Re Monger; Ex parte Ivey

[1999] WASC 250

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   RE MONGER; EX PARTE IVEY [1999] WASC 250

CORAM:   MILLER J

HEARD:   7 DECEMBER 1999

DELIVERED          :   10 DECEMBER 1999

FILE NO/S:   CIV 2333 of 1999

MATTER                :An application for a Writ of Mandamus against ROSS MONGER, Director of Conciliation and Review under the Workers' Compensation & Rehabilitation Act 1981 (as amended)

EX PARTE

CAROL LILLIAN IVEY
Applicant

AND

ROSS MONGER
Respondent

THE ATTORNEY GENERAL
Intervener

Catchwords:

Workers' compensation - Mandamus - Effect of 1999 amendments to Workers' Compensationand Rehabilitation Act 1981 - Duty of Director to accept medical evidence - Whether merely administrative duty - Whether entitled to go behind report of medical practitioner - Whether degree of disability of either not less than 16 per cent or not less than 30 per cent required referral

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (as amended)

Workers' Compensation and Rehabilitation Regulations 1982

Result:

Respondent ordered to notify the employer in accordance with the regulations pursuant to the provisions of s 93D(7) of the Act

Representation:

Counsel:

Applicant:     Mr T Lampropoulos

Respondent:     No appearance

Intervener:     Ms J C Pritchard

Solicitors:

Applicant:     Leonard Cohen & Co

Respondent:     No appearance

Intervener:     State Crown Solicitor

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

Bird v The Commonwealth (1988) 165 CLR 1

Butler Rains Menzies & Co (A Firm) v Devine (1992) 8 ACSR 579

Cooper & Dysart Pty Ltd v Sargon and Anor (1991) 4 ACSR 649

King‑Brooks v Roberts (1991) 5 WAR 500

R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389

Case(s) also cited:

Nil

1. MILLER J:  This is the return of an order nisi for a writ of mandamus granted by Wheeler J on 1 December 1999.  Her Honour made the order nisi returnable before a single Judge in chambers upon the following grounds:

   "1.The applicant (who suffered injury in the course of her employment on 3 February 1998) has, in accordance with s93D(5) and (6) of the Workers' Compensation & Rehabilitation Act 1981 (as amended, particularly by Act No 34 of 1999), lodged medical evidence with the Director of Conciliation & Review under the said Act, and has referred to the Director the question of whether the applicant's disability is not less than the 'relevant level' under the said Act.

   2.The Director has refused to accept the medical evidence and the referral.

   3.The Director has erred in law in taking the view that his function under S93D of the said Act is to make his own assessment of the quality of the medical evidence and whether it supports the relevant level of disability, whereas his function is to accept the evidence and referral if there is simply an indication in the medical evidence that the medical practitioner is of the opinion that the degree of disability is not less than the relevant level.

   4.Further, and in any event, the Director erred in refusing to accept the medical evidence in that it does support a finding that it indicates that the medical practitioner is of the view that the applicant's degree of disability is not less than the relevant level."

2. By notice dated 3 December 1999, the respondent indicated that he did not attend to appear by way of counsel and would abide by the decision of the Court on the return of the order nisi.

3. Ms Pritchard, who was given leave at the hearing to intervene on behalf of the Attorney General, conceded in her helpful outline of submissions that the applicant has proper standing to seek the writ of mandamus and that the general prerequisite for mandamus (a demand for the performance of a public duty followed by a refusal on the part of the decision‑maker to comply with that demand; King‑Brooks v Roberts (1991) 5 WAR 500 at 515 per Malcolm CJ at 518) have been met in this case. It was likewise conceded that if in this case a proper basis existed for the issue of a writ of mandamus, there are no grounds which would warrant the Court, in its discretion, refusing to make the order nisi absolute (R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 3899 at 400). It was properly put that, if the Court is to issue a peremptory writ of mandamus in this instance, the command might equally be expressed in an order of the Court without the issue of a writ, such order having the same effect as a peremptory writ of mandamus:  O 56  r 28 Rules of the Supreme Court.

4. The applicant in this case suffered injury in the course of her employment as a nursing assistant and a carer.  She received payment of workers' compensation benefits under provisions of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"), such payments commencing on 3 February 1998, which was the date of injury.  On 16 September 1999, Professor Andrew Harper, an occupational physician, provided a report to the applicant's solicitors detailing the nature of the applicant's injuries and the extent to which she had suffered disability.  It appears that the applicant had fallen at her place of work on 3 February 1998 and sustained injuries to her left ankle, left knee, lower back and left shoulder.  There was a fracture to the tibial condyle and to the fibular styloid in the left knee, multiple areas of bone‑bruising in the knee with diffuse cartilage loss, and a fracture of the neck of the humerus in the left shoulder.  The applicant's symptoms in September 1999 included left knee pain and stiffness; swelling, giving way and subluxation of the left kneecap; low back pain; and "frustration".  In his comprehensive report, Professor Harper expressed the view that the applicant's injuries would preclude her from returning to nursing work and she would need to seek sedentary work.  He said that she was:

   " … permanently precluded from returning to her pre‑accident work as a nursing assistant.  This is due to both knee and low‑back symptoms which precluded her from lifting, carrying, bending and being dependably stable in her stance and movements."

