Suleski v Sons of Gwalia Ltd - [2004] WASCA 2

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: SULESKI -v- SONS OF GWALIA LTD [2004] WASCA 2

CORAM: STEYTLER J
MILLER J
WALLWORK AJ

HEARD: 10 NOVEMBER 2003

DELIVERED : 22 JANUARY 2004

FILE NO/S: CIV 2403 of 2002

BETWEEN: BORIS SULESKI
Applicant
AND
SONS OF GWALIA LTD
Intervener

Catchwords:

Workers' compensation - Medical Assessment Panel - Determination to be made within 28 days of medical examination - Earlier determination quashed - Second determination made - Whether fresh medical examination necessary - Comments on functions of Panel

Legislation:

Workers' Compensation and Rehabilitation Act 1981, s 145E(2)

Result:

Order nisi made absolute

Category: A

Representation:

Counsel:

Applicant: Mr M D Cole
Intervener: Mr D W Williams

Solicitors:

Applicant: Terrace Law
Intervener: Mullins Handcock

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

Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395
Re A Medical Assessment Panel; ex parte Hays; FCt SCt of WA; Library No 980575; 5 October 1998
Re Bannan; Ex parte Suleski [2001] WASCA 289
Re Croser; Ex parte Rutherford & Anor [2001] WASCA 422
Re Croser; ex parte Rutherford & Anor [2003] WASCA 8
Re Hales; Ex parte Barr [2001] WASCA 89
Re Monger; Ex parte Welsby [2003] WASCA 191
Re Skirving; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998
Sons of Gwalia Ltd v Suleski [2003] WASCA 289

Case(s) also cited:

Ex parte Barr [2001] WASCA 89
Ex parte Rusich [2001] WASCA 111
Re Anastas Ex parte Welsby [2002] WASCA 83
Re Bannan Ex parte Suleski [2001] WASCA 289

STEYTLER J: I have had the advantage of reading, in draft, the judgments of Wallwork AJ and Miller J. I agree with what each has said, and with their conclusion that the order nisi should be made absolute on ground (f) of the grounds upon which the order nisi was made.
I also agree with Wallwork AJ that, given that the Panel will have to undertake a fresh examination of the applicant, and consequently give a new set of reasons for the determination which is must now make, little will be achieved by dealing with those grounds which attack the adequacy of the existing reasons. However, like Wallwork AJ, I would respectfully urge the Panel, in the course of its reconsideration of the matter, to consider what has been said as to the adequacy of reasons by Kennedy J in the prior proceedings involving this applicant and by Rolfe AJ in the extract from his Honour's judgment quoted by Wallwork AJ in his judgment.
I should also add a brief comment as regards the applicant's contention that the Panel, in its last determination, decided "issues of causation".
Under s 84ZH of the Workers' Compensation and Rehabilitation Act 1981 a Review Officer may, if permitted by s 145A to do so:
"… 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."
It is clear, from that section, that the jurisdiction of a Medical Assessment Panel, pursuant to a referral under s 84ZH, is confined to the answering of one or more of the questions identified in that section as may be referred to it.
As Kennedy J pointed out in Re Skirving; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998, at 3, and again in Re Hales; Ex parte Barr [2001] WASCA 89 at [12], 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.
In Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395 the Court (Pidgeon, Wallwork and Owen JJ) held that issues of causation and fitness to work were beyond the power conferred upon a Medical Assessment Panel. They said, at 399:
"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."
Since the date of the decision in Ansett, the provision with which the Court was there dealing, s 84R of the Act, has been amended. At that time that section empowered a conciliation officer only to refer a question as regards the nature or extent of a disability and as to whether a disability is permanent or temporary. Under the Act as it now stands, a question as to a worker's capacity for work might also be referred for determination by a Medical Assessment Panel under that section, as is the case under s 84ZH. However, the position remains, in accordance with Ansett, that issues of causation are beyond the power conferred upon a Medical Assessment Panel.

