Re Narula, Ng & Hammersley; Ex parte Atanasoski
[2003] WASCA 156
•18 JULY 2003
RE NARULA, NG & HAMMERSLEY; EX PARTE ATANASOSKI [2003] WASCA 156
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 156 | |
| THE FULL COURT (WA) | 18/07/2003 | ||
| Case No: | CIV:1803/2002 | 20 JUNE 2003 | |
| Coram: | MURRAY J ROBERTS-SMITH J BARKER J | 20/06/03 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed, Order nisi made absolute | ||
| B | |||
| PDF Version |
| Parties: | MISKO ATANASOSKI INGHAMS ENTERPRISES |
Catchwords: | Administrative law Prerogative writ Certiorari Determination by a Medical Assessment Panel Conflicting medical reports Clinical examination and observations by panel Adequacy of reasons for determination Error of law on face of the record Severance Workers compensation Return of order nisi for writ of certiorari Determination by Medical Assessment Panel Adequacy of reasons Error of law on face of record |
Legislation: | Workers Compensation and Rehabilitation Act 1981, s 145E |
Case References: | Bone v Mental Health Review Tribunal [1985] 3 All ER 330 Dornan v Riordan (1990) 95 ALR 451 Re Anastas & Ors; Ex parte Welsby [2002] WASCA 83 Re Bannan; Ex parte Suleski [2001] WASCA 289 Re Croser; Ex parte Rutherford & Anor [2003] WASCA 8 Re Croser; Ex parte Rutherford (2001) 25 WAR 170 Re Gillett & Ors; Ex parte Rusich [2001] WASCA 111 Skirving & Ors; Ex parte Forward; unreported; FCt SCt of WA; Library No 980737; 18 December 1998 Harrington v Lowe (1996) 190 CLR 311 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE NARULA, NG & HAMMERSLEY; EX PARTE ATANASOSKI [2003] WASCA 156 CORAM : MURRAY J
- ROBERTS-SMITH J
BARKER J
MISKO ATANASOSKI
Applicant
Catchwords:
Administrative law - Prerogative writ - Certiorari - Determination by a Medical Assessment Panel - Conflicting medical reports - Clinical examination and observations by panel - Adequacy of reasons for determination - Error of law on face of the record - Severance
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Workers compensation - Return of order nisi for writ of certiorari - Determination by Medical Assessment Panel - Adequacy of reasons - Error of law on face of record
Legislation:
Workers Compensation and Rehabilitation Act 1981, s 145E
Result:
Application allowed
Order nisi made absolute
Category: B
Representation:
Counsel:
Applicant : Mr B L Nugawela
Intervener : Mr P S Bates
Solicitors:
Applicant : Friedman Lurie Singh
Intervener : Downings Legal
Case(s) referred to in judgment(s):
Bone v Mental Health Review Tribunal [1985] 3 All ER 330
Dornan v Riordan (1990) 95 ALR 451
Re Anastas & Ors; Ex parte Welsby [2002] WASCA 83
Re Bannan; Ex parte Suleski [2001] WASCA 289
Re Croser; Ex parte Rutherford & Anor [2003] WASCA 8
Re Croser; Ex parte Rutherford (2001) 25 WAR 170
Re Gillett & Ors; Ex parte Rusich [2001] WASCA 111
Skirving & Ors; Ex parte Forward; unreported; FCt SCt of WA; Library No 980737; 18 December 1998
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Case(s) also cited:
Harrington v Lowe (1996) 190 CLR 311
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1 MURRAY J: I am grateful to have had access to the reasons in draft of Roberts-Smith J. They express sufficiently for me why I joined in the orders made on 20 June 2003.
2 ROBERTS-SMITH J: On 24 July 2002 McKechnie J granted an order nisi for writ of certiorari calling upon members of a Medical Assessment Panel ("the Panel") appointed under Part 7 of the Workers Compensation and Rehabilitation Act 1981 (WA) ("the Act"), to show cause why a writ of certiorari should not be issued against the Panel for the purpose of quashing the panel's determination on 14 December 2001 that Misko Atanasoski ("the worker") did not have a physical disability.
