Re Monger; Ex parte Dutch
[2001] WASCA 220
•30 JULY 2001
RE MONGER; EX PARTE DUTCH & ORS [2001] WASCA 220
| (2001) 25 WAR 96 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 220 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:1877/2000 | 10 APRIL 2001 | |
| Coram: | MALCOLM CJ WALLWORK J OWEN J | 30/07/01 | |
| 42 | Judgment Part: | 1 of 1 | |
| Result: | Orders nisi made absolute | ||
| PDF Version |
| Parties: | ALFRED MACNAIRN DUTCH DAVID JOHN BATTEN GREGORY MORRIS CRONIN JOHN ANTHONY MCCANN MARK JUDGES ROSS MONGER THE STATE ATTORNEY GENERAL |
Catchwords: | Administrative law Prerogative writs and orders Certiorari Decisions of Director of Conciliation Directorate under Workers' Compensation and Rehabilitation Act 1981 (WA) to accept application under s 93D and related decisions Excess of jurisdiction Errors of law on the face of the record Error in findings of jurisdictional fact Whether medical opinion supported by "medical evidence" Acceptance of notice of disability Determination of existence of dispute Determination of existence of dispute and reference to Review Officer of question of degree of disability quashed for error of law in determination of existence of jurisdictional fact or excess of jurisdiction Words and phrases "medical evidence" "medical evidence indicating an opinion" "degree of disability" "permanent loss" "permanent loss of the efficient use of" "impairment" "medical report" |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 (WA) s 84Z, s 84ZA, s 84ZB, s 84ZD, s 84 ZH, s 84 ZN, s 84ZW, s 93B, s 93C, s 93D, s 93E |
Case References: | Australian Iron and Steel Pty Ltd v Luna (1969) 125 CLR 305 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bird v The Commonwealth (1988) 165 CLR 1 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Craig v South Australia (1995) 184 CLR 163 Ex Parte Savage and Savage [1989] WAR 46 George v Rockett (1990) 170 CLR 104 Haines v Leves (1987) 8 NSWLR 442 Harris & Ors v McKenzie & Ors (1986) 9 NSWLR 139 Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 Hope v Bathurst City Council (1980) 144 CLR 1 Kinsella v Seton Catholic College (unreported, CM (WA), 112/00, 22 February 2001) Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 Parisienne Backet Shoes Pty Ltd v Whyte (1938) 55 CLR 369 R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 R v Connell; Ex parte Helton Bellbird Collieries Ltd (1944) 69 CLR 407 Re Director Conciliation & Review Directorate; Ex parte Nowicki [2000] WASCA 280 Re McWilliam & Ors, Members of a Medical Assessment Panel; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996 Re Monger; Ex parte Ivey [1999] WASC 250 Sutherland Shire Council v Finch (1970) 123 CLR 657 Thorp v Wanneroo City Council (unreported, CM (WA), 49/00, 31 July 2000) Ainsworth & Anor v Criminal Justice Commission (1992) 175 CLR 564 Liversidge v Anderson [1942] AC 206 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE MONGER; EX PARTE DUTCH & ORS [2001] WASCA 220 CORAM : MALCOLM CJ
- WALLWORK J
OWEN J
- CIV 2002 of 2000
CIV 1768 of 2000
CIV 1773 of 2000
CIV 1770 of 2000
EX PARTE
ALFRED MACNAIRN DUTCH
DAVID JOHN BATTEN
GREGORY MORRIS CRONIN
JOHN ANTHONY MCCANN
MARK JUDGES
Applicants
AND
ROSS MONGER
Respondent
(Page 2)
THE STATE ATTORNEY GENERAL
Intervener
Catchwords:
Administrative law - Prerogative writs and orders - Certiorari - Decisions of Director of Conciliation Directorate under Workers' Compensation and Rehabilitation Act 1981 (WA) to accept application under s 93D and related decisions - Excess of jurisdiction - Errors of law on the face of the record - Error in findings of jurisdictional fact - Whether medical opinion supported by "medical evidence" - Acceptance of notice of disability - Determination of existence of dispute - Determination of existence of dispute and reference to Review Officer of question of degree of disability quashed for error of law in determination of existence of jurisdictional fact or excess of jurisdiction
Words and phrases - "medical evidence" - "medical evidence indicating an opinion" - "degree of disability" - "permanent loss" - "permanent loss of the efficient use of" - "impairment" - "medical report"
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA) s 84Z, s 84ZA, s 84ZB, s 84ZD, s 84 ZH, s 84 ZN, s 84ZW, s 93B, s 93C, s 93D, s 93E
Result:
Orders nisi made absolute
Representation:
Counsel:
Applicants : Mr C L Zelestis QC & Mr J R Ludlow
Respondent : Mr N J Mullany
Intervener : Ms J C Pritchard
Solicitors:
Applicants : McAuliffe Schwikkard
Respondent : Bradford & Co
Intervener : State Crown Solicitor
(Page 3)
Case(s) referred to in judgment(s):
Australian Iron and Steel Pty Ltd v Luna (1969) 125 CLR 305
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bird v The Commonwealth (1988) 165 CLR 1
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Craig v South Australia (1995) 184 CLR 163
Ex Parte Savage and Savage [1989] WAR 46
George v Rockett (1990) 170 CLR 104
Haines v Leves (1987) 8 NSWLR 442
Harris & Ors v McKenzie & Ors (1986) 9 NSWLR 139
Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47
Hope v Bathurst City Council (1980) 144 CLR 1
Kinsella v Seton Catholic College (unreported, CM (WA), 112/00, 22 February 2001)
Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60
Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1
McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8
Parisienne Backet Shoes Pty Ltd v Whyte (1938) 55 CLR 369
R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54
R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415
R v Connell; Ex parte Helton Bellbird Collieries Ltd (1944) 69 CLR 407
Re Director Conciliation & Review Directorate; Ex parte Nowicki [2000] WASCA 280
Re McWilliam & Ors, Members of a Medical Assessment Panel; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996
Re Monger; Ex parte Ivey [1999] WASC 250
Sutherland Shire Council v Finch (1970) 123 CLR 657
Thorp v Wanneroo City Council (unreported, CM (WA), 49/00, 31 July 2000)
Case(s) also cited:
Ainsworth & Anor v Criminal Justice Commission (1992) 175 CLR 564
Liversidge v Anderson [1942] AC 206
(Page 4)
1 MALCOLM CJ: This is the return of orders nisi for writs of certiorari and mandamus or, alternatively, writs of prohibition against the respondent Ross Monger, Director of the Conciliation Directorate constituted under the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). I shall refer to him as "the Director". There was no appearance by the Director and nothing filed on his behalf by way of a notice indicating that he would abide the decision of the Court or otherwise. The Court was, however, assisted by the appearance of counsel instructed by the Attorney General as an intervener in the proceedings.
2 Each of the applicants is an employer against whom a worker has made a claim for compensation under the Act. There were originally eight applicants in whose favour orders nisi were made. The Court was informed at the outset of the hearing that similar applications in CIV Nos 1769, 1808 and 1835 of 2000 would not be proceeded with, notices of discontinuance having been filed. For ease of reference I shall refer to the claimants for compensation collectively as "the claimants" and individually by name or "the worker". Two of the claimants did not appear, namely, John Anthony McCann whose claim is the subject of the order nisi in CIV 1773 of 2000 and Gregory Morris Cronin whose claim is the subject of the order nisi in CIV 1768 of 2000. In each case there was proof of service of the order nisi. Consequently the Court was able to consider the proceedings relating to them in their absence. I shall refer to the applicant employers collectively as "the employers" and individually by name or "the employer".
The Orders Nisi
3 In each of the five cases before us an order nisi was granted in terms to the following effect:
(a) The Director show cause before the Full Court why a writ of certiorari should not be issued against him for the purpose of being quashed, his decisions:
(i) to accept an application issued by [the worker] ("form 22") as complying with s 93D of the Workers' Compensation and Rehabilitation Act 1981 ("the Act");
(ii) to forward to [the applicant] the notice signed by the Director ("form 23") pursuant to reg 19J(1) of the Regulations made pursuant to the Act;
(Page 5)
- (iii) that a dispute pursuant to s 93D(8) of the Act had arisen for the purposes of Pt IIIA of the Act; and
(iv) that the question of the claimant's degree of disability be referred pursuant to s 93D(10) for resolution under the provisions of Pt IIIA (other than Division 2) of the Act;
- which acceptance forwarding, decision and referral were contrary to the provisions of the Act.
(b) The Director do show cause before the Full Court of this Court why a writ of mandamus should not be issued against the Director commanding the Director to reject the form 22, alternatively, why a writ of prohibition should not be issued against the Director prohibiting him from dealing with the form 22 on the basis that it does not comply with s 93D of the Act.
