Wainohu v Odeum Produce Pty Ltd - [2017] WADC 146

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WAINOHU -v- ODEUM PRODUCE PTY LTD [2017] WADC 146

CORAM: MCCANN DCJ

HEARD: 26 SEPTEMBER 2017

DELIVERED : 10 NOVEMBER 2017

FILE NO/S: CIV 4455 of 2015

BETWEEN: DESMOND BARNEY WAINOHU
Plaintiff
AND
ODEUM PRODUCE PTY LTD
Defendant

Catchwords:

Personal injuries claim - Employment related - Jurisdiction of the court to award damages - Workers' Compensation and Injury Management Act 1981 s 93L(3)

Legislation:

Interpretation Act 1984 s 41, s 42, s 43, s 44
Workers' Compensation and Injury Management Act 1981 s 5(2), s 93K(4)(b), s 93K(5)(a), s 93L, s 93M(4)(a), s 93N, s 93P, s 146, s 146A, s 146B, s 146C, s 146G, s 146H, s 146J(1), s 146R(4)
WorkCover Guides 3rd edition

Result:

Jurisdictional issue determined in favour of the plaintiff

Representation:

Counsel:

Plaintiff: Mr E J Myers
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Stephen Browne Lawyers
Defendant: Kott Gunning

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

Marchesano v State of Western Australia [2017] WASCA 177

MCCANN DCJ:

Introduction

In the course of his employment with the defendant on 20 January 2014, the plaintiff suffered an accident which caused a crush injury to his left leg. He contends that he suffers from various sequelae of the crush injury, including compartment syndrome, scarring and disfigurement and psychiatric injuries comprising depression, anxiety and post‑traumatic stress disorder.
On 4 February, the defendant admitted liability to pay compensation to the plaintiff pursuant to the Workers' Compensation and Injury Management Act 1981 (the Act).
In this action the plaintiff claims common law damages from the defendant for his injuries.
The defendant pleads, amongst other things, that the plaintiff is not entitled to damages because his statutory election to retain the right to seek damages was not lawfully registered pursuant to s 93K(4)(b) of the Act because an assessment of his degree of permanent whole person impairment (degree of impairment) was not lawfully recorded in accordance with s 93L(2) and s 93L(3) (the jurisdictional issue).
The jurisdictional issue was tried before me as a preliminary issue on the basis of agreed facts and documents.
I have come to the view that the jurisdictional issue should be determined in favour of the plaintiff, that is to say, I find that the plaintiff's degree of impairment was lawfully recorded pursuant to s 93L(2) and s 93L(3) and his election to retain the right to seek damages was validly exercised and registered.