3 The grounds upon which the worker sought the order absolute were as follows:
"1.1 The Panel did not give adequate reasons for its determination:
(a) The Panel did not state or analyse what medical reports or evidence it relied upon or discounted. The reasoning of the Panel is unclear as to whether they attached what (if any weight) to the medical reports before them and if so why;
(b) There is neither explanation of the relevance of a 'number of objective findings', nor what these relevantly were, nor how these relevantly impacted upon the Panel's conclusion;
(c) There is no explanation of the basis upon which the Panel concluded that 'there was no neurological basis for the symptoms', what these symptoms were, or the nature and extent of its relevance to the Panel's conclusion.
1.2 The Panel's answers to questions 1 and 2 are contradictory, unsafe or unclear. Alternatively, if and to the extent the Panel diagnosed a full recovery of the worker's physical disability, then by reason of the matters contained in Ground 1 above, the Panel failed to provide adequate reasons for its implied certification of the worker's complete physical recovery notwithstanding the worker's continuing symptoms."
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4 His Honour directed a copy of the order nisi be served on the worker's employer, Inghams Enterprises Pty Ltd ("Inghams") which is a self-insurer for the purposes of the Act.
5 The order nisi was returned before this Court on 20 June 2003.
6 Mr B Nugawela of counsel appeared for the worker; Mr P Bates appeared for Inghams as Intervener objecting to the application pursuant to O 56 r 7 of the Rules of the Supreme Court ("RSC").
7 At the conclusion of the hearing the Court unanimously held that the order nisi should be made absolute to quash so much of the decision of the Panel as was concerned with the question of the worker's physical disability and orders were made in those terms. We indicated we would give reasons later.
8 These are my reasons.
9 The worker alleges that he was injured in the course of his employment with Inghams on 3 November 2000 whilst moving a 205 litre drum of cleaning fluid. A claim for compensation was made on 7 November 2001 alleging injuries comprising "Sprain/strain injury. Lower back pain/left hip injury".
10 A form 22 (Referral of Degree of Disability) was filed on 6 March 2001. The level of disability claim was not less than 30 per cent. The nature of the injury described on the form 22 was:
"The worker suffered or developed a disability arising from injuries to his back radiating to both right and left legs and also psychological sequelae".
11 The worker's level of disability was certified by Mr Peter Anderson, Rehabilitation Physician, who described his injuries as "lumbar disc lesion L4/5, L5/S1, back pain, referred pain right left leg."
12 The worker's form 22 application went to a preliminary review before Review Officer Warwick on 5 September 2001. The issues to be determined were the causation of his psychiatric condition and his relevant level of disability. The worker was seeking a determination that his psychiatric condition was a consequence/symptom of the disability for which compensation had been paid or was payable and that the relevant level of the whole disability was not less than 30 per cent, or alternatively failing that, not less than 16 per cent.
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13 Inghams disputed that the worker had suffered a degree of disability of not less than 16 per cent, let alone not less than 30 per cent. The employer also disputed that the worker was suffering from the compensable psychiatric condition and contended that, in any event, if he did, such was not a consequence/symptom of the physical injury for which compensation has been paid or was payable.
14 The Review Officer found (AB 45) that the worker's psychiatric condition is a consequence/symptom of the physical disability for which compensation was paid, however he determined that there should be a referral to the Panel as to the nature and extent of the worker's physical disability, whether it is permanent or not and as to what is its relevant level; likewise he also referred to the Panel the question of the permanence of the worker's psychiatric condition and relevant level of disability.
15 There was a considerable number of medical reports before the Review Officer. He noted that broadly speaking, the opinions of doctors as to the issue of the worker's physical disability made up two bodies of opinion. One was to the effect that the physical injury constitutes a quantifiable disability in terms of Schedule 2 of the Act; the other was to the effect the physical injury had produced no quantifiable percentage of disability.
16 An amended Notice of Referral to a Medical Assessment Panel was issued on 13 September 2001 certifying that a conflict of medical opinion existed and referring the matter for determination pursuant to s 145A of the Act.
17 The questions for determination by the Panel were set out in the notice as follows:
"As to the Physical Disability
1. What is the nature and extent of the worker's disability?
2. Is it permanent or temporary?
3. What is the percentage of disability assessed in terms of Schedule 2 of the Act or, if that is not applicable, what is the percentage of impairment in terms of the AMA (WA) Guides?
As to the Psychiatric Disability
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- 4. Is it permanent or temporary?
5. If it is permanent and has resulted in his total incapacity to work, what is his percentage of disability in terms of Item 8 of Schedule 2?
