Re Monger; Ex parte Cook's Construction Pty Ltd
[2004] WASCA 165
•9 AUGUST 2004
RE MONGER; EX PARTE COOK'S CONSTRUCTION PTY LTD [2004] WASCA 165
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 165 | |
| THE FULL COURT (WA) | 09/08/2004 | ||
| Case No: | CIV:1284/2003 | 13 MAY 2004 | |
| Coram: | MURRAY J STEYTLER J TEMPLEMAN J | 13/05/04 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi made absolute, Decisions quashed | ||
| A | |||
| PDF Version |
| Parties: | COOK'S CONSTRUCTION PTY LTD ANTHONY JOHN COCI |
Catchwords: | Workers' compensation Proceedings to obtain compensation Preliminary requirements Writ of Certiorari Form 22 referral lodged by worker referring question to the Director of whether degree of disability is not less than the relevant level No attempt by worker to obtain employer's agreement prior to lodging referral Inability of worker and employer to agree on degree of disability is a condition on the power to refer that question to the Director Medical evidence provided by worker did not indicate worker's degree of disability was not less than 30 per cent Medical practitioner obliged to determine percentage degree of disability as best he or she can where Schedule 2 not applicable Use to which psychiatric impairment rating in AMA Guides might be put Referral to the Director invalid and not able to be lawfully acted on |
Legislation: | Workers' Compensation and Rehabilitation Act 1981, s 93D, s 93E, Sch 2 |
Case References: | Clough Engineering v Thomas [2004] WASCA 36 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Monger; Ex parte Dutch (2001) 25 WAR 96 Re Monger; Ex parte United Constructions Pty Ltd [2002] WASCA 253 Re Monger; Ex parte Velsberry Pty Ltd [2003] WASCA 9 Gourmet Chevups Pty Ltd v Coffey, unreported; Compensation Magistrate's Court; CM53/01; 26 September 2001 Re Alexeef; Ex parte Paul [2002] WASC 291 Re Croser; Ex parte Rutherford (2001) 25 WAR 170 Re Monger; Ex parte Ivey [1999] WASC 250 Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129 Rydges Hotel v Tasovski, unreported; Compensation Magistrate's Court; CM116/01; 18 January 2002 SBF Engineering Pty Ltd t/as SBF Shipbuilders v Hutchin, unreported; Compensation Magistrate's Court; CM41/01; 16 August 2001 Sharp Corporation v Sammon, unreported; Compensation Magistrate's Court; CM174/00; 30 March 2001 Tambourie Nominees Pty Ltd t/as Shiny Clean v Blum, unreported; Compensation Magistrate's Court; CM68/01; 22 October 2001 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE MONGER; EX PARTE COOK'S CONSTRUCTION PTY LTD [2004] WASCA 165 CORAM : MURRAY J
- STEYTLER J
TEMPLEMAN J
COOK'S CONSTRUCTION PTY LTD
Applicant
AND
ANTHONY JOHN COCI
Contradictor
Catchwords:
Workers' compensation - Proceedings to obtain compensation - Preliminary requirements - Writ of Certiorari - Form 22 referral lodged by worker referring question to the Director of whether degree of disability is not less than the relevant level - No attempt by worker to obtain employer's agreement prior to lodging referral - Inability of worker and employer to agree on degree of disability is a condition on the power to refer that question to the Director - Medical evidence provided by worker did not indicate worker's degree of
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disability was not less than 30 per cent - Medical practitioner obliged to determine percentage degree of disability as best he or she can where Schedule 2 not applicable - Use to which psychiatric impairment rating in AMA Guides might be put - Referral to the Director invalid and not able to be lawfully acted on
Legislation:
Workers' Compensation and Rehabilitation Act 1981, s 93D, s 93E, Sch 2
Result:
Order nisi made absolute
Decisions quashed
Category: A
Representation:
Counsel:
Applicant : Mr P E Harris
Contradictor : Mr K S Pratt
Solicitors:
Applicant : D G Price & Co
Contradictor : Trewin Norman & Co
Case(s) referred to in judgment(s):
Clough Engineering v Thomas [2004] WASCA 36
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Monger; Ex parte Dutch (2001) 25 WAR 96
Re Monger; Ex parte United Constructions Pty Ltd [2002] WASCA 253
Re Monger; Ex parte Velsberry Pty Ltd [2003] WASCA 9
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Case(s) also cited:
