Supreme Court of Western Australia
[2003] WASCA 202
•3 SEPTEMBER 2003
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
TITLE OF COURT : THE FULL COURT (WA)
| CITATION | : | RE MONGER; EX PARTE WILDERNESS EQUIPMENT PTY LTD [2003] WASCA 202 |
| CORAM | : MURRAY J |
TEMPLEMAN J
WHEELER J
| HEARD | : 22 NOVEMBER 2002 | ||
| DELIVERED | : 3 SEPTEMBER 2003 | ||
| FILE NO/S |
| ||
| MATTER |
|
EX PARTE
WILDERNESS EQUIPMENT PTY LTD
(ACN 009 319 260)Applicant
Catchwords:
Workers' compensation - Degree of disability - Dispute resolved by recorded agreement - Acceptance of further claim - Whether without jurisdiction
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D, s93E
[2003] WASCA 202
Result:
Order nisi for certiorari discharged
Category: A
Representation:
Counsel:
| Applicant | : | Ms F C E Davis |
| Respondent | : | No appearance |
| Worker | : | Mr B L Nugawela |
Solicitors:
| Applicant | : | Phillips Fox |
| Respondent | : | No appearance |
| Worker | : | Slater & Gordon |
Case(s) referred to in judgment(s):
Kuligowski v Metrobus (2002) 2 WAR 137
McNair v Press Offshore Ltd & Anor (1996) 17 WAR 191
Re Monger; ex parte Dutch (2001) 25 WAR 96
Re Monger; ex parte Industrial Progress Corporation Pty Ltd t/as Roofmart WA
[2001] WASCA 281
Case(s) also cited:
R v Tillet; ex parte Newton (1969) 14 FLR 101
Re City of Perth; ex parte Lord [2002] WASCA 254
Re Monger; ex parte Ivey [1999] WASC 250
Re Monger; ex parte TNT Australia Pty Ltd [2002] WASCA 223
Re Monger; ex parte United Construction Pty Ltd [2002] WASCA 253
Re Monger; ex parte Western Power Corporation [2000] WASC 271
Re Monger; ex parte WMC Resources Ltd [2002] WASCA 129
[2003] WASCA 202
Re Smith & West Australian Development Corporation; ex parte Rundle (1991)
5 WAR 295
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269
[2003] WASCA 202
MURRAY J
MURRAY J: This is the return of an order nisi for a writ of certiorari granted by McLure J. The writ is sought to quash decisions of the respondent, to quote the order nisi:
"1. to accept an application issued by Azra Glavocic ('the claimant') dated 15 June 2001 ('second Form 22') which sought a determination of the claimant's degree of disability in accordance with section 93D of the Workers Compensation and Rehabilitation Act 1981 ('the Act'); 2. to forward to the applicant a notice signed by the Director on 21 June 2001 ('second Form 23') pursuant to regulation 19J(1) of the Workers Compensation and Rehabilitation Regulations 1982 ('the Regulations'), and 3. that a dispute pursuant to section 93D(8) of the Act had arisen for the purposes of Part IIIA of the Act, 4. that the question of the claimant's degree of disability be referred pursuant to section 93D(10) for resolution under the provisions of Part IIIA (other than Division 2) of the Act which acceptance, forwarding, decision and referral were contrary to the provisions of the Act as the claimant's level of disability had already been agreed pursuant to the Act, on the following grounds:
5. On 8 December 1999 the claimant lodged a Form 22 Referral of Question of Degree of Disability dated 6 December 1999 with the Conciliation and Review Directorate which stated that her injuries were 'right arm, neck; shoulder; psychological injury' and that the relevant level of disability was both not less than 30 per cent and not less than 16 per cent ('the first Form 22')
6. On 24 December 1999, the Director forwarded to the applicant two form 23 documents, one for each level of disability claimed by the claimant.
7. On 5 January 2000, the applicant lodged the two Form 23 documents disputing each relevant level of disability.
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8. The Director then referred the matter for resolution under the provisions of Part 3A (other than Division 2) of the Act in accordance with s 93D(10) of the Act.
9. On 9 November 2003 the applicant and the claimant agreed that the workers' percentage disability was between 16 and 29 per cent.
10. On 23 November 2000, the parties lodged a Form 24, Degree of Disability agreement at not less than 16 per cent together with the claimant's form 25, Election to Retain Right to Seek Damages.
11. On 23 November 2000, the Director wrote to the claimant indicating that he had recorded the degree of disability agreement.
