consistent with a subtalar fusion. The Panel accepts Mr Anderson's assessment in relation to the extent and nature of both disabilities as permanent disabilities under the Act."
9 It was contended for the applicant that in R v McWilliam; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996, Murray J had concluded that in the case of a disability to different parts of the body, the percentage losses as expressed in Schedule 2 of the Act are to be added together. Counsel for both parties agreed that his Honour's remarks in Juras were obiter and not binding on this Court.
10 Relevantly, s 93D(2) of the Act provides:
"A disability is a serious disability if, and only if -
(a) the degree of disability would, if assessed as prescribed in subsection (3), be 30% or more; …."
11 Section 93D(3) provides:
"(3) For the purposes of subsection (2)(a), the degree of disability of a worker is to be assessed -
(a) so far as Schedule 2 provides for such a disability, as a percentage equal to the percentage of the prescribed amount that is provided for by that Schedule as read with section 25;
(b) to the extent, if any, that paragraph (a) does not apply, as the degree of permanent impairment assessed in accordance with the AMA Guides;
(c) to the extent, if any, that neither paragraph (a) nor (b) applies, in accordance with the regulations,
or if more than one of paragraphs (a), (b) and (c) applies, as the cumulative sum of the percentages assessed in accordance with those paragraphs."
(Page 5)
12 The "AMA Guides" are defined in s 93A as follows:
"'AMA Guides' means the edition of the Assessment of Disability Guide published by the Western Australian Branch of the Australian Medical Association Incorporated which is prescribed in the regulations".
13 Regulation 3 of the Workers' Compensation and Rehabilitation Regulations 1982 provides:
"The first edition is prescribed for the purposes of the definition of "AMA Guides" in section 93A of the Act".
14 We were informed that no Regulations have been made which can be applied for the purpose of s 93D(3)(c) of the Act.
15 The first question is whether, in accordance with s 93D(3)(a), "Schedule 2 provides for such a disability" as there is in this case. In my view it does not.
16 Schedule 2 is quite specific in its provisions. It provides separately for such injuries as "loss of the arm below elbow" (item 14) and "loss of the leg below knee" (item 29) which would be the relevant injuries in this case. However Schedule 2 does not provide for those injuries in combination as it does in, for example, the case of "total loss of sight of both eyes" (item 1); "total loss of sense of taste and smell" (item 10); "loss of a hand and foot" (item 16).
17 Therefore in my view s 93D(3)(b) applies. That subsection provides:
"For the purposes of subsection (2)(a), the degree of disability of a worker is to be assessed -
(a) …
(b) to the extent, if any, that paragraph (a) does not apply, as the degree of impairment assessed in accordance with the AMA guides".
18 The relevant part of the AMA Guides provides:
"Multiple Disabilities
Where a patient suffers a number of permanent disabilities an assessment should be undertaken to determine the total level of
(Page 6)
- a disability according to the individual circumstances, ensuring that there is no double counting."
19 As appears from the determination and reasons of the Assessment Panel set out earlier in these reasons, the Assessment Panel did not undertake an assessment of Mr Olsen's disabilities "in accordance with the AMA Guides".
Remedy
20 In Ex parte Juras (supra) the Full Court held that s 145E(5) of the Act does not exclude the jurisdiction of this Court to grant a prerogative writ.
21 Section 145E(5) relevantly provides:
"(1) …
(2) …
(3) …
(4) …
(5) Unless rescinded under section 145F, the determination, or if the determination is varied under that section the determination as varied, 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 and the written determination given under subsection (3) is, in the absence of evidence that the determination was so rescinded or varied, conclusive evidence as to the matters determined."
22 In the present case in my view the Assessment Panel erred in law as it did not comply with s 93D(3)(b) in the method of its determination.
23 In Juras, Murray J, with whom Franklyn and Owen JJ agreed, said at 5 of the report:
"…because of the statutory obligation in s 145E(3) to provide the determination and reasons in writing, that document or documents at least will constitute the record of the panel, so that any error of law which there appears would appear in the face of the record sufficiently to ground the making of an order
(Page 7)
- absolute for certiorari: R v Compensation Court of WA; Ex p State Planning Commission (1990) 2 WAR 242 and Craig v South Australia".
24 In Craig v South Australia (1994-1995) 184 CLR 163 at 179, Brennan, Deane, Toohey, Gaudron and McHugh JJ said:
"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
25 Applying the above dicta, I am satisfied that the grounds of the applicant, which assert that an error of law was made in the method of assessment by the Panel in this case, have been made out. The order nisi for certiorari should be made absolute.
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