Gourmet Chevups Pty Ltd v Coffey, unreported; Compensation Magistrate's Court; CM53/01; 26 September 2001
Re Alexeef; Ex parte Paul [2002] WASC 291
Re Croser; Ex parte Rutherford (2001) 25 WAR 170
Re Monger; Ex parte Ivey [1999] WASC 250
Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129
Rydges Hotel v Tasovski, unreported; Compensation Magistrate's Court; CM116/01; 18 January 2002
SBF Engineering Pty Ltd t/as SBF Shipbuilders v Hutchin, unreported; Compensation Magistrate's Court; CM41/01; 16 August 2001
Sharp Corporation v Sammon, unreported; Compensation Magistrate's Court; CM174/00; 30 March 2001
Tambourie Nominees Pty Ltd t/as Shiny Clean v Blum, unreported; Compensation Magistrate's Court; CM68/01; 22 October 2001
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1 MURRAY J: The reasons for decision of Steytler J express very adequately for me the reasons why I joined in the orders made upon the return of the order nisi. I can usefully add nothing to them.
2 STEYTLER J: This is the return of an order nisi calling upon the Director and an Acting Director of the Conciliation and Review Directorate established under the Workers' Compensation and Rehabilitation Act 1981 to show cause why a writ of certiorari should not be issued to remove into this Court, for the purpose of being quashed, decisions respectively made by them whereby:
"[1] On 18 September 2002 the Director accepted the referral of … [a worker] pursuant to section 93D(5) of the … [Act] regarding whether his alleged degree of disability was not less than the relevant level in respect of a disability allegedly sustained on 17 November 2000.
[2] On or about 20 September 2002 the Director purported to notify the Applicant of the referral pursuant to section 93D(7) of the Act … by sending a Form 23 to … [the applicant].
[3] On or about 17 October 2002 the Acting Director recorded an agreement pursuant to section 93D(12) of the Act … that the Applicant agreed … [the worker's] degree of disability to be not less than the relevant level ie 30% …".
3 At the conclusion of argument on the hearing of the application, the order nisi was made absolute and we quashed the decisions referred to in orders 1 to 3 above. We said that we would later give our reasons for doing so. These are my reasons for joining in that judgment.
4 The application is yet another of those arising out of an injured worker's desire to preserve the right to obtain an award of common law damages. Under s 93E(3) of the Act, common law damages can only be awarded to an injured worker if:
"(a) it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or
(b) the worker has a significant disability [defined by s 93E(4)] and elects, in the prescribed manner, to retain
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- the right to seek damages and the election is registered in accordance with the regulations."
5 Sections 93D(5) and (6) of the Act provide that:
"(5) If the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level [defined by s 93D(1) to mean a degree of disability of 30%, if the question arises for the purposes of s 93E(3)(a)], the worker may, subject to subsection (6), refer the question to the Director.
(6) A question can only be referred under subsection (5) if the worker produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level."
6 A worker's referral under s 93D(5) of the Act is generally referred to as a "Form 22 referral". It takes its name from the form provided by reg 19J of the Workers' Compensation and Rehabilitation Regulations 1982 for that purpose. In this case the Form 22 referral was lodged by the worker on 18 September 2002. He nominated, as the relevant level of disability, a degree of disability of not less than 30 per cent. The form contains a box inviting a tick if the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level. Another box makes provision for the worker to specify what action was taken on his or her behalf to obtain the employer's agreement. Both boxes were left blank by the worker in this case. That was because there had been no attempt by the worker to obtain the applicant's agreement (the applicant was his employer). The possibility of agreement had not been explored, at all, by the worker with the applicant.