Dr Harper went on to assess permanent disability in the following terms:

"8.I am reluctant to assess permanent disability of her lower back at the present time because I have not seen the results of any investigations of the lower back and she had a nerve block only a few days prior to my examination.  I found no physical signs of low back impairment but based on her history her loss of effective function of the thoraco‑lumbar spine may be 15%, however, the clinical findings on the 14.9.99 indicate disability at a lesser level than this.  My estimate of loss of effective function of the left leg at the knee is in the order of 35%.

9.…

10.The prognosis is for possible deterioration in her left knee condition.  I feel it is quite likely that her low back pain will persist and may be aggravated by her limp and reduced function of the left knee.  In the short term there is the prospect of some symptomatic improvement but in the long term her disability may deteriorate.

11.Her condition is reasonably stable and provided no surgical treatment is being contemplated currently I feel finalisation could proceed.

SUMMARY

Mrs Carol Ivey is a 47 year old nurse carer who was physically active prior to a fall at work on the 3.2.98.  She is now incapacitated for her pre‑accident job as a nurse carer.  She is capable of part time restricted work.  She requires to seek an alternative career.  She has permanent disability to her left knee attributable to the fall.  Her condition has stabilised sufficiently for finalisation provided no further surgery is currently planned.  She requires ongoing management."

It will be seen that Professor Harper classified the disability in the left knee as a "permanent disability", but expressed reluctance to assess permanent disability in relation to the lower back at that time.  His assessment of disability in that regard was equivocal, there being a tentative assessment of 15 per cent disability subject to the qualification that it may be less. 

1. By letter dated 15 November 1999, the applicant's solicitors wrote to the respondent in the following terms:

   "We act for the abovenamed client who was injured in a work accident on 3 February 1998.

   We enclose herewith Form 22 application for referral of question of degree of disability together with a medical report of Professor Andrew Harper dated 16 September 1999 indicating that the degree of disability of our client is not less than 30%.

   We look forward to receiving notification of the date of the medical assessment panel enquiring into the question of degree of disability."

   The form 22, to which reference was made, is purported to be the appropriate form for such a referral by reason of the provisions of reg 19J of the Workers' Compensation and Rehabilitation Regulations 1982 ("the regulations"). Regulation 19J(1) provides that a referral under s 93D(5) of the Act is to be made in the form of Form 22 in Appendix I. The completed Form 22 was as follows:

2. It will be seen from the above that the "relevant level of disability" claimed by the applicant pursuant to the provisions of s 93E(3) of the Act was "not less than 30%".

3. On 9 November 1999, the applicant's solicitors had written to the insurers for the applicant's employer enclosing a copy of Professor Harper's report and expressing the view that Dr Harper's opinion was that the applicant's level of disability exceeded 30 per cent.  In consequence, the solicitors for the applicant asked the insurer whether it would agree the degree of disability.  On 15 November, the applicant's solicitors sent to the same insurer a copy of the Form 22 application, indicating that the applicant sought referral of the question of degree of disability of not less than 30 per cent. 

4. By letter dated 18 November, the solicitors for the insurer advised the applicant's solicitors as follows:

   "We are instructed to advice [sic] that our client does not agree that your client has a percentage disability of at least not less than 30%.  We advise that our client does not concede that your client has any degree of disability.  For these reasons our client will not be signing the disability agreement."

5. On 19 November, the respondent advised the applicant's solicitors as follows:

   "I acknowledge receipt of the Form 22 for your worker's compensation claim that was lodged with this Directorate on November 17,1999.

   In my view, the report you produced is not medical evidence indicating the degree of the workers disability is not less than the relevant level. In particular as it does not indicate the degree of disability is permanent as required for an assessment of disability pursuant to section 93D of the Act.

   Should you wish to continue with this referral the appropriate medical evidence is necessary."