12. On 18 June 2001 the claimant lodged a second Form 22 Referral of Question of Degree of Disability which stated that her disabilities were 'neck, right shoulder, right arm and psychiatric injuries' and the level of disability was not less than 30 per cent ('the second Form 22').
13. The Director should have rejected the second Form 22 on the basis that an agreement on the claimant's level of disability had already been made under the Act.
14. The Director should not have issued the applicant with a Form 23 'Notice of Referral of Question of Degree of Disability' pursuant to section 93D(7) of the Act.
15. The Director should not have determined pursuant to section 93D(8) of the Act, that a dispute had arisen for the purposes of Part IIIA of the Act.
16. The Director should not have referred the question of the claimant's degree of disability ('the second form 22') for resolution under the provisions of Part IIIA (other than Division 2) of the Act."
2 It can be seen that the case is concerned with the process by which,
under the Workers' Compensation and Rehabilitation Act 1981 (WA) Division 2 of Part IV, there are limitations on a court's power to award damages at common law against a worker's employer in respect of a
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disability suffered by a worker for which compensation is payable under the Act: s 93B and s 93C. Prior to a case getting to a court there must be an assessment of the relevant level of the disability. If the degree of disability is agreed or determined to be not less than 30 per cent as calculated under s 93D, then damages may be awarded. If the degree of disability is agreed or determined to be not less than 16 per cent then the effect of the statutory provisions is that the court may still award damages, but only if the worker elects, in the prescribed manner and within the period of 6 months after the day on which weekly payments commenced, to retain the right to seek damages. The effect of that election is to terminate the right to continue to receive workers' compensation: s 93E. In that event, there is a statutory formula which restricts the award of damages which can be made by the court: s 93F.
3 The respondent may have a part to play in the determination of the
degree of disability. If the worker and employer cannot agree on the degree of disability, the worker may refer the question to the Director, subject to the production to the Director of medical evidence indicating that, in the opinion of a medical practitioner, the degree of disability is not less than the relevant level: s 93D(5) and s 93D(6). Under the subsequent provisions of s 93D, after the Director has received a referral which satisfies the requirements of subsections (5) and (6), he is to notify the employer, who then expresses a view, and if there is disagreement the Director undertakes a conciliation role which, of course, may or may not lead to an agreement being reached. If there is no agreement, the Director is obliged to refer the question in dispute for resolution by a review officer under s 93D(10) and the provisions of Pt IIIA (other than Division 2), or a medical assessment panel under s 93D(11).
4 Those processes are dependent upon the referral which is by way of a
Form 22 prescribed by regulations made under s 93G of the Act, satisfying the requirements of the law as stipulated in s 93D(6). A decision is required of the Director that that is so. That decision has been held to involve what has been described as a limited adjudicative function and therefore certiorari will lie in the ordinary way to quash such a decision if adversely affected by an error of law on the face of the record, or which is held to involve the Director in jurisdictional error: Re Monger; ex parte Dutch (2001) 25 WAR 96.
In this case, the worker lodged a Form 22 on 8 December 1999, describing her injury as "right arm, neck, shoulder, psychological injury". Both the boxes, indicating that the degree of disability as assessed by a medical practitioner was claimed to be not less than 30 per cent, or not
[2003] WASCA 202
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less than 16 per cent, were ticked. The form was lodged with the Director by the worker's solicitors, together with a medical report dated 30 November 1999 by Dr Somers. To my mind that was simply advice that in the worker's view the relevant level of the degree of disability was not less than 30 per cent, but was at least 16 per cent. Dr Somers assessed all aspects of the disability at a level of 37 per cent.
6 On 24 December 1999 the Director forwarded to the applicant two
Form 23 notices under s 93D(7). On about 5 January 2000, the applicant returned the forms to the Director, under s 93D(8), notifying him on both forms that the applicant assessed the degree of disability to be less than 16 per cent. Presumably the conciliation process failed and, pursuant to s 93D(10), the Director referred the question of the worker's degree of disability to a review officer.
7 The matter was ultimately to be heard by the review officer on
9 November 2000. In the meantime, the worker's solicitors had provided the applicant's solicitors with a bundle of medical reports upon which the worker proposed to rely. The hearing on 9 November did not proceed because the parties agreed that the worker's level of disability was between 16 per cent and 29 per cent. On 23 November 2000 the parties lodged with the Directorate a Form 24, degree of disability agreement, giving notice that the parties agreed the degree of disability was not less than 16 per cent. At the same time, a Form 25, election by the worker to retain the right to seek damages, was lodged and on that date the Director recorded the agreement and registered the worker's election. All of that appears to me to have been done in accordance with the Workers Compensation and Rehabilitation Regulations 1982 and the process was brought to finality in that way.
