Sons of Gwalia Ltd v Suleski

[2003] WASCA 289

SONS OF GWALIA LTD -v- SULESKI [2003] WASCA 289

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 289
Court:	THE FULL COURT (WA)
Case No:	FUL:40/2003	Heard:	10 NOVEMBER 2003
Coram:	STEYTLER J MILLER J WALLWORK AJ	Delivered:	27/11/03
No of pages:	15	Judgment Part:	1 of 1
Result:	Appeal allowed, Decision of Compensation Magistrate's Court quashed
Category:	B
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Parties:	SONS OF GWALIA LTD BORIS SULESKI
Catchwords:	Workers' compensation Referral by review officer to Medical Assessment Panel Determination of panel quashed by order of Full Court Whether matter should have gone back to Medical Assessment Panel Whether decision of Review Officer required Whether appeal from decision of Review Officer to Compensation Magistrate's Court
Legislation:	Workers' Compensation and Rehabilitation Act 1981 (WA)
Case References:	Re Bannan; Ex parte Suleski [2001] WASCA 289 Re Monger; Ex parte Welsby [2003] WASCA 191 Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395 Re Anastas; Ex parte Welsby [2002] WASCA 83 Re Croser; Ex parte Rutherford & Anor (2001) 25 WAR 170 Re Croser; Ex parte Rutherford & Anor [2003] WASCA 8 Re Gillett; Ex parte Rusich [2001] WASCA 111 Re Hales; Ex parte Barr [2001] WASCA 89 Re Medical Assessment Panel; Ex parte Hayes, unreported; SCt FCt of WA; Library No 980575; 5 October 1998

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : SONS OF GWALIA LTD -v- SULESKI [2003] WASCA 289 CORAM : STEYTLER J

MILLER J
WALLWORK AJ

HEARD : 10 NOVEMBER 2003 DELIVERED : 27 NOVEMBER 2003 FILE NO/S : FUL 40 of 2003 BETWEEN : SONS OF GWALIA LTD

Appellant (Respondent)

AND

BORIS SULESKI
Respondent (Appellant)

Catchwords:

Workers' compensation - Referral by review officer to Medical Assessment Panel - Determination of panel quashed by order of Full Court - Whether matter should have gone back to Medical Assessment Panel - Whether decision of Review Officer required - Whether appeal from decision of Review Officer to Compensation Magistrate's Court

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA),

(Page 2)

Result:

Appeal allowed

Decision of Compensation Magistrate's Court quashed

Category: B

Representation:

Counsel:

Appellant (Respondent) : Mr D W Williams
Respondent (Appellant) : Mr M D Cole

Solicitors:

Appellant (Respondent) : Mullins Handcock
Respondent (Appellant) : Terrace Law

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

Re Bannan; Ex parte Suleski [2001] WASCA 289
Re Monger; Ex parte Welsby [2003] WASCA 191

Case(s) also cited:

Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395
Re Anastas; Ex parte Welsby [2002] WASCA 83
Re Croser; Ex parte Rutherford & Anor (2001) 25 WAR 170
Re Croser; Ex parte Rutherford & Anor [2003] WASCA 8
Re Gillett; Ex parte Rusich [2001] WASCA 111
Re Hales; Ex parte Barr [2001] WASCA 89
Re Medical Assessment Panel; Ex parte Hayes, unreported; SCt FCt of WA; Library No 980575; 5 October 1998


(Page 3)

1 STEYTLER J: I have had the advantage of reading the reasons of Miller J. I agree with them and with his Honour's conclusion that the appeal should be allowed, that the decision of the Compensation Magistrate made on 8 November 2002 should be set aside and that there should be substituted, in lieu, an order that the appeal to the Compensation Magistrate's Court be dismissed.

2 MILLER J: This is an appeal from a decision of the Compensation Magistrate's Court delivered on 8 November 2002 when Mr I Brown SM upheld an appeal from a determination of a Review Officer, concluding that the Review Officer had erred in a referral of a matter to a Medical Assessment Panel without first making findings of fact as to issues disputed by the parties.

