State of Tasmania v Treloar - [2014] TASSC 51

[2014] TASSC 51

COURT: SUPREME COURT OF TASMANIA

CITATION: State of Tasmania v Treloar [2014] TASSC 51

PARTIES:  STATE OF TASMANIA
  v
  TRELOAR, Annette

FILE NO: 370/2014
JUDGMENT

APPEALED FROM: T v State of Tasmania (Department of Health & Human Services) [2014] TASWRCT 18
DELIVERED ON: 19 September 2014

DELIVERED AT:  Hobart
HEARING DATE:  13 August 2014
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Workers' Compensation – Proceedings to obtain compensation – Determination of claims – Medical examinations – Medical panels, boards and referees – Composition of medical panel – Qualifications of panel members.

Workers Rehabilitation and Compensation Act1988 (Tas), ss 49(3)(b), 50.
Aust Dig Workers' Compensation [317]

REPRESENTATION:

Counsel:
             Appellant:  H T Foulds
             Respondent:  S D Gates
Solicitors:
             Appellant:  Acting Director of Public Prosecutions
             Respondent:  McLean McKenzie & Topfer

Judgment Number: [2014] TASSC 51
Number of paragraphs: 28

Serial No 51/2014
File No 370/2014

STATE OF TASMANIA v ANNETTE TRELOAR

REASONS FOR JUDGMENT BLOW CJ

19 September 2014

This is an appeal from a decision of the Chief Commissioner of the Workers Rehabilitation and Compensation Tribunal, Mr S R Carey, by which he refused to refer a medical question to a medical panel. The decision concerned a worker named Annette Treloar, the respondent to this appeal. She is an employee of the State Government. She has suffered a permanent impairment as the result of a psychiatric injury. The solicitors for the worker and the State each obtained reports from psychiatrists as to the extent of her permanent impairment, expressed as a percentage of the impairment of the whole person. As sometimes happens, the two doctors arrived at different percentages. Counsel for the State subsequently asked the learned chief commissioner to refer the question of the extent of the worker's permanent impairment to a medical panel. Such a referral can be made pursuant to s 49(3)(b) of the Workers Rehabilitation and Compensation Act 1988 ("the Act"). Counsel for the worker opposed that course. The learned chief commissioner directed that the matter be referred to a medical panel but, before nominating the panel members, changed his mind, and decided that the tribunal was unable to refer the question to a medical panel: T v State of Tasmania (Department of Health & Human Services) [2014] TASWRCT 18. This is an appeal from that decision.
When a worker suffers an injury and becomes entitled to compensation, s 71(1) of the Act makes provision for the worker to be paid a lump sum in respect of any permanent impairment that results from that injury, in addition to any other compensation payable under the Act. The lump sum is calculated in accordance with a formula based on an assessment of the degree of permanent impairment, expressed as a "percentage of the whole person". The amount payable in respect of a permanent psychiatric impairment is governed by s 71(2).
Section 49(3)(b) of the Act provides that, "Where a medical question arises in any proceedings before the Tribunal, the Tribunal may … refer the medical question … to a medical panel formed under section 50."
The term "medical question" is defined in s 3(1) of the Act. By virtue of par(f) of that definition, "the assessment of the degree of permanent impairment, including whether the impairment is permanent" is a "medical question".
The composition of medical panels is governed by s 50 of the Act. That section reads as follows:
"(1)   The Tribunal is to keep and maintain a register of suitably qualified medical practitioners who are willing to be selected on a medical panel.
(2)   On the referral of a medical question to a medical panel, the Tribunal is to select 2 or 3 practitioners, at least one of whom is to be a general practitioner, from the register to form the medical panel.
(3)   At least one of the medical practitioners is to have particular expertise in the medical field to which the question relates.
(4)   The Tribunal must appoint one of the medical practitioners to be chairperson of the panel.
(5)   The Tribunal must not nominate a medical practitioner to be a member of a medical panel for the purpose of obtaining a determination in response to a medical question in respect of a worker if the medical practitioner —
(a)has, in any capacity other than as a member of a medical panel, been involved in the examination or treatment of, or has provided medical services (including an assessment of impairment) to, the worker in relation to the injury in respect of which the medical advice or opinion is sought by the Tribunal; or
(b)informs the Tribunal that, for any reason, the medical practitioner's appointment to the medical panel could give rise to a conflict of interest.
(6)   The Tribunal is to ensure that the medical panel is provided with any information in its possession likely to assist in determining the medical question."
Quite separately from its provisions about medical panels, the Act contains provisions relating to assessments of permanent impairment by medical assessors. A medical assessor – and only a medical assessor – may undertake an assessment of a degree of impairment pursuant to s 72(1). That subsection reads as follows:
"(1) An assessment of a degree of impairment is to be undertaken by a medical assessor in accordance with —