The legislation

Pursuant to s 93K(4)(a) and (b) of the Act, the court cannot make an award of damages to a worker in respect of a compensable injury unless he has made an election to seek damages in accordance with the Workers Compensation and Injury Management Regulations 1981 (the regulations) and the election was registered by the Director of Conciliation in accordance with the regulations.
A worker cannot make an election to seek damages unless, pursuant to s 93L(2)(a), he and the employer have agreed upon a degree of impairment of at least 15% (so as to enliven an entitlement to seek capped damages: s 93K(5)(a)) or at least 25% (so as to enliven an entitlement to seek unlimited damages: s 93K(5)(b)). Alternatively, pursuant to s 93L(2)(b), a worker cannot make an election unless his degree of impairment has been assessed as at least 15%. An 'assessment' involves an 'evaluation' of impairment as described in s 146A and 146C resulting from the injury or injuries arising from a single event (s 93H(1) and s 93L(3)). The agreement or assessment must be recorded by the Director (s 93L(2)).
Pursuant to s 93L(4), a worker must make his election on or before the 'termination day', which is defined in s 93M. Pursuant to s 93M(4)(a), the Director may, in accordance with the regulations, extend the termination day if an approved medical specialist (an AMS) has certified that 'the worker's condition has not stabilised to the extent required for a normal evaluation' of the worker's degree of impairment to be made and has recommended a date until which the termination day should be extended. Pursuant to s 146H(2), the AMS who makes the certification (the prescribed form for which is AMS 8: Certificate of condition not stabilised) must give a written report and brief reasons justifying the finding certified (AMS 7: Report on condition not stabilised).
The legislation provides for a 'special' evaluation of a worker's degree of impairment when his condition has not stabilised to the extent required for a normal evaluation (see [16] – [25]).
An AMS must be a medical practitioner who has been trained in the use of the WorkCover Guides (the Guides) and designated as an AMS in the Government Gazette (s 5(2)). The Guides are 'directions with respect to the evaluation of degree of impairment' issued by WorkCover WA pursuant to s 146R (see s 5(2)). Sections 41, 42, 43 and 44 of the Interpretation Act 1984 apply to the directions (i.e., to the Guides) as if they were regulations (s 146R(4)).
It is not a requirement of the Act that an AMS hold any specialist qualifications, let alone specialist qualifications relating to a relevant injury or condition. As such, the Act allows for a general practitioner to become an AMS and carry out assessments or evaluations of degrees of impairment in respect of complex injuries that warrant (and indeed, have received) specialist treatment or management (as occurred in this case). It is to be noted that the Guides take a more nuanced approach (see [34]).
To summarise thus far, a worker can only elect to retain the right to seek common law damages if he and the employer agree upon, or an AMS has assessed, a qualifying degree of impairment evaluated in accordance with delegated legislation known as the Guides. The election must be made on or before the termination day which can be extended if the worker's condition will not stabilise in time, in which case a 'special evaluation' may be requested and made.
It is important to note that the recording of a degree of impairment only enlivens a worker's entitlement to make an election. A court awarding damages must still make its own determination of a qualifying degree of impairment (s 93K(4) and (5)).
Further, pursuant to s 93P, unless the Director has recorded a degree of impairment of at least 25%, a worker's entitlement to compensation under the Act becomes circumscribed once he makes his election.
I turn now to the provisions which relate to special evaluations.
Pursuant to s 93N(1), a special evaluation can be made in a case where an AMS has certified that the 'worker's condition has not stabilised to the extent otherwise required for an evaluation to be made in accordance with the WorkCover Guides', ie, a 'normal evaluation' cannot be performed. It is to be noted that this criterion is the same as for extending the termination date (see [9]).
The worker must request 'an AMS' to make a special evaluation not later than eight weeks before the termination day and in accordance with the regulations (s 93N(2) and (4)). Section 93N(3) provides that a request for a special evaluation 'may' (as opposed to 'shall') be made to the same AMS who issued the AMS 8 Certificate of condition not stabilised. Pursuant to s 93N(4), the request must be accompanied by the AMS 8 Certificate of condition not stabilised referred to in s 93N(1).
In my opinion, it follows from the words that I have underlined that a request may be made to a different AMS to the AMS who issued the relevant AMS 8 Certificate of condition not stabilised.
Pursuant to s 93L(3):