(c) The applicant's application for an extension of time within which to make the application for writ of certiorari be referred to the Full Court.
4 There were other machinery orders, including an order that five other matters be dealt with at the same time. In the result, only the applications relating to the claims of the five workers to whom I have referred are proceeding. The relevant workers' compensation claims fall into two separate groups. The first three are those made by Alfred MacNairn Dutch (CIV 1877 of 2000), David John Batten (CIV 2002 of 2000), in respect of which the employer is Western Power Corporation, and Gregory Morris Cronin (CIV 1768 of 2000), in which the employer is Western Metals Ltd, are proceeding. None of these three workers was represented. Three other applications which were originally joined with them have been discontinued. There are also separate compensation claims by John McCann (CIV 1773 of 2000), in respect of which the employer is Clough Engineering, and Mark Judges (CIV1770 of 2000), in respect of which the employer is the University of Western Australia. These two workers were represented.
5 Senior counsel for the employers informed the Court during the course of the proceedings that the applications for mandamus or prohibition were not being pursued. It was acknowledged that it was too late to seek either of those remedies.
Grounds
6 In each case the order nisi was made on the following grounds:
(Page 6)
- "The Applicant seeks relief by way of Certiorari on the grounds that:
(a) by virtue of Section 93D(6) of the Act, the Director was required to examine the alleged medical evidence of the Claimant produced to the Director in support of the Form 22 (which Form 22 was purportedly made in accordance with Regulation 19J(1) of the Regulations);
(b) the Claimant's alleged medical evidence did not comply with the requirements of subsections (2) and (6) of Section 93D of the Act in that it:
(i) contains no reasoning and clinical findings, and therefore is not 'medical evidence' of the type required by Section 93D(6) of the Act; alternatively
(ii) gives no indication that the medical practitioner has made an assessment in accordance with the method of assessment prescribed by Section 93D(2); alternatively
(iii) gives no indication as to whether the assessment made is an assessment of permanent loss of use or impairment;
(c) the Director should have rejected the Form 22 on the basis that it did not comply with the Act;
(d) the Director should not have issued the Applicant with a Form 23 'Notice of Referral of Question of Degree of Disability' pursuant to Section 93D(7) of the Act;
(e) the Director should not have determined that a dispute pursuant to Section 93D(8) of the Act had arisen for the purposes of Part IIIA of the Act;
(f) the Director should not have referred under Section 93D(10) of the Act, the question of the Claimant's degree of permanent disability for resolution under the provisions of Part IIIA (other than Division 2) of the Act."
(Page 7)
The Issues
7 The main issue raised by the proceedings concerns the true construction of s 93D(6) of the Act, which is contained in Pt IV Div 2 of the Act, and which seeks to limit the scope for common law damages claims in respect of injuries compensable by way of workers' compensation under the Act. These provisions were introduced with effect from 5 October 1999. They replace the previous provisions for obtaining leave to proceed with a common law damages claim in respect of a work related injury which would attract workers' compensation under the Act. Previously, it was a precondition that a worker show that he or she had suffered "serious disability" in order to obtain leave to commence proceedings under the form s 93D of the act. The new regime requires that a worker who has been paid workers' compensation or to whom compensation is payable under the Act and who wishes to commence proceedings for damages at common law from his or her employer in respect of a "disability", must follow the procedure now contained in Pt IV of the Act.
8 The term "disability" is defined in s 5 of the Act to include:
"(a) a personal injury by accident arising out of or in the course of employment, or whilst the worker is acting under the employer's instructions;
…
(d) the recurrence, aggravation or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation or acceleration to a significant degree …"
9 The new provisions of Pt IV Div 2 do not apply to an award of damages to which the Motor Vehicle (Third Party Insurance) Act 1943 (WA) applies; exemplary or punitive damages; damages of a class excluded by regulations; or an award of damages for a disability which results in the death of a worker: s 93B(3), (3a). The effect of the legislation, details of which are set out below, is that a Court is not to award damages to a worker unless the "degree of disability" is not less than either one or other of two specified percentage levels. If the worker and the employer cannot agree whether the degree of disability is not less than the relevant level, provision is made to refer the question to the Director. Such a referral is required to be made under s 93D(5) by means of form 22 in Appendix 1 to the Workers' Compensation and
(Page 8)
- Rehabilitation Regulations 1982. Section 93D(6), as amended by the Workers' Compensation and Rehabilitation Amendment Act 1999, which came into force on 5 October 1999, provides that:
"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."
11 In my opinion, each of these issues raises a question of law. Where the ultimate fact in issue (the factum probandum) involves a term used in a statute, the question whether the facts found adduced by the evidence and found (facta probanda) establish the ultimate fact is, at least generally, if not always, a question of law: Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51 per Fullagar J. In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 289 the Federal Court (Neaves, French and Cooper JJ) said:
"Although the words of the statute are construed according to their ordinary English meaning, that does not mean that their application to a set of facts is simply described as the matching of that set of facts with a factual description. There is necessarily a selection process involved. The range of relationships to which the words apply for the purpose of the Act depends upon a judgment about that purpose. The selection process involved is analogous to that used in determining what causal relationships between conduct and loss attract liability for the purpose of s 82 of the Trade Practices Act (1974) (Cth): see Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410 at 418-419; Munchies Management Pty Ltd v Belperio (1988) 84 ALR 700 at 712-713. In the end this is not a process of fact finding. The facts are found. What is left is a value judgment about the range of the Act and that is a question of law."
(Page 9)
- I agree, with respect, with that conclusion.
12 In Pozzolanic at 287 their Honours also stated five general propositions, which were quoted by Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395 as follows:
"1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. (Jedko Game Co Pty Ltd v Collector of Customs (NSW) (1987) 12 ALD 491; Brutus v Cozens [1973] AC 854).
2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. (Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512; Neal v Department of Transport (1980) 3 ALD 97 at 107-108; Jedko (1987) 12 ALD 491).
3. The meaning of a technical legal term is a question of law. (Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208 at 215).
4. The effect or construction of a term whose meaning or interpretation is established is a question of law. (Life Insurance Co of Australia v Phillips (1925) 36 CLR 60 at 79).
5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law."
13 In Pozzolanic at 288 the Full Court qualified the fifth proposition, saying that when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question whether they do or not is one of fact: cf Hope v Bathurst City Council (1980) 144 CLR 1 at 8 per Mason J. Their Honours in the High Court were unable to accept the distinction between meaning (a question said to be one of fact) and construction (said to be a question of law). The distinction was given its strongest support in Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78 per
(Page 10)
- Isaacs J. Their Honours commented on the distinction at 396 - 397 as follows:
"With respect this distinction seems artificial, if not illusory. The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown ([1996] 1 AC 543 at 561), a recent House of Lords decision, Lord Hoffmann said:
'The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence … This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.'
If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law."
Finally, their Honours also said at 397:
"All that is required for a reviewable question of law to be raised is for a phrase to be identified as being used in a sense different from that which it has in ordinary speech."
15 Where the ground on which certiorari is sought is based on jurisdictional error such as a wrongful assumption of jurisdiction, the court to which the application is made may take into account any relevant
(Page 11)
- material that is put in evidence: Craig v South Australia at 176. A jurisdictional error is an error of law which causes the tribunal to identify an irrelevant 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 reach a mistaken conclusion: Craig v South Australia at 179.
The Legislative Context
16 In order to understand the significance of s 93D(6) it is necessary to consider the legislative context in Pt IV Div 2 of the Act. Section 93B provides that:
"(1) This Division applies to the awarding of damages against a worker's employer independently of this Act in respect of a disability suffered by a worker if -
(a) the disability was caused by the negligence or other tort of the worker's employer; and
(b) compensation has been paid or is payable in respect of the disability under this Act, or would have been paid or be payable but for section 22.
(2) This Division applies even if the damages resulting from the negligence or other tort of the worker's employer are sought to be recovered in an action for breach of contract or other action.
(3) This Division does not apply to the awarding of -
(a) damages to which the Motor Vehicle (Third Party Insurance) Act 1943 applies;
(b) exemplary or punitive damages; or
(c) damages of a class that is excluded by the regulations from the application of this Division.
(3a) This Division does not apply to the awarding of damages if the disability results in the death of the worker.
(4) A reference in this section to the worker's employer includes a reference to a person for whose acts the employer is vicariously liable."
(Page 12)
17 Subsection (3a) was added by the 1999 amendment which came into force on 5 October 1999. Section 93C provides that:
"If this Division applies a court is not to award damages to a person contrary to this Division."
