Re Peter Hales, Graeme Carroll and Katrina Alexander as members of a Medical Assessment Panel established under the Workers' Compensation and Rehabilitation Act 1981
[2001] WASCA 89
•23 MARCH 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: RE PETER HALES, GRAEME CARROLL and KATRINA ALEXANDER as members of a Medical Assessment Panel established under the Workers' Compensation and Rehabilitation Act 1981; EX PARTE BARR [2001] WASCA 89
CORAM: MALCOLM CJ
KENNEDY J
PIDGEON J
HEARD: 5 OCTOBER 2000
DELIVERED : 5 OCTOBER 2000
PUBLISHED : 23 MARCH 2001
FILE NO/S: CIV 2456 of 1999
MATTER :IN THE MATTER of an application for a Writ of Certiorari against Peter Hales, Graeme Carroll and Katrina Alexander as members of a Medical Assessment Panel established under the Workers' Compensation and Rehabilitation Act 1981
EX PARTE
NELLY BARR
Applicant
Catchwords:
Workers' compensation - Proceedings to obtain compensation - Jurisdiction of Medical Assessment Panel - No jurisdiction to determine issues of causation or capacity for work - Determination quashed
Prerogative writs - Certiorari - Determination made by Medical Assessment Panel in excess of jurisdiction
Legislation:
Workers' Compensation and Rehabilitation Act 1981, s 84R, s 145A, s 145C, s 145E
Result:
Order nisi for a writ of certiorari made absolute
Representation:
Counsel:
Applicant: Mr I L K Marshall
Amicus Curiae : Mr A J Sefton
Solicitors:
Applicant: Paul O'Halloran
Amicus Curiae : State Crown Solicitor
Case(s) referred to in judgment(s):
Ebner v Official Trustee in Bankruptcy (2001) 75 ALJR 277
Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395
Re The Members of a Medical Assessment Panel; & Ors; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998
Case(s) also cited:
Cheatley v The Queen (1972) 127 CLR 291
Craig v South Australia (1995) 184 CLR 163
Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47
John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465
Re The Medical Panel; Ex parte Fremantle Foundry & Engineering Co Pty Ltd, unreported; FCt SCt of WA; Library No 9200; 17 December 1991
Re The Members of a Medical Assessment Panel; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998
Re The Members of a Medical Assessment Panel; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 10 November 1996
Re The Members of a Medical Panel; Ex parte CSR Ltd, unreported; FCt SCt of WA; Library No 9097; 11 October 1991
Minister for Immigration, Local Government & Ethnic Affairs v Mok (1994) 55 FCR 375
Potter v Melbourne & Metropolitan Tramways Board (1957) 98 CLR 337
R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546
R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171
R v Lusink; Ex Parte Shaw (1980) 55 ALJR 12
Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272
MALCOLM CJ: At the conclusion of the argument on 5 October 2000 the Court ordered that the order nisi dated 14 January 2000 should be quashed, although the scope of the order was not then determined. In my opinion the order nisi should be made absolute and the whole of the determination of the Medical Assessment Panel dated 24 June 1999 should be quashed on the return of the writ without further order. I have reached that conclusion for the reasons to be published by Kennedy J with which I am in entire agreement.
KENNEDY J: At the conclusion of the hearing on the return of the order nisi in this matter, the Court ordered that the order nisi should be made absolute, although the extent of the order was not then determined. It was indicated that the reasons of the Court would be published at a later time. These are my reasons for joining in the orders made.
The applicant claimed that she was injured at work on the morning of 25 September 1997 whilst employed as a secretary by George Weston Foods Ltd (trading as Watsonia) at Spearwood. The injury, she maintained, was sustained when she was going about her duties of typing, stapling, setting up printers and doing other lifting, and had resulted in the gradual onset of pain in her right arm. The applicant claimed that she had sustained a disability in terms of s 18 of the Workers' Compensation and Rehabilitation Act 1981 ("the Act").
On 2 November 1998, the applicant's employer commenced to make weekly payments of workers' compensation to her. The applicant now desires to pursue an action for damages at common law. The right to maintain such an action is restricted by Pt IV of the Act and an award of damages may only be made if the disability results in the death of the worker or it is a serious disability - see s 93D and s 93E.