In this case the Panel has been asked to determine only what was the nature and extent of the applicant's disability (a task which, as will be apparent, was described in Ansett as being "essentially diagnostic in character") and to answer questions as regards the applicant's work capacity and his fitness to undertake specific occupations. It is important, given what was decided in Ansett, that it should confine itself to answering only the questions asked of it.
MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Wallwork AJ. For the reasons given by his Honour I agree that the order nisi should be made absolute on ground (f) of the grounds upon which the order nisi was made. That ground is that in breach of s 145E(2) of the Workers' Compensation and Rehabilitation Act 1981 the Medical Assessment Panel failed to deliver a determination within 28 days after the day on which the medical examination of the applicant was carried out.
The Medical Assessment Panel carried out an examination of the applicant on 27 April 2000 and made its initial determination on 9 May 2000. As Wallwork AJ has pointed out, that determination was the subject of proceedings in this Court which quashed the determination of the Panel: Re Bannan; Ex parte Suleski [2001] WASCA 289. The matter was then referred back to the same Medical Assessment Panel by reference from a Review Officer of the Department of Conciliation and Review of WorkCover Western Australia. In a covering letter to Mr Bannan, the Review Officer explained that the initial determination of the Panel had been quashed. Reasons for judgment of the Court were attached. The Panel was referred to the critical findings of the Court and requested to make a new determination "including full and detailed medical reasons in support".
The Panel's second determination was made on 11 April 2002 and in the introductory paragraph of the determination, the Panel indicated that it did not consider it necessary to again examine the applicant. Unfortunately, the Review Officer had not made the Panel aware of the decision in Re Monger; Ex parte Welsby [2003] WASCA 191 to the effect that, having regard to the provisions of s 145E(2), a second determination must be made within 28 days after the day on which an examination of the worker has been carried out by the Panel. Clearly the determination on 11 April 2002 was way beyond 28 days of the examination which the Panel had initially carried out. It was nearly two years after the event.

The provisions of s 145E(2) of the Workers' Compensation and Rehabilitation Act 1981 do not envisage the quashing of an initial determination of a Medical Assessment Panel and a referral back to it for a fresh determination. There is much to be said for the need for an amendment to the provision to provide that a second determination by a Panel at the request of a Review Officer need only be predicated upon a second examination of the worker when that is requested by the Review Officer, or when the Panel itself considers it to be necessary. In a case such as the present, where there was a delay of nearly two years between the first and the second determination, re‑examination might well be necessary. That, however, is something that I consider should be in the discretion of either the Review Officer or the Panel.
WALLWORK AJ: These are reasons for judgment on the return of an order nisi for a writ of certiorari. The order nisi was amended by leave on 10 November 2003 to allow for an argument that a Medical Assessment Panel failed to deliver a determination within 28 days after the day on which the relevant medical examination was carried out, contrary to s 145E(2) of the Workers' Compensation and Rehabilitation Act 1981. Section 145E(2) provides:
"The determination is to be made as soon as is practicable but in any event within 28 days after the day on which a medical examination of the worker concerned is carried out by the panel."
The applicant has had two determinations made by the same panel. The first determination was found to be faulty after a hearing on an earlier order nisi. The matter was then returned to the panel for a further determination.
The second determination was made on 11 April 2002, nearly two years after the first determination which was made on 9 May 2000. The panel interviewed the applicant at the time of the first determination but did not see him again in connection with the second determination.

Background

The history of the applicant's claim was comprehensively reviewed by Justice Miller in his reasons for judgment in Sons of Gwalia Ltd v Suleski [2003] WASCA 289 which was delivered on 27 November 2003. That review of the history occupies approximately 11 pages of his Honour's reasons for judgment. I will not repeat it here except as is necessary for these reasons.