18 Section 93D as it stood prior to the amendment was amended with effect from 5 October 1999 to read as follows:
"(1) In this section -
'relevant level', in relation to a question as to the degree of disability of the worker, means -
(a) if the question arises for the purposes of section 93E(3)(a), (9) or (12), a degree of disability of 30%; or
(b) if the question arises for the purposes of section 93E(4), a degree of disability of 16%;
(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;
(c) to the extent, if any, that neither paragraph (a) nor (b) applies, in accordance with the regulations,
(Page 13)
- 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.
- (3) For the purposes of section 93E(4) only, if item 36A of Schedule 2 applies to the disability, subsection (2)(a) applies as if the percentage of the prescribed amount provided for by that item were 100% instead of 60%.
(4) If section 25 applies, the percentage under subsection (2)(a) is calculated in accordance with the formula -
Where -
PD is the percentage of the diminution of full efficient use.
TD is the relevant percentage set out in Column 2 of Schedule 2.
(5) If the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level, 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.
(7) As soon as practicable after receiving a referral under subsection (5), the Director is to notify the employer in accordance with the regulations.
(8) If within 21 days after being notified under subsection (7) the employer notifies the Director in accordance with the regulations that the employer considers that the degree of disability is less than the relevant level, a dispute arises for the purposes of Pt IIIA.
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- (9) The Director is to consider the dispute in consultation with the parties.
(10) Except in a case to which subsection (11) applies, if the dispute is not resolved by agreement, the Director is to refer the question for resolution under the provisions of Pt IIIA (other than Div 2).
(11) If the dispute relates to a disability mentioned in section 33, 34 or 35, the dispute is to be referred to a medical panel for determination as described in section 36 and so far as applicable this Act applies in relation to the reference as if it were a reference under section 36 except that the only question to be considered that determined on the reference is the question that was referred.
Unless notification is given by the employer under subsection (8), the employer is to be regarded as having agreed that the degree of disability is not less than the relevant level."
19 It follows that under s 93E damages can only be awarded if it is agreed or determined that the "degree of disability" is not less than 30%, or is not less than 16%, and the worker elects, before the termination day, to retain the right to seek damages. The relevant degree of disability is to be determined in accordance with Sch 2 as read with s 25, or the prescribed edition of the Assessment of Disability Guide produced by the Western Australian Branch of the Australian Medical Association Inc or the Regulations: s 93E(1); and s 93D(2).
20 Section 93E(3) of the Act, as amended with effect from 5 October 1999, provides that damages can only be awarded 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 and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations."
21 Section 93E(4) provides that if it is agreed or determined that the degree of disability is not less than 16% and that determination is
(Page 15)
- recorded in accordance with the regulations the worker has a "significant disability".
22 Section 93E(5) provides that:
"Subject to subsections (6) and (7) if weekly payments of compensation have commenced an election cannot be made under subsection (3)(b) after the termination day."
23 The "termination day" is defined by s 93E(1) to mean "the day that is six months after the day on which weekly payments commenced". That date is the date on which the worker receives his or her first weekly payment: Re Director Conciliation & Review Directorate; Ex parte Nowicki [2000] WASCA 280.
24 The effect of these provisions is to create three categories of injured workers. The first is that of workers who have a disability of less than 16%. They can only claim workers' compensation and have no right of action for common law damages. The second is that of workers who have a disability of between 16% or more but less than 30%. They are required to make an election whether to receive statutory benefits or to exercise their right of action at common law. Common law damages are capped at $250,000 inclusive of any sums paid as statutory benefits: s 93F(8). An election can only be made:
(i) within six months of the date of commencement of weekly payments; and
(ii) if it has been agreed or determined that the worker's degree of disability is not less than 16%.
The third category comprises workers whose disability has been determined to be 30% or more. They are entitled to exercise their right of action at common law without any limitation on the amount of damages and are entitled to receive statutory benefits in the meantime. No election is required.
Reference of "the question" of the "degree of disability" to the Director: The Nature of the Dispute
25 It is in this context that if the worker and the employer cannot agree that the degree of disability is not less than the requisite level, the worker may, subject to s 93D(6), refer "the question" to the Director under s 95D(5). The question is whether the "degree of disability" is not less
(Page 16)
- than the requisite level. The question can only be referred if the relevant "evidence" required by s93D(6) is produced to the Director.
26 It was conceded on behalf of the workers Messrs Judges and Dutch that the Director's task upon receipt of the referral was not purely an administrative one, because the Director must first be satisfied that the medical evidence does "indicate" that the degree of disability is not less than the requisite level. While this involved an essentially administrative function, it was also conceded that it involved a limited adjudicative function in the sense that his decision is a precondition to exiting the jurisdiction of the review officer. In essence, what the Director does is to determine whether the medical evidence does "indicate" that the degree of disability is not less than the requisite level. So much was conceded by counsel for the workers Messrs Judges and Dutch. It is the performance of this limited function which it was also conceded to be subject to judicial review by way of prerogative writ: Re Monger; Ex parte Ivey, supra, at [19] - [22] per Miller J. In my opinion, these concessions were properly made. It is only if the Director is so satisfied that he is required to notify the employer. If the employer does not agree that the disability is not less than the requisite level, and the dispute about the degree of disability is not resolved by agreement with the assistance of the Director in consultation with the parties, the Director's function is to refer the dispute for resolution under the provisions of Pt IIIA (other than Div 2): see s 93D(7) - (12).
27 Under Pt IIIA, provision is made for such a dispute to be resolved by a review officer, acting according to the substantial merits of the case and not being bound by the rules of evidence: s 84Z, s 84ZA, s 84ZB, s 84ZD and s 84ZH. Where a question of law is involved, an appeal lies from a decision by a review officer to a Compensation Magistrate and, thereafter, subject to a grant of leave, to the Supreme Court: s 84ZN and s 84ZW.
28 It was submitted by counsel for the workers that the relevant "dispute" was whether the worker's disability was not less than the requisite level, rather than whether the medical evidence produced by the worker indicated that such was the case. So much may be accepted, but if the "medical evidence" is not such as is sufficient to be capable of supporting or justifying the opinion expressed, it follows, in my opinion, that there would be a failure to establish that the degree of disability was not less than the requisite level. The question whether the medical evidence is capable of supporting the opinion expressed is a question for the Director. There is an issue whether such a question is a question of law or a question of fact. The existence of a particular level or degree of
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- disability is in the end a question of fact. In my opinion, however, the absence of any evidence of any examination, observations, tests or other steps taken to arrive at the diagnosis or condition related to the worker raises an issue whether there is any evidence capable of sustaining a finding of the relevant fact or facts, namely, in this case, the diagnosis or opinion about the degree of disability of the worker. In my opinion, the issue so raised is or involves a question of law: Australian Iron and Steel Pty Ltd v Luna (1969) 125 CLR 305 per Windeyer J at 320 - 321; McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 per Jordan CJ at 9; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 per Glass JA at 157; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 at 214.
29 The question in such a case is whether the conclusion of the relevant tribunal was reasonably open on the facts as found. If it was not the Court is entitled to conclude that the Tribunal must have misdirected itself with respect to the law applicable to the case at hand: R v Connell; Ex parte Helton Bellbird Collieries Ltd (1944) 69 CLR 407 per Williams J at 456; Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 per Hope JA at 3; Harris & Ors v McKenzie & Ors (1986) 9 NSWLR 139 per Kirby P at 148; Haines v Leves (1987) 8 NSWLR 442 per Kirby P at 470.
30 Further, the existence or otherwise of the relevant level of disability is a "jurisdictional fact" in the sense that the Director has to determine whether the medical evidence is capable of supporting the opinion to that effect. This is a "jurisdictional fact" to the extent that its existence conditions the jurisdiction of the review officer. For example, in Sutherland Shire Council v Finch (1970) 123 CLR 657 per Gibbs J at 663 - 667 the Minister was empowered to direct that compensation be paid to a dismissed employee, but only if a necessary report which was a condition precedent to the exercise of the power was "substantially favourable" to the employee.
31 The consequence of the characterisation of a particular state of affairs as a "jurisdictional fact" is that the decision of the relevant decision maker will be liable to be quashed for excess of jurisdiction because the non-existence of the jurisdictional fact precludes a finding that there was jurisdiction. Certiorari will lie to quash the decision for excess of jurisdiction as much as for an error of law within jurisdiction and on the face of the record: Parisienne Backet Shoes Pty Ltd v Whyte (1938) 5 CLR 369 per Dixon J at 391; R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 per Mason ACJ and Brennan J at
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- 419; and per Deane and Dawson JJ at 429; R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 per Fullagar J at 91; and Kitto J at 97 - 98.
The Relevant Level of the Degree of Disability
32 It will be observed that the provisions of s 93D(1) and (2) refer to the "relevant level" in relation to "degree of disability", which is to be assessed, so far as Sch 2 provides for such a disability, as a percentage.