The Director cannot, under subsection (2), record an assessment that involves a special evaluation as defined in section 146C(4) … unless the Director has been given a copy of the certificate referred to in section 93N(1) [ie, the AMS8, Certificate of condition not stabilised] on the basis of which the special evaluation was requested.
Section 146A(1) provides that a worker's degree of impairment is to be evaluated, as a percentage, in accordance with the Guides.
Pursuant to s 146A(2), a worker's degree of impairment is to be assessed by an AMS who has been requested in accordance with the regulations (s 146A(3)).
In my opinion s 93N and s 146A contemplate that an evaluation of a degree of impairment (normal or special) will be performed by a single AMS, ie, the AMS who received the request. As will be seen ([34]), the WorkCover Guides adopt a pragmatic approach and make provision for a joint evaluation by several AMS's in cases of complex injuries.
Pursuant to s 146C(6) 'any secondary condition' is to be disregarded in evaluating a degree of impairment. (It may still be relevant to an assessment of damages by a court: s 146C(7).) Pursuant to s 146 'secondary condition' means:
A condition, whether psychological, psychiatric, or sexual, that, although it may result from the injury or injuries concerned, arises as a secondary, or less direct, consequence of that injury or those injuries.
A special evaluation is to be made in accordance with the Guides in accordance with any provisions of the Guides 'that apply to a special evaluation' (s 146C(4)).
Pursuant to s 146G, upon being requested to assess a worker's degree of impairment, an AMS may, in accordance with the regulations:
(a)require the worker to attend at a place specified by the AMS;
(b)require the worker to answer any question about the injury;
(c)require the worker, the employer, or the employer's insurer to produce any relevant document or information, or consent to any other person doing so;
(d)require the worker to submit to examination by the AMS, or as requested by the AMS.
There was some debate during the hearing as to whether the power in par (d) is limited to an examination by the AMS or whether it extends to an examination by another person. I favour the latter construction since the former would render the words 'or as requested by the AMS' redundant.
Pursuant to s 146H(1) an evaluation of degree of impairment (special or normal) must be given by an AMS in writing and must comprise a report which includes details of the assessment and the reasons (form AMS 5) and a certificate specifying the worker's degree of impairment (form AMS 6).
Pursuant to s 146H(5), if a document (including an AMS 5, AMS 6, AMS 7 or AMS 8) has 'a factual error … apparent on the face of the document', then the Director may reject it and require the AMS to replace it with a corrected document. Further, pursuant to s 93L(8), the Director may at any time rectify an error that was made in recording an agreement or assessment or in registering an election.
Pursuant to s 146J, a decision of an AMS is not amenable to judicial review. 'Decision' is widely defined to mean 'an opinion, assessment or other decision of an AMS that is relevant …'.
The 3rd edition of the Guides applied to this matter at all material times. They comprised 19 chapters and two appendices including an introduction (ch 3), chapters dealing with 15 different bodily systems (ch 2 – 16) and a chapter dealing with chronic pain (ch 19).
The introduction dealt with the intention and legislative basis for the Guides, principles of assessment and administrative processes.
Pursuant to cl 3.6, an AMS was required to carry out a clinical assessment and determine, inter alia, whether an injury had resulted in impairment and the degree of permanent impairment.
Clause 3.10 provided that in the case of a complex injury where different AMS's were 'required' to assess different body systems, a 'lead assessor' should be nominated to 'coordinate and calculate the final degree of permanent impairment resulting from the individual assessments'. In 'the case of a dispute, the lead assessor should be agreed between the parties'. It is to be noted that the requirement for, or use of, multiple AMS's is not contemplated or mandated in the Act itself.
It is to be further noted that cl 3.10 did not specify or stipulate who was to determine if multiple assessments were 'required' and who was to request them, or what would happen in the absence of an agreement between the parties as to the nomination of the lead assessor.
Overall, in my opinion cl 3.10 was a machinery provision which should not be construed as mandatory legislation.
Pursuant to cl 3.45 to cl 3.47, multiple impairments arising from an injury or injuries arising out of a single event could be combined (presumably by the lead assessor where required) using the Combined Values Chart to determine an overall degree of impairment.
Clause 3.67 provided that an AMS 'should be provided with all relevant medical and allied health information, including results of all investigations related to the condition that is being assessed'. In my opinion this included any AMS 5, AMS 6, AMS 7 and AMS 8 issued by another AMS at any time, either as part of the index assessment or an earlier one.