6. If it is permanent but has not resulted in his total inability to work, what is his impairment rating in terms of the Social Security Act: Impairment Rating Scale?"
18 The Notice also contained the following note to the Panel:
"NOTE:
Pursuant to the Supreme Court's Decision in Members of a Medical Assessment Panel ex parte Rusich (2001) WASCA 111, you are required to deal with the following matters insofar as they apply to this Referral:-
(a) an analysis of what medical evidence was accepted by it (sic);
(b) the findings on examination of the applicant
(c) the extent to which work-caused injury had caused or contributed to the applicant's condition;
(d) the extent to which (if any) work-caused disability had been aggravated by any specific work incidents and, if so, to what extent;
(e) the specific definition (if it existed) between non-compensable disability and compensable disability."
19 The Panel met at the St John of God Medical Clinic Murdoch on 14 December 2001. The worker was in attendance, had questions put to him and was submitted to a medical examination by the Panel.
20 The report of the Panel is undated but was apparently signed on the day of the examination.
21 The report was relevantly in the following terms:
"QUESTIONS FOR DETERMINATION BY MEDICAL ASSESSMENT PANEL
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- The Medical Assessment Panel determines as follows:
1. What is the true nature of the worker's physical disability?
Answer: The nature of the worker's physical disability was musculoligamentous with segmental referred pain into the right lower limb.
2. What is the extent of the worker's physical disability?
Answer: Nil
3. What is the nature of the worker's psychiatric disability?
Answer: The nature of the worker's psychiatric disability is
a) Major Depressive Disorder (DSM IV)
b) Pain Disorder (DSM IV)
4. What is the extent of the worker's psychiatric disability?
Answer: The extent of the worker's psychiatric disability is
a) Major Depressive Disorder - moderate disability
b) Pain Disorder - Severe disability
5. What is the capacity of the worker to undertake his pre-accident duties or any other duties having regard to his physical disability?
Answer: The worker has a full capacity to undertake pre-accident duties or any other duties.
6. What is the capacity of the worker to undertake his pre-accident duties or any other duties having regard to his psychiatric disability?
Answer: Fully unfit
7. What is the capacity of the worker to undertake his pre-accident duties or any other duties having regard
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- to a combination of his physical and psychiatric disabilities?
- Answer: Fully unfit
REASONS
The reasons for this determination are as follows:
The Panel undertook pre-reading of the background material provided, including the late submission. With the help of a professional interpreter, the Panel took a detailed history (including a psychiatry history), conducted a clinical examination and reviewed all the radiology available (x-rays, bond scan/CT scan and MRI scan of the spine).
The Panel was of the unanimous opinion that significant disparity exited between the clinical observation and clinical examination. Multiple inconsistencies were noted in the physical examination itself as well as in the informal observation.
The Panel accepted an initial injury, but based on a number of objective findings, found it extremely difficult to justify a continuing source of physical pain. There was, in addition, no neurological basis for the symptoms.
Mr Atanasoski has symptoms and behaviour consistent with a Pain Disorder and Major Depression Disorder as defined by DSM IV."
22 The worker says the reasons in respect of his physical condition are so inadequate and conflicting as to reveal error on the face of the record. It is said they should be quashed, but they are severable from the rest of the determination and reasons, which should accordingly be let stand.
23 For Inghams it is said the reasons are sufficient and the order nisi must be discharged, but if the contrary view be taken, those portions relating to the worker's psychiatric condition cannot be severed and in that event the whole of the determination would have to be quashed.
24 Some provisions of the Act should briefly be noted.
25 A Medical Assessment Panel is to determine the questions referred to it under s 145A and the determination and the reasons for making it are to
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- be given in writing (s 145E(3)). In determining the question the Panel is to act speedily and informally, in accordance with good conscience, without regard to technicalities or legal forms and is not bound by rules of practice or evidence (s 145D(1)). Unless rescinded under s 145F, the determination is final and binding (s 145E(5)).
26 A Medical Assessment Panel is confined strictly to the questions referred to it and those are themselves confined to those matters presented for consideration by s 84ZH, namely questions "as to the nature or extent of a disability, or as to whether a disability is permanent or temporary …" (Skirving & Ors; Ex parte Forward; unreported; FCt SCt of WA; Library No 980737; 18 December 1998 (per Anderson J at 23).