7 The worker's Form 22 referral was accompanied by a medical report dated 8 August 2002, prepared by Dr Michael Beinart, a general practitioner. In it, Dr Beinart mentioned that on 17 November 2000 the worker had slipped, while walking over the oil and water covered concrete floor of the applicant's workshop, and fallen, landing on his outstretched arms. He injured his left wrist, fracturing the distal radial head, metaphysis and epiphysis. The fractures eventually healed satisfactorily, but there was evidence of residual triangular fibro-cartilage damage, as well as likely ligamentous injury. The worker developed increasing symptoms of anxiety and depression, in respect of which he
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- was under the care of a psychiatrist, Dr John Booth, and a clinical psychologist, Dr Geoff Devine.
8 Dr Beinart's report, after reciting relevant aspects of the worker's history, goes on to deal with the worker's prognosis and work capacity, making an assessment of his disability. It does so as follows:
"PROGNOSIS & WORK CAPACITY
In my opinion, … [the worker] as he presented on 30th July2002, has no work capacity. This is primarily due to his mental state. He is on anti-depressant medication and is under the care of a clinical psychologist and a psychiatrist.
Assessing his wrist condition against a background of his anxiety depression is difficult. However in my opinion, it is the residual triangular fibro-cartilege [sic] damage which remains symptomatic and is sufficiently symptomatic so as to prevent him from attending to his pre-accident occupation as that of a boilermaker/welder. This in my opinion, will be so for the foreseeable future.
ASSESSMENT OF DISABILITY
In my opinion, … [the worker] has a 15% loss of full and efficient use of the left arm below the elbow (Item 14 of Schedule 2).
This is to be considered permanent for the foreseeable future.
In addition, he has a psychiatric impairment rating of 20, using the Social Security Act rating of Psychiatric Impairment as included in the AMA booklet on Assessment of Disability under the Workers Compensation and Rehabilitation Act of Western Australia.
This assessment of disability is in accordance with AMA Guidelines, and pursuant to Schedule 2 of the Workers Compensation and Rehabilitation Act 1981 as amended."
9 On about 20 September 2002 the Director notified the applicant of his receipt of the Form 22 referral by sending to the applicant a notification under s 93D(7) of the Act (ordinarily referred to as a "Form 23", being the form prescribed by reg 19J(2)(a) of the Regulations for that purpose). Surprised by that notification, the applicant "flustered
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- around" (in the words of its counsel) for a period before ultimately responding with an objection to Dr Beinart's assessment of the worker's degree of disability. However, that objection came too late. It was outside the period of 21 days fixed for that purpose by s 93D(8) of the Act. Consequently, the Conciliation and Review Directorate, by letter sent by an Acting Director, Mr P Brash, informed the applicant that the Directorate was unable to accept the objection and that Mr Brash had recorded an agreement (presumably relying upon s 93D(12) of the Act) that the worker's level of disability was not less than the relevant level. (Section 93D(12) provides that, unless notification is given by the employer under subs (8), which, as I have said, provides for a 21-day period, the employer is to be regarded as having agreed that the degree of disability is not less than the relevant level.)