33 Section 93D(2)(a)(i) provides that, if only one item of the schedule applies to the disability, the percentage of the prescribed amount provided for by that item is the relevant percentage provided for by that item, as read with s 25 of the Act. Section 25 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."
34 Under Sch 2 is a table of compensation payable in respect of a series of items for specified injuries. In respect of each injury a ratio is expressed as a percentage which the sum payable bears to the "prescribed amount". That expression is defined by s 5(1) of the Act as $119,048 in respect of the financial year ending on 30 June 2000, with a provision for adjustment in relation to any subsequent financial year. Under the definition, the adjusted amount is the nearest whole number of dollars to the amount obtained by varying the prescribed amount for the preceding financial year by the percentage increase in the Wages Cost Index as set out in the definition.
35 For example, item 1 of Sch 2 is Total loss of the sight of both eyes. The item specifies that 100% of the prescribed amount is payable in respect of that item. Similarly, item 1 provides that the total loss of sight of one eye will attract 50% of the prescribed amount. Item 18 provides that for loss of a thumb 35% of the prescribed amount is payable.
36 Section 93D(2)(a)(ii) also provides that if two or more items of Sch 2 apply to the disability, the sum of the percentages of the prescribed
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- amount provided for by those items, as read with s 25, is payable. Thus, if the worker loses the sight of one eye and a thumb 85% of the prescribed amount is payable.
37 In the event that the disability was of a kind not specified in Sch 2, so that par (a) of s 93D(ii) does not apply, s 93D(2)(b) provides that the degree of disability of the worker has to be assessed in accordance with the "AMA Guides". Section 93A defines "AMA Guides" 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 described in the regulations."
38 A critical issue in this case is whether the expression "degree of disability of the worker", as it appears in the relevant provisions of the Act, only connotes or relates to some disability of some specified part or parts of the body and does not apply to any overall disability of the body taken as a whole. It was the employers' case that, on the true construction of s 93D(6), what is required is medical evidence indicating to the Director, in substance, an opinion that there was a degree of disability of the requisite level by reason of the worker having suffered one or more of the disabilities specified. It was submitted on behalf of the employers that a medical opinion, which merely made an assessment of the total disability of the whole body of the worker as a result of a work-related injury, would not be in conformity with what is required by s 93D(2) and (6). The workers' case, however, was that it was open to assess the disability by reference to a percentage loss of function of the whole body. I will deal with that issue in the context of the facts of the cases in which that is relevant.
39 A second critical issue in the case relates to what is required in terms of the "medical evidence" referred to in s93D(6). It was contended on behalf of the employers that, in order to comply with s 93D(6) more was required than the mere expression of an opinion by a medical practitioner that the degree of disability was not less than the relevant level. It was submitted by senior counsel for the employers that the material produced must include a description of facts and reasons supporting the opinion, together with an indication that the correct statutory criterion was applied in assessing the "degree of disability". Finally, it was submitted on behalf of the employers that on the true construction of the provisions of s 93D(5) - (10) the Director is required to examine the material produced on behalf of the worker to determine whether it conforms with the
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- requirements of s 93D(6) and only proceed further if it does. This last submission was uncontested by counsel for the workers or the Attorney General, so that the case turns on the resolution of the first two issues of construction of s 93D(6).
40 In each case it was submitted on behalf of the employer that the material produced on behalf of the worker to the Director had not conformed with the requirements of s 93D(6). So far as the assessment of the degree of disability is concerned, as already indicated, Sch 2 contains a series of items which refer to "loss" or "total loss" of specified limbs, faculties, etc and, in the case of the back, neck and pelvis, "permanent loss of the full efficient use" of the relevant item. By s 25 of the Act "loss" in Sch 2 includes "permanent loss of the use of" and "permanent loss of the efficient use of". It was submitted on behalf of the employers and, in my opinion correctly submitted, that in order to make a proper assessment of the degree of disability in accordance with the provisions of Sch 2 and s 25, the person undertaking the assessment must consider whether there has been actual loss, permanent loss of use or permanent loss of efficient use of the relevant limb or other item specified in Sch 2: Re McWilliam & Ors, Members of a Medical Assessment Panel; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996. In that case Murray J (with whom Franklyn and Owen JJ agreed), after referring to the need to read Sch 2 with s 25 of the Act, as it then stood, and the definitions of "permanent loss of the use of" and "permanent loss of the efficient use of", said at 5:
"Therefore the preferred mode of assessment of a disability for the purpose of considering whether or not it is serious within the terms of the Act is under Schedule 2, read with s 25, so far as in that way the Schedule and the section enable a percentage to be attributed to the particular injury suffered by the worker, although that is a percentage of a prescribed amount, the primary relevance of which is in respect of an award of compensation under the Act. It is only if the assessment cannot be made by that process that the degree of permanent impairment is to be assessed in accordance with what is described as the 'AMA Guides' …"
41 In the case of permanent loss of efficient use, an assessment must be made of the percentage of the diminution of the full efficient use of the limb or other part of the body specified: s 25(b). Where the AMA Guides apply, it is the "degree of permanent impairment" which must be assessed: s 93D(2)(b). As the AMA Guides state at p 5 "disability" and
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- "impairment" are not necessarily the same thing. I accept the submission on behalf of the employers that the former is concerned with ability and the latter is concerned with loss of function. The term "disability" may extend from complete incapacitation to a lesser degree of incapacitation, which may disable or limit the capacity for work, depending on the nature of the disability. The term "impairment" is generally used to indicate that there has been some limited impairment or weakening of some bodily function.
Section 93D(6): "Medical Evidence"
42 Each of the matters before the Court requires consideration of the proper construction of s 93D(6) of the Act. It was submitted on behalf of the employers that, by requiring the production of "medical evidence", s 93D(6) required more than the mere expression of an opinion. This was said to follow from the use of the expression "medical evidence indicating an opinion". It was further submitted that, in order for that requirement to be satisfied, there must be a statement of facts capable of supporting the opinion because a mere conclusion or expression of opinion in general terms, unsupported by facts and reasons, was not "medical evidence indicating" an opinion. It was accepted that the extent of the facts and reasons to be supplied would vary from case to case, according to the nature of the disability. However, it was submitted that there must in every case be some material to support the opinion so as to satisfy the requirement for "medical evidence".
43 In my opinion, the reference to "medical evidence indicating an opinion" necessarily requires something to be added to support the expression of an opinion indicating a particular degree of disability for the purposes of s 93D(6). If that were not the case the provision could and should have referred simply to an "opinion by a medical practitioner" indicating that the degree of disability was not less than the relevant level. Further, the use of the expression "medical evidence" is significant, as the subsection could simply have referred to "evidence from a medical practitioner". However, in my opinion, the use of "indicating" in the relevant provision requires the Director to make an examination of the medical evidence referred to in support of the opinion to determine whether it was objectively capable of so indicating. Counsel for the employers referred by way of analogy to the decision of the High Court in George v Rockett (1990) 170 CLR 104 in support of this contention. Section 9 of the Criminal Code (Qld) provided that, among other things, if certain matters were made to appear to a justice of the peace on complaint
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- made on oath, that there were reasonable grounds for suspecting that there was in any place anything with respect to which any offence which is such that the offender may be arrested with or without warrant has been, or is suspected on reasonable grounds to have been committed; or anything as to which there are reasonable grounds for believing that it is intended to be used for the commission of an offence, the justice may issue a search warrant. It was held that before issuing a warrant the justice had to satisfy himself that there were reasonable grounds for suspecting and reasonable grounds for believing the respective matters referred to in the section. It was also held that a sworn complaint should contain sufficient facts to found the reasonable suspicion and the reasonable belief.
44 It was accepted by counsel for the employers that the extent of the facts and reasons to be supplied will vary from case to case, according to the nature of the disability. In my opinion this is correct. While the extent of the supportive material will vary from case to case, I consider that there must at least be material which satisfies the requirement for "medical evidence". This contemplates material of a medical kind which is logically capable of supporting the opinion.
45 The assessment of the degree of disability would necessarily require reference to the relevant statutory criterion or criteria. In other words, s 93D(6), by the use of the label "degree of disability" requires that the evidence demonstrates that the degree of disability has been properly assessed in accordance with the Act. The material produced must reveal that the correct statutory criterion has been applied. Unless it does so the dispute resolution provisions in s 93D regarding the degree of disability cannot be satisfactorily invoked because s 93D(6) will not have been satisfied.