27 The nature and extent of the obligation of a Medical Assessment Panel to give reasons for its determination were discussed by Miller J (with whom Ipp J agreed) in Re Gillett & Ors; Ex parte Rusich [2001] WASCA 111.
28 The determination of the Panel in that case was quashed on two grounds. The first was that the Panel may have applied a predetermined formula found in extraneous material, namely the "US Guide for the Evaluation of Permanent Impairment" and the "AMA Assessment of Disability Guide", to the determination of the degree of disability rather than making its own independent medical assessment. The second ground was that the reasons given were insufficient. As to that, Miller J referred to Bone v Mental Health Review Tribunal [1985] 3 All ER 330 and Dornan v Riordan (1990) 95 ALR 451 as authority for the proposition that where legislation requires the giving of reasons, that necessarily implies the reasons will be proper and adequate. That will mean they must reasonably deal with the substantial points raised and give the parties sufficient information to enable them to know whether there has been any error of law or fact.
29 In light of those authorities, Miller J held (at [39]) that there was substance in the contention that the reasons for determination in that case were inadequate. His Honour said that in his view the Panel should have included in its reasons:
"39 …
(a) an analysis of what medical evidence was accepted by it;
(b) the findings on examination of the applicant;
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- (c) the extent to which work caused injury had caused or contributed to the applicant's condition;
(d) the extent to which (if any) work-caused disability had been aggravated by any specific work incidents and if so, to what extent;
(e) the specific distinction (if it existed) between non-compensable disability and compensable disability;
(f) the ultimate disability in terms of Item 36A of Schedule 2 of the Act.
- 40 Although the panel gave reasons for its decision, those reasons were not, in my view, sufficient reasons. They failed to come to grips with the question which had been referred to the panel and omitted reference to a wealth of important medical evidence and/or results upon medical examination of the applicant himself."
30 Murray J was in substantial agreement with Miller J. His Honour agreed there was error of law on the face of the record in respect of the manner in which the Panel used the extraneous material. He also thought the Panel's determination upon the second question put to it should be quashed on ground it acted in excess of jurisdiction because it failed to determine the question. However, whilst his Honour said he would endorse what Miller J had written in respect of the desirable elements of the reasons which one might expect a Panel to produce to explain its determination, he would prefer to leave for another day the question whether the asserted inadequacy of reasons might itself constitute an error of law on the face of the record such as would ground the issue of certiorari.
31 The issue came before the court again in Re Anastas & Ors; Ex parte Welsby [2002] WASCA 83. The judgment of the Court (Anderson, Steytler and Miller JJ) was brief. The Panel had determined the worker had a permanent disability of 15 per cent of which 5 per cent was in his thoraco-lumbar spine (excluding cervical spine) and 10 per cent of that disability was contributed to by his mood disorder. The reasons given for that determination were:
"1. Correspondence read, history taken, examination performed, imaging viewed, referral to a manual on
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- disability, discussion with panel members, unanimous agreement by panel.
- 2. He has complained of symptoms since the incident on the 30th. July 1999.
3. There is inconsistency on examination with forward flexion of his spine and straight leg raising.
4. There is no evidence of radiculophathy."
- At [4] - [6] the Court said simply:
"4 The complaint is that the statements that are made under the heading "Reasons" are not reasons at all and we consider that this submission must be accepted. Items 1 and 2 do not contain any reasoning or any findings. Item 3 is a finding of discrepancies or "inconsistencies" on clinical examination, which implies that the applicant's subjective complaints concerning the extent of his mechanical disability were exaggerated. However, it is not apparent why this should lead to a finding of any particular level of disability. Item 4 conveys no more than that there is no evidence of disease of the roots of the spinal nerves; ie, radiculopathy. It is not apparent why this should lead to any particular conclusion as to the extent in percentage terms of the applicant's spinal disability.
5 The finding that 10 per cent (more accurately ten-fifteenths) of the applicant's overall disability was "contributed to by his mood disorder" appears to be an acceptance of Dr Skerritt's assessment in his report of 8 August 2000 that the applicant has a permanent psychiatric disability of 10 per cent, but the medical panel does not actually say so.
6 Whilst we agree with Ms Pritchard, who appeared for the Attorney General as amicus curiae, that the Court should bear in mind that the medical assessment panel are doctors, not lawyers or judges, and cannot be expected to produce long or elaborate reasons, still the Act requires the panel to give written reasons for its determination. That obligation is not fulfilled unless the reasoning
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- process can be followed. The obligation was not fulfilled in this case."