8 However, on 18 June 2001, the worker lodged a second Form 22. It
is apparent, from the description of the disability and the notification that the disability occurred on 25 March 1999, that it is the same disability, although instead of the reference to psychological injury there is a reference to a psychiatric injury. It is clear however that it is the same injury. The claim is simply that the relevant level of disability was not less than 30 per cent. On this occasion, the worker provided to the Director, not only the report of Dr Somers dated 13 November 1999, but a report of a psychiatrist, Dr Achimovich, dated 2 October 2000 (both of which had been relied upon in the earlier proceedings before the review officer, leading up to the agreement as to the relevant level of disability) and an additional report, dated 12 February 2001, by a Mr Williams, an orthopaedic surgeon, which, of course, post-dates the agreement between
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the parties. That report is confined, naturally enough, to the physical injuries and expressly says, "I have made no current assessment of the psychological issues that are under the care of a psychiatrist." Earlier in the report Mr Williams refers to the worker as suffering from depression.
9 It is this form of referral which the applicant contends that the
Director should have rejected on the basis that an agreement as to the level of disability had already been made under the Act.
10 However, the Director did, on 21 June 2001, send to the applicant a
further Form 23 notice referring the question of the degree of disability, and on 26 June 2001 the form was returned to the Director on behalf of the applicant under cover of a letter confirming the objection to the worker's claimed level of disability of not less than 30 per cent. Again, it seems that the Director determined, under s 93D(8), that a dispute had arisen and ultimately, under s 93D(10), referred the question to a review officer for resolution. Meanwhile, on 21 June 2001, coincidentally the date of the Director's Form 23, the worker issued a writ out of the District Court, claiming damages from the applicant for the personal injuries received in an accident at work on 25 March 1999.
11 The proceedings before the review officer have been stayed pending
the final determination of the application for certiorari and the District
Court proceedings have been effectively on hold.12 The applicant's argument, shortly put, is that the question of degree
of disability had already been resolved well before the second purported referral to the Director of that question. While it is conceded that there may, in certain circumstances, be a second or subsequent referral of such a question after an agreement or determination of the relevant degree of disability, this, it is submitted, is not such a case. The submission is supported by the assertion that the question sought to be referred on the second occasion was exactly that which had already been dealt with. Further, it is submitted that the worker sought to rely upon essentially the same evidence as that which had previously been submitted, if not directly in support of the first Form 22, then in the course of the process of putting material before the review officer before the parties reached their agreement as to the relevant degree of disability. Nothing further had emerged, it is asserted, as a result of any subsequent medical report. In those circumstances, it is argued that the Director's decision to accept the referral and the consequent decisions to give notice of the questions submitted to the applicant and to refer a dispute for resolution by a review officer, were decisions taken without jurisdiction, or which reveal errors
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of law on the face of the record. It is submitted that certiorari should
issue to quash them.13 On the other hand, for the worker it is argued that at the time of the
second referral there was medical evidence available to support the proposition that upon a reconsideration of the worker's degree of disability, the relevant level would be found to be in excess of 30 per cent. It is submitted that in the statutory scheme there is nothing final about the process of agreeing or determining the relevant degree of disability. Section 93E(8) - (10) are relied upon as indicators that that is so within the statutory scheme. For those reasons, it is submitted, the order nisi should be discharged.
14 In my opinion, however, the order nisi should be made absolute. The question depends upon the construction of the statute. The relevant referral to the Director under s 93D(5) is of the question of the degree of disability of the worker where the worker and the employer cannot agree. That was originally the case, but when the second referral occurred it was no longer the case. The degree of disability had been agreed between the parties, had been notified to the Director and recorded by him. In the result, the worker had made her election to seek damages at common law and that election had been registered.
15 There was no question in relation to the degree of disability within
the meaning of s 93D(5) when the second Form 22 was submitted to the Director. There was nothing of which the applicant was to be notified under s 93D(7). In those circumstances, the applicant's response that it disputed the contention contained in the purported Form 22 was not, within the meaning of s 93D(8), a notification to the Director that the employer considered that the degree of disability was less than the relevant level. No dispute arose. There was nothing which the Director was obliged to consider and there was nothing to be referred for resolution under s 93D(10).
As to the reliance upon s 93E(8) – (10), those provisions are as
follows:
"(8) Subject to subsections (9) and (11), if an election has been made under subsection (3)(b) compensation under this Act is not payable in respect of the disability, or any recurrence, aggravation or acceleration of it, in relation to any period after the day on which the election is registered or any expenses incurred during such a period.