46 In this context, the purpose of s 96D(6) is to ensure that the dispute resolution procedure, relating to the restrictions on damages and compensation, is only invoked where there has first been laid a proper foundation for the contention by the worker that he or she has suffered a degree of disability of not less than the level specified. In my opinion, that purpose would not be fulfilled. If all that is required by s 93D(6) is the expression of an opinion by a medical practitioner that the worker's "degree of disability" was not less than a stated percentage. If all that was required was a bare statement of opinion assessing the degree of disability, it is difficult to see what useful purpose would be served by the subsection. In Re Monger; Ex parte Ivey [1999] WASC 250 Miller J said at [21] - [23]:
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- "In my view, under the provisions of s93D(6) the respondent [ie, the Director] is required to examine the medical evidence produced pursuant to that subsection. It may be that in some cases a medical practitioner will be able to indicate a degree of disability not less than the relevant level by reference to the formula within the Act for calculation of the relevant level. That, it seems to me, is unlikely to be the normal case. Rather, one would expect a report such as that received from Professor Harper, in which a general assessment of 'loss of effective function' of a limb or bodily part is estimated. From that estimate, calculations will need to be made in accordance with the formula contained within the Act. Unless a medical Practitioner's assessment confirms that disability to be a permanent one, those calculations will not be able to be made. In a case such as the applicant's, where Professor Harper indicated the left knee disability to be permanent…but fell short of declaring the back disability to be permanent, some investigation of the contents of the report by the respondents is, in my opinion, inevitable. The fact that s93D(6) provides that the question "can only be referred under s93D(5) if "the worker produces medical evidence as required by the subsection also supports the view that the respondent is called upon to make some analysis of the medical evidence produced to him. I accept that the words 'only … if' are in their ordinary and natural meaning imperative and exclusive terms (see Butler Rains Menzies & Co (A Firm) v Devine (1992) 8 ACSR 579 at 583 and cfCooper & Dysart Pty Ltd v Sargon and Anor (1991) 4 ACSR 649 at 657.
I therefore reject the applicant's contention that the function of the respondent is purely administrative, in the sense that if in receipt of medical evidence from a medical practitioner indicating some level of disability it is his duty to thereupon act in accordance with s 93D(7) et seq. …"
47 In my opinion, the interpretation and the approach to the application of the legislation adopted by Miller J is correct and should be followed.
48 In view of the fact that the term "medical evidence" is not defined for the purposes of s 93D of the Act or otherwise, it is appropriate to apply the ordinary and natural meaning of the term. The ordinary and natural meaning of the term "medical" is "of or pertaining to the science or practice of medicine in general"; and "of or pertaining to conditions
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- requiring medical treatment or diagnosis": New Shorter Oxford English Dictionary (1993); and Macquarie Dictionary (3rd Ed, 1997). According to the same sources, the ordinary and natural meaning of the term "evidence" includes both "factors or testimony in support of a conclusion, statement or belief" as well as "that which tends to prove or disprove something" and "something serving as proof". The ordinary and natural meaning of the words "medical evidence" encompasses the provision of a report by a medical practitioner. The existence of an opinion by an expert such as a medical practitioner is a fact. The evidence that the opinion exists is, for relevant purposes, established by the production of the report. As indicated in the first sentence in Cross on Evidence 6th Aust Ed par 1001 at 1:
"The evidence of a fact is that which tends to prove it - something which may satisfy an enquirer that the fact exists. Courts of law usually have to find that certain facts exist before pronouncing on the rights, duties and liabilities of the parties, and the evidence they receive in furtherance of this task is described as 'admissible evidence'."
50 There are three such purposes. First, the medical evidence must be such as will enable the respondent to ascertain whether a referral of a question of the degree of disability to the employer is warranted: cf s 93D(7). Secondly, the medical evidence is then forwarded by the Director to the employer together with a notification of the referral to the worker and may be considered by the employer in determining whether to agree or disagree with the degree of disability claimed by the worker: see s 93(7) of the Act and reg 19J(2); and form 23 in Appendix 1 to the
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- Regulations. Thirdly, in the absence of an agreement between the worker and the employer regarding the degree of disability, the medical evidence will be considered by a review officer in the course of the resolution of a question referred under s 93D(10) of the Act.
51 The "medical evidence" must be such as to permit the Director to ascertain whether there is a basis for the worker's claim to have suffered a degree of disability which is not less than the relevant level, so as to warrant the referral of the question of the degree of disability and notification of it to the employer: s 93D(7).
52 The purpose of s 93D(6) is that the Director should carry out a screening function to ensure that frivolous, vexatious or fanciful assertions or claims of liability are not accepted, but referred for adjudication to review officers before being allowed to pass through the system to a superior court as claims for damages: Thorp v Wanneroo City Council, supra, per Packington CM at [46]. In this context, the function of the Director under s 93D(6) is not purely administrative. In other words, it is not his function simply to receive the medical evidence and, if it indicates some level of disability, to act in accordance with s 93D(7) and the other relevant provisions: R v Monger; Ex parte Ivey, supra, at [22] per Miller J. On the contrary, the Director is required to examine the medical evidence and to make some analysis of it so as to confirm whether it indicates a degree of disability not less than the relevant level, namely, whether it is not less than 16% or not less than 30%: R v Monger; Ex parte Ivey, supra, at [21] - [23] per Miller J.
53 It was submitted on behalf of the Attorney General that the Act does not indicate how comprehensive the medical evidence must be. In some cases a medical practitioner will indicate a degree of disability by reference to the formulae within s 93D(2) of the Act. Ordinarily, however, the medical evidence is likely to be in more general terms, which, when analysed, must provide an indication that the degree of disability in relation to the particular injury in Sch 2 is not less than the relevant level: R v Monger; Ex parte Ivey per Miller J at [21]. In my opinion, the submission made on behalf of the Attorney General in this context should be accepted, namely, that the Act does not contemplate the Director orally examining the medical practitioner. It simply contemplates a review on the papers.
54 I consider that the proper construction of s 93D(6) is that it requires the provision of a medical report which, on its face, states the medical practitioner's opinion as to the degree of disability or contains information
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- which permits a conclusion from the opinion expressed that the medical practitioner has formed a relevant opinion. It was submitted on behalf of the Attorney General that s 93D(6) contemplates that the respondent must be satisfied that a medical practitioner has formed the requisite opinion. It is not a requirement that the Director form that opinion. I accept that submission.
55 The significance of the medical evidence is that it, together with form 23, comprises the notification to the employer of the referral of the question of the degree of disability, by reference to which the employer may determine whether it wishes to dispute the degree of disability claimed by the worker. For that purpose the employer is entitled to require the worker to submit to an examination by a medical practitioner provided and paid for by the employer: see s 64 of the Act. It follows that the medical evidence produced by a worker under s 93D(6) is not the only source of medical opinion which an employer may consider for the purpose of determining whether to dispute the degree of disability claimed by the worker.
56 The relevant dispute which may arise as a result of the referral of a question to the Director is a dispute whether the worker's degree of disability is not less than the relevant level. It is not just a dispute whether the medical evidence produced to the Director indicates that that is the case: Thorp v Wanneroo City Council, supra, per Packington CM at [15].
57 It follows that it is not necessary for the medical evidence the subject of the report to be comprehensive, or to set out any detailed clinical findings, or the detailed process of reasoning by which the medical practitioner formed his or her opinion, in order for the employer to be able to decide whether the degree of disability claimed by the worker should or should not be accepted.
58 If there is a dispute in relation to the degree of disability suffered by the worker which is not able to be resolved by agreement, the Director must refer the question for resolution under the provisions of Pt IIIA (other than Div 2) of the Act. On such a referral the "medical evidence" produced by a worker in the context of s 93D(5) of the Act is not the only evidence to which the review officer may have regard in determining the worker's degree of disability: Thorp v Wanneroo City Council, supra, per Packington CM at [33]. The worker may submit further medical evidence on the referral and medical evidence may also be submitted on behalf of the employer in the course of such a review. Section 84ZA(3) of the Act requires that, in conducting the review, the review officer is to act
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- according to the substantial merits of the case without regard to technicalities, legal forms or precedent. For the purposes of carrying out the review, the Act confers a number of powers on a review officer to obtain information relevant to his or her determination of the question including:
(a) the power to summon persons to attend before him or her and to answer questions put by him or her and to summon persons to produce documents and to inspect such documents: s 84ZB(1) of the Act;
(b) to inform himself or herself on any matter in such a manner as the review officer thinks fit without being bound by the rules of evidence: s 84ZD(1);
(c) to refer any technical or specialised matter to an expert and accept that expert's report as evidence: s 84ZD(2);
(d) to refer a question of the degree of disability to a medical assessment panel, in the case of a conflict of medical evidence between practitioners called by the worker and the employer: s 84ZH and s 145A of the Act; and
(e) the medical panel may, among other things, require the worker to submit to a medical examination by the panel, to answer questions or to produce documents: s 145D(2) of the Act.