3 The formal orders made by the learned Compensation Magistrate were as follows:

"1. The Review Officer is to make findings of fact based on the evidence taken on 10 March 2000 in Application No 2169/97.

2. That the preceding order be stayed whilst the hearing of the Appellant's application to the Full Court seeking a Writ of Certiorari over the Medical Assessment Panel's determination dated 9 May 2000 and the Respondent's appeal to the Full Court are determined."

4 On 24 March 2003 Anderson, Parker and McKechnie JJ gave the appellant leave to appeal from the decision of the Compensation Magistrate's Court on the following grounds:

"1. The learned Compensation Magistrate erred in law in considering the appeal at all and otherwise failing to properly consider and apply the decision of the Full Court in Re Babban [sic Bannan]; Ex Parte Suleski [2001] WASCA 289.

2. The learned Compensation Magistrate erred in law in determining that Ground 1(b)(i) of the Respondent's (Appellant's) Notice of Appeal dated 8 January 2002 involved a question of law and should have dismissed the appeal.

(Page 4)

3. The learned Compensation Magistrate erred in law in determining that the Review Officer had erred in law in the exercise of the Review Officer's discretion to refer the matter back to the same Medical Assessment Panel.

4. The learned Compensation Magistrate erred in law in applying the wrong test to determine whether the Review Officer erred in law in referring the matter back to the same Medical Assessment Panel. The Compensation Magistrate failed to apply a strong presumption that the Review Officer's decision was correct unless it was clearly demonstrated to be wrong."

The first Review Officer's hearing

5 The proceedings in the Conciliation and Review Directorate of Work Cover Western Australia and elsewhere between the appellant and the respondent have a long and unfortunate history. They began with an application referring a dispute for conciliation signed by the respondent and lodged with the Directorate on 28 July 1997. The application contended that the respondent had suffered a head injury in the course of his employment with the appellant on 9 May 1996 and it sought reinstatement of weekly compensation payments.

6 There were a number of proceedings in the Directorate leading to a hearing before a Review Officer on 10 March 2000 attended by representatives of the appellant and respondent, neither of whom was legally qualified, although the Court was informed at the hearing of the appeal that each was an articled law clerk from the firm of solicitors acting for the appellant and respondent respectively.

7 At the hearing on 10 March 2000 the Review Officer determined that in accordance with written advice he had previously given to the parties, he intended to allow the respondent to present his case "to the extent that the witnesses' evidence, that video surveillance be shown, and in accordance with the agreement of the parties, the question as to conflict of medical opinion then be referred to (sic "a") Medical Assessment Panel". The Review Officer added:

"After we get the panel's determination back there would be an opportunity to make further submissions, either orally or in writing. That's something we can address in due course."

(Page 5)

8 Before any evidence was taken, the representative of the appellant said in response to a question from the Review Officer:

"MR HOLLETT: Sir, I have nothing to add to the summing up of the issues that the respondent faces. That's simply the respondent's case, and we say that there's no proof that the accident happened, and, indeed, if there is, we say that his work capacity since that date is a live issue, and the onus is on the applicant to prove both issues to you on the balance of probabilities."

9 Evidence was then taken from a number of witnesses, including the respondent. His case was that on the day of his alleged injury, on 9 May 1996 he was working as an assistant geologist/technician at Sunbeam Pit for the appellant. His work involved (inter alia) supervising trucks coming and going to the pit and marking spots where gold was to be dug. Whilst performing this task the respondent stated that he had climbed onto a ledge to put lime on a particular "gold spot". This was his last memory before waking up in Sir Charles Gairdner Hospital later the same day. Andrew Marcel Loreck testified that he had been informed by the respondent that he was marking an ore body "on the top of the wall" when he fell off and was rendered unconscious for 15 - 20 minutes.