[2003] WASCA 202
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(9) Subsection (8) ceases to apply if, after the election is made, it is agreed or determined that the degree of disability is 30 per cent or more and that agreement or determination is recorded in accordance with the regulations. (10) Subsection (9) relates only to the degree of the original disability, and any recurrence, aggravation or acceleration of it is not to be taken into account."
17 These subsections are not easy to understand, but they are concerned
with a situation where an election has been made and subsection (8), to my mind, is simply designed to make it clear that the right to receive compensation under the Act is lost, not only in respect of the disability, the relevant level of which has been agreed or determined, but in respect of anything which would fall within the description of the disability, even though a recurrence, aggravation or acceleration of it. To put it shortly, after the level of disability is agreed or determined and an election is made so as to terminate the right to be paid workers' compensation, the fact that the disability gets worse subsequently will not restore the right to receive compensation or statutory allowances thereafter.
18 Subsection (9), it seems to me, must necessarily deal with a
particular aspect of such a case where, in some way and for any reason, the agreement or determination from which the worker's election to seek damages at common law flowed has been set aside.
19 A determination by a review officer might be set aside on the ground
that "new information" was available: s 84ZF(3), and a determination by a medical assessment panel might be set aside, having regard to "new evidence", under s 145F.
20 In that event, s 93E(9), read with subsection (10), is designed to
make it clear that the election does not continue to bind the parties and that if there is a subsequent agreement or determination that the degree of disability is 30 per cent or more, which is recorded as required, then the statutory consequence of the right to seek damages at common law while continuing to receive workers' compensation is to be given its full effect, including, by subsection (11), for any period during which the original election applied.
21 We were referred in this regard to the decision of the Full Court in
Re Monger; ex parte Industrial Progress Corporation Pty Ltd t/as Roofmart WA [2001] WASCA 281. That application for prerogative
[2003] WASCA 202
MURRAY J
relief, which was refused, was concerned with the determination in contested proceedings of a worker's degree of disability. The worker's claim was that it was not less than 16 per cent and this was disputed. The matter went before a review officer who, for reasons which are not material, made a determination of the relevant level of physical disability, excluding so much of the disability as may have been related to a psychiatric or psychological disorder. This Court found that process difficult to follow within the statutory scheme, but the case does not turn on that. The matters dealt with by the review officer lead him to determine that the worker had a relevant level of disability of not less than 16 per cent.
22 Meanwhile, the worker had obtained further medical evidence which
revealed an anxiety-depressive disorder which medical opinion related to his work-caused physical disability, leading to a total disability of not less than 30 per cent on the basis of the expert medical opinion available. The worker again initiated the statutory procedures for the determination of the whole disability, including the psychiatric disability. The application for prerogative relief against the Director was grounded upon the proposition that this second attempt to have the relevant degree of disability determined could not confer power on the Director because a determination of the worker's level of disability had already been made.
23 The court rejected that proposition, holding that, in the circumstances
of that case, there was nothing to suggest that the determination which had been made should be "finally binding as to the degree of disability": per Anderson J at [17]. His Honour, with whose reasons McKechnie and Roberts-Smith JJ agreed, referred in support of this conclusion to s 93E(8) - (10). However, he expressly said, at [19], that there was no need to come to a final conclusion about the proper operation of those subsections.
24 Relief was refused on discretionary grounds, holding that no injustice
was occasioned to the employer in allowing a second determination of a relevant degree of disability when the disability involved had a different character to that in relation to which the first determination had been made. At [20] his Honour expressed his final conclusion in these terms:
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TEMPLEMAN J
"This is not to say that there may not be cases in which it would be an abuse of process for multiple determinations to be sought. This case is not such a case, in my opinion. As there is nothing in the Act which positively precludes a second review hearing and no injustice will be caused to the employer by a second review hearing, and as substantial injustice may be caused to the complainant by stopping the second hearing, I am not persuaded prerogative relief should be granted."
25 In the final analysis, in my opinion, that case is distinguishable from
this, but I am also of the view that there is nothing in the judgment of the court given in that case which is inconsistent with the reasons I have given here.
26 For those reasons, in my view, the order nisi for certiorari should be made absolute so as to quash the Director's decision to accept the Form 22, dated 15 June 2001. Upon the quashing of that decision, in my view the following process of the issue of a notice in the form of Form 23 to the applicant and the referral of a dispute as to the worker's degree of disability, would be rendered a nullity.
TEMPLEMAN J: I have had the advantage of reading in draft form, the reasons published by Murray J, and those to be published by Wheeler J, with whose conclusion I agree. I set out my reasons for reaching that conclusion.