(a)any relevant guidelines issued by the Board; or
(b)if there are no such guidelines, the AMA Guides; or
(c)if there are no such guidelines and the AMA Guides are not applicable or are unsuitable, any method as may be prescribed."
In s 3(1) of the Act, the term "medical assessor" is defined to mean "a medical practitioner accredited by the Board for the purposes of assessing the degree of a worker's permanent impairment in accordance with section 72 …". The Board referred to in that definition is the WorkCover Tasmania Board, which is established under s 8 of the Act.
The Act does not confer any status on an assessment of a degree of impairment by an assessor under s 72. It contains no provisions as to the significance of such an assessment. It follows that such an assessment is simply a piece of expert evidence. By contrast, s 49(4) provides that the tribunal is bound by the determination of a medical panel given in response to a medical question referred to it under s 49(3)(b). In a permanent impairment case, the tribunal would be obliged to make a determination that accords with the medical panel's determination. Under s 63 of the Act, the determination of the tribunal could then be challenged by way of appeal, but only in relation to a point of law. Otherwise the determination of a medical panel could be challenged only in proceedings for relief in the nature of prerogative relief, in accordance with Tasman Quest Pty Ltd v Evans (2003) 13 Tas R 16.
The register of potential medical panel members is kept and maintained by the tribunal: s 50(1). Medical assessors, on the other hand, are accredited by the WorkCover Tasmania Board in accordance with the definition in s 3(1).
As I have said, the learned chief commissioner initially directed that the matter of the assessment of the worker's degree of impairment be referred to a medical panel. In par[1] of his reasons, he described what caused him to change his mind, as follows:
"However, upon taking steps to appoint a medical panel the Tribunal became aware that there was not, at that time, a general practitioner who was qualified as a 'medical assessor' (s3) in regard to the assessment of whole person impairment relating to a psychiatric condition. The Tribunal advised the parties of this fact and suggested that it was therefore unable to form a medical panel (s50(2)) and that the matter would need to proceed to arbitrated hearing."
He went on to evaluate the competing submissions of the parties, and to review the relevant legislative provisions and their history. Referring to the requirement that medical assessors be accredited by the WorkCover Tasmania Board, he said at par[6]:
"The Tribunal assumes that this prescription was imposed to ensure consistency in approach and assessment by medical practitioners who conduct such assessments. It is clear that only those medical practitioners accredited as medical assessors may provide a whole person impairment assessment. This intent is clear from the legislation. It therefore defies logic that having imposed this limitation upon medical practitioners who can provide whole person impairment assessments for the purposes of the Act, the Act should be interpreted so as to allow members of a medical panel who are not accredited as medical assessors to provide a determinative opinion upon a legal question referred to it concerning the assessment of the degree of a person's permanent impairment. It is accepted that s50 does not specifically provide for the need to use medical assessors when the medical question relates to whole person impairment but to require this is, given the clear legislative intent of introducing medical assessors, capable of being accommodated in the need for the medical practitioners to be 'suitably qualified' (s50(1)). This approach is consistent with the overall intention of the legislation as it applies to the assessment of a person's whole person impairment."
After quoting at length from Project Blue Sky Inc v Australian Broadcasting Authority (1998) 195 CLR 355, he concluded at par[7] as follows:
"The leading provision in relation to the assessment of whole person impairment within the Act is, I believe, s72 and the requirements of that section can be accommodated in the formulation of a medical panel as detailed in s50 of the Act. For these reasons the Tribunal confirms its advice that as at this time, there are no general practitioners accredited by the Board in the assessment of a whole person impairment for a psychiatric injury, and as a medical panel must contain a general practitioner, the Tribunal is unable to refer the assessment of the worker's whole person impairment in this referral to a medical panel."
It is quite clear from the wording of s 50 that a medical panel could be appointed to determine the question of the extent of this worker's permanent impairment without any of its members being a general practitioner accredited for psychiatric assessments. Section 50(3) requires only that at least one of the panel members "have particular expertise in the medical field to which the question relates". It is therefore not necessary for every member of the panel to have particular expertise, or any expertise, in the relevant medical field. One member with particular expertise is enough.
Similarly, s 50(2) only requires one of the panel members to be a general practitioner. It does not require that general practitioner to have any expertise in the relevant medical field.