32 The determination of a Medical Assessment Panel which came before the Court in Re Croser; Ex parte Rutherford & Anor [2003] WASCA 8 was the second determination made by that Panel in respect of that worker, to be quashed for insufficient reasons. The first determination was the subject of the Court's decision in Re Croser; Ex parte Rutherford (2001) 25 WAR 170.
33 In that case, each member of the Court (Murray and Steytler JJ, Olsson AUJ) agreed that by reason of the statutory obligation to give reasons imposed by s 145E(3), such reasons form part of the record of the Panel in respect of the determination made, for the purposes of the issue of certiorari.
34 Olsson AUJ (with whom Steytler J agreed) held that whilst there has been some judicial difference of opinion on the point, there is now firm authority for the proposition that failure of a judicial officer to give adequate reasons for decision will normally constitute an error of law and that was no less apposite to a situation in which a tribunal such as a Medical Assessment Panel is bound by statute, in arriving at its determination, to publish reasons for making it. Murray J, on the other hand, took the view on that occasion that the case did not provide the occasion to authoritatively determine that question and he declined to do so. In his Honour's view, even if it had been open to ground an application for certiorari upon that basis, it had not been made out on the evidence in that case.
35 Olsson AUJ referred to the following passages from the judgment of Kennedy J in Re Bannan; Ex parte Suleski [2001] WASCA 289:
"12 The essence of reasons for decision is that they disclose the reasoning processes of the Tribunal. Fulfilment of the obligation to give reasons ensures that a person whose interests may be adversely affected by a decision understands why the decision has been made, and allows a party dissatisfied with a decision to determine whether there has been a reviewable error: [citations omitted] …
14 It is important that the applicant should be able to understand, from the reasons for decision, why he has had his claim dismissed. He should be told in clear and unambiguous language why he has lost. What is
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- required, at the least, in the Panel's reasons is that they give the medical reasons in sufficient detail to show that the questions referred to it have been properly considered according to law, and that the answers furnished are founded upon an appropriate application of the members' medical knowledge and experience - cf Masters v McCubbery [1996] 1 VR 635, per Callaway JA at 661."
36 As to these, Olsson AUJ made the following additional observation (at [72] - [73]):
"I would merely wish to add to what fell from Kennedy J that it needs to be borne in mind that Medical Assessment Panels are constituted of medical practitioners who have a large number of cases coming before them. It is not to be expected that they will produce the closely reasoned decision of a lawyer. What is required is the writing of a determination which, on fair construction of it, does convey the basis of the decision arrived at, with sufficient particularity to satisfy the above dicta.
What will suffice will, no doubt, vary from case to case, dependent on the nature of the areas of contention to be addressed. Some situations will permit of a fairly brief statement of reasons. Others may require a somewhat more detailed analysis of the medical evidence, the findings on examination and other aspects as, for example, adverted to in Gillett (at [39])."
37 On the occasion the Panel's next determination was before the court, a detailed judgment was given by Rolfe AJ, with whom Murray and Templeman JJ agreed. Rolfe AJ noted the deficiencies in the first determination as they had been identified by Olsson AUJ. They were that the determination did not indicate what view the Panel took of the conflicting medical reports and why it was, in the light of the difference of opinions expressed in them, it had arrived at the conclusions to which it came. Allowing the Panel had to make its own independent assessment and noting that one member was a specialist psychiatrist, there was however simply no explanation of how and why the panel arrived at its conclusions against the background of the conflicting medical reports. It was thus impossible to see how the parties could discern on what basis the assessments had been arrived at. That being so, the Panel had not discharged its statutory obligation.
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38 Against that background, Rolfe AJ then turned (at [38] - [39]) to the reasons given by the Panel for its second determination. Having set out the reasons, his Honour observed:
"38 What the panel has done now is, almost verbatim, repeat what it had said previously. What it has failed to do, and what, in my respectful opinion, the previous decision in Re Croser made clear it was obliged to do, is to give the reasons, bearing in mind, inter alia, the conflicting medical evidence, for coming to the conclusions which it did. There was no attempt to analyse, or indeed identify, the medical reports to which regard was had; to identify those which supported the panel's view and why they were accepted, and those contrary to the panel's view and why they were rejected; to set forth the questioning of Mr Stafford and what assistance his answers gave; or to state the nature of the clinical examination, what was found on that examination, and how those findings supported the determination. Indeed, the examination on which reliance was placed was that carried out on 11 May 2001.