59 These powers were discussed most helpfully in Kinsella v Seton Catholic College (unreported, CM (WA), 112/00, 22 February 2001) per Packington CM at [36]. It follows from this, that, in my opinion, in order that a review officer may determine the dispute which may be referred under s 93D(10) of the Act, it is not necessary for the medical opinion submitted under s 93D(6) to comprehensively set out the clinical findings or reasoning process by which the medical practitioner has reached his or her opinion on the worker's degree of disability. If the review officer requires any further information, in order to determine the question of the degree of disability so as to make a determination, it can be obtained by the review officer invoking the powers conferred by the Act.
60 It was also submitted on behalf of the Attorney General that there is nothing in s 93D(6) which provides that the medical evidence must in and of itself indicate that the assessment regarding the degree of disability was made in accordance with s 93D(2) of the Act. That subsection provides no more than that the degree of disability is to be assessed in a specified fashion. It is not necessary that the medical evidence itself indicate the
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- degree of disability calculated by reference to the formulae within s 93D(2): Re Monger; Ex parte Ivey per Miller J at [21].
61 When one has regard to the nature of the function of the Director under s 93D(6), I consider that, in the absence of any evidence to the contrary, the Director is entitled to accept at face value medical evidence in the form of a medical report, which indicates that the degree of disability is not less than a certain level, and to accept that the assessment was made in accordance with s 93D(2) unless the contrary is shown.
62 I accept the submission made on behalf of counsel for the Attorney General that a medical practitioner's report produced for the purposes of s 93D(6) need not make reference to, or be set out in accordance with, the requirements of s 93D(2) and s 25. Nor must such a report demonstrate on its face that the calculation exemplified in s 93D(4) has been carried out. Both of these suggestions are unreasonable and impracticable: cf Thorp v Wanneroo City Council per Packington CM at [44]. Further, to imply in s 93D(6) a requirement that the medical practitioner providing the medical evidence must make specific reference to his or her method of calculation, with the consequence that a failure to do so would result in rejection of the claim at the threshold, would be to adopt a construction that would be in breach of the established principle that remedial legislation is to be construed beneficially: Bird v The Commonwealth (1988) 165 CLR 1 at 9 per Deane and Gaudron JJ. The final requirement is that the medical evidence produced to the Director must indicate that the disability is permanent: Re Monger; Ex parte Ivey, supra, per Miller J at [21].
Were the Applications out of time?
63 In each of the cases before us the remedy of certiorari is sought on substantially the same grounds as contained in the application by Mr Dutch. Certiorari to quash the decision of the Director to treat the material produced to him as conforming with the relevant statutory requirements is now the only relief being sought.
64 It was objected on behalf of the workers that some of the applications were made out of time. By O 56 r 11(1) an order nisi for a writ of certiorari:
"… shall not be granted unless the application for the order is made within 6 months after the date of the judgment, order, conviction or other proceedings … except where … the delay is
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- accounted for to the satisfaction of the court to which the application is made."
65 In the case of Mr Dutch, the form 23 referral application was received by the Director on 14 December 1999 and the date of referral was 30 December 1999. Consequently, the six months expired on 30 June 2000, but the application for the order nisi was not filed until 4 July 2000, four days out of time. In the case of the application by Mr Batten, the date of receipt of the referral application was 14 December 1999, the date of the notice of referral was 27 January 2000 and the application for certiorari was made on 26 July 2000, which was within time. In the case of Mr Cronin, the date of receipt of the form 23 referral application was 13 December 1999, the notice of referral was dated 30 December 1999 and the application for the order nisi filed on 29 June 2000, which was within time. In the case of Mr Judges, the form 23 application was received by the Director on 14 December 1999, the date of the notice of referral was 29 December 1999 and the application for certiorari filed on 29 June 2000, which was within time. In this respect it is noted that while it was originally contended that the application was not filed until 4 July 2000, it was conceded at the hearing that the correct date was 29 June 2000.
66 As in each of the other cases, paragraph 3 of the order nisi in the case of the application by Mr Dutch referred the application for an extension of time within which to make the application for writ of certiorari to this Court. It was also ordered that, by 3 October 2000, the applicant was to file and serve an affidavit in support of the application for an extension of time. In this particular case the extension required is very short. The application for an extension is supported by an affidavit of Mr McAuliffe, a partner in the firm of solicitors acting for the applicant Western Power Corporation. He says that early in 2000 an issue arose regarding the proper interpretation to be placed upon the amendments introduced on 5 October 1999 relating to the medical evidence to be lodged with form 22. This issue was first examined in Thorp v Wanneroo City Council, supra, a case conducted by his firm on behalf of SGIO Insurance Ltd. The appeal from the decision of the review officer to the Compensation Magistrate was argued on 1 June 2000. The decision of Packington CM was delivered on 31 July 2000. The learned Magistrate held at [33]:
"The function of a review officer under s 93D(10) is quite different from that of the Director under s 93D(6). There is nothing in s 93D to suggest that just because the Director is
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- satisfied that medical evidence produced by a worker and considered in isolation indicates a degree of disability that is not less than the relevant level, a review officer is not able to have regard to, and to prefer, other medical evidence which to the review officer's satisfaction establishes that the degree of disability is less than the relevant level."
- In other words, the decision of the Director is not binding upon the review officer.
67 In the absence of any provision for an appeal from a decision of the Director to refer a form 22 to a review officer, the only appropriate remedy could be by way of a prerogative writ. This conclusion was reached by the solicitor for these and other applicants and the position was confirmed during argument of the Thorp appeal to the Magistrate in June 2000. In his affidavit sworn on 27 September 2000, which was before Owen J who made the orders nisi, Mr McAuliffe said that at the end of June and in early July 2000 in excess of 100 applications for prerogative writs were filed. At the same time, by letter dated 16 June 2000, letters were despatched to the worker in respect of each application for a prerogative writ seeking agreement that no point would be taken about the time of filing any application for a prerogative writ, while the decision in the appeal in Thorp was awaited. The reasons for decision in that case were published on 31 July 2000.
68 It was not alleged on behalf of the employer that it was in any relevant way prejudiced by the delay in relation to this matter. I accept that it has been held that the six month period mentioned in O 56 r 11 should be regarded as a maximum rather than a yard stick, as was held by Nicholson J in Ex Parte Savage and Savage [1989] WAR 46. The discretion to extend the time is nonetheless there to be exercised, as Nicholson J recognised at 52 - 53 in accepting as he did that futility, delay, "lying by" and prejudice were relevant factors to consider. In the present case, however, there is no suggestion that the resolution of the issue raised by the application for the writ is an exercise in futility. On the contrary, the proceedings raise a significant question regarding the interpretation and application of the relevant legislation. The delay was a matter of a few days. There is no basis for any suggestion that the employer in question was "lying by". In my opinion it would be appropriate to order that the time within which an application should be made by Mr Dutch be extended to the date upon which the application was in fact made, namely 4 July 2000. It is now necessary to consider each of the cases in turn.
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Mr Dutch: CIV 1877 of 2000
69 Mr Dutch lodged a "Referral of Question of Degree of Disability" (form 22) with the Director on 14 December 1999. These steps were taken pursuant to s 93D(5) of the Act and reg 19J(1) of the Regulations. Under the heading "Injury details" he claimed to have suffered "injury to his left and right knees" on 26 May 1995, 26 August 1997, 5 August 1998 and 8 February 1999 while employed by Western Power Corporation and which resulted in a degree of disability of 25% being not less than 16%.
70 Annexed to the form 22 was an extremely brief medical report from Dr David Nelson dated 14 December 1999 which stated relevantly:
"Having assessed [Mr Dutch] last in July 1999 - as a result of injuries at work … I believe that he has a degree of permanent disability in the whole body of 25%, as a direct result of those injuries. This takes into account both his physical and psychological disability."
71 The report contains no description of the nature of the injuries or the disabilities, beyond a reference in general terms to both physical and psychological disability, no statement of facts or reasons, no reference to an applicable statutory criterion, but instead refers to a concept of "degree of permanent disability in the whole body".
72 It was contended on behalf of the employer that the concept of "degree of permanent disability in the whole body" was not a method of assessing the degree of disability contemplated by the Act. However, by letter dated 30 December 1999, the Director forwarded to the applicant a copy of the form 22 and, as required by s 93D(7) and reg 19J(2) a "Notice of Referral of Question of Degree of Disability" (form 23). Pursuant to s 93D(8) and reg 19J(3) the employer returned the form 23 to the Director and gave notice to him that it considered the worker's degree of disability to be less than 16%. It was contended on behalf of the worker that a "dispute" therefore arose under s 93D(8). The matter was not resolved by agreement pursuant to s 93D(10). Consequently, as required by that provision, the Director referred "the question for resolution" to the Review Officer under Pt IIIA of the Act. The matter has not proceeded to a review hearing pending the outcome of these proceedings.
