Re Medical Assessment Panel
[2006] WASCA 80
•9 DECEMBER 2005
RE MEDICAL ASSESSMENT PANEL; EX PARTE ZANETTI [2006] WASCA 80
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 80 | |
| THE COURT OF APPEAL (WA) | 19/05/2006 | ||
| Case No: | CIV:2090/2004 | 9 DECEMBER 2005 | |
| Coram: | STEYTLER P MURRAY AJA MILLER AJA | 9/12/05 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Order nisi discharged | ||
| B | |||
| PDF Version |
| Parties: | PATRICIA FAYE ZANETTI MG KAILIS EXPORTS PTY LTD |
Catchwords: | Prerogative writs Certiorari Worker's compensation Medical Assessment Panel Degree of disability of worker Adequacy of Panel's reasons for determination |
Legislation: | Workers' Compensation and Rehabilitation Act 1981(WA) |
Case References: | Re Croser; Ex parte Rutherford (2001) 25 WAR 170 Re Knezevic; Ex parte Carter [2005] WASCA 139 Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395 Re Bannan; Ex parte Suleski [2001] WASCA 289 Re Gillett; Ex parte Rusich [2001] WASCA 111 Re Harley White; Ex parte Hutt [2005] WASCA 32 Re Wong; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998 Re Wong; Ex parte Inghams Enterprises Pty Ltd [2004] WASCA 247 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE MEDICAL ASSESSMENT PANEL; EX PARTE ZANETTI [2006] WASCA 80 CORAM : STEYTLER P
- MURRAY AJA
MILLER AJA
PATRICIA FAYE ZANETTI
Applicant
AND
MG KAILIS EXPORTS PTY LTD
Respondent
(Page 2)
Catchwords:
Prerogative writs - Certiorari - Worker's compensation - Medical Assessment Panel - Degree of disability of worker - Adequacy of Panel's reasons for determination
Legislation:
Workers' Compensation and Rehabilitation Act 1981(WA)
Result:
Application dismissed
Order nisi discharged
Category: B
Representation:
Counsel:
Applicant : Mr W C McDonald
Respondent : Mr M W Schwikkard
Solicitors:
Applicant : D G Price & Co
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Re Croser; Ex parte Rutherford (2001) 25 WAR 170
Re Knezevic; Ex parte Carter [2005] WASCA 139
Case(s) also cited:
Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395
Re Bannan; Ex parte Suleski [2001] WASCA 289
Re Gillett; Ex parte Rusich [2001] WASCA 111
(Page 3)
Re Harley White; Ex parte Hutt [2005] WASCA 32
Re Wong; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998
Re Wong; Ex parte Inghams Enterprises Pty Ltd [2004] WASCA 247
(Page 4)
1 JUDGMENT OF THE COURT: This was the return of an order nisi for a writ of certiorari directing the members of a Medical Assessment Panel constituted under the Workers' Compensation and Rehabilitation Act 1981 (WA) to show cause why, by certiorari, their determination dated 25 February 2004 should not be quashed on the ground of the alleged insufficiency of their reasons.
2 The applicant was the worker and the respondent to the application her employer. After hearing her counsel, the application was dismissed and the order nisi discharged with costs. These are our reasons for those orders.
3 This was a case where, in relation to the assessment of the degree of disability of the worker, there was a conflict of medical opinion. The questions relevant to the matters in dispute were therefore referred by a conciliation officer, pursuant to s 145A(1), to the Medical Assessment Panel constituted under s 145C of the Act.
4 The Panel comprised a neurologist, a psychiatrist and an occupational physician. It was asked to determine the questions, what was the nature of the worker's physical and psychiatric disability, what was the extent of those disabilities and what was the worker's capacity to return to work. The worker attended before the Panel, was questioned and submitted to a medical examination. The Panel determined that she had no physical or psychiatric disability. It determined that she was fit to return to her pre-accident duties as a full-time accounts clerk.
