Re Nicholas Anastas;
[2006] WASCA 232
•8 NOVEMBER 2006
RE NICHOLAS ANASTAS & ORS; EX PARTE TOOLEY [2006] WASCA 232
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 232 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CIV:2069/2005 | 8 SEPTEMBER 2006 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 8/11/06 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi discharged | ||
| B | |||
| PDF Version |
| Parties: | ANDREW JON TOOLEY |
Catchwords: | Prerogative writs Certiorari Workers' compensation Medical Assessment Panel Degree of disability of worker Adequacy of Panel's reasons for determination |
Legislation: | Nil |
Case References: | Re Knezevic; Ex parte Carter [2005] WASCA 139 Palazzolo v Brown [2002] WASCA 49 Re Bannan; Ex parte Suleski [2001] WASCA 289 Re Gillett; Ex parte Rusich [2001] WASCA 111 Re Narula, NG & Hammersley; Ex parte Atanasoski [2003] WASCA 156 Re Skirving; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998 Re Wong; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE NICHOLAS ANASTAS & ORS; EX PARTE TOOLEY [2006] WASCA 232 CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
ANDREW JON TOOLEY
Applicant
Catchwords:
Prerogative writs - Certiorari - Workers' compensation - Medical Assessment Panel - Degree of disability of worker - Adequacy of Panel's reasons for determination
Legislation:
Nil
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Result:
Order nisi discharged
Category: B
Representation:
Counsel:
Applicant : Mr K S Pratt
Solicitors:
Applicant : Stephen Browne Lawyers
Case(s) referred to in judgment(s):
Re Knezevic; Ex parte Carter [2005] WASCA 139
Case(s) also cited:
Palazzolo v Brown [2002] WASCA 49
Re Bannan; Ex parte Suleski [2001] WASCA 289
Re Gillett; Ex parte Rusich [2001] WASCA 111
Re Narula, NG & Hammersley; Ex parte Atanasoski [2003] WASCA 156
Re Skirving; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998
Re Wong; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998
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1 STEYTLER P: I agree with Wheeler JA.
WHEELER JA:
The order nisi
2 This is the return of an order nisi for a writ of certiorari directed to a Medical Assessment Panel. In essence, the grounds allege a failure to give adequate reasons. The respondent did not appear.
Adequate reasons - principles
3 Before I turn to set out the background of the referral to the Medical Assessment Panel in this case, and to the alleged inadequacies in the reasons, it is convenient to set out briefly some relevant passages from Re Knezevic; Ex parte Carter [2005] WASCA 139, a relatively recent decision which collects together a number of observations concerning the way in which alleged inadequacy in the reasons of the Medical Assessment Panel is to be analysed. It is convenient to take that course, because it appears to me that the applicant's submissions in this case, while referring to some of those observations, failed to apply them. In Knezevic, Roberts-Smith JA said, inter alia:
"4 The principles are clear enough. The extent and content of the reasons required to be given by a panel will necessarily depend upon the circumstances of the particular case, including (but not limited to) the material before it, the nature of any conflict in the medical reports, the issue(s) in dispute and the findings of any examination by the Panel itself. The adequacy of the reasons is to be assessed against the statutory purpose for requiring them, which is to enable the persons concerned to understand why the Panel came to the conclusion it did and to enable them to discern whether there has been reviewable error. Where provided with conflicting opinions, the Panel should explain the way in which it has dealt with those conflicts … In considering whether the reasoning process is adequately disclosed, regard should be had to what is expressly stated and what can be reasonably inferred. The reasons do not need to be lengthy nor elaborate nor take the form of a judgment of the court." [citations omitted]
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4 At [27], [28] and [32] of that decision, McLure JA, with whom I agreed, said:
"27 There has been a suggestion that the Panel's reasons have to be written in a way as to be understood by a layman alone without reference to his legal and medical advisers. There is no warrant for such a requirement. It is contraindicated by the composition of the panels. Moreover, there is no similar requirement on judicial officers who have a more onerous duty in the provision of reasons.
