Treloar v State of Tasmania
[2015] TASFC 3
•12 March 2015
[2015] TASFC 3
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Treloar v State of Tasmania [2015] TASFC 3
PARTIES: TRELOAR, Annette
v
STATE OF TASMANIA
FILE NO: 889/2014
JUDGMENT
APPEALED FROM: State of Tasmania v Treloar [2014] TASSC 51
DELIVERED ON: 12 March 2015
DELIVERED AT: Hobart
HEARING DATE: 4 March 2015
JUDGMENT OF: Tennent, Porter and Estcourt JJ
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 – Assessments of degree of permanent impairment of whole person to be done by accredited medical assessors – Medical question referred to panel involved degree of permanent impairment – No requirement for panel member to be a medical assessor to determine the degree of whole body impairment of a claimant.
Workers Rehabilitation and Compensation Act 1988 (Tas), ss 49(3), 50 and 72.
Aust Dig Workers' Compensation [317]
REPRESENTATION:
Counsel:
Appellant: S D Gates
Respondent: M E O'Farrell SC and H T Foulds
Solicitors:
Appellant: McLean McKenzie & Topfer
Respondent: Acting Director of Public Prosecutions
Judgment Number: [2015] TASFC 3
Number of paragraphs: 29
Serial No 3/2015
File No 889/2014
ANNETTE TRELOAR v STATE OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
TENNENT J
PORTER J
ESTCOURT J
12 March 2015
Orders of the Court:
That the application to extend time filed on 10 November 2014 is dismissed.
That the appeal is dismissed.
Serial No 3/2015
File No 889/2014
ANNETTE TRELOAR v STATE OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
TENNENT J
12 March 2015
I have had the benefit of reading the reasons for judgment of both Porter and Estcourt JJ. I agree with those reasons and I would also dismiss the appeal.
The appeal in this matter was filed out of time. The appellant made application to extend time. That application was opposed and was listed for hearing at the same time as the appeal. There are a number of matters about which a court must be satisfied before it exercises its discretion to grant an application to extend time. Counsel for the respondent in substance opposed the application in this case on the basis the appeal itself was without merit. It was agreed the appeal would be heard and the Court's view as to the outcome would determine the success or otherwise of the interlocutory application. Clearly if this Court determined that the appeal should succeed it would be appropriate to extend time for it to be filed. On the other hand, if this Court determined the appeal indeed had no merit, the application to extend time should also fail.
I am satisfied the appeal has no merit. In those circumstances I would dismiss the appeal and the application to extend time.
File No 889/2014
ANNETTE TRELOAR v STATE OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
PORTER J
12 March 2015
I agree with the reasons for judgment of Estcourt J, and would refuse the application to extend time and dismiss the appeal.
For the sake of convenience, I set out the relevant parts of s 50 of the Workers Rehabilitation and Compensation Act 1988 (the Act):
"50 Medical panels
(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."
Section 72 of the Act requires assessments of a degree of impairment to be undertaken by medical assessors; that is, medical practitioners accredited by the WorkCover Tasmania Board for the purposes of assessing permanent impairment. The appellant's argument is that where a medical question involves an assessment of permanent impairment, the medical practitioners who make up the medical panel must be medical assessors. This, it is said, is derived from what is required by s 72, and the meaning of "suitably qualified" in s 50 (1).
The effect of the appellant's argument is to require words to be read into s 50(1) and (2). If the appellant is correct, s 50(1) would have to be read as requiring the register to include medical practitioners who are medical assessors. It would also require reading s 50(2) to the effect that where the medical question was one involving the assessment of a degree of impairment, the practitioners on the panel should also be "medical assessors".
As Estcourt J has said, the legislative intent is clear from the provisions of the Act and their immediate context. The provisions dealing with medical panels are contained within Pt V of the Act which deals with dispute resolution. The role of the medical panel is an adjudicative one. It determines medical questions referred to it by the Tribunal. It has a power to examine a worker but is not obliged to do so: s 50(4). In a given case, the nature and scope of the question might determine the outcome of the reference.
On the other hand, s 72 appears in Pt VI of the Act which deals with the amount of compensation payable. The requirement for degree of impairment assessments to be done by medical assessors being accredited medical practitioners is part of a regulatory scheme relating to medical practitioners who involve themselves in workers compensation matters: see Div 2A of Pt VI "Accreditation".
On any view of the correct approach to reading words into a provision, there is plainly no justification or scope to modify s 50(2) and (3) by reading in the words required by the appellant's argument: see Birmingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 per McHugh JA at 302 and R v Young (1999) 46 NSWLR 618 per Spigelman CJ (with whom Abadee and Barr JJ agreed) at [11]-[16], discussed in Director of Public Prosecutions v Leys (2012) 296 ALR 96 at [44]-[111].
File No 889/2014
ANNETTE TRELOAR v THE STATE OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
ESTCOURT J
12 March 2015
The background
This is an appeal against a decision of Blow CJ of 19 September 2014, State of Tasmania v Treloar [2014] TASSC 51, by which the learned Chief Justice made an order setting aside a decision of the Workers Rehabilitation and Compensation Tribunal (the Tribunal) and directing that the matter of the State of Tasmania's application for the question of the degree of Ms Treloar's permanent impairment to be referred to a medical panel be remitted to the Tribunal for reconsideration.
The issue in this case is whether the Workers Rehabilitation and Compensation Act 1988 (the Act), requires a medical practitioner to be a "medical assessor" under the Act in order to be a member of a "medical panel" formed under the Act to make a "whole person impairment" assessment of a worker for the purposes of the Act.
The background to the dispute between the parties was set out by the learned Chief Justice at [1] of his reasons for judgment as follows:
"1 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."