28 The essential question in this appeal is whether the Director was
right to accept, and act on, the worker's referral of a question of the degree of disability when the degree of her disability, arising from the same injury, had already been agreed and recorded and she had elected to retain the right to seek damages.
29 The answer to that question turns on the construction of s 93E(8) –
(10) of the Workers' Compensation and Rehabilitation Act 1981, which
provide as follows:
"(8)
Subject to the subsections (9) and (11), if an election has been made under subsection (3)(b) compensation under this Act is not payable in respect of the disability, or any recurrence, aggravation or acceleration of it, in relation to any period after the day on which the election is registered or any expenses incurred during such a period.
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(9) Subsection (8) ceases to apply if, after the election is made, it is agreed or determined that the degree of disability is 30% or more and that agreement or determination is recorded in accordance with the regulations. (10) Subsection (9) relates only to the degree of the original disability, and any recurrence, aggravation or acceleration of it is not to be taken into account."
30 Clearly, s 93E(8) prevents a worker from claiming additional
compensation, except where subsection (9) applies (subsection 11 is not relevant for present purposes). However, it is implicit in subsection (9), that a previous agreement or determination is not necessarily final, although a determination may give rise to an issue estoppel: Kuligowski v Metrobus (2002) 2 WAR 137, McNair v Press Offshore Ltd & Anor (1996) 17 WAR 191. I do not think an agreement for these purposes is in the nature of a contractual bargain. Nor is it the kind of agreement to which s 76 of the Act applies. Indeed, it may be noted that an agreement for the purposes of s 93D can arise simply from the failure of an employer to respond to the Director's notification of the worker's referral: s 93D(12).
31 Rather, it seems to me, an "agreement" in the present context is
simply one of the means by which the worker's degree of disability may be ascertained, thereby avoiding the need to activate the dispute resolution procedures.
32 It follows, in my view, that despite the existence of any earlier
agreement it is open to a worker and his employer to reach a further agreement to replace it. But if the employer does not agree, how is the worker to proceed?
33 In my view, because s 93E(9) contemplates that a later determination
of a degree of disability may replace an earlier one, it must be open to a worker to re-activate the dispute resolution process, by referring the question of the degree of disability to the Director.
34 I am supported in that view by the fact that the words "agreed" and
"determined" are defined in s 93E(1) for the purposes of s 93E generally, to mean, respectively, an agreement under s 93D(12) and a determination on a reference under s 93D(10) or (11).
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WHEELER J
35 In other words, if the degree of disability is to be "determined" for
the purposes of s 93E(9), the dispute resolution procedures of the Act are to be utilised for that purpose. If, therefore, a worker wishes to bring himself within s 93E(9), he must place appropriate medical evidence before the Director.
36 In Re Monger; ex parte Dutch (2001) 25 WAR 96, this Court held that on receipt of a referral from a worker, the Director has a limited adjudicative function: he is required to be satisfied that the medical evidence indicates that the level of disability is not less than the requisite level. If so satisfied, the Director is to notify the employer, pursuant to s 93D(7). If the employer notifies the Director that he considers the degree of disability is less than the relevant level, a dispute arises, which is then resolved under Part IIIA: that is, by the Review Officer procedure.
37 In my view, it would be wrong to expand the scope of the Director's
adjudicative function when a reference is made to him for the purposes of s 93E(9). I do not think the Director should be required to decide whether an earlier agreement as to the degree of disability should be set aside or whether the circumstances prevent the employer from relying on an issue estoppel in relation to an earlier determination.
38 In my view, if the medical evidence supports the worker's second
application (as it does in this case), the Director should refer the dispute to a Review Officer in the usual way. If the matters then in issue are beyond the competence or expertise of the Review Officer (as might well be the case if questions of law are involved) the dispute may be referred to a compensation magistrate's court for determination, pursuant to s 84ZM.
39 I therefore consider that in the present case, the Director was right to
act as he did in determining that a dispute existed and referring the matter
for a Review Officer for determination. I would dismiss the application.
WHEELER J: I have had the advantage of reading in draft the reasons for decision of Murray J. It is not necessary for me to repeat his Honour's concise summary of the relevant facts, which I gratefully adopt. However, I have reached a different conclusion on the question of whether it was open to the Director to refer the question of the claimant's degree of disability for resolution under the provisions of Pt IIIA of the Act.