28 As Olsson AUJ points out, what is sufficient has to be assessed by reference to the fact that the panels are comprised of medical practitioners (not lawyers) who have a large number of cases coming before them and who are required to act with expedition. A panel is not obliged to give full and detailed reasons. Reasons may be stated shortly without being developed in detail provided they disclose the essential intellectual process by which the conclusions are arrived at. On the issue of medical reports Olsson AUJ said (at 184) that, at least in a general way, the panel should indicate its independent assessments in light of the various medical reports and the reasons why it has arrived at them.
…
32 Finally, and perhaps most importantly, the content of the duty is not the same for every panel decision and no mechanical formula can be given for determining what constitutes sufficient reasons. As stated by Wheeler J in Palazzolo at [18]:
'It is … particularly important that any alleged failure to provide reasons or adequate reasons should be assessed against the circumstances of the particular case. It is not appropriate to extract from previous decisions of this Court lists of things which it was thought should have been done by medical assessment panels in those other cases, and to generalise from those decisions some list of matters which the reasons of every medical assessment panel
- must contain in order to be considered to be adequate.' "
5 Thus, in order to understand whether the reasons of the Medical Assessment Panel in this case were adequate, it is necessary first to consider in general terms the nature of the issues with which the Panel was required to deal.
The applicant's medical history - summary
6 The applicant was a fisherman. In January 1999, he experienced acute lower back pain when he was jerked suddenly during the course of mooring a boat. He received treatment for that injury. His general practitioner reported in March 1999 that he had had an improvement of his condition over the course of his treatment. However, unfortunately, in June 1999, again while engaged in work on the boat, he sustained further injury affecting his back. The precise mechanism of the injury is not important. An MRI scan indicated disc degenerative disease at the L5/S1 level and distortion of the right L5 nerve root ganglion. Physically, the summary of his injury given by Mr Jackson, consultant orthopaedic surgeon, in March 2000 was that he "sustained an acute soft tissue injury, musculoligamentous in type and some discogenic damage at L5/S1 level". None of the medical practitioners appears to disagree with this assessment.
7 The applicant did not appear to recover to any significant degree. He appeared to continue to be unable to work, unable to return to lighter duties and unable to carry out many everyday tasks. He reported significant pain. It was by no means clear why these symptoms were suffered by the applicant, although there was a clear consensus in the medical reports that the objective evidence of damage and the physical consequences of the injury sustained by the applicant would not be sufficient to explain his presentation. He had a number of orthopaedic and psychiatric assessments. They resulted in a range of assessments of permanent disability, although in each case there was an acknowledgment of an interaction of physical and psychological factors.
Physical disability
8 Dealing first with the physical, orthopaedic assessments, I note that assessments of permanent disability appear to range from nil to in excess of 30 per cent. In March 2000, Mr Jackson, consultant orthopaedic surgeon, said that he would "hesitate to state that any disability I observed is permanent". Mr Jackson agreed that the applicant did have a disability
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- but continued that "this is very difficult to assess accurately because of the non-organic factors that are operative and the difficulty in assessing a patient who shows moderate hyper-reactivity to clinical examination. In all probability, his true disability is not as great as he indicates". That is, in March 2000, Mr Jackson's opinion was that the applicant had some physical disability, but that there may be no permanent disability.
9 In April 2000, Mr Ker, consultant physician in rehabilitation medicine, noted some inconsistent symptoms exhibited by the applicant. For example, he noted that he was unable to tolerate straight leg raising of 40 degrees bilaterally, but that that inability contrasted with his capacity to sit upright and extend his legs over the side of the examination couch. His opinion was that the applicant "can recover significantly", but that it was likely that he would be left with a "significant residual disability which would take the form of a painful restriction of back movements". However, Mr Ker considered such restriction would be a good deal less than the applicant at that stage displayed. In relation to quantification of the disability, Mr Ker expressed the opinion that it was 15 per cent "of the function of the lumbo sacral spine".
10 In October of the same year, Mr Vaughan expressed the view that the disability was greater than 16 per cent, but less than 30 per cent, and assessed it at 25 per cent. However, that assessment has to be seen in the light of the important qualification that "it is difficult to be certain of what the disability is given that the impairment in terms of solid pathology is not great". That assessment appears to be based, in part, upon Mr Vaughan's observation that "the reaction to injury is significant" rather than the injury itself being significant. That is, it seems reasonably clear that Mr Vaughan was taking into account restrictions on movement and complaints of pain which may have stemmed from a psychiatric condition.