Furthermore, there is no requirement that a panel member is to be accredited by the WorkCover Tasmania Board as a medical assessor. The panel members are to be chosen from those on the register kept by the tribunal under s 50(1). The practitioners on that register need not be accredited by the Board as medical assessors. There is no requirement in the Act to that effect. The medical assessors and the medical practitioners on the tribunal register could be two completely different groups of people.
The requirement that a medical practitioner be "suitably qualified" is found only in s 50(1), which relates to the keeping and maintaining of the tribunal's register. It has nothing to do with being suitably qualified to undertake one particular assessment, or even a particular type of assessment. In order to be on the tribunal's register, a medical practitioner needs to have suitable qualifications to decide some of the medical questions, as defined in s 3(1), that are likely to come before medical panels. I expect that most medical practitioners, one way or another, are suitably qualified for such a purpose.
In 1988 in its original form, the Act introduced new procedures concerning a Medical Panel and Medical Boards. Under s 24(1), provision was made for the Minister, on the recommendation of the Tasmanian Branch of the Australian Medical Association, to appoint the members of a Medical Panel, which was constituted by medical practitioners actively engaged in medical practice and possessing such qualifications, expertise and experience as the Minister determined. By s 49(3)(a), the Workers Compensation Commissioner was empowered to appoint a Medical Board where a medical question arose in any proceeding before him, and to refer the medical question to that board. By s 50(1), the board was required to consist of three members of the Medical Panel, at least one of whom was required to "have specialized knowledge and qualifications which, in the opinion of the Commissioner, are relevant to the medical question in respect of which the Medical Board is required to provide medical advice or a medical opinion".
The Workers Compensation Amendment Act 1993 introduced amendments that changed those arrangements. All references to the Medical Board were amended to refer to a "medical panel". Section 49 was amended to empower the Commissioner to "refer the medical question to a medical panel comprising 3 medical practitioners nominated by the Commissioner who are, in the Commissioner's opinion, appropriately qualified". A member with "specialized knowledge and qualifications" was no longer required. There was a further amendment in 1995 that changed the number of medical practitioners on a medical panel from three to "at least 2": Workers Rehabilitation and Compensation Reform Act 1995 ("the 1995 Act"), s 37. Further amendments were made by the Workers Rehabilitation and Compensation Act 2000. Those amendments brought ss 49 and 50 into their current form. For the first time, there was a provision requiring the tribunal to keep a register of suitability qualified medical practitioners who would be willing to serve on a medical panel: s 50(1). And for the first time there was a requirement that one of the members of a medical panel must be a general practitioner: s 50(2). Instead of each panel member having to be "appropriately qualified", there was the requirement for at least one to have "particular expertise": s 50(2). Those amendments took effect on 1 July 2001.
The Act contained no provisions as to assessments based on whole person impairment until the commencement of the Workers Rehabilitation and Compensation Act 2000. The relevant amendments made by that Act replaced the old-fashioned table of maims. There was no requirement that assessments be done by a medical assessor until further amendments under the Workers Rehabilitation and Compensation Amendment (Miscellaneous) Act 2004. Under that amendment, for the first time, s 72(1) required an assessment of a degree of impairment to be "undertaken by a medical assessor". The 2004 Act introduced the definition of "medical assessor" that I have referred to above. Those amendments took effect on 17 December 2004.
A number of things can be seen very clearly in the light of this examination of the history of the legislation:
· The requirement that a medical practitioner be "suitably qualified" has nothing to do with being suitably qualified to consider a particular medical question. It relates only to the suitability of a practitioner to be on a register from which practitioners are chosen from time to time. There used to be a provision requiring that one medical practitioner appointed in relation to a particular case have specialised knowledge and qualifications relevant to the individual case, but that requirement was abandoned long ago. Then there was a requirement that each panel member be "appropriately qualified", but that too was abandoned long ago.
· The system for the appointment of medical panels comprising medical practitioners chosen from the register kept and maintained by the tribunal is completely independent from the system of accreditation of medical assessors accredited by the WorkCover Tasmania Board. The first system existed for years before the second system was introduced. The two systems are administered by different entities. When the system involving medical assessors was introduced in 2004, no amendments were made to link it with the system relating to medical panels.