10 Evidence was put before the Review Officer of three video surveillance tapes of the respondent variously taken between 10 October 1996 and 27 November 1997. The respondent was cross-examined in relation to what was depicted on the video tapes, it being put to him that although he claimed he could not walk more than 50 - 100 metres before feeling sore, the video tape clearly showed an ability to walk more than 100 metres. The respondent's response was that he could walk more than 100 metres but had a very sore back during the night if he did so. Otherwise, there does not appear to have been any cross-examination on the video tapes, although it was made clear by counsel for the appellant that the surveillance operator responsible for the video taping would be called as a witness.

11 At the conclusion of all this, the Review Officer made the following statements:

"… What I was going to suggest, but I'm -- I'll leave it up to you people as to whether you have any objection; as per the agreement the matter will be referred to a medical assessment panel. It will be necessary for us to - I think; to have a further

(Page 6)

hearing once that determination is received. At that time we could hear from the operative, and also give you an opportunity to make your written -- your closing submissions.

The alternative to that is to have written closing submissions. I'm entirely in your hands in that regard. I'm willing to go along the wishes of the parties in that -- in regard to closing submissions. So it's time for you to think about that issue. But what I'm proposing, rather than have a further hearing next week, simply to hear from the operative. Unless there's a specific need to do so, we could do that at the last hearing, …"

12 The representatives of each party indicated that they were happy to proceed in this matter and the Review Officer then made a formal referral to a Medical Assessment Panel on the following terms:

"REVIEW OFFICER: You're happy with that arrangement? All right. So what I'll do now is refer this to a medical assessment panel. The directorate will be [sic in]contact with Mr Suleski to arrange an examination time. Once we have received that we'll be in a position to know where we go to from here. I anticipate it will be necessary to have a further hearing."

13 The representative of the respondent questioned whether the Review Officer would provide to the Medical Assessment Panel any of his findings in respect of the hearing so far, and in response the Review Officer said:

"REVIEW OFFICER: The documentation that goes to the medical assessment panels is out of my hands. That is within the authority of the director. I do not determine what goes to the panel. I will not be making findings of fact to send to the panel. The panel will receive a copy of all medical reports and certificates and the video -- well, I should say, the director will probably - it's up to him, of course; but that's generally the case. The regulations dictate that he will send medical reports and certificates, and any other relevant documents. Obviously, the video surveillance film would be considered as a relevant document."

(Page 7)

Referral to a Medical Assessment Panel

14 I have referred at length to the essence of the proceedings before the Review Officer on 10 March 2000 because it is important to appreciate that both parties consented to the course of action proposed by the Review Officer, namely, to make a referral to the Medical Assessment Panel. Such a referral was pursuant to s 84ZH of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") which is (relevantly) in the following terms:

"84ZH. Medical issues

(1) If permitted by section 145A to do so, a review officer may refer a question as to -


(a) the nature or extent of a disability;

(b) whether a disability is permanent or temporary; or

(c) a worker's capacity for work,

for determination by a medical assessment panel."

15 Section 145A of the Act provides (relevantly):

"145A. Questions that have to be referred

(1) Subject to subsection (2), a question may be referred for determination by a medical assessment panel under section 84R, 84ZH or 84ZR 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;"

16 The Review Officer's formal order dated 14 March 2000 was simply in the following terms:

(Page 8)

"UPON THE APPLICATION FILED on 29 July 1997

IT IS HEREBY ORDERED BY CONSENT as follows:-

The matter shall be referred to a medical assessment panel."

17 The questions which were asked of the Medical Assessment Panel were:

"Q1. What is the nature of the disability?

Q2. What is the extent of the disability?

Q3. What is the worker's work capacity?

Q4. Is he fit to undertake his pre-accident occupation as a pit technician, either in a full-time or part-time basis and if so, how many hours per week?

Q5. Is he fit to work as a gatekeeper, storeman, sales assistant, service station driveway attendant, security officer, cleaner, courier or taxi-driver, either on a full-time or part-time basis and if so, how many hours per week?"