From a reading of the medical reports it is apparent that on 9 May 1996 Mr Suleski had a fall while working in a mine. He was found in the mine afterwards with apparently no recollection of the fall which could have been a fall of approximately 5 metres. What is known is that after he had been seen at the Southern Cross Hospital, he was flown to Perth and admitted to Sir Charles Gairdner Hospital. On admission, was found to be drowsy but orientated and obeying commands. He had a swollen nose which was later diagnosed as fractured.
Dr Derham who originally examined Mr Suleski at Southern Cross reported him as having a post‑concussion syndrome with some soft tissue damage, and depression and anxiety from an "alarming accident". Dr Derham signed a certificate on 9 May 1996 in which he described the injuries he saw on that day to be concussion, neck injury, bruise and abrasion. It was Dr Derham who referred Mr Suleski to the QEII Medical Centre for examination.
It was noted by Dr Beinart of the West Perth Occupational Medical Clinic that Mr Suleski's management and treatment had been severely hampered by the insurer denying liability for his claim. This left the entire family with severe economic pressures, placing more psycho‑socio strains on the family.
On 10 October 1996 Dr Peter Stevenson said that Mr Suleski had been originally admitted to Sir Charles Gairdner Hospital with a confusional state, a fractured nose, and an abrasion on his left leg.
When Mr Suleski was assessed on the first occasion by the Medical Assessment Panel, he had questions put to him and underwent a medical examination by the Panel. The panel interviewed Mr Suleski in the presence of his wife and a Macedonian interpreter. He was examined by Dr Gillett with Dr Bannan observing. The panel reviewed the evidence of three videos which had been taken of Mr Suleski dated October 1996, August 1997 and November 1997. The panel decided that Mr Suleski was fit and that he was able to undertake his pre‑accident occupation on a full‑time basis.
The panel found that on the history "there was no identifiable head injury". They later changed that to say "We cannot identify any clinical evidence of a significant head injury" and said "This man was noted to have a fractured nose".
The panel said that "on reviewing the video surveillance, there does not appear to be any physical limitation to this man's movement or gait …". The panel concluded "In contrast to his physical findings, this man appears to have a significant psychological presentation for which the panel was unable to determine a cause".
The applicant then applied to the Full Court for a writ of certiorari. On 25 September 2001, Kennedy J gave the reasons for the Court's decision. In par 9 his Honour said that "It is apparent that, in its reasons, the Panel was using the expression 'head injury' as referring to a neurological injury. The applicant's fractured nose was not such an injury."
Kennedy J said "To determine that there was no evidence of any physical disability is not to answer a question asking what is the nature of the disability. A negative answer leaves open the possibility of a disability resulting from a psychological or psychiatric condition." His Honour said "… in my view, no reason has been shown for departing from the definition of 'disability' in s 5 of the Act, no intention of the contrary appearing in the Act".
In his reasons for judgment, Kennedy J referred to the reasons of Wheeler J in Re A Medical Assessment Panel; ex parte Hays; FCt SCt of WA; Library No 980575; 5 October 1998, which had been agreed with by the other members of the Court. Her Honour said:
"The essence of reasons for decision is that they disclose the reasoning processes of the Tribunal. Fulfilment of the obligation to give reasons ensures that a person whose interests may be adversely affected by a decision understands why the decision has been made, and allows a party dissatisfied with a decision to determine whether there has been a reviewable error … ".
Her Honour said:
"At a minimum, however, it seems to me that in a case of this kind the panel must not merely list the materials upon which it relied, without any hint as to what portions of those materials it considered particularly relevant, or the way in which it reconciled any portions of those materials which might have been in conflict. It should at least have set out what it considered to be the material facts which emerged from the materials to which it referred, and its process of reasoning from those material facts to its conclusion. Although each case must be considered individually, having regard to the purpose of the obligation to provide reasons, it is generally sensible for a fact‑finding body of this kind to make a particular reference to material which would appear to be inconsistent with the conclusion which it reached (such as the EMG and nerve conduction study in this case) and to explain why such material was considered not to be relevant, or to be outweighed by the considerations."
In his reasons for judgment on the return of the first order nisi in this case, Kennedy J said:
"The Panel, it should also be observed, had no authority to attribute a cause to either a physical disability or a psychological disability. It was concerned only with the nature of the applicant's disability in his capacity for work."
Kennedy J said:
"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' knowledge an experience … Measured by these standards, the report was inadequate and a reviewable error has been established."
His Honour continued:
"The Panel did not fall into error in confining itself to considering the disability of the applicant as at the date of the 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."
After the decision of the Full Court on the first order nisi which were delivered on 25 September 2001, the Review Officer referred 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."
The second determination of the panel was signed on 11 April 2002 and sent to the Review Officer. It is stamped on receipt at 15 April 2002. The panel advised the Review Officer that "The Medical Assessment Panel has again considered the questions put to it and made a further determination and reasons in accordance with the Full Court's decision. The panel did not consider it necessary to again examine the worker".
As stated above s 145E(2) of the Act provides:
"The determination is to be made as soon as practical but in any event within 28 days after the day on which a medical examination of the worker concerned is carried out by the Panel."
The further provisions of the section are as follows:
"(3)The determination and the reasons for making it are to be given in writing signed by the Chairman in a form approved by the Director, and are to be given to the Director within seven days after the date on which the determination is made.
(4)The Director is to give the determination reasons to the person who referred the question to the Panel and the worker concerned within three days after the day in which the Director receives them.
(5)Unless rescinded under s 145F the determination, or if the determination is varied under that section the determination as varied, is 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 and the written determination given under subsection (3) is, in the absence of evidence that the determination was so rescinded or varied, conclusive evidence as to the matters determined."
It can be seen from the above provisions that the time limits in the section are very specific.
It is clear from the first determination which according to its terms was concluded on 27 April 2000, that the worker on that occasion had been examined and had questions put to him in the presence of his wife and an interpreter. The panel also reviewed the evidence of three videos. Those things happened on 27 April 2000 nearly two years prior to the second determination which in accord with s 145E(2), should have been made "as soon as is practical but in any event, within 28 days after the day on which a medical examination of the worker concerned is carried out by the Panel." It is pertinent that in the second determination the panel relied in part on its original interview and examination of Mr Suleski.