41 It is desirable that I first refer to what appear to me to be some of the
relevant provisions of the Act. Section 93B provides that if the worker
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and employer cannot agree on whether the degree of disability is not less than the relevant level, the worker may refer the question to the Director. A question can only be referred if the worker produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level. There is thus a first barrier for the worker to surmount; the worker must have some medical evidence indicating a degree of disability of not less than the relevant level.
42 As soon as practicable after receiving a referral (provided that it is
accompanied by a medical report of the relevant type) the Director is to notify the employer. If the employer fails to respond within 21 days, the employer is to be regarded as having agreed that the degree of disability is not less than the relevant level. However, if within 21 days of notification the employer notifies the Director that the employer considers that the degree of disability is less than the relevant level, a dispute arises.
43 The Director is to consider the dispute in consultation with the
parties. Save for disputes to which ss 33, 34 and 35 refer, if the dispute is not resolved by agreement the Director is to refer the question for resolution under the provisions of Pt IIIA. I pause to note that so far the statutory scheme suggests that an attempt to obtain agreement is to be made before the dispute resolution process is embarked upon; agreement between the worker and the employer is clearly seen as a desirable outcome, no doubt for reasons relating to expedition and cost.
The regulations make provision for the formal recording of
agreements.
45 So far as the dispute resolution process is concerned, it is conducted
by a review officer pursuant to Div 3 of Pt IIIA. There are provisions which require the review officer to act expeditiously, and which confer certain powers on the review officer. Section 84ZF is concerned with the outcome of proceedings before the review officer. It provides:
"84ZF. Orders generally
(1)
The review officer may make such order as may be appropriate for giving effect to the review officer's decision.
(2) The review officer may confirm, vary or revoke an
order made by a conciliation officer.
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(3) If new information becomes available after the review officer makes a decision, the review officer may reconsider the decision and -
(a) vary or revoke any order previously made by the review officer; (b) make any further order; as the review officer considers appropriate having
regard to the new information.(4) For the purposes of subsection (3), 'new information' is information that was not available to the review officer when the decision was made and, in the opinion of the review officer, justifies reconsideration of the decision."
46 The power in the review officer to reconsider a decision, which is
given by subs (3) of s 84ZF, carries with it in my view the necessary implication that it is only if such information becomes available that the review officer's decision may be varied or revoked. That is, the review officer's decision is final, and may be reopened only in the circumstances defined in s 84ZF(3), or by the exercise of the rights of appeal which are made available pursuant to s 84ZN. It may be relevant that s 84ZF does not provide for any procedure by which application is to be made to the review officer for reconsidering a decision.
| 47 | As to appeals, s 84ZN relevantly provides: "84ZN. Appeal |
(1)
Subject to this section, a decision or order of a review officer is not open to question or review in any court, and proceedings by or before a review officer may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court.
(2)
A party to the proceedings who is dissatisfied with a decision or order of the review officer may, where a question of law is involved, appeal to a compensation magistrate's court against the decision or order.
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... "
48 In McNair v Press Offshore Ltd & Anor (1996) 17 WAR 191, it was held that a review officer's determination dismissing an application for compensation in the exercise of his powers under Pt IIIA Div 3, was a judicial determination giving rise to an issue estoppel between the worker and the employer for the purposes of a common law action in the District Court. Although the finding in that case concerned whether the worker had been involved in an accident at work, and so was not a decision in relation to a degree of disability under Pt IV Div 2, in my view the principles would appear to be the same. That is, the review officer's decision, unless reconsidered pursuant to s 84ZF or set aside on appeal pursuant to s 84ZN, would have the effect of giving rise to an issue estoppel as between worker and employer. It would not therefore be open to either party to seek to obtain a different result in, for example, proceedings before the same or a different review officer in respect of the same disability.
49 In certain circumstances, the review officer may refer a question for
determination by a medical assessment panel in the course of the dispute resolution procedure provided by Pt IIIA. Where a referral to a medical assessment panel takes place, the review officer will refer certain questions. The medical assessment panel is then to determine that question or those questions. Section 145E(5) provides that:
"145E. Determinations
...
(5)
Unless rescinded under section 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."
Section 145F provides:
"145F. Review
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(1) If at least 60 days after the determination is made a person who is affected by the determination satisfies the Director that there is any new evidence that could not have been submitted to the panel and would be likely to affect the determination of the question if it were to be reconsidered by the panel the Director may again refer the question to the panel. (2) The panel may refer to anything that was available to it when previously determining the matter as well as doing anything that it could do if the question were referred to it for determination in the first instance. (3) The panel may vary its previous determination or
rescind it and make a new determination.... "
These provisions mirror to some extent those dealing with the reconsideration of matters by the review officer. Although the finality of the review officer's decision is I think implicit in Pt IIIA, the finality of the Medical Assessment Panel's determination is made explicit by s 145E. However, there is a power in the Director to refer "new evidence" to the Medical Assessment Panel. The test for what constitutes new evidence appears to be somewhat stricter than that for "new information" pursuant to s 84ZF, in that, while s 145F requires that the new evidence be evidence that "could not have been submitted to the Panel", new information is only information that was "not available to the review officer" (so that new information may well include information which was available but was not submitted at the relevant time).