18 The way in which the matter then unfolded is set out in the decision of this Court in Re Bannan; Ex parte Suleski [2001] WASCA 289. The Medical Assessment Panel made a determination which was the subject of an order nisi for a writ of certiorari heard by Kennedy, Wallwork and Steytler JJ on 14 May 2001. On 25 September 2001 the Court made the order nisi absolute, apparently on grounds (a), (b), (e) and (f) of the order nisi which were as follows:

"(a) The Medical Assessment Panel in answering the question, 'What is the nature of the disability?', confined its answer to 'Physical disability' and in doing so demonstrated error of law.

(b) The Medical Assessment Panel's conclusion, 'There is no evidence of physical disability', is inconsistent with the Panel's reasons for decision.

(c) …

(d) …

(Page 9)

(e) In excess of its jurisdiction and in error of law, the Panel found it was unable to determine the cause of the applicant's significant psychological presentation'.

(f) Generally failed to give sufficient or adequate reasons to support its determination."

19 The essential reasoning of the Court is set out in the joint judgment of Kennedy, Wallwork and Steytler JJ at [14] - [15] as follows:

"[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 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. Measured by these standards, the report was inadequate and a reviewable error has been established.

[15] The Panel did not fall into error in confining itself to considering the disability of the applicant as at the date of assessment. That was what it was asked to do. It does not follow from this, however, that it should not consider the medical history and earlier reports. On the contrary, it is bound to do so. Nor does any reviewable error arise from the Panel's reference to the accident not having been observed. That was the fact."

20 The formal order of the Court was simply that the order nisi be made absolute. There were consequential orders for costs. There was no direction from the Court as to what should then occur.

The second Review Officer's hearing

21 On 11 December 2001 the Review Officer convened a hearing at which the parties were again represented by the articled clerks from the firms of solicitors representing the interests of the appellant and respondent. The hearing was convened in response to a letter from the

(Page 10)

respondent's solicitors as is made clear by the Review Officer in his opening observations at the hearing on 11 December 2001 as follows:

"This is application 2170 of 97; Boris Suleski versus Sons of Gwalia. Now, I can recall that on the 14th of March 2000 I ordered that this matter be referred to a Medical Assessment Panel. The panel subsequently handed down its determination and that determination was then appealed to the Full Court by way of a writ of suciorari [sic certiorari].

The Full Court handed down its decision on the 25th of December 2001 questioning the decision of the panel and so subsequent to that again we got a letter from the worker's legal representative suggesting that this matter be set down for a preliminary review hearing in order to finalise questions to be referred to the Medical Assessment Panel."

22 The appellant's representative was asked for his view as to "where the matter should go" and he responded that it was entirely for the Review Officer to decide in the exercise of his discretion, whether he should refer any or all questions back to the Medical Assessment Panel. He said that the appellant did not have a particular view as to that and it was for the Review Officer to exercise his discretion as he saw fit. The representative added that if the matter was not referred back to the Medical Assessment Panel, evidence should be submitted anew and a full hearing should be listed to hear all oral evidence, particularly in order that matters of credibility could be resolved.

23 The representative for the respondent opposed the matter being referred back to the Medical Assessment Panel at all, contending that although there was a conflict in the medical evidence, it would be more appropriate in the circumstances for the Review Officer to resolve any conflicts himself. It was also submitted that it would be wrong for the matter to go back to the same Medical Assessment Panel as they had already "prejudged the matter".

24 After a good deal of argument the Review Officer determined that the matter would be referred back to the Medical Assessment Panel. The Review Officer determined that it was unnecessary to rehear any evidence and declined to make findings of fact in accordance with a decision of the Compensation Magistrate's Court to which he was referred. The Review Officer also expressed the view that there was no basis for suggesting that the Medical Assessment Panel would be biased in any way.