11 In July 2000, Mr Anderson, rehabilitation physician, arrived at an assessment of bodily impairment in excess of 30 per cent, but I would disregard this assessment entirely, since it was based, to some unascertainable degree, on "assessment of [the applicant's] status in the community at this consultation". That is, it seems to have been based on Mr Anderson's view that the injury was such as to prevent the applicant from returning to his work in the fishing industry and that he had perhaps limited skills to work in other areas.
12 An assessment of the order of 30 per cent was, however, also made by Mr Stokes. The precise figures at which Mr Stokes arrived varied a
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- little over time. Broadly, his assessment was always, however, in the vicinity of 30 per cent as regards the thoraco-lumbar spine, and around 8 per cent for the left leg and 4 per cent for the right leg. Again, it is important to note precisely what it was that Mr Stokes based this opinion on. In his report of 16 September 2003, he considered that there may have been a "significant functional component" in difficulties in movement demonstrated by the applicant. Mr Stokes said explicitly: "I can therefore only offer a disability on what I have seen in his activities and it is not based upon objective physical clinical evidence." This observation was made in various ways a number of times in the course of this report, which concludes with the paragraph: "I repeat there are no physical findings apart from the rigidity of his back to correlate the degree of incapacity of which he complains."
13 In May 2003, Mr Webb, orthopaedic surgeon, viewed a report of Mr Stokes dated 20 August 2001 and, in relation to the assessment of disability of 30 per cent plus an additional assessment relating to the right and left lower limbs, Mr Webb commented: "I have to state when assessing disabilities of the vertebral column it is the usual practice to take into account radiculopathy and sciatica as part of the overall assessment and not to assess separate disabilities for the lower or upper limbs as the case may be." That is, as I understand it, Mr Webb was expressing the view that it was usual, where a disability of the vertebral column had some effect which "radiated" into the limbs, that there would not be a separate assessment of the limb effect, but that that would be included in the assessment relating to the vertebral column. That view seems consistent with the assessment by other orthopaedic specialists, all of whom, apart from Mr Stokes, made no separate assessment in relation to the applicant's legs. So far as his own assessment was concerned, Mr Webb concluded that based on his examination, he would assess permanent disability at "18% loss of efficient use of his thoracolumbar spine".
Psychiatric reports
14 The assessments by psychiatrists also emphasised the interaction of physical and psychological factors, and the difficulty of attributing disability to one or the other of these causes. The psychiatrists' assessments ranged between a 5 per cent and 20 per cent level of psychiatric disability.
15 Ms Piirto, in her report of 25 July 2001, noted that pain was affected by factors which could not be measured, and that the disparity between
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- how a claimant is expected to present, given what is known about a physical injury, and how they actually present, can be explained by the nature of the initial injury interacting with inherent personality and constitutional vulnerability. So far as I can tell, she attempted to separate out physical and psychiatric factors and concluded in relation to the psychiatric factors that "residual permanent disability would be minimal and in the order of 5%". Mr Terace, in 2003, considered that the applicant's psychiatric condition was "mild" and also assessed it at 5 per cent permanent disability.
16 Dr Burvill, in November 2001, noted that the applicant said that the applicant had been told by his doctors that he was severely incapacitated as a result of his physical injuries. His view was that it was the applicant's physical condition, rather than any psychiatric condition, which prevented his recovery and assessed permanent mental disability at 7 per cent.
17 By contrast, Dr Skerritt considered that it might be some years before the applicant recovered psychologically and that there was a possibility that he would be totally and permanently incapacitated in that respect. It seems reasonably clear that Dr Skerritt's ultimate assessment of 20 per cent psychiatric disability included an allowance for physical restriction and pain experienced by the applicant which stemmed from psychological rather than physical causes. That is, Dr Skerritt's assessment appears to have taken into account, to some degree, behaviour which, but for the lack of underlying physical cause, might have been perceived as stemming from damage to the lumbar spine. In his report of March 2004, Dr Skerritt said:
"He has a clear diagnosis in the range of depression however it is classified and there are factors of a psychological nature contributing to his physical complaints however these are classified. This means altogether that his prognosis is very poor indeed in terms of the likelihood of returning to work. This must be reflected in substantial percentage disability and I will stand by the one I gave in my report of 30 April 2002 [ie. 20 per cent]."