6. The course of action taken by the applicant in submitting a Form 22 application to the respondent and notifying the insurer of the employer of the alleged level of disability of the applicant was done in pursuance of the provisions of s 93D and s 93E of the Act. Those sections were introduced into the Act by amending Act No 34 of 1999, which became operable on 5 October 1999, and which made substantial changes to workers' compensation law in this State. The essential change is that a worker is no longer required to demonstrate to the District Court of Western Australia that he has suffered "serious disability" before being able to commence proceedings against an employer for common law damages. Leave of the District Court to commence such proceedings was previously required under the provisions of s 93D(1) – (5) of the Act. Under the provisions of s 93E of the Act as it now appears, there are restrictions on awards of damages and payment of compensation. Section 93E(3) provides that damages can be awarded only if:

   "(a)it is agreed or determined that the degree of disability is not less than 30% and that the 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".

7. Under the provisions of s 93E(4), a worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16 per cent and that agreement or determination is recorded in accordance with the regulations. There is contained in s 93E a strict time limit on the entitlement of a worker to elect the right to seek damages. It is unnecessary for me to detail those provisions, but it is sufficient to say that, for people like the applicant who were in receipt of workers' compensation at the time of the amending legislation, the opportunity to elect to retain the right to seek damages extends until 5 January 2000

8. The route taken by the applicant in relation to the amending provisions of the Act was to utilise the provisions of s 93D. The provisions of s 96E provide that if medical evidence complying with s 93D(6) was adduced to the Director not less than 21 days before the termination day, and a dispute arising under s 93D(8) has not been resolved before the termination day, an election can be made under s 93D(3)(b) within seven days after the dispute is resolved. The strict time limit otherwise applying to elections by workers can be obviated where this procedure is adopted.

9. In the present case, the applicant sought to have the employer agree on the question whether her alleged degree of disability was not less than the relevant level as defined in s 93D(1). The words "relevant level" are defined as follows:

   "'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%"

   Section 93D(6) is in the following terms:

   "(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."

   Subsequent provisions of s 93D outline the procedure which is then to be followed.

   "(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 Part IIIA.

   (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 Part IIIA (other than Division 2)."

10. The question which arises for determination in the present case is whether the applicant produced to the respondent "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. It will be observed that the "relevant level" (as defined in s 93D) incorporates two alternatives:  A degree of disability of 30 per cent; or a degree of disability of 16 per cent.

12. Form 22, to which I have previously referred, requires the worker to tick a box indicating whether he or she is claiming either not less than 30 per cent or not less than 16 per cent by way of relevant level of disability.

13. It is clear that the respondent considers that a worker is required under the provisions of s 93D(6) to nominate which of the two were alternatives in the definition of "relevant level" which is being claimed by way of disability. However, s 93D(6) does not make that a requirement, referring only to the "relevant level" without differentiation between the two alternative bases upon which the degree of disability is defined in s 93D(1).

14. In the present case, the respondent took the view that Professor Harper's report failed to indicate that the degree of the worker's disability was not less than the relevant level. The relevant level was not identified. Further, the Director's letter made the point that Professor Harper's report did not indicate the degree of disability to be permanent, as required for an assessment of disability pursuant to s 93D of the Act. Permanent disability is a necessary prerequisite because s 93D(2) imports reference to Sch 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.

15. The essence of the applicant's argument is that Professor Harper gave an "indication" of the degree of disability of the applicant which was not less than the relevant level, and, that being so, it was the obligation of the respondent to notify the employer in accordance with the regulations and thereafter take the steps set out in s 93D(8) et seq. The applicant argues that s 93D(6) does not require or empower the respondent to form his own view about the quality of the medical evidence produced by the worker and (as in this case) to refuse to accept the referral based upon that view. It is argued that the respondent's function is purely administrative and if there is any indication in the medical evidence produced to him that a medical practitioner is of the opinion that the degree of disability is not less than the relevant level (be it 16 per cent or 30 per cent) he must accept the referral and take the necessary steps required of him under the Act. It was put by counsel for the applicant that Professor Harper's report very clearly indicated that the applicant may have a lower back impairment of 15 per cent and does, in fact, have a loss of effective function of the left leg at the knee of the order of 35 per cent, with the result that, under the provisions of Sch 2 of the Act, the relevant level of disability in relation to the left knee was 24.5 per cent, and in relation to the back either 15 per cent or, in the alternative, 9 per cent. The total "relevant level" of disability said to be thus indicated in the medical report was 39.5 per cent or 33.5 per cent.

16. However, counsel for the Attorney argues that the only permanent disability indicated by Professor Harper is the injury to the knee, which equates to 24.5 per cent, being an amount not less than 16 per cent, but not an amount not less than 30 per cent.  It is argued that Professor Harper made no assessment of permanent disability in relation to the low‑back injury, and to the contrary found himself unable to do so at the time of formulation of his report.  Counsel for the Attorney therefore argued that, at best, Professor Harper's report was an indication of a disability of 24.5 per cent, which did not support the assertion of the applicant that she had suffered a degree of disability "not less than 30%".  This, of course, was the box ticked by the applicant in her Form 22, the consequence being (on the argument propounded for the Attorney) that Professor Harper's report plainly failed to indicate a degree of disability not less than the relevant level contended for by the applicant.