(Page 11)

25 After quoting the relevant passage of the decision of the Court in Re Bannan; Ex parte Suleski (supra), the Review Officer said:

"It's clear from the decision of the Full Court that the panel's determination was quashed on the basis of inadequate reasons and they have given us guidance as to what has to happen. At the very least the panel is to give medical reasons in sufficient detail. That's what the Full Court is telling us that has -- that's what has to happen. So what I'm going to do is refer the matter simply -- simply refer the matter back to the Medical Assessment Panel with a copy of the Full Court decision and ask them to give adequate reasons for their determination.

Now, if those reasons are still inadequate, well, you have your remedy. One would hope that with the careful study of the Full Court's decision the panel will be able to comply with what the Full Court have suggested or ordered. All right. So you'll have to leave it with me and we'll deal with this post-haste and try and get an answer back from the Medical Assessment Panel as soon as possible. When I get that I'll be in touch with the parties.

MS CAROLIN: So that is the same Medical Assessment --

REVIEW OFFICER: Same Medical Assessment Panel, yes. Okay. The same Medical Assessment Panel are going to be asked to give adequate reasons. All right?"

Appeal to the Compensation Magistrate's Court

26 From the decision of the Review Officer the respondent appealed to the Compensation Magistrate's Court pursuant to the provisions of s 84ZN of the Act which provide (inter alia) that a party dissatisfied with a decision or order of a Review Officer may, where a question of law is involved, appeal to a Compensation Magistrate's Court against the decision or order. The appeal to the Compensation Magistrate's Court was heard on 18 September 2002 and the decision of the learned Compensation Magistrate delivered on 8 November 2002. Meanwhile, on 18 December 2001 the Review Officer had made the referral to the Medical Assessment Panel, saying:

"Following distribution of the Panel's Determination the applicant made an Application to the Full Court of the Supreme Court of Western Australia for a Writ of Certiorari.

(Page 12)

As a consequence the Full Court quashed the Determination of Medical Panel for the reasons outlined in the Court's decision. A copy of the Full Court's decision is attached, and I would in particular refer you to paragraphs 13, 14 and 15 which encompass the Court's findings.

In view of the Full Court's decision I am obligated to refer the matter back to the Panel in order that a new determination, including full and detailed medical reasons in support may be provided by the Panel."

27 The Panel made its fresh determination on 11 April 2002 and delivered it to the Conciliation Review Directorate on 15 April 2002. That determination is the subject of proceedings in CIV 2403 of 2002.

28 The appeal to the Compensation Magistrate's Court contended that the Review Officer had erred in law in resubmitting the matter to the same Medical Assessment Panel and had misconstrued the decision of this Court in Re Bannan; Ex parte Suleski. The grounds of appeal were as follows:

"1. The Review Officer erred in law in that:

(a) In resubmitting the matter to the same Medical Assessment Panel the Review Officer misconstrued the decision of the Full Court of the Supreme Court of Western Australia in Re Bannan Ex Parte Suleski [2002] WASCA 289.

(b) In breach of s 3(d), s 84ZA(2), and the requirements of natural justice, the Review Officer referred the matter to a Medical Assessment Panel without;


i) determining the factual issues in dispute between the parties.

ii) permitting the Appellant's medical practitioners to view and comment on the Respondent's video surveillance.

iii) determining what questions should be asked of the Medical Assessment Panel.

(Page 13)

(c) In the circumstances, given the substantial delay and the deficiencies in the determination of the Medical Assessment Panel, the Review Officer should have determined any medical issues in dispute (if any) without reference to a Medical Assessment Panel.

(d) Generally failed to act fairly, economically, informally and quickly in resolving the dispute."

29 The learned Compensation Magistrate allowed the appeal on grounds 1(a), 1(b)(i) and (ii), found it unnecessary to determine ground 1(c) and dismissed the appeal on grounds 1(b)(iii) and 1(d).