10 When the applicant's Workers' Compensation insurer learned what had happened, we were told, it declined to extend any cover in respect of the worker's claim, saying that it was the applicant's fault that its objection had been rejected. The applicant then turned its attention to other avenues of defence of the claim. It contended that the Form 22 referral was not lawfully accepted by the Directorate or lawfully acted upon by it and that it should not have sent out the Form 23 or recorded the agreement. That, it submits, is so for two reasons. The first is that the worker had made no attempt to obtain the applicant's agreement to the degree of disability put forward by him, and had consequently failed to comply with s 93D(5) of the Act. The second is that the medical evidence produced by the worker, in the form of Dr Beinart's report, did not comply with s 93D(6) of the Act. That, in turn, was said to be so for two reasons. The first is that the report did not indicate that the worker's degree of disability was, in Dr Beinart's opinion, not less than 30 per cent. This was because, while the report provided a percentage estimate (of only 15 per cent) in respect of the worker's wrist injury, it had made none in respect of the worker's psychiatric impairment. The second reason was that the worker's psychiatric impairment was not said by Dr Beinart to be permanent.
11 I will deal first with the fact (it was common cause) that the worker had made no attempt to obtain the applicant's agreement to the degree of disability put forward by him before lodging his Form 22 and, for that reason, had not completed the two boxes to which I have earlier referred.
12 The inability to agree provided for by s 93D(5) was described by Murray J (with whom the other members of the Court were in agreement) in Re Monger; Ex parte Velsberry Pty Ltd [2003] WASCA 9 at [38] as a "jurisdictional prerequisite". In my opinion, it was rightly so described.
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- While s 93D(5), unlike s 93D(6), does not say expressly that a question can "only" be referred if the condition there stated is satisfied, it seems to me that the effect of that section is that the worker may only refer the question of his degree of disability to the Director if agreement cannot be reached on the question whether the degree of disability is not less than the relevant level (and if, of course, s 93D(6) has been complied with). As I read the provision, it prescribes the inability to agree as a condition on the power to refer, or, to put it differently, it denies the availability of the power unless that state of affairs exists (cfProject Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 373, per Brennan CJ). It consequently seems to me that the intention or purpose of the legislation is that a referral in breach of the provision should be invalid (cfProject Blue Sky, above, at 390, per McHugh, Gummow, Kirby and Hayne JJ). The possibility of agreement with his employer never having been investigated, at all, by the worker in this case, it follows that the jurisdictional prerequisite to the operation of s 93D(5) was not satisfied.
13 It also seems to me that s 93D(6) was not complied with because the medical evidence (Dr Beinart's report) did not express the opinion that the degree of disability was "not less than the relevant level".
14 Section 93D(2) provides that:
"(2) For the purposes of section 93E, the degree of disability of the worker is to be assessed -
(a) so far as Schedule 2 provides for such a disability, as a percentage equal to -
(i) if only one item of that Schedule applies to the disability, the percentage of the prescribed amount provided for by that item, as read with section 25; or
(ii) if 2 or more items of that Schedule apply to the disability, the sum of the percentages of the prescribed amount provided for by those items, 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;
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- (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."
15 Schedule 2 of the Act provides two columns. The first refers to specified injuries under the heading "Nature of Injury". The second provides for the "Ratio which the sum payable herein bears to the prescribed amount" ("the prescribed amount" being a sum of money specified in s 5(1) of the Act). The various injuries described in column 1 largely comprise losses of limbs or total losses of physical attributes such as hearing, speech, taste and smell. It is plain, from the nature of the descriptions in that column, that the losses referred to are permanent losses. The same is true of other items such as items 8 and 9 which deal, respectively, with permanent and incurable loss of mental capacity resulting in total inability to work and total and incurable paralysis of the limbs or of mental powers.
16 Section 25 of the Act provides that:
"For the purpose of the table set out in Schedule 2, 'loss of' includes -
(a) 'permanent loss of the use of '; and
(b) 'permanent loss of the efficient use of ', but in such case such percentage of the appropriate amount payable as is equal to the percentage of the diminution of the full efficient use, may be awarded, in lieu of the full amount."
18 By s 93A, "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", being the first edition of that guide (see reg 19IA(1)). That document, in turn, incorporates the Commonwealth Social Security rating of impairment for psychiatric impairment under the Social Security Act 1991 (Cth). The impairment rating so provided consists of a scale ranging
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- from nil to a maximum of 70 (a person who needs constant supervision to prevent injury to himself or herself or others). However, a note to that rating records that these are not percentages and that in individual cases a rating of 20 ("Any serious symptomatology OR impairment in functioning that most clinicians would think obviously requires treatment or attention (eg suicidal preoccupation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour)") may be incompatible with work.