50 The point of this somewhat laborious explanation of the dispute
resolution procedures is to indicate that determinations reached as a result of those procedures will normally be final, but that there is provision within the Act for those determinations to be reconsidered in certain circumstances.
51 Returning to s 93D, the purpose of that section is of course to arrive
at either an agreement or a determination as to whether a relevant level of disability exists. Pursuant to s 93E, common law damages can only be awarded if either it is agreed or determined that the degree of disability is not less than 30 per cent and that agreement or determination is recorded in accordance with the regulations, or it is agreed or determined that the
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disability is not less than 16 per cent and that agreement or determination is recorded in accordance with the regulations. In the latter case, but not in the former, there is a time limit within which an election to retain the right to seek damages may be made and registered. There is provision for the Director in some limited circumstances to extend the period within which an election can be made and, of course, if the question of whether the degree of disability is not less than 16 per cent is referred to the dispute resolution process within a prescribed time, the election date is postponed until after the determination of that question has been recorded. Section 93E(8) - (12) provides as follows:
"93E. Restrictions on awarding of damages and payment
of compensation...
(8)
Subject to subsections (9) and (11), if an election has been made under subsection (3)(b) compensation under this Act is not payable in respect of the disability, or any recurrence, aggravation or acceleration of it, in relation to any period after the day on which the election is registered or any expenses incurred during such a period.
(9)
Subsection (8) ceases to apply if, after the election is made, it is agreed or determined that the degree of disability is 30% or more and that agreement or determination is recorded in accordance with the regulations. [emphasis supplied]
(10)
Subsection (9) relates only to the degree of the original disability, and any recurrence, aggravation or acceleration of it is not to be taken into account.
(11)
If an agreement or determination under subsection (9) is recorded, the worker may apply for any compensation which, but for subsection (8), would have been payable under this Act in relation to a relevant period or expenses incurred during a relevant period.
(12) In subsection (11) -
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'relevant period' means any period -
(a)
which is after the day on which the election is registered and before the agreement or determination under subsection (9) is recorded; and
(b)
during which the degree of disability is agreed or determined to have been not less than 30%.
... "
What is important about those provisions, for present purposes, is that s 93E(9) clearly contemplates that there may be an agreement or a determination that the degree of disability is greater than 16 per cent but less than 30 per cent, and that that question may be by some process reopened so that a fresh agreement or a determination of a different kind may be made. Subsection (12) contemplates that the subsequent agreement or determination may be one which applies not only prospectively - that is so as to operate after the subsequent agreement or determination - but retrospectively, so as to apply to the period between the election based on the previous agreement or determination and the date of the new agreement or determination.
52 So far as I can tell, although these provisions contemplate that there
may be an agreement or determination that a degree of disability is greater than that previously agreed or determined, there is no provision that contemplates that an agreement or determination that a degree of disability is greater than 30 per cent may be subsequently varied so as to reduce it. This is presumably because, pursuant to s 93D(5), only the worker may refer the question of degree of disability to the Director; it would appear therefore that an employer who regrets an agreement may not have any avenue under the statute to revisit the question. That structure may be understandable if, for example, it is considered that workers are less likely than employers to have access to appropriate information and advice. An assumption to that effect appears to underpin some of the regulations; for example, reg 19M(5) permits the Director to refuse to register an election if not satisfied that the worker has been "properly advised of the consequences" of that election.
53 In my view, it necessarily follows from s 93E(9) that it is open to the
Director to consider that a dispute has arisen in respect of the degree of
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disability, notwithstanding that there has been a previous agreement that the degree of disability is less than 30 per cent. I can see no statutory mechanism, other than that of referral pursuant to s 93D, by which the effect contemplated by s 93E(9), of a fresh agreement or determination subsequent to an election (which itself is based on either agreement or determination) can take place. Further, there are in Div 2 of Pt IV no words suggesting that an agreement is final and conclusive for any purpose, and no words purporting to limit the circumstances in which a worker may reopen a question previously the subject of agreement, which are in any way comparable to s 145EF or s 84ZF.