The Act contains a third system relating to the accreditation of medical practitioners that I have not yet referred to. Under s 77A, medical practitioners are not to issue certificates for the purposes of ss 34(1) and 69(1) unless they have been accredited by the WorkCover Tasmania Board, and may not provide any prescribed service in respect of an injury for which compensation is or may be payable under the Act unless they belong to a class of persons prescribed in relation to the prescribed service, and have been accredited by that Board. Provisions relating to the granting of accreditation are made in ss 77B to 77H inclusive. Those accreditation provisions were introduced by the 1995 Act.
At the hearing of this appeal, counsel for the respondent submitted that, because of the words "suitably qualified" in s 50(1), the practitioners appointed to a medical panel to decide a medical question arising out of a whole person impairment assessment must be medical assessors accredited for the purpose of s 72. I reject that submission. For the reasons stated above, the system of medical panels and the system of medical assessors are completely independent. However it would probably often be very desirable for members of a medical panel considering a whole person impairment question to be practitioners who routinely undertake whole person impairment assessments.
Counsel for the respondent also made submissions relating to the accreditation of practitioners under s 77A. However, for the reasons explained above, the accreditation requirements of ss 77A to 77H have nothing to do with the appointment of medical panels under s 50. Once again however, it would often be highly desirable for medical panel members to be practitioners who routinely undertake work relating to injuries compensable under the Act.
Counsel for the State made a submission to the effect that, once the learned chief commissioner had decided to refer the question of the assessment of the worker's permanent impairment to a medical panel, he had no power to change his mind. I disagree. The power conferred on the tribunal by s 49(3)(b) is a power to refer a medical question "to a medical panel formed under section 50". When that power is exercised, the exercise of power does not occur until two or three particular practitioners have been selected, the panel has been formed, and the tribunal then refers the medical question to the panel constituted by those individuals. In this case, the learned chief commissioner got as far as deciding to form a panel, but did not form the panel. I see no reason to interpret s 49(3)(b) as prohibiting him from changing his mind before the panel had been formed. The decision to form a panel for the purpose of referring a medical question to it is not given a separate status by the Act. Such a decision is not referred to in the Act at all. Section 49(1)(b) requires each proceeding before the tribunal to be "conducted with as little formality and technicality … as the requirements of this Act and a proper consideration of the matters to be resolved permit". Because of those matters, I think the legislation should be construed as permitting the tribunal to reverse a "decision" to set about forming a medical panel to determine a particular question, at least at a stage before the panel has been formed.
For the reasons stated above, it is clear that the learned chief commissioner erred in law when he held that the tribunal was unable to refer the assessment of the worker's whole person impairment to a medical panel. So long as the tribunal was able to find two or three medical practitioners on its register, at least one of whom had expertise in psychiatry, and at least one of whom was a general practitioner, the tribunal was able to refer the question pursuant to s 49(3)(b). It would have been sufficient if the panel included one general practitioner with expertise in psychiatry. A specialist from an unrelated field could have been a member of the panel.

Counsel for the State submitted that, if I concluded that the learned chief commissioner had erred as contended, I should make an order that the matter be remitted to the tribunal with a direction that it refer the question of the assessment of the worker's permanent impairment to a medical panel. In my view that would be inappropriate. The tribunal has a discretion to refer such a question to a medical panel. It is not obliged to take that course. In deciding whether to take that course or not, it would be appropriate to take into account the expertise or lack thereof of the medical practitioners available to form a panel. Thus, if the only general practitioners available are practitioners with no expertise in psychiatry, that is a relevant factor that may be taken into account. The decision whether to form a medical panel is therefore one best decided by the tribunal.
For these reasons, I have decided to make the following orders:
1The appeal is allowed.
2The decision of the tribunal is set aside.
3The matter of the State's application for the question of the degree of the worker's permanent impairment to be referred to a medical panel is remitted to the tribunal for reconsideration.
There is no reason why the learned chief commissioner should not constitute the tribunal for the purpose of that reconsideration.