73 It is contended on behalf of the employer that the requirement of "medical evidence" was not met in this case because there was no description of the nature of the injuries or disabilities beyond a reference to both physical and psychological disability in general terms, no
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- statement of facts or reasons, no reference to an applicable statutory criterion, but instead reference to an irrelevant concept of "degree of permanent disability in the whole body".
74 The description of the injury in the form 22 itself is singularly uninformative namely, "injury to left and right knees". At the same time the "injury" is said to have occurred, according to the form 22, on four different dates, namely, 26 May 1995, 25 August 1997, 5 August 1998 and 8 February 1999.
75 There is no attempt in the report to make an assessment of the degree of disability in accordance with any of the three possible sets of criteria prescribed by s 93D(2) of the Act. That subsection requires a medical report which contains particulars which identify the nature of the relevant injury as one provided for in Sch 2, which expresses the disability as a percentage and which evidences the permanence of the disability: Thorp v Wanneroo City Council, supra, at [68] per Packington CM.
76 It is contemplated that the medical report will report a percentage diminution of the relevant body part and that can be applied in turn to the percentage appearing in Col 2 of Sch 2. Dr Nelson's report does not conform with these requirements and does not contain information which would enable the Director or a Review Officer to make a determination of the degree of disability in accordance with the Act.
77 In Thorp at [44], after referring to the initial referral to the Director by form 22 and the requirement to produce the medical evidence required by s 93D(6), the learned Magistrate said:
"An indication of permanent disability is a necessary prerequisite because s 93D(2) imports reference to Schedule 2 and s 25 of the Act, which between them require permanent loss of the use of or the efficient use of some bodily function before a percentage disability can be calculated - see Re Monger; Ex Parte Ivey at p 11. But to suggest, however, that a medical practitioner's report produced as evidence for the purposes of s 93D(6) must make reference to, or be set out in accordance with the requirements of, ss 93D(2) and 25, or demonstrate on its face that the calculation exemplified in s 93D(4) had been carried out, is unreasonable, impractical and flies in the face of common sense."
78 The learned Magistrate then referred to the comments by Miller J in Re Monger; Ex parte Ivey, supra, at [21], namely:
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- "In my view, under the provisions of s 93D(6) the respondent is required to examine the medical evidence produced pursuant to that subsection. It may be that in some cases a medical practitioner will be able to indicate a degree of disability not less than the relevant level by reference to the formula within the Act for calculation of the relevant level. That, it seems to me, is unlikely to be the normal case. Rather, one could expect a report such as that received from Professor Harper, in which a general assessment of 'loss of effective function' of a limb or bodily part is estimated. From that estimate, calculations will need to be made in accordance with the formula contained within the Act. Unless a medical practitioner's assessment confirms that disability to be a permanent one, those calculations will not be able to be made."
79 In my opinion the report by Dr Nelson does not indicate that the degree of disability is not less than the relevant level. It was common ground that the medical evidence provided for by s 93D(6) must indicate that in the opinion of the medical practitioner the degree of disability was not less than the relevant level. Dr Nelson's report referring to loss of function of the whole body fails to do that.
80 What is required is material in the form of medical evidence which indicates or points to a conclusion by way of an opinion that the worker has a degree of disability not less than the relevant level. Counsel for the workers relied on the following comment by Packington CM in Kinsella v Seton Catholic College (unreported, CM (WA), 112/00, 22 February 2001) at [35]:
"In my respectful opinion it is unhelpful to speak of medical reports as not satisfying the requirements of, or not complying with, s 92D(2). The only provision in Division 2 of Part IV of the Act which requires anything of a medical report (or, indeed, makes any reference to a medical report) is s 93D(6), the requirements of which are discussed in Thorp v Wanneroo City Council, unreported, CM-49/00, and have no bearing on this referral."
81 As has been seen, s 93D(2) is the provision which sets out how the degree of disability of the worker is to be assessed. What is required by s 93D(6) is "medical evidence" from a medical practitioner indicating that, in his or her opinion, the degree of disability is not less than the
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- relevant level. It was conceded by counsel for Messrs Dutch and Judges that s 93D(6) was mandatory in this sense.
82 In order to make a proper assessment of the degree of disability under s 25 and Sch 2, the person undertaking the assessment must consider whether there has been actual loss, permanent loss of use or permanent loss of efficient use of the relevant body part depending on the identity of the part affected: cf Re McWilliam & Ors; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996. If the assessment cannot be made by that process, the degree of impairment is to be made in accordance with the "AMA Guides" referred to in s 93A, namely the edition of the Assessment of Disability Guide published by the Western Australian Branch of the Australian Medical Association.
83 In the case of permanent loss of efficient use, an assessment must be made of the "percentage of the diminution of the full efficient use" of the body part. Where the "AMA Guides" apply, it is the "degree of permanent impairment" which must be assessed in accordance with s 93D(2)(b). The "AMA Guides" distinguish between disability and impairment on the basis that the former is concerned with ability and the latter is concerned with function.
84 In my opinion there is no basis in the legislation for the determination of degree of disability in terms of a percentage function of the whole body.
85 It follows that the decision by the Director to refer the matter to a review officer under s 93D(5) was wrong in law because the medical evidence required to be produced under s 93D(6) did not indicate that, in the medical practitioner's opinion, the degree of disability was not less than the relevant level. The opinion referred to an irrelevant degree of disability, namely, loss of function of the whole body. It follows that, in the circumstances of this case, the decision of the Director was beyond jurisdiction and incapable of conferring jurisdiction on the review officer.
86 For these reasons the order nisi to quash the decision should be made absolute in the case of Mr Dutch.
Mr Batten: CIV 2002 of 2000
87 The form 22 on behalf of Mr Batten is dated 14 December 1999. The description of the injury says only "Shoulder". The dates on which the injuries occurred are said to be 11 January 1995 and 18 May 1999.
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- The medical report by Dr Lingam Sam dated 21 December 1999 states as follows:
"… Mr Batten consulted me first on 14 December 95 and subsequently with the exacerbation of the left shoulder on 18.5.99.
(1) Currently, when he consulted me on the 17th of December 99 he still complained of left shoulder pain, left neck pain, left arm pain.
He also complained of not being able to lift the left shoulder and left arm and the movements were limited with pain.
(2) Mr Batten has undergone left shoulder injury by Dr Alexeeff and he would need painkillers and anti-inflammatory medications and physiotherapy treatment in the future.
(3) The approximate cost of present and future medical treatment would include G.P. consultations costing $37/00 per week, approximately every week or fortnightly.
But if I am compelled to give an opinion now I would give a percentage of 22% loss of function of the whole body. This includes the neck injury, left shoulder injury, left arm injury and the psychological stress caused by the accident.
The above percentage could increase or decrease in the future depending on the opinion expressed by specialists as well as the signs and symptoms experienced by the patient in the future."
It would appear that this was not a final report in relation to the worker's condition.
88 It was contended on behalf of the employer that the medical opinion so expressed was insufficient in law to satisfy the requirements of s 93D(6) because it contained no reference to any relevant statutory criterion, no indication of any relevant permanent loss, but only a reference to an irrelevant consideration, namely, "percentage loss of function of the whole body". As a consequence, the opinion was not
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- capable as a matter of law or fact of conferring jurisdiction or power on the Director to make the relevant reference. In my opinion these submissions should be upheld. The consequence is that, in this case also, the decision of the Director to refer the matter to the review officer was beyond jurisdiction and incapable of conferring jurisdiction on the review officer.
89 For these reasons the order nisi to quash the decision should be made absolute in the case of Mr Batten.
Mr Cronin: CIV 1768 of 2000
90 The form 22 on behalf of Mr Cronin is dated "on or around" 19 January 1998. The description of the injury in the form is "Heat stress/illness". The date the injury occurred is said to be "on or around" 19 January 1998. The medical report by Dr Spargo in the form of a letter to Mr Cronin's solicitors was as follows:
"I last saw this patient on the 12 October 99. I assess a loss of efficient use of the body of not less than 16% as a result of the work accident about which you have been briefed."
91 It was contended on behalf of the employer that there was no medical evidence provided to support the opinion that the "Heat stress/illness" was assessed in respect of any applicable statutory criterion and that the assessment in terms of "loss of efficient use of the body" of not less than 16% was not an assessment of the degree of disability which conformed to the provisions of the Act, but an opinion formed by reference to an irrelevant consideration, namely "loss of efficient use of the body".
92 There was no medical evidence whether the "Heat stress/illness" was "a personal injury by accident" within the meaning of the definition of "disability" in s 5 of the Act. There was no evidence whether the "Heat stress/illness" was a "disabling disease" to which Pt III Div 3 of the Act applies or a "disease contracted by a worker in the course of his employment" for the purpose of par (c) of the definition of "disability" which as defined excludes:
"… a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer".