17. 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. In a case such as the applicant's, where Professor Harper indicated the left knee disability to be permanent (he had assessed it in terms of a percentage loss of effective function) but fell short of declaring the back disability to be permanent, some investigation of the contents of the report by the respondent is, in my opinion, inevitable. The fact that s 93D(6) provides that the question "can only be referred under s 93D(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.

1. 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. However, I do not accept that the respondent, having in this case received a Form 22 from the applicant nominating the relevant level of disability at not less than 30 per cent, and having determined by reference to Professor Harper's report that there was no support or "indication" that the degree of disability was not less than 30 per cent, this was an end to the matter. I have already pointed out that the definition of "relevant level" incorporates two alternatives: A degree of disability of 30 per cent or a degree of disability of 16 per cent. Professor Harper's report revealed, upon calculation by reference to the provisions of the Act, a relevant level of disability of not less than 16 per cent. It cannot be the case that if the applicant simply ticks the "not less than 30%" box on the Form 22 he or she is precluded from the benefit of the provisions of s 93D(7) et seq where the medical practitioner's report fails to indicate a relevant level of not less than 30 per cent but nevertheless reveals a relevant level of not less than 16 per cent. If it were the case that a worker was to be bound by an election in the Form 22, s 93D(6) could easily have provided that the medical practitioner's opinion must indicate a degree of disability of not less than one of, and only one of, the relevant level. Likewise, reg 19J (which I consider to be within power by reason of the general regulation‑making power contained within s 176(1)(a) of the Act) could have required a referral made in the form of Form 22 in Appendix 1 to nominate one, and only one, relevant level of disability being claimed. The form itself could also have required the worker to nominate one and only one relevant level, indicating that the level elected for would be limiting and binding. As was pointed out by counsel for the applicant, workers compensation legislation is remedial in its character and should be construed beneficially. I respectfully adopt the passage of Deane and Gaudron JJ in Bird v The Commonwealth (1988) 165 CLR 1 at 9 to the following effect:

   "Moreover, it is well to remember that employee's compensation legislation, such as the Act and the regulations, is remedial in its character 'and, like all such Acts, should be construed beneficially'" Bist v London & South Western Railway Co.  The 'established principle' was correctly identified by Fullagar J in the course of his dissenting judgment in Wilson v Wilson's Tile Works Pty Ltd: 'where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred.' If a person or a case falls within the general spirit of such remedial legislation, and there are two possible interpretations, the courts ought not to construe the Act so as to exclude that person or case: cf Pearce, Statutory Interpretation in Australia, 2nd ed. (1981), pp 137-138.  Indeed, in McDermott v Owners of SS. Tintoretto, a case in which the House of Lords read words into a provision of a Workmen's Compensation Act in favour of the employee, Lord Shaw commented that he regarded it 'to be quite unsound, and to be productive of wrong and mischief' to interpret such a remedial statute 'in the spirit of meticulous literalism'.  That comment of Lord Shaw was quoted with approval ('a valuable contribution') by Isaacs J in this Court in George Hudson Ltd v Australian Timber Workers' Union."

2. It follows, in my view, that the respondent was, in the present case, required to consider whether Professor Harper's report indicated a degree of disability which was not less than either 30 per cent or 16 per cent. If it was either, he was in this case required to notify the employer in accordance with s 93D(7) and take such further steps as then required by subsequent provisions of the Act. It therefore follows, in my view, that the respondent erred in concluding that the medical report produced by the applicant was "not medical evidence indicating the degree of the worker's disability as not less than the relevant level". The report of Professor Harper did support a finding that it indicated that, in the medical practitioner's opinion, the degree of disability suffered by the applicant was not less than (a) relevant level. The use of the word "the" in the words "not less than the relevant level" in the concluding words of s 93D(6) does not, in my view, take away from this conclusion. The respondent was therefore, in my view, required to notify the employer in accordance with the regulations (s 93D(7)) and otherwise to act in accordance with the provisions of s 93D(8) et seq as required.

3. For these reasons, I consider that the applicant has made out a case for the issue of a peremptory writ of mandamus, but in accordance with the provisions of O 56 r 28 it would, in my view, be preferable to make an order without the issue of a writ, directing the respondent to accept that the applicant provided medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of her disability was not less than the relevant level and thus to act in accordance with the provisions of s 93D(7). I therefore order the respondent to notify the employer in accordance with the regulations pursuant to the provisions of s 93D(7) of the Act.