Re Medical Panel - [2006] WASCA 48

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RE MEDICAL PANEL; EX PARTE GIUMELLI [2006] WASCA 48

CORAM: WHEELER JA
MCLURE JA
BUSS JA

HEARD: 3 APRIL 2006

DELIVERED : 3 APRIL 2006

FILE NO/S: CIV 2203 of 2003

MATTER :An application for a Writ of Certiorari against the Medical Panel constituted pursuant to s 36 and s 38 of the Workers' Compensation and Rehabilitation Act (1981) (WA) consisting of Dr E Lee (Chairman), Dr M Prichard and Dr D Bucens

EX PARTE
EDGAR JOSEPH GIUMELLI
Applicant

Catchwords:

Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Order nisi made absolute

Category: B

Representation:

Counsel:

Applicant: No appearance

Solicitors:

Applicant: Slater & Gordon

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

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
Craig v South Australia (1995) 184 CLR 163
Re Medical Assessment Panel; Ex parte Symons (2003) 27 WAR 242

Case(s) also cited:

Nil

WHEELER JA: This is the return of an order nisi originally made by me on 16 October 2003. It was varied and made returnable before the Court of Appeal by Templeman J on 9 March 2005.
The application concerns a decision of the Medical Panel. The Medical Panel proposes to abide the decision of the Court. The applicant's former employers had taken some limited part in earlier applications but have also now filed a notice of intention to abide the decision of the Court. It seems they do so because they take the view, quite properly in my view, that the application must succeed and the order nisi be made absolute. In those circumstances, it seemed to me appropriate to deal with the matter on the papers, avoiding the expense of application books and an appearance.
On 18 February 2003, the applicant made an application for "industrial disease compensation" under Pt III Div 3 of the Workers' Compensation and Injury Management Act 1981 (WA) (previously the Workers' Compensation and Rehabilitation Act 1981 (WA)). Pursuant to s 33, where a worker is rendered less able to earn full wages by a reason of suffering from any of pneumoconiosis, mesothelioma or lung cancer and certain other conditions are satisfied, an injury of the worker is deemed to occur to which the Act applies. Section 34 makes provision for a worker suffering from chronic bronchitis in association with pneumoconiosis. Whenever a claim is made by a worker for compensation under s 33 or s 34, the employer is to send particulars of the claim to WorkCover WA and the Chief Executive Officer is to refer the question of the worker's condition and fitness for employment to a Medical Panel. Section 38 then requires the Medical Panel to consider and determine certain questions.
The Panel in this case made its determination in respect of the applicant on 9 April 2003. It did not then provide reasons for its determination. In September 2003, the solicitors for the applicant sought the Panel's reasons for determination, referring the Panel to Re Medical Assessment Panel; Ex parte Symons (2003) 27 WAR 242. Reasons were provided by the Panel under cover of a letter from WorkCover dated 29 April 2004.
The grounds upon which certiorari is sought are - omitting particulars:
1(1)the Medical Panel in making the determination was bound to answer the questions set out in s 38 of the Act;
1(2)the responses provided by the Medical Panel in making the determination answering the questions set out at s 38 in respect of the applicant were uncertain, inconsistent and illogical;
1(3)the Medical Panel in making its determination acted in a manner which was ultra vires.
I now set out in full the questions pursuant to s 38 of the Act which the Panel was asked to answer, and the Panel's answers:
"1.Is, or was, the worker suffering from pneumoconiosis, mesothelioma or lung cancer?  YES
2.If so, is, or was the worker thereby disabled from earning full wages?  YES
3.To what extent if any does, or did –
(i)pneumoconiosis;
(ii)mesothelioma;
(iii)lung cancer,
cause impairment of his ability to undertake physical effort?  PNEUMOCONIOSIS 0%
4.What other, if any, disease or physical condition is, or was, contributing to the worker's disablement or death and to what extent?
Benign asbestos pleural disease, rolled atelectasis, physical deconditioning    20%
5.Is, or was, the worker fit for work: If so, at what level – light, moderate, or heavy?  Yes – light"
It is plain that answers either contradict each other, or are incomplete. The first answer seems to present no difficulty. Although it does not identify which disease the worker suffers from, it is at least unequivocal. The second answer, read on its own, is logical and is consistent with the first. It is plainly to be understood as indicating that one of pneumoconiosis, mesothelioma or lung cancer, or some combination of those conditions has to some extent disabled the worker from earning full wages.