19 The Guide also records, immediately prior to setting out the Social Security Act rating of impairment, that:
"As the workers' compensation system is based on a percentage approach it will be necessary for medical practitioners to seek to determine the percentage of disability permanently suffered by the worker vis-à-vis Schedule 2 and the 30 % common law threshold …".
20 Somewhat curiously, it goes on to record that:
"It is acknowledged that it may be unrealistic to employ percentage figures for psychiatric assessment and that a properly illustrated opinion of disability should be provided with possible reference to the Commonwealth Social Security rating of impairment which follows hereunder."
21 This rather unsatisfactory wording leaves a medical practitioner, required to assess the degree of a psychiatric disability where Sch 2 is not applicable, to arrive at an opinion expressed as a percentage, in circumstances in which it will often be unrealistic to do so, and to illustrate that opinion by possible reference to a rating scale which does not, itself, provide any percentages and in circumstances in which neither the Act nor the Guide provides any real assistance on the question how the percentage should be arrived at.
22 Two things are plain, however. The first is that the ratings provided for by the scale do not equate to percentages. The second is that they cannot be translated into percentages by the simple device of dividing the rating in question by the maximum rating of 70 and multiplying the result by 100: see Clough Engineering v Thomas [2004] WASCA 36 at [9] - [10]. It also seems to me to be reasonably plain that it cannot be said that a particular impairment rating under the scale must convert to a percentage degree of disability of not less than that rating. So, for example, a rating of 20 may or may not be such as to be incompatible
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- with work, as the rating scale itself recognises, leaving open a wide range of possible percentages of degree of disability.
23 Consequently, in a case in which Sch 2 is not applicable, a medical practitioner is obliged to determine the percentage degree of disability as best he or she can, illustrating the factors which led to that assessment, if that is appropriate, by reference to the Commonwealth Social Security rating of impairment, no doubt supplementing that illustration by reference to any other factors which have been taken into account in arriving at the percentage, the focus being on the level of inability to perform work of any kind.
24 Returning to this case, I have said that s 93D(6) of the Act requires the worker to produce to the Director medical evidence from a medical practitioner indicating that, in that practitioner's opinion, the degree of disability is not less than the relevant percentage and that the disability referred to must be permanent (as to which see Clough Engineering, above, at [3] and [4]). Dr Beinart's report does not express any percentage in respect of the worker's psychiatric impairment and nor does it suggest that that impairment is permanent. Instead, it says only that the worker has a psychiatric impairment rating of 20, using the Social Security Act rating, and that, as the worker presented on a particular day (30 July 2002), he had "no work capacity", primarily due to his mental state.
25 Consequently, all that the report established, for the purposes of the Act, was that the worker had suffered a 15 per cent loss of the full and efficient use of his left arm below the elbow. This, of course, falls well short of the 30 per cent level of disability asserted by the worker.
26 It follows that neither of the prerequisites to a valid Form 22 referral provided for by s 93D(5) and s 93D(6) of the Act was satisfied, with the consequence that the referral was invalid and could not lawfully be acted upon by the Director or Acting Director (as to which cfRe Monger; Ex parte Dutch (2001) 25 WAR 96 at 120 [85] and Re Monger; Ex parte United Constructions Pty Ltd [2002] WASCA 253 at [30]). It was for that reason that I joined in the making of the orders to which I have earlier referred.
27 TEMPLEMAN J: I have had the advantage of reading in draft the reasons published by Steytler J. It is for the reasons given by his Honour that I joined in the order quashing the decisions to which his Honour refers in the opening paragraphs of his judgment. There is nothing I wish to add.
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