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93 The definition of "disease" in s 5 of the Act "… includes any physical or mental ailment, disorder, defect or morbid condition whether of sudden or gradual development".
94 In my opinion the absence of any relevant "medical evidence" in this case to support the opinion expressed is a sufficient basis on which to conclude that the letter from Dr Spargo was not a sufficient basis to activate the Director's decision to return this case to a review officer. As to the question of the degree of disability being assessed in terms of the whole body or loss of function of the whole body, this was not argued as Mr Cronin was not represented. I say nothing more about that aspect of the matter than that it is arguable that in this case it would be a relevant consideration.
95 For these reasons the order nisi should be made absolute in the case of Mr Cronin.
Mr McCann: CIV 1773 of 2000
96 The form 22 on behalf of Mr McCann is dated 14 December 1999. The description of the injury is "facial injury". The date the injury occurred is said to be 7 December 1994. The degree of disability as assessed by the medical practitioner is said to be:
"30% facial disfigurement = 24% after modification using the formula assessed by Dr M Salleh dated 6 and 13 December 1999."
- The relevant disability in terms of s 93E(3) of the Act is said to be not less than 16%. The report submitted together with the form 22 is accompanied by a report from a dental surgeon, Mr M Salleh, and states:
"I reply to your letter dated 11th November, 1999. Without the prosthesis provided by me on 28th May, 1999 -
1. there will be marked disfigurement from a cosmetic point of view as he will have a 'toothless' appearance and this will be devastating for a young man in his prime.
2. there will be a large degree of difficulty eating as he will not be able to tear his food before mastication.
3. he will also have to be more vigilant re: his oral hygiene to prevent any breakdown of his prosthesis."
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97 By a letter dated 14 December 1999 by fax to Dr Salleh, the solicitors for Mr McCann acknowledged receipt of his letter, thanked him for his comments and said:
"For the purposes of our task under the Workers' Compensation & Rehabilitation Legislation it is imperative that dysfunctions and disfigurements outlined by you in your letter of 6 December 1999 are quantified in percentage terms of severe facial scarring or disfigurement. Until we have this assessment we are unable to progress Mr McCann's matter further.
We look forward to receiving your urgent response."
98 Dr Salleh replied on the same day saying:
"In reply to above, without the prosthesis he will have 30% disfigurement."
99 Item 38 in Sch 2 covers "Severe facial scarring or disfigurement to a maximum of" 80% of the prescribed amount. The submission on behalf of the employer was that, first, there was no evidence from a medical practitioner and, secondly, no reference to any statutory criterion, nor to any permanent disability.
100 The first of these submissions raises the question whether "medical evidence" in s 93D(6) of the Act refers only to evidence by a medical practitioner in this context, so that evidence from a dental surgeon is irrelevant or inadmissible. The term "medical evidence" is not defined in the Act, whether for the purposes of s 93D or otherwise. The ordinary and natural meaning of the word "medical" is "of or pertaining to the science and practice of medicine in general" and "of or pertaining to conditions requiring medical treatment or diagnosis": New Shorter Oxford English Dictionary (1993); Macquarie Dictionary (3rd Ed, 1997). I have already referred to the ordinary and natural meaning of "evidence" above. In my opinion the ordinary and natural meaning of the term "medical evidence" is evidence given by a medical practitioner. The term "medical practitioner" is defined in s 5 of the Act to mean:
101 " 'medical practitioner' means -
(a) a person who is resident in a State or Territory of the Commonwealth and is entitled to practise as a medical practitioner in accordance with the laws of that State or Territory; or
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- (b) a person who is not resident in a State or Territory of the Commonwealth but who is recognized as a medical practitioner for the purposes of this Act by the Commission."
- The term "medical practitioner" is defined in s 3 of the Medical Act 1894 as:
"(a) a person not being a body corporate who is registered under this Act; or
(b) a body corporate who is registered under this Act."
103 For these reasons the order nisi in the case of Mr McCann should be made absolute.
Mr Judges: CIV 1770 of 2000
104 The form 22 on behalf of Mr Judges is dated 25 February 1998. The description of the injury is simply "Back Injury". The date the injury occurred is said to be 25 February 1998. The form 22 is dated 7 December 1999. The medical report by Dr I G Hewett dated 1 December 1999 was as follows:
"1. My full names are Ian Gordon Hewett.
2. I am resident in the State of Western Australia and entitled to practise as a medical practitioner.
3. I currently practise from Preston Street, Como in the State of Western Australia.
4. I carried out a clinical examination of the above worker on 1 December 1999.
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- 5. I have educated and familiarised myself with the history pertaining to the above worker's disability and have taken account of a volume of medical information, together with the results of my clinical examination.
6. I am of the opinion that the above worker's disability is not less than 30% within the meaning of section 93 of the Workers' Compensation & Rehabilitation Act 1981 (as amended).
7. I am in fact this day of the opinion that the degree of permanent whole body disability is exactly 60%.
8. I would be pleased to elaborate on my opinion to any member of the directorate or representative of the employer, insurer or worker."
105 It was submitted by counsel for the employer that the material in this report did not satisfy the requirement for "medical evidence" in s 93D(6) because there was no reference to facts or reasons, no reference to any statutory criterion, but only a reference to the irrelevant concept of "the degree of permanent whole body disability", and a reference to an inapplicable statutory provision.
106 In Sch 2 of the Act item 36A is:
"Permanent loss of the full efficient use of the back (including the thoracic and lumbar spine)."
- The ratio which the sum payable for compensation bears to the prescribed amount in this case is 60%.
107 The following item in Sch 2 is item 36B which is:
"Permanent loss of the full efficient use of the neck (including the cervical spine)."
- The ratio which the sum payable for compensation bears to the prescribed amount in this case is 40%.
108 In my opinion this medical evidence does not satisfy the requirement that the degree of disability in relation to the use of the back is not less than the relevant level. The medical evidence in this case suffers from the same defects as the evidence in the case of Mr Dutch. It follows that in this case also the decision of the Director was beyond his jurisdiction and incapable of conferring jurisdiction on the review officer.
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109 For these reasons the order nisi in the case of Mr Judges should be made absolute.
110 WALLWORK J: I agree with the reasons for judgment of Malcolm CJ and Owen J and to the orders proposed.
111 OWEN J: I have read, in draft form, the reasons which the Chief Justice intends to publish. I agree with his Honour's reasons and with the conclusion that, in each case, the order nisi should be made absolute. I wish only to add a couple of brief comments.
112 For me the critical question is the meaning to be ascribed to the phrase "medical evidence" in s93D(6). What did the legislature intend when it used those words? The phrase must take its meaning from the context. The context is a potential dispute as to whether a worker has sustained a degree of disability of, or in excess of, the relevant level. The legislative scheme (which the Chief Justice has set out in detail) for the identification and resolution of such a dispute, should one arise, might be described as a step by step process.
· The worker and the employer must first see if they can agree on the applicable level: s 93D(5).
· If the worker and the employer cannot agree, the worker may refer the "question" (that is, the question of the relevant level) to the Director: s 93D(5). But the referral to the Director can only occur if the worker produces medical evidence from a medical practitioner indicating that the practitioner holds the opinion that the degree of disability is of the relevant level: s 93D(6).
· If he receives a referral the Director must advise the employer: s 93D(7).
· The employer may then notify the Director that it (the employer) considers the degree of disability to be less than the relevant level: s 93D(8). If it does so, a "dispute" is then said to have arisen: s 93D(8). If it does not do so, the employer is regarded as having agreed that the degree of disability is not less than the relevant level: s93D(11).
· The Director is then involved in a further step, namely an attempt, in conjunction with the worker and the employer, to agree the dispute: s 93D(9) and (10).
· If the dispute is not resolved by agreement it is then to be referred to a review officer or to the medical panel (as the case may be): s 93D(10) and (11).
114 Had the legislature intended that the obligation on the worker under s 93D(6) could be satisfied by the provision of nothing more than a written confirmation that a medical opinion existed, it could very easily have said so. If that were the case, I would have expected the section to read something like this:
"A question can only be referred under subsection (5) if the worker produces to the Director a certificate from a medical practitioner stating that the practitioner holds the opinion that the degree of disability is not less than the relevant level."
115 That is not what s 93D(6) says. In my view the context that I have described compels the conclusion that something more is required. That "something more" need not be the entirety of the material of a medical nature on which the worker intends to rely. Given the limited nature of the role which the Director is required to carry out at that stage it might be very brief indeed and it will certainly vary from case to case. But it must, in my view, be capable of being characterised as "medical evidence". I can do no better than to adopt the description used by the Chief Justice at par [44], namely "material of a medical kind which is logically capable of supporting the opinion". His Honour has gone on to indicate, in a general sense, what should (and need not) be included. I repeat my concurrence with those remarks.
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