54 The view that a previous agreement may be revisited is I think
consistent with the view expressed by this Court in Re Monger; ex parte Industrial Progress Corporation Pty Ltd t/as Roofmart WA [2001] WASCA 281. In that case Anderson J considered that s 93E(8) - (10) were clearly intended to provide for an adjustment of the rights of the worker in the event that his or her relevant level of disability is found or agreed to be not less than 30 per cent, even after an agreement or determination that the relevant level of disability was not less than 16 per cent. His Honour observed: "Whilst finality is a primary objective in ordinary litigation, it is not so easy to see that it is a primary objective in the assessment of levels of disability under Pt IIIA of the Workers' Compensation and Rehabilitation Act" (at 16). I should note that it does not appear that the court in that case was referred either to s 84ZF or to McNair v Press Offshore Ltd, but neither that section nor that decision is inconsistent with the general observation which his Honour there made.
55 Apart from the statutory indication in s 93E, and the absence from
Pt IV of any indication that agreement is intended to be final, there are certain practical considerations which in my view make it unlikely that the statutory intention was that the Director should be required, in determining whether a dispute had arisen, to consider whether the question in issue was one which had previously been the subject of agreement. To put that observation in context, it must be remembered that questions of interrelationship of different types of injuries, and the interrelationship of the effects of different types of injuries, will often involve complex medical issues.
56 For example, the Director may initially have referred to him, and the
parties may initially agree, upon a degree of injury in respect of an injury which is described as, for example, "shoulder, neck and psychiatric injury". A further subsequent referral by the worker may refer to a
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"shoulder, arm and psychiatric" injury. In some cases, a close examination of the medical evidence may demonstrate that the injuries are precisely the same, but are viewed in different ways by different doctors. In another, it may be apparent that the injuries are different. It may be that even the injuries which are described in the same way - eg "psychiatric injury" - deal with different types of injuries with differing causations. The Director will not necessarily have been provided with all of the medical reports which the parties exchanged prior to arriving at their initial agreement, and in many cases he will have no material available to him indicating precisely the basis upon which the parties arrived at their agreement. In many cases it will be extremely difficult for the Director to form any sensible view as to whether the matter referred to him is relevantly identical with that which was the subject of agreement, and in some cases it is likely to be impossible.
57 In any event, given the statutory policy which appears to favour
agreement as a preferred method of dealing with such disputes, it would be unlikely if an agreement had a final and conclusive effect greater than that effected by a determination of a review officer. If an agreement could not be revisited in any circumstances, even where for example it was made under some misapprehension as to fact, there would be a significant disincentive for workers to reach agreement rather than to pursue a review. Perhaps in recognition of this fact, the applicant in the present case conceded that there would be some circumstances in which it would be open to the Director to consider that a dispute had arisen, notwithstanding an earlier agreement in respect of the same disability. It was suggested however that this would only be open where the circumstances had changed in some way - as perhaps by a deterioration in the worker's condition, or by the discovery of fresh evidence, or something of that kind.
58 The difficulty with the submission that only some change will permit
the revisiting of an agreed degree of disability, is that there is no statutory basis for it. Unlike the express provision in respect of the determinations of the review officers, there is nothing in the Act to suggest that there is any limit to the circumstances in which a worker may seek to revisit an agreement. The practical difficulties for the Director, while no doubt they would be lessened by such an approach, would still exist. The present case is an example of the type of difficulty which would be created; considerable time in argument before us was spent on the question of whether a report from a medical practitioner accompanying the fresh notification to the Director pursuant to s 93D(6) contained any new
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material or whether it simply recorded the difference of opinion of a different medical practitioner in relation to material which had already been considered in the medical reports furnished upon the occasion of the first referral to the Director.
59 Finally, I note that the submissions of the applicant relied heavily
upon the proposition that to interpret the Workers' Compensation and Rehabilitation Act so as to permit the revisiting of an agreement that a degree of disability was between 16 and 29 per cent, could lead to multiple attempts at determination which would constitute an abuse of process, or could at the least give rise to an undesirable lack of finality. I do not think that that conclusion follows. In practical terms, assuming it is first agreed that a level of disability is between 16 and 29 per cent, then if the issue is again raised by the worker the employer has two options. If the employer agrees that the level of disability is 30 per cent or greater, it is hardly likely that the worker would wish to revisit that agreement in future. There would be an end of the matter. However, if the employer wished to maintain that the agreement was correct, the matter would be referred for review. On a review, the determination of the review officer would be final and binding, subject to the statutory exceptions to which I have referred. In either case, it is difficult to see that there would be any great multiplicity of proceedings.
I would dismiss the application.
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