In Re Monger; Ex parte Welsby [2003] WASCA 191, Hasluck J, with whom Murray and Wheeler JJ agreed, referred to the decision Re Croser; Ex parte Rutherford & Anor [2001] WASCA 422 and said that "The Full Court there held that the Panel has a discretion under s 145D(2) with the result that it is not strictly necessary for the Panel to examine the worker". His Honour went on to say: "However, if it does, it must abide by the provisions of s 145E(2) and make its determination within 28 days after the examination."
His Honour said in that case, that it appeared that the Panel had not re‑examined the applicant for the purpose of reaching its second determination. He said, "I accept, having regard to s 145D(2) of the Act, that the Panel has a discretionary power to require the worker to attend the Panel and to submit to medical examination by the Panel. It follows from this that the Panel is not necessarily obliged to examine the worker". His Honour said, "However, it seems to me, having regard to Re Croser, that if they are to follow that course they ought to provide reasons for deciding it is not necessary to re‑examine".
His Honour referred to the reasoning of Rolfe AJ in Re Croser, where Rolfe AJ said:
"[11]As has appeared in this case, the Panel had examined Mr Stafford on 11 May 2001. The Panel, in its determination, apparently relied on that examination. Mr Stafford's medical conditions were, at least prima facie, ones which could change, and perhaps change quite dramatically, over a period of 12 months. Therefore, prima facie, one would have anticipated that the Panel would have required to re‑examine him. However it did not, nor did it give any reasons for not doing so".
Those reasons of Rolfe AJ, in my view, are very relevant in this case and with respect I agree with them.
In Welsby (supra) Hasluck J went on to say:
"Further, if an examination does take place, I am of the view that, having regard to s 145E(2), the determination must be made within 28 days after the day on which the relevant examination of the worker concerned is carried out by the Panel: Re Croser (supra). The provision is couched in mandatory terms and one can readily imagine why it should be expressed in that manner."
His Honour said:
"… the relevant provisions require that the determination must be formulated properly, within 28 days, so that the answer given concerning the degree of disability can be taken to represent an up‑to‑date assessment of the applicant's condition."
In that case his Honour held that there was obviously a real risk that the reasons expressed by the Panel in the second determination were based on reports that had been overtaken by events and did not accurately reflect the applicant's current condition.
Hasluck J said:
"In the circumstances of the present case it was therefore obliged to undertake a fresh medical examination of the applicant so that it would be in a position to make its second determination within 28 days of the examination."
Accordingly his Honour considered that the application for certiorari should be allowed. I agree with his Honour's approach.
For the same reasons, I consider that the present application for certiorari should be allowed and the second determination quashed.

Other Grounds

With respect to the other contentions of the applicant which are that again the Panel did not give adequate reasons for its determination, the applicant's main submission was that with respect to the psychological and psychiatric aspects, the panel did not explain in detail how it arrived at its conclusions. It did not, for example, explain what were the relevant inconsistencies in the worker's presentation which grounded the opinions expressed.
Counsel for the applicant made reference to the reasons of Rolfe AJ in Re Croser; ex parte Rutherford & Anor [2003] WASCA 8 with particular emphasis on par (d) to par (h). Those paragraphs are as follows:
"(d)The expression of the conclusion, however, is made insufficient by the Act. The Act demands that the panel gives reasons. The law does not demand that the reasons should extend beyond those sufficient to enable the lay reader and, in some cases, the medical reader, to determine how the panel reached its decision.
(e)In these circumstances, one task for the panel is to determine which medical reports it accepts and which it does not. However, it is insufficient to simply make that statement.
(f)In concluding which medical reports to accept or reject, the panel may have regard to matters such as the sufficiency of the history given by the worker to the doctor providing each report; the extent to which, if at all, the doctor has examined the worker and what the doctor has ascertained from that examination; whether the examining doctor has overlooked some matter, which the panel has observed on its examination and which it considers to be relevant; and whether the views expressed by the doctor accord with a respected body of medical opinion. There may be other reasons for rejecting some medical reports. They should be stated.
(g)Insofar as the panel questions the worker, the determination should set out, albeit briefly, the nature of the questioning and the effect that the answers and the manner in which they were given impacted upon the panel's determination.
(h)Insofar as the panel examines the worker, it should record what is found on examination and what the panel derives from such findings perhaps, more particularly, in the light of the history and complaints made by the worker."
It was submitted that in this case sufficient details of the psychiatric examination were not revealed in the determination of the Panel. It was submitted that with respect to the psychiatric aspects the reasoning process of the Panel was not exposed; also the symptomatology and the presentation were not sufficiently discussed in its determination.
In my view, it is not necessary to decide the questions raised by the above submissions. Neither is it necessary to decide whether the Panel determined "issues of causation" as is alleged by the applicant. It is sufficient to draw the Panel's attention to the reasons of the Justices in the earlier cases to which I have referred in these reasons, with particular emphasis on par (f), par (g) and par (h) above.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: SULESKI -v- SONS OF GWALIA LTD [2004] WASCA 2 (S)

CORAM: MILLER J
WALLWORK AJ