The findings of the Medical Assessment Panel
18 The Medical Assessment Panel concluded that in relation to his physical disability, the applicant has a disability of 7.5 per cent of the lumbo sacral spine and a 20 per cent psychiatric disability. These assessments are clearly within the range of views expressed in the medical reports. The 20 per cent psychiatric disability is at the top of the range of
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- psychiatric opinions. The 7.5 per cent in relation to the physical disability is lower than most, although, of course, more than the nil apparently indicated by Mr Jackson. The reasons of the Medical Assessment Panel were as follows:
"1. Correspondence supplied by Conciliation and Review Directorate carefully read.
The disparity of disability assessments and dates given were noted.
2. A full history was taken.
He suffered an injury to his low back at work on the 14th. January 1999, 15th. January 1999 and in June 1999.
He has since had continuous low back pain with radiation to his left leg.
He has not worked since June 1999.
3. Examination performed.
He has tenderness at the L.4-5 and L.5-S.1 levels and over his upper sacrum.
He has marked restriction of spinal movement on direct examination, but better movement on indirect examination.
He does not have any objective neurological deficit. Specifically, he does not have any radiculopathy. He has non-dermatomal sensory loss over the inner side of his right thigh, outer side of his left thigh, outer side of his left leg, and outer side of his left foot.
He demonstrated some inconsistencies on examination with respect to forward flexion of his spine and straight leg raising. When asked to demonstrate forward flexion in the erect position his fingertips would not reach to the knee level, but he is able to sit up on the examination couch with his legs straight out in front of him and his body flexed at about 100º to his legs and this would bring his fingertips down to about the mid tibial level. In the supine position he resisted any more than about 30º of
- bilateral straight leg raising, whereas in the sitting position he has bilateral straight leg raising of about 80º. He complained of discomfort on simulated rotation of his spine.
- 4. His imaging was viewed and demonstrated a small protrusion at L.4-5, old L.5 pars defects, degeneration of the L.5-S.1 disc, mild right lumbo-sacral foraminal narrowing with distortion of the 5th. lumbar nerve root and a Grade I spondylolisthesis.
5. Psychiatric reasons.
Opinion is based on the basis of documents supplied and examination of the patient.
He has a depressive illness secondary to chronic pain and is characterised by low mood, tearfullness [sic], decreased interest, concentration and motivation, lack of energy, suicidal thinking and some planning. His sleep and appetite are disturbed and he has lost a significant amount of weight (20 kilograms in two years) which is particularly notable given his decreased activity.
6. Discussion with Panal [sic] members and unanimous agreement.
7. A manual on the Assessment of Disability was referred to for his spine."
19 A number of general comments can be made about these reasons. They note a disparity of disability assessments and dates of those assessments. They do not, however, suggest that there was any significant disparity in the findings on examination, or in the reasoning process, of any of the medical practitioners. That is, no doubt, because the medical reports were largely consistent in their findings and reasoning.
20 The examination findings of the Panel were consistent with the findings on examination to be found in the medical reports, including the noting of some inconsistencies on examination. The MRI scans were viewed and a full history was taken and very briefly summarised.
21 So far as the psychiatric examination was concerned, the characterisation of a "depressive illness secondary to chronic pain" was
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- consistent with the interaction noted in all of the reports between physical and psychiatric symptoms. There is a reference in that connection to major symptoms including low mood, tearfulness, decreased interest and motivation and disturbance of sleep and appetite. In one respect, the Panel's assessment was different from the assessments of the psychiatrists in that it noted "suicidal thinking and some planning" while the previous reports suggested only some very limited and fleeting suicidal consideration. The difference, no doubt, stems from the Panel having obtained an up-to-date history from the applicant.
