Re McWilliam & Ors - [2002] WASCA 203

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE McWILLIAM & ORS; EX PARTE PAJDAK [2002] WASCA 203

CORAM: MURRAY J
ANDERSON J
PARKER J

HEARD: 7 MAY 2002

DELIVERED : 7 MAY 2002

PUBLISHED : 2 AUGUST 2002

FILE NO/S: CIV 2118 of 2001

MATTER :Application for a Writ of Certiorari against ROBERT McWILLIAM, ROBERT KOSKY and ANN BELL under the Workers' Compensation and Rehabilitation Act 1981

EX PARTE
ADAM PAJDAK
Applicant

Catchwords:

Prerogative writ - Certiorari - Workers' compensation - Medical Assessment Panel - Failure to give adequate reasons for conclusion that worker's psychiatric disability is temporary

Legislation:

Workers' Compensation and Rehabilitation Act 1981, s 93D, s 145C, s 145D

Result:

Order nisi for writ of certiorari made absolute

Category: B

Representation:

Counsel:

Applicant: Mr B L Nugawela
Amicus Curiae : Mr G T Smith

Solicitors:

Applicant: Leonard Cohen & Co
Amicus Curiae : Crisp Civitella Smith

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

Re Anastas; Ex parte Welsby [2002] WASCA 83

Case(s) also cited:

Dobree v Hoffmans (1996) 18 WAR 36
Palazzolo v Brown & Ors [2002] WASCA 49
Re Wong & Ors; Ex parte Hays, unreported; SCt of WA; Library No 980575; 5 October 1998