5 By s 145E(3), the determination is required to be supported by reasons. In this case, two pages of reasons were provided promptly after the determination was made, as required by the Act. The applicant's complaint is that the reasons do not sufficiently detail the history obtained from the applicant upon her examination. It is said that they do not sufficiently set out the questions asked of the applicant and her responses. It is complained that there is insufficient detail of the observations made upon the applicant's physical examination. There is a complaint that the reasons do not adequately discuss and give reasons for rejecting medical reports supportive of the applicant's continuing incapacity for work which were before the Panel. Generally therefore, the complaint is that the reasons were inadequate to discharge the Panel's duty to provide reasons in accordance with s 145E(3).
6 As to the grounding of an application for certiorari in such a contention, and as to what is required if the reasons are to discharge the
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- legal duty imposed by the legislation, reference may be made to Re Croser; Ex parte Rutherford(2001) 25 WAR 170. In addition, there are quite a number of unreported decisions of the Full Court and the Court of Appeal. A useful recent case is Re Knezevic; Ex parte Carter [2005] WASCA 139. There, McLure JA reviewed the decided authorities and at [22] - [32] developed the relevant propositions of law. Her Honour did so with the agreement of Wheeler JA and Roberts-Smith JA, who at [4] gave his own summary of the relevant law.
7 We think that the central proposition is that the reasons will discharge the duty imposed upon a Panel by the legislation if they sufficiently expose the reasoning process of the Panel to enable the reader to discern why the determination was made and to decide whether there has been error which may be the subject of judicial review. They will then be adequate although the reasons are not lengthy or elaborate.
8 It is recognised that a medical assessment panel is the embodiment of a process of investigation and determination of the questions referred. It is a group of experts, but they are not legal experts, although they sit as a quasi judicial tribunal. Their reasons will be assessed in that light. Where the determination turns on the resolution of conflicting medical opinion, the reasons must enable the reader to understand how the conflict has been resolved. It will in that regard be quite sufficient if a Panel makes it clear that its determinations are the result of its own expert investigation.
9 As we have said, the applicant was questioned and examined by the Panel. The reasons note that they took from her "a full occupational, physical and psychiatric history". The reasons note that the Panel performed a "focused physical examination" and reviewed MRI scans of relevant portions of the applicant's anatomy, her cervical and thoracic spine and knee. There were x-rays of the knee which were reviewed by the Panel. They said they read or "reviewed in detail" all of the medical reports made available to them. It is not suggested that the Panel was not provided with any relevant reports.
10 As to physical disability, the Panel referred specifically to the history of symptoms of cervical dysfunction, "but found no objective clinical evidence of ongoing cervical spinal dysfunction". The Panel referred to its acceptance of the opinions of other medical practitioners to that effect and explained why contrary opinions were either unsupported by the evidence obtained upon their examination, or described symptoms which they did not detect upon examination. Where there was direct disagreement with significant earlier medical reports, the Panel made it
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- clear that that was grounded in their independent investigation by physical examination of the applicant.
11 The Panel referred in its reasons to a difference of opinion in relation to the evidence provided by an MRI scan of the cervical region. The reasons make it clear that the Panel relied upon its own interpretation of the evidence provided by the scan to resolve that conflict.
12 As to the alleged psychiatric disability, it is clear that the Panel accepted the opinions about the existence of "a major depressive episode". However, the reasons make it clear that their determination that there was no such disability causing incapacity for work as at the time of their determination, resulted from their investigation. They discussed the history provided by the applicant as to her present symptoms as supporting a conclusion that she no longer met the criteria for a diagnosis of major depression. Their conclusion therefore was that she had previously experienced that illness, but it was now in remission. They either directly disagreed with, or thought there was insufficient evidence to support, diagnoses which suggested that there was any current psychiatric disorder.
13 The reasons make it clear that the Panel's determination of fitness for work was the result of their own assessment by examination of, and history taken from, the applicant, despite some ongoing symptoms.
14 It was our opinion that having regard to those elements of the reasons, they amply discharged the legal obligation to sufficiently explain the reasoning processes underlying the determinations made. It was not, in our opinion, necessary to provide in the reasons the detail of their physical examination of the applicant or their questioning of her. Although all conflicting reports were not referred to, the reasons adequately identify where the conflicts of expert opinion were, and they adequately expose the reasoning process by which those conflicts were resolved.
15 It was for those reasons that the application was dismissed and the order nisi discharged.
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