However, the problem begins with the answer to question 3. It does not indicate anything about the extent to which either mesothelioma or lung cancer may have caused impairment of the worker's ability to undertake physical effort (and thereby earn full wages). One could interpret the answer either as indicating that none of the three conditions mentioned caused an impairment of the ability to undertake physical effort (thereby contradicting the answer to question 2) or alternatively as simply omitting to answer in relation to mesothelioma or lung cancer, leaving open the inference that one of those conditions does cause such impairment, but not revealing the extent of the impairment.
There is also a difficulty with the answer to question 4. To some extent, this may stem from an ambiguity inherent in the question, but it is exacerbated in the circumstances of this case. It is not clear whether the answer to question 4 is intended to indicate that the various conditions there referred to make a 20 per cent contribution to an undisclosed level of disability for work, or whether it is to be read, in the context of the other answers, as indicating that the worker suffers a 20 per cent disability from earning full wages overall, and that the conditions referred to in that answer constitute the entirety of the causes of that disability.
The reasons for decision do not assist in clarifying the answers. They contain a brief summary of the aspects of the relevant history given by the worker, refer to a CT scan and lung function and exercise tests and a physical examination. It is plain from the reasons that a diagnosis of pneumoconiosis was made based on a history of exposure to asbestos and radiographic evidence of what was described as "borderline asbestosis". Other causes of respiratory impairment were discussed. However, the summary of the reasons reads as follows:
"In summary, the Panel considered most of the HRCT thorax abnormalities to represent moderate pleural disease accounting for the reduction of lung capacity. The Panel accepted that there were subtle subpleural irregular opacities consistent with borderline asbestosis, however the radiographic extent of these opacities was minimal.
Functional impairment was therefore attributed mostly to extrapulmonary factors (pleural plaques and physical deconditioning) and not pneumoconiosis."
One can glean from that summary that some functional impairment was attributable to pneumoconiosis but that the majority of the impairment did not stem from that cause. However, the attribution of the impairment "mostly" to the factors mentioned, does not assist in working out what the answer should have been to question 2; since the summary indicated that impairment was "mostly" due to other causes, there must have been some contribution, logically, from the pneumoconiosis.
On one view of the answers given by the Medical Panel, there is nothing to quash; the answers to questions 3 and 4, read in context, might be seen as simply failing to answer those questions at all, so as to give rise to a requirement for a writ of mandamus rather than to certiorari. Alternatively, one could regard the internal inconsistencies in the answers as giving rise to the inference that the Panel in this case "may in perfect good faith have … failed to deal with the question remitted to it and decided some question which was not remitted to it" (Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171 per Lord Reid, Craig v South Australia (1995) 184 CLR 163 at 178). In either case, the Panel's determination or purported determination should be quashed. The order nisi should be made absolute, and the matter remitted to the Panel to be dealt with in accordance with law.
I would add that the applicant identifies, in the particulars of his grounds for seeking to have this decision quashed, what are described as a "series of material considerations that arise from the applicant's medical history and which have not been taken into account by the Panel". In support of the proposition that these were material considerations which should have been, but were not, adverted to, the applicant seeks to adduce as evidence a report prepared by Professor Musk. Given that the decision of the Panel should be quashed in any event, it is not necessary to consider those matters. It would be open to the Panel in reconsidering this matter, to take whatever further history and make whatever further inquiries it saw fit. It would be open to the applicant to place before the Panel Professor Musk's report. If that report does point to matters which it would be appropriate for the Panel to consider, there is no reason to suppose that it will not now take those matters into consideration and, to the extent necessary, deal with them in its reasons for decision.

The orders will therefore be that the order nisi be made absolute; that the decision of the Medical Panel dated 9 April 2003 be quashed; and that the matter be remitted to the Medical Panel to be further dealt with.
McLURE JA: I agree with the reasons of Wheeler JA.
BUSS JA: I agree with Wheeler JA.