The grounds of the application
22 Finally, I turn to the grounds of the application. Paragraphs (a) through to (c) of ground 1 complain in a variety of ways of the alleged failure of the Panel to clearly express which of conflicting medical reports were preferred. As counsel for the applicant accepted during the course of oral argument, however, there were really no conflicts in medical opinion, although there were conflicting opinions as to the figure which should be ascribed to both the physical and psychiatric disability. A mere difference in the figure ultimately arrived at, particularly where some of the reports appear to attempt to arrive at an assessment of physical and psychological aspects combined, while others do not, is not, in my view, sufficient to create a "conflict" which the Panel is required to resolve by detailed analysis of the reasoning of each or any of the medical reports. I return to ground 1(d) later.
23 Grounds 2 and 3 assert that the Panel erred in that it made no determination of disability with respect to the applicant's right and left legs respectively, in circumstances where medical evidence of disability of each of those legs was before them. This is plainly a reference to the reports of Mr Stokes. I would make two observations about these grounds. First, it is very plain that the Panel had regard to the disability, if any, which existed in relation to the applicant's legs. Paragraph 2 of the reasons, in relation to the history, notes pain "with radiation to his left leg". Paragraph 3 contains a number of references to findings on examination in relation to the extent of sensory loss in portions of the right and left legs, and references to the way in which the applicant was, or was not, able to raise his legs and to move with his legs in various positions. I do not think it can be suggested, in that context, that there is any room for an inference that the Panel simply overlooked possible disability in relation to the legs.
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24 Having regard to the comments of Mr Webb to which I have referred, to the effect that the "usual" practice is to assess impairment in relation to the legs as a part of the assessment in relation to the vertebral column, that would explain why the Panel did not make a separate assessment of a percentage disability in relation to the right and left legs. If, as Mr Webb suggests, that practice is the usual one, it would not, in my view, be necessary for the Panel to explain expressly as part of their reasons that they were following that usual practice. As McLure JA pointed out in Knezevic, it is not a requirement that the reasons of a Medical Assessment Panel be written in a way which is able to be understood by laymen without the assistance of medical advisers. It is not necessary for a panel to preface its reasons with, or to include in its reasons, a general dissertation, for the benefit of the lay reader, of the usual way an examination is performed or the usual way in which a particular disability is assessed.
25 Ground 4 complains that the Panel erred in making no determination of disability with respect to the applicant's loss of sexual function in circumstances where medical evidence of disability of that kind was before it. However, there was no such evidence. It is true that the applicant's counsel was able to pick out from the medical reports a report of Dr Burvill of November 2001 in which the applicant complained of a "complete loss of libido". However, some five months later, the report of Dr Skerritt dated 30 April 2002 described the applicant as reporting that his sexual function was "something like going through the motions". There appears to be some degree of inconsistency between these two; perhaps it may be inferred that the applicant's sexual functioning had improved somewhat by 2002. There are no other references to loss of sexual function, and none later than 2002. These two brief references are far too slight a foundation for any contention that the Panel was required to deal separately and specifically with the possibility of any loss of sexual function.
26 There remains ground 1(d), which points out that the Panel failed to identify the document referred to in [7] of the reasons as "a manual on the Assessment of Disability". I would add that the purpose for which the manual was referred to is also not disclosed. It is unfortunate, if the manual was of sufficient importance for the Panel to refer to it, that it was not identified and that the purpose of the reference was not made clear. If there had been any apparent inconsistency between the findings of the Panel and those found in all, or a significant number, of the medical reports, it might be inferred that the difference could be attributable to the manual and that it would be necessary for the Panel to further explain its
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- reference to the manual. However, there is no such inconsistency; rather, in my view, the Panel's findings and the figures at which it arrived are broadly consistent with the medical reports. The Panel is a panel of experts and it is only to be expected that expert medical practitioners will, from time to time, refer to texts, journals, manuals and the like. While it is desirable that, where any such document has a significant influence upon the Panel's reasoning, it should be the subject of specific identification, I would not find, in the context of the reasons in the present case, that the failure to identify the manual was such a deficiency as to lead to the view that the Panel failed to give adequate and proper reasons for its determination.
27 I would therefore discharge the order nisi.
28 PULLIN JA: I have read the draft reasons prepared by Wheeler JA. I agree with those reasons and have nothing to add.
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