Appeal from Compensation Magistrate's Court

30 I accept the basic thrust of the appellant's contentions on appeal before this Court. In my view, it was clear from the decision in Re Bannan; Ex parte Suleski that the initial determination of the Medical Assessment Panel was inadequate and an error on the face of the record, such that the order nisi for a writ of certiorari was made absolute. Although the Court did not direct that the matter be referred back to the Medical Assessment Panel for redetermination, it is apparent that this was the intention of the Court. Were it otherwise, the decision of the Court would have been rendered futile.

31 The matter was capable of being referred back to the Medical Assessment Panel by an act of the Director of Conciliation and Review. Such a referral would have been an administrative act on the part of the Director. There was already in place a referral to the Medical Assessment Panel, being the referral of the Review Officer of 10 March 2000. The determination of the panel in response to that referral was found by the Full Court to contain error on the face of the record and it was quashed accordingly. As the order of the Review Officer remained in place, what was required was that the Medical Assessment Panel reconsider its determination in accordance with the law. Whether the Director or whether the Review Officer referred the matter back to the Medical Assessment Panel was beside the point. As events transpired it was the Review Officer who did it, although nothing further was required of him. The hearing of 11 December 2001 was sought by the representatives of the respondent, but in truth was unnecessary.

(Page 14)

32 I accept the submissions made on behalf of the appellant that the original referral by the Review Officer remained valid and continued to operate "as a jurisdictional fact founding the jurisdiction of the panel to make the second determination".

33 A similar situation arose in Re Monger; Ex parte Welsby [2003] WASCA 191 and I respectfully adopt what Hasluck J (with whom Murray and Wheeler JJ agreed) said at [57] - [59] as follows:

"57 In my view, as I observed in earlier discussion, the Full Court's decision to quash the first determination impacted only upon the decision or answer given with respect to the degree of disability issue. It did not have the effect of setting aside or annihilating the steps preceding the making of the invalid determination, that is to say, the original referral of the matter to the Panel by the review officer. Such a view is consistent with the reasoning in Ainsworth (supra).

58 Thus, to the extent that a referral which complies with s 84ZH and s 145A of the Act can properly be characterised as a 'jurisdictional fact', in the sense that its existence conditions the jurisdiction of the Panel, the original referral in the present case continued to operate as a jurisdictional fact, founding the jurisdiction of the Panel to make the second determination.

59 Put shortly, the first three grounds of the present application are founded on a misconception, namely, that the Director himself referred to the Panel a question as to the applicant's degree of disability. The true position was that the Director simply passed on information to the Panel about the Full Court's ruling. The original referral by the review officer to the Panel remained extant and unanswered because no valid and effective answer had been provided (according to the ruling of the Full Court) in response to the referral."

34 Because the proper course in this case was for the Director or the Review Officer to "pass on information to the Panel about the Full Court's ruling", appeal proceedings did not properly lie to the Compensation Magistrate's Court and, in my view, the learned Compensation Magistrate erred in law in considering the appeal at all. There was, quite simply, no question of law involved in the decision of
(Page 15)

the Review Officer to resubmit the matter to the Medical Assessment Panel. As Hasluck J pointed out in Re Monger; Ex parte Welsby, there was no need for a decision of the Review Officer at all. As it happened, he made one. But that was not a decision which involved a question of law from which an appeal to the Compensation Magistrate's Court was open.

35 It is unnecessary to consider anything more than grounds 1 and 2 of the appellant's grounds before this Court. Those grounds assert that the learned Compensation Magistrate erred in law in considering the appeal and in determining that there was a question of law involved. It is unnecessary to determine grounds of appeal 3 and 4.

36 I would therefore allow the appeal and set aside the decision of the learned Compensation Magistrate made on 8 November 2002. I would substitute for that decision an order that the appeal to the Compensation Magistrate's Court be dismissed.

37 WALLWORK AJ: I also agree with the reasons for judgment and the orders proposed by Miller J.

38 There is nothing I wish to add.