Chronology of key facts

The plaintiff made a claim for workers' compensation on 24 January 2014. As such, his termination day became 24 January 2015 (s 93M).
On 12 December 2014 the Director extended the termination day to 2 December 2015 based on an AMS 8 certificate of condition not stabilised.
On 18 August 2015 an AMS, Dr Michael Beinart (who is a general practitioner) issued an AMS 8 Certificate of condition not stabilised and recommended that the termination day be further extended to 20 January 2016. The AMS 8 and accompanying AMS 7 report (Trial Book 15 and 22 – 29) described the plaintiff's injury– related condition thus:
Crush injuries to left leg and compartment syndrome.
Psychological/Psychiatric injury.
On 25 August 2015 another AMS, a psychiatrist Dr Frederick Ng, issued an AMS 8 Certificate of condition not stabilised (TB 17 – 18) recommending that the termination date be extended to 25 August 2016. So far as the evidence is concerned, he did not provide an AMS 7 report in respect of that certificate. Instead, he proceeded immediately to issue an AMS 5 Report on evaluation and AMS 6 Certificate of degree of permanent impairment (TB 49 – 54 and 55 – 56 respectively). Dr Ng described the plaintiff's injury in all of these documents as 'pathological anxiety and depressive symptoms'. He certified the degree of permanent impairment as 18% 'from a psychiatric perspective'.
Apart from the fact that Dr Ng's AMS 8 was not accompanied by an AMS 7, his evaluation appears to have been flawed insofar as he purported to furnish himself with 'the basis' for a request for a special evaluation (the AMS 8) at the same time as he carried out and certified that evaluation. These matters were not argued before me and I do not rule upon them.
Returning to the chronology, on 29 September 2015 the plaintiff's lawyers applied to the Director to extend the termination date to 20 January 2016 based on Dr Beinart's AMS 7 and AMS 8 dated 18 August 2015.
On 30 September 2015 the Director extended the termination date to 20 January 2016 in reliance upon Dr Beinart's AMS 8 Certificate of condition not stabilised.
On or about 14 October 2015 the plaintiff's lawyers requested Dr Beinart to perform a 'special combined' evaluation of the plaintiff's condition. Dr Beinart was provided with Dr Ng's AMS 5 Report and AMS 6 Certificate on evaluation of degree of permanent impairment, but not Dr Ng's AMS 8 Certificate of condition not stabilised.
On 14 October 2015 Dr Beinart issued an AMS 5 Report and AMS 6 Certificate of degree of permanent impairment. In accordance with the Guides, he assessed the plaintiff's lower extremity impairment at 5% and his skin impairment at 9%. He assessed the psychiatric impairment at 18% by adopting Dr Ng's assessment and then determined a combined evaluation of 29% in accordance with the Combined Values Chart.
On 26 October 2015 the plaintiff's lawyers sent the following documents to the Director:
1.Dr Ng's AMS 5 Report and AMS 6 Certificate on evaluation of degree of impairment (18%, psychiatric only).
2.Dr Beinart's AMS5 Report and AMS 6 Certificate of evaluation of combined permanent impairment (29%).
3.The plaintiff's form AMS 34 Election to retain the right to seek damages dated 23 October 2015.
The plaintiff's lawyers did not on this occasion provide the Director with the AMS 8 Certificate of condition not stabilised upon which the request for the special evaluation was purportedly based, as required by s 93L(3). However, it is common ground that Dr Beinart's AMS 8 dated 18 August 2015 met that requirement since it was given to the Director on 29 September 2015.
On 30 October 2015 the Director issued an AMS 33 Assessment of Degree of Permanent Whole of Person Impairment of 29%, registered the plaintiff's AMS 34 election to retain the right to seek damages and sent a copy of the same to the plaintiff and the defendant.

The parties' submissions

The parties' submissions can be briefly summarised.
Ms Mangan submitted:
(i)As an AMS Dr Beinart was qualified to perform a combined evaluation of the plaintiff's entire condition, ie orthopaedic, skin and psychiatric.
(ii)However, Dr Beinart uncritically adopted Dr Ng's evaluation of the psychiatric injuries and thus only performed his own evaluation in respect of the orthopaedic and skin injuries. Accordingly, as a matter of law and fact, the 'basis' of the request for the psychiatric evaluation, and thus the psychiatric evaluation, could only be the AMS 8 Certificate of condition not stabilised that was issued by Dr Ng.
(iii)It follows that Dr Ng's AMS 8 Certificate of condition not stabilised had to be given to the Director in order to comply with s 93L(3). That did not occur. The fact that the Director was given Dr Beinart's AMS 8 was irrelevant.
Mr Myers submitted that the prohibition on judicial review of any kind provided by s 146J(1) of the Act is the complete answer to the jurisdictional issue. He submitted that it is irrelevant whether Dr Beinart's evaluation was done rightly or wrongly or whether he exceeded his jurisdiction. He submitted that the process and reasons cannot be subject to judicial review and, by implication, cannot be subject to a collateral challenge such as predicated by the defence herein.
Mr Myers further submitted that the Act allows the Director very little scope to refuse to record an evaluation – only a factual error on the face of the documentation will suffice [see 29]. Otherwise the Director is obliged to act on the documentation provided. In the absence of any identified factual error or discrepancy between the AMS 8 and AMS 6 that lay before the Director, Dr Beinart's assessment had to be recorded.
Mr Myers further submitted that the only requirement of s 93L(3) is that the AMS 8 Certificate that formed the basis of the request for a special evaluation be given to the Director, which is what occurred in this case.
Alternatively, Mr Myers submitted that Dr Beinart's evaluation was not flawed in law or fact. He submitted that it is irrelevant whether an AMS relies on medical evidence constituted by an another AMS evaluation or some other medical opinion. He drew support from cl 3.10 of the WorkCover Guides which contemplates that only one certificate or assessment is required even if it is based on various sources of information.

Assessment and determination

The following general principles of statutory interpretation were set out in Marchesano v State of Western Australia [2017] WASCA 177 [98] – [101] (Buss P):
In Commissioner of Taxation (Cth) v Consolidated Media