A conflict of medical opinion arose in relation to the applicant's disability. Section 145A(1) of the Act, which is to be found in Pt VII, at the relevant time, provided as follows:
"145A(1)A question is to be referred for determination by a medical assessment panel under section 84R, 84HZ, or 84ZR if and, subject to subsection (2), only if -
(a)there is a conflict of medical opinion on the question between -
(i) a medical practitioner engaged by the worker; and
(ii) a medical practitioner provided and paid by the employer, or each medical practitioner so provided and paid if there is more than one of them;
and
(b) one of the parties wishes the proceedings to continue."
Subsection (2) of s 145A has no application in these proceedings.
At the relevant time, s 84R provided as follows:
"84R(1) If required to do so under Part VII, a conciliation officer is to refer a question as to the nature or extent of a disability, or as to whether a disability is permanent or temporary, for determination by a medical assessment panel.
(2) Without limiting subsection (1), that subsection applies to questions as to the loss of, or the permanent loss of the efficient use of, any of the parts or faculties of the body referred to in column 1 of Schedule 2, or to the degree of that loss."
A Panel is selected by the Director of Conciliation and Review from a register of approved medical practitioners - see s 145B and s 145C of the Act.
By a notice dated 13 May 1999, a conciliation officer referred two questions in relation to the applicant to a Medical Assessment Panel which was constituted by Mr P Hales (chairman), Dr G Carroll and Dr K Alexander. The questions asked of the Panel were:
"Q1: Please report as to the nature of this lady's injury.
Q2:Please report as to the extent of this lady's injury."
The applicant subsequently attended before the Panel on 24 June 1999. The relevant portion of the determination of the Panel, which was dated 8 July 1999 and signed by Mr P Hales as chairman, was as follows:
"1. Please report as to the nature of this lady's injury.
A detailed history and physical examination was undertaken with this patient and we wish to point out the salient physical findings in the right upper limb.
We discerned no wasting nor any sign of dystrophy. The temperature of both hands was felt to be the same. All joints of the right upper limb had a full range of motion.
There was mild diffuse soft tissue tenderness about the trapezius and the upper and lower arm and forearm muscles. There was no vascular or neurological deficit. There was no evidence of local tenosynovitis and no evidence of compression neuropathy at the wrist, elbow or upper arm.
A review of all investigations was made and we deemed that the plain x-rays were normal. We believe that the bone scan showed no significant bone or joint pathology.
The MRI was reviewed and it was the opinion of the panel that this was within normal limits. We felt that the change in the piso‑triquetral joint was of no clinical importance and probably represented a synovial recess.
It is the opinion of the panel that this lady presents with a pain syndrome which does impact on her ability to cope within the workplace and perform her usual duties. We cannot, however, find any objective evidence of injury to any tissue of the upper limb which would enable us to make a pathological diagnosis.
We cannot therefore determine the origin of this lady's pain.
We do believe that there are stress factors within the work environment that have in the past and are currently contributing to her symptom complex and presentation.
We believe that the further determination of these factors is outside our expertise.
In summary therefore the panel concluded that no tissue injury per se has occurred to the tissues of this patient's upper limb.
In the absence of any discernible pathological diagnosis the panel considered that in the course of time a full recovery should occur."
It is apparent from s 84R of the Act that the jurisdiction conferred upon a Medical Assessment Panel is strictly circumscribed. At the relevant time it was confined to determining the nature or extent of a disability and as to whether a disability is permanent or temporary. In Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395, it was held by Pidgeon, Wallwork and Owen JJ that issues of causation and fitness to work are not issues as to the nature or extent of the disability, and are beyond the power conferred upon a Medical Assessment Panel. At 399, their Honours said:
"It seems to us that issues such as causation and fitness to work are equivalent to the ultimate question in a jury trial. It is the province of the tribunal of fact (in this case the conciliation officer, the review officer and the Compensation Magistrate) to determine those questions. It is not for the Panel to do so. The Panel is to decide questions that are referred to it and it does so to assist the tribunal of fact in coming to its ultimate conclusion. The task of the Panel is essentially diagnostic in character. This much is supported by s 145C which specifies how a Panel is to be constituted. A Panel is to consist of two or three medical practitioners. One must be a specialist in the branch of medicine or surgery that is relevant to the question and another must be a general practitioner. The role of the Panel is fundamentally different from that of the conciliation officer, the review officer or the Compensation Magistrate. The proceedings before the latter officers are subject to the rules of procedural fairness, including the right to be heard … The right to be heard cannot be applied in the same way in the proceedings of the Panel. By force of the statute, the powers of the Panel are to be exercised in private [s 145D(3)] and no provision is made for the employer to be present or represented at the interview. This is not particularly surprising where the issue is purely one relating to the medical condition of the worker."