JUDGMENT OF THE COURT: This is the return of an order nisi for a writ of certiorari granted by McLure J on 30 August 2001. The order nisi called upon the three members of a Medical Assessment Panel constituted under s 145C of the Workers' Compensation and Rehabilitation Act 1981 to show cause before the Full Court why a writ of certiorari should not issue against the Panel to quash its determination of 9 February 2001 that the applicant's psychiatric disability was "temporary - up to six months".
The Court came unanimously to the view that the order nisi should be made absolute and that order was made on 7 May 2001, with reasons to be delivered later. These are the reasons of the Court.
The applicant, an injured worker, sought an order quashing the determination of the Medical Assessment Panel on the following grounds:
(a)The Panel did not state or analyse what medical reports or evidence it relied upon.
(b)There is no explanation of the relevance of the statement "Mr Pajdak is an unreliable historian", nor the extent to which such "unreliability" had an impact on the Panel's decision.
(c)The reasoning of the Panel is unclear as to whether any weight was attached to any of the medical reports before the Panel and, if so, why.
(d)There is no explanation of the nature and extent of the relevant discussions that were exchanged between the Panel members.
(e)The Panel failed to give any, or any adequate, reasons for its conclusion that the psychiatric disability is "temporary - up to six months".
McLure J did not accept ground (d) as a proper ground on which to challenge the adequacy of the reasons of the Panel. There was an appeal from that decision which counsel for the applicant rightly abandoned during the course of argument. The Court made it clear to counsel for the applicant that it did not regard grounds (a), (b) and (c) above as tenable. Ground (a) assumes that there is an obligation on the Medical Assessment Panel in every case to "state or analyse what medical reports or evidence it relied upon". We do not accept that this is so. Section 145C(1) of the Workers' Compensation and Rehabilitation Act provides, in effect, that a Medical Assessment Panel is to be constituted by "two or three medical practitioners, one of whom is to be its chairman", and by s 145D it is provided that in determining the question referred to it the panel is to "act speedily and informally, and in accordance with good conscience, without regard to technicalities or legal forms and is not bound by rules of practice, nor evidence". It is quite obvious that Parliament never intended that the reasons in support of a Medical Assessment Panel's determination are to be lengthy or elaborate or take the form of a judgment of a court. Obviously there may be cases in which some reference to particular medical reports may be necessary in order to properly explain the determination and it may be necessary in some cases for the Panel to say which of the various medical opinions it has preferred in reaching its conclusion. But it is also to be borne in mind that the members of the Medical Assessment Panel are themselves medical practitioners and it is clear that the legislation contemplates that they may come to their own conclusion on the question referred for their determination by applying their own specialist knowledge. There would otherwise be no point at all in requiring, as does s 145C(2), that at least one of the members of the Panel is to be a specialist in the particular branch of medicine or surgery that is relevant to the question and in requiring by s 145D(2)(d) that, if required by the Panel, the worker concerned is to submit to medical examination by the Panel.
For these same reasons it would appear to us that ground (c) above is equally untenable.
As for ground (b), this would appear to be no more than a particular of ground (e) and in argument counsel for the applicant conceded this to be so and accepted that the grounds of the application for prerogative relief in this case boiled down to ground (e) which pleads:
(e)The Panel failed to give any, or any adequate, reasons for its conclusion that the psychiatric disability is "temporary - up to six months".
The applicant, a machine operator, claims to have sustained a back injury in the course of his employment with his employer IPLEX Pipeline on 22 May 1998. He was attempting to free a pipe which had jammed in the machine which he was operating and the action of the machine on the pipe caused him to be flung backwards onto his back. There was an immediate onset of severe low back pain and a radiological examination a day or two later appeared to confirm that he had sustained a spinal injury. He received extensive treatment which did not appear to assist his recovery and by January 2000 comments began to appear in the medical reports written about him suggesting that there might be a non‑organic cause for his continuing incapacity. For example, in a report written by Dr Alan Home, an occupational physician attached to St John of God Hospital Murdoch, on 25 January 2000 there appears towards the end of the report the following comment:
"Again, as in July, the clinical presentation is now dominated by non‑organic signs suggesting a prominent behavioural component to his presentation of disability."
Meanwhile, on 8 December 1999 the applicant had filed a "referral of question of degree of disability" with the Conciliation and Review Directorate Work Cover pursuant to s 93D of the Act, and on 3 May 2000 a Medical Assessment Panel determined his degree of disability of the lumbar spine as "5 per cent of total body disability" and of the cervical spine as also "5 per cent of total body disability". On 19 October 2000 the applicant initiated proceedings at the Directorate seeking determination of liability for his ongoing psychiatric disability which he claimed was a condition arising from his lumbar and cervical disabilities. On 27 November 2000 the conciliation officer referred a number of questions to a further Medical Assessment Panel, those questions being:
1.What is the nature of the disability suffered by Pajdak?
2.As to the extent of the disability:
(a)Has Mr Pajdak recovered from the disability?
(b)If Mr Pajdak has not recovered from the disability, what is the current extent of the disability?
3.What is Mr Pajdak's capacity for work, in particular?
(a)Does he have any physical limitations upon his capacity to work and, if so, what limitations?
(b)Does he have any psychiatric limitations upon his capacity to work and, if so, what limitations?
(c)Does he have the capacity to return to his pre‑accident employment as a machine operator?
(d)Does Mr Pajdak have the capacity to work either full‑time or part‑time?
4.Should the nature of the worker's disability include psychiatric disability, is the disability permanent or temporary? If permanent, what is Mr Pajdak's degree of disability?
In answer to question 1, the Medical Assessment Panel determined that the applicant suffered from cervical disc degeneration at mid‑cervical level and lumbar disc degeneration and that he also suffered "depressive illness". In answer to question 2, the Panel determined that he had not recovered from his disability, that the degenerative conditions were "mild" and that the depressive illness was "moderate". In answer to question 3(a), the Panel determined that the applicant did have physical limitations upon his capacity to work, they being that his endurance for repeated bending and lifting has been diminished.
In answer to question 3(b), namely, the question as to whether the applicant had "any psychiatric limitations upon his capacity to work and, if so, what limitations", the Medical Assessment Panel answered:
"Yes. Anxiety and depressive symptoms have developed since his industrial injury. Psychiatric treatment and medication are limitations to his capacity to work even though there is no loss of knowledge or skills and no intellectual loss."
The panel determined that the applicant did not have a capacity to return to his pre‑accident employment as a machine operator, nor did he have the capacity to work either full‑time or part‑time as a light process worker/assembler, carpark attendant or store person.
With respect to question 4, the Medical Assessment Panel's answer was in the following terms:
"The disability is temporary - up to six months."
This was a discrete determination for which reasons were required in writing. The Panel gave a single set of reasons in support of its answers to all of the questions asked of it, including question 4, and those reasons are in the following terms:
"Reasons:
The reasons for this determination are as follows:
A full history, examination and review of the investigations was undertaken. The 65 medical and paramedical reports were evaluated and a surveillance film reviewed.
Mr Pajdak is an unreliable historian.
He reports symptoms of depression of moderate degree, including sleep disturbance, loss of libido, poor concentration and intermittent suicidal thoughts but no active plans.
With lack of resolution of his case, he has become anxious and depressed. Left untreated his symptoms would become worse. He has now clearly developed a depressive illness in the context of a lack of meaningful activity."
Regrettably these reasons do not include reasons for the conclusion that the applicant's psychiatric disability is "temporary - up to six months". It may be that the Panel concluded from a review of the history of the psychiatric condition that it was resolving spontaneously and was within six months of completely resolving. It may be that the Panel considered that the treatment and medication which the applicant was then receiving should effectively resolve the condition within that time. Perhaps the Panel considered that the condition was otherwise treatable and if the applicant underwent appropriate treatment, the anxiety and depressive symptoms would disappear within six months. Or it may be that the Panel considered that the symptoms were litigation based and that once his workers' compensation claim had been finalised, his symptoms would resolve and six months was a reasonable time to allow for that process to occur.
The point is that it is not possible to know what reasoning process was followed. The concluding remarks of this Court differently constituted in Re Anastas; Ex parte Welsby [2002] WASCA 83 at par 6 apply equally to this case. The Court said:
"Whilst we agree … that the Court should bear in mind that the Medical Assessment Panel are doctors, not lawyers or judges, and cannot be expected to produce long or elaborate reasons, still the Act requires the Panel to give written reasons for its determination. That obligation is not fulfilled unless the reasoning process can be followed. The obligation was not fulfilled in this case."
It was for this reason that we granted the order absolute.