39 In these circumstances, I am of the opinion that the panel has totally failed to comply with this Court's requirements for the giving of reasons. I can only think that this stems from its failure to understand what this Court required."
39 His Honour noted that the determination of psychiatric disability was said by the Panel to have been based on a comprehensive review of the medical reports provided, but without analysing the competing versions, identifying the version the Panel preferred, nor stating the reasons for such preference. The Panel had referred to the questioning of the worker without stating what questions were asked or how the answers impacted upon the determination of the psychiatric situation it found. Nor did the report state what the clinical examination of the worker had involved, what it disclosed or how it led to the conclusion to which the Panel came.
40 That being the second occasion that matter had been before the court and set aside on the ground the reasons were insufficient, Rolfe AJ thought there might be some utility in suggesting some ways in which a Panel might approach the formulation of its determination and reasons. His Honour emphasised he was not to be taken as laying down any formula and made it clear that in every case the determination must be
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- that of the Panel. Speaking generally, he suggested a Panel must keep in mind that ([46]):
"46 In my opinion, and I stress that I am speaking generally and by no means purporting to cover all the circumstances which may arise for a panel's consideration, it seems to me that a panel must keep in mind that:
(a) It is particularly suited by its medical training to furnish a determination on medical issues. In effect, the determination has some close similarity to a medico-legal report, which usually sets out the history obtained, the symptoms complained of, the examination carried out, what that examination discloses and a view of the extent, nature and severity of the medical condition supported by the doctor's reasons for reaching that conclusion.
(b) In relation to many medical issues, there may be, and often is, a legitimate difference of medical opinion as to the nature, extent and severity of the injury.
(c) The panel's task is to determine from all the medical reports before it, its examination of the worker and its own experience, the conclusion as to which of those differing opinions it favours in the case before it.
(d) The expression of the conclusion, however, is made insufficient by the Act. The Act demands that the panel gives reasons. The law does not demand that the reasons should extend beyond those sufficient to enable the lay reader and, in some cases, the medical reader, to determine how the panel reached its decision.
(e) In these circumstances, one task for the panel is to determine which medical reports it accepts and which it does not. However, it is insufficient to simply make that statement.
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- (f) In concluding which medical reports to accept or reject, the panel may have regard to matters such as the sufficiency of the history given to the doctor providing each report by the worker; the extent to which, if at all, the doctor has examined the worker and what the doctor has ascertained from that examination; whether the examining doctor has overlooked some matter, which the panel has observed on its examination and which it considers to be relevant; and whether the views expressed by the doctor accord with a respected body of medical opinion. There may be other reasons for rejecting some medical reports. They should be stated.
(g) Insofar as the panel questions the worker, the determination should set out, albeit briefly, the nature of the questioning and the effect that the answers and the manner in which they were given impacted upon the panel's determination.
(h) Insofar as the panel examines the worker, it should record what is found on examination and what the panel derives from such findings perhaps, more particularly, in the light of the history and complaints made by the worker.
(i) From all this information, although much will be contained in writing what I have said, the panel should disclose its reasons upon which it bases its conclusions."
41 Mr Bates submitted with some force that the complexity of reasons given by a Panel will depend upon the questions asked and the nature of the disability. In the present case it is clear from the reasons, he said, that the Panel read the prior medical reports and submissions, examined all the radiology, took a history from the worker (through an interpreter) and conducted an examination. It is clear from the reasons that the Panel relied upon its own clinical observations and clinical examination; no reliance was placed on any of the medical reports preceding the Panel's examination, and the Panel, as it was entitled to do, relied upon the expertise of its members. Although in some cases of conflicting medical reports, it will be necessary for a Panel to state upon which reports it relies
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- and to give reasons for that, this was not such a case. In the circumstances, Mr Bates says, nothing more was required than what the Panel said.
42 The first question was "What is the nature and extent of the worker's disability?". The answer given by the Panel was that "The nature of the worker's physical disability was musculo-ligamentous with segmental referred pain into the right lower limb". If there were nothing more, that might be thought to be a mere slip, but reading the determination and the reasons as a whole, it seems to me it could not be so characterised. If read as referring to the worker's condition at the date of the Panel's assessment, then that answer is inconsistent with the answer to question 2. If the answer was not a slip and is intended to refer to the worker's physical condition at some earlier time, then it was not an answer to the question posed. That the latter understanding was the intended one is consistent with the comment under the heading "Reasons" to the effect that the Panel accepted an initial injury, but because of its objective findings, could not justify a continuing source of physical pain.