The Tribunal decision
As noted, the learned Chief Commissioner initially directed that the matter of the assessment of the appellant's degree of impairment be referred to a medical panel. In [1] of his reasons, he described what caused him to change his mind, as follows:
"… 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."
The learned Chief Commissioner went on at [6], referring to the requirement that "medical assessors" under the Act be accredited by the WorkCover Tasmania Board, to observe as follows:
"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."
At [7] the learned Chief Commissioner said:
"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."
The statutory framework
The learned Chief Justice in his reasons for judgment set out the statutory context for the Chief Commissioner's decision at [2]-[9] of his Honour's reasons as follows:
"2 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).
3 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.'
4 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'.
5 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.'
6 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.'
7 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.
8 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.
9 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)."
The decision below
At [13]-[19] of his reasons the learned Chief Justice held that the Chief Commissioner had 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. His Honour said:
"13 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.
14 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.
15 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.
16 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.
17 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'.
18 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.
19 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."
The learned Chief Justice then observed that a number of things could be seen very clearly in the light of his examination of the history of the legislation. His Honour said at [20]:
"•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 learned Chief Justice then concluded at [25] as follows:
"25 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."
The grounds of appeal
The appellant has appealed against the decision of the learned Chief Justice on two grounds. They are:
"1The learned Chief Justice erred in law by determining that when the Tribunal refers the medical question 'the assessment of the degree of permanent impairment' pursuant to s 49(3)(b) of the Workers Rehabilitation and Compensation Act 1988 (TAS) (the Act), it is not necessary, when the Tribunal selects the practitioners who will form the Medical Panel to determine that question, for the general practitioner nominated pursuant to section 50(2) of the Act to be relevantly accredited as a 'medical assessor' within the meaning of section 72 and section 3 of the Act.
2The learned Chief Justice erred in law by determining that despite the accepted fact that there was not, at the relevant 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 was able to form a medical panel to determine the medical question 'the assessment of the degree of permanent impairment' in respect of the Appellant's psychiatric injury pursuant to s 49(3)(b) of the Workers Rehabilitation and Compensation Act 1988 (TAS) (the Act)."
Discussion
Grounds 1 and 2 are to the same effect. They assert error on the part of the learned Chief Justice but they do not specify the error. Such appeal grounds do nothing to identify the nature of the appealable error said to have been made by the primary judge.
As to these grounds the appellant, in substance, make the same submissions as were made to the learned Chief Commissioner and the learned Chief Justice. They were, that to be "suitably qualified" within the meaning of s 50(1) of the Act a medical panel member determining an issue of whole person impairment must be a "medical assessor" as defined by s 3(1) of the Act because that was the clear legislative intent of s 72. The appellant submitted that to have a medical panel consisting of members who were not "medical assessors" would result in issues as to whole person impairment being conclusively determined by medical practitioners who were not trained in the application of the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th ed, and the Tasmanian Guidelines issued by the WorkCover Tasmania Board.
In his written submissions, counsel for the appellant, Mr Gates, contended that the learned Chief Justice erred having regard to the following.
· A medical question referred to a medical panel under s 49(3)(b) of the Act is to be determined in accordance with the provisions of the Act which govern how that question is to be resolved.
· Accordingly, in determining a medical question as to what a worker's degree of impairment is, the medical panel must comply with the statutory provisions governing the assessment of degree of impairment.
· The statutory provisions which govern the assessment of a worker's degree of impairment are contained in s 72 of the Act and are, to the extent relevant for present purposes, as follows:
oan assessment of a degree of impairment is to be undertaken by a medical assessor;
oin accordance with any relevant guidelines issued by the Board;
oif there are no relevant guidelines issued by the Board, in accordance with the AMA Guides; or
oif there are no such guidelines and the AMA Guides are not applicable or are unsuitable, in accordance with any method as may be prescribed.
· It follows that a medical question involving the assessment of a worker's degree of impairment can only be validly determined by a medical panel if each requirement in s 72 of the Act is complied with.
· The effect of the court's decision at first instance is that degree of impairment can be lawfully determined by a medical panel as a referred medical question by complying with all the requirements for assessing degree of impairment in s 72 of the Act other than the requirement that the assessment is to be conducted by a medical assessor.
· The court's decision at first instance thus allows a medical question involving the assessment of a worker's degree of impairment to be determined in a manner contrary to the statutory requirements imposed by the statute governing that assessment.
It may well be that the construction given to the relevant provisions of the Act by the learned Chief Justice has the result that the ultimate resolution of the issue of whole person impairment is determined by medical practitioners who were not trained in the application of the American Medical Association Guides to the Evaluation of Permanent Impairment and the Tasmanian Guidelines issued by the Board, but in my view it cannot be said that such a result is contrary to the clear legislative intent of the Act as manifested by s 72, or indeed, any other of its provisions.
I am wholly unable to discern any error in the learned Chief Justice's analysis of the legislation and I respectfully adopt it as my own for the purposes of determining this appeal.
It is beyond argument, in my view, that the requirement that a medical practitioner be "suitably qualified" has nothing to do with being suitably qualified to consider a particular medical question as a member of a medical panel. It relates only, as the Chief Justice observed, to the suitability of a practitioner to be on the register from which practitioners are chosen. That is a matter for those persons choosing practitioners for appointment to the register.
Moreover, as noted by the learned Chief Justice, the system for 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 by the WorkCover Tasmania Board. It sits apart and its role and function are entirely different to that of medical assessors under s72 of the Act. Indeed, as his Honour pointed out, the first system existed for years before the second system was introduced.
All grounds should fail in my view. I would dismiss the appeal.
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