See also Re The Members of a Medical Assessment Panel; & Ors; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998.
By an amendment to the Act made in 1999, which came into operation on 15 October 1999, that is, subsequent to the determination of the Panel in this matter, the jurisdiction of a panel was extended to determining, if so requested, a worker's capacity for work in addition to determining the nature or extent of a disability and whether a disability is permanent or temporary.
The extent of a Panel's jurisdiction is of particular importance, having regard to the wide terms of s 145E(5) of the Act, which makes the determination of the Panel "final and binding on the worker and his employer and on any court or tribunal hearing a matter in which any such determination is relevant", unless it has been varied or rescinded by the Panel itself, and a new determination made under s 145F, if the director is satisfied that there is new evidence which meets the requirements of ss (1) of that section.
Although it does not constitute one of the grounds of appeal, it is noted that, in the present case, the questions submitted for the determination of the Panel related to the applicant's "injury", whereas s 84R speaks in terms of "a disability", which is defined in s 5 of the Act. Disability is an expression which is central to the operation of the Act, in that, by s 18, a liability is created in employers to pay compensation to workers in the event of "a disability" of a worker occurring. The first meaning of "disability" in the definition in s 5 is "a personal injury by accident arising out of or in the cause of the employment, or whilst the worker is acting under the employer's instructions"; but the definition goes on to include certain diseases. One of the issues in this matter was whether the appellant had an arthropathy, a term which is defined as "any joint disease". An arthropathy would not, however, appear to come within the description of "injury". The reference to the Panel, in my opinion should have related to determining the applicant's "disability" and not only to her "injury".
The Panel determined that the applicant's pain syndrome impacted on her ability to cope within the workplace and perform her usual duties. On the basis of Ex parte Ansett Australia Ltd v Medical Assessment Panel, (supra), the Panel was not empowered to resolve any issues concerning the applicant's capacity to work or as to causation. Its function was essentially diagnostic in nature.
The Panel also expressed the belief that there are stress factors within the work environment that have in the past and were currently contributing to her symptom complex and presentation. It was suggested
by Mr Sefton as amicus curiae that it was questionable whether in fact the Panel were in this way intruding into the area of causation or whether it was just a general observation of the Panel alluding to the fact that there might be some peripheral issues which are leading to the particular symptom complex and presentation. However, on the face of it, this part of the determination does purport to relate to causation.
The Panel was not requested to determine whether the "injury" is permanent or temporary. However, in stating that, in the absence of any discernible pathological diagnosis, it considered that, in the course of time, a full recovery should occur, it was clearly determining that the condition was temporary, a finding of which was patently outside the jurisdiction conferred upon it.
In the circumstances, having regard to the extent of the jurisdictional errors, I would quash the whole of the determination.
In view of the conclusion I have reached, it becomes unnecessary to deal with the remaining grounds for setting aside the Panel's determination but reference should be made to the contention that the chairman of the Panel showed actual or perceived bias against the applicant. The chairman of the Panel was not represented before us, nor were the other members of the Panel, they having indicated, very properly, that they would abide by the decision of this Court.
The affidavit of the applicant was directed essentially to her personal perceptions of the chairman's conduct. There was no adequate indication in the affidavit of actual bias or prejudgment on the part of the chairman. Nor are the facts before us sufficient to justify a finding that a fair‑minded lay observer might reasonably apprehend that the chairman might not bring an impartial mind to the determination of the issues before the Panel - see Ebner v Official Trustee in Bankruptcy (2001) 75 ALJR 277 at 279.
PIDGEON J: I have had the advantage of reading the reasons for judgment of Kennedy J. I agree with those reasons and have nothing to add.
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