43 So far as the reasons themselves are concerned, the Panel noted that significant disparity existed between the clinical observation and clinical examination. No mention is made of what the disparity was, nor what its significance was to the members of the Panel. There is a reference to "multiple inconsistencies … in the physical examination itself as well as in the informal observation" but the inconsistencies are not identified. I would have thought that both an ordinary lay reader and a medical expert would need to know those things to have any understanding at all of why the Panel reached the conclusion it did.
44 The same must be said about the third full paragraph, which states the Panel found there had been an initial injury "… but based on a number of objective findings found it extremely difficult to justify a continuing source of physical pain." A person confronted with the phrase "based on a number of objective findings" without more, would in my view immediately be prompted to ask what were those objective findings and why it is said they lead to the conclusions expressed.
45 If the Panel made its determination entirely on the basis of its clinical observations and clinical examination, it needed to describe what they were and why it did not accept any of the medical reports which tended to support the worker's claim of a continuing physical disability. Apart from saying regard had been had to them, the Panel gave no indication of what
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- reports or medical opinion had been accepted or rejected, nor its reasons for accepting or rejecting them.
46 I accept Mr Bates' submission that in a particular case the Medical Assessment Panel might well in the end rely entirely on its own clinical examination and materials such as x-rays. There is no problem with that in principle if the case is one in which that approach is appropriate. But for a Panel to proceed in that way would not relieve it of its statutory obligation to give reasons. It would still be required to say that was what it had done, describe the results of its examination and observations, explain why it had not given weight to such medical reports as were before it and set out the reasoning by way it came to the conclusion it did.
47 None of that was done here. It is impossible here to know the factual basis upon which the Panel acted or the process of reasoning which it applied. The reasons in respect of the worker's physical condition are insufficient and do not meet the obligation imposed by s 145E of the Act. Grounds 1.1 and 1.2 have been made out.
48 There was no dispute that where part only of a decision of an administrative tribunal is beyond power, the court may quash that part without interfering with the remainder, provided the bad can be cleanly severed from the good.
49 In Skirving (supra), Anderson J said (at 8):
"The general rule is that where part only of a decision of an administrative tribunal is beyond power, the Court may quash that part without interfering with the remainder: Cheatley v The Queen (1972) 127 CLR 291 at 308-309. Of course, the impugned parts must be capable of severance from the unexceptionable parts. As the learned authors of Wade and Forsythe 'Administrative Law' (7th ed) say at p329:
'If the bad can be cleanly severed from the good, the court will quash the bad part only and leave the good standing ... [the] cases depend not upon rigid rules but upon the balance of advantage as perceived by the court.'"
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51 If the impugned decision as a whole is dependant or conditioned upon the impugned element, or is one of several elements which are interrelated in that the flaw which affects the one, necessarily also affects the other or others, then the impugned element cannot be severed. Where however they can stand apart and the flaw which affects one is confined to it, severance should be preferred. On judicial review, an administrative decision should not be struck down to any greater extent than the defect has affected it.
52 In this case, the order nisi does not challenge the whole of the decision. The order called upon the Panel to show cause why its determination that the worker did not have a physical disability, should not be quashed.
53 Furthermore, the worker has not argued lack of jurisdiction; the order nisi is put on the basis of error of law on the face of the record. The argument is that the Panel had jurisdiction but failed to meet its statutory obligation to give reasons in respect of the worker's physical condition.
54 In my opinion the determination and reasons of the Panel going to the worker's physical condition are properly severable from those relating to his psychiatric or psychological conditions. They can logically stand alone. The Review Officer and the Panel treated them separately. The determination and reasons in respect of the psychological condition have not been challenged.
55 It was for these reasons I agreed with the orders of the Court made on 20 June 2003 that the order nisi be granted and an order absolute issued to quash so much of the decision as was concerned with the question of the worker's physical disability by striking from the Panel's determination questions and answers 1, 2 and 5 and striking the third and fourth paragraphs from the Reasons.
56 BARKER J: I have had the opportunity of reading in draft the reasons to be published by Roberts-Smith J. I am in agreement with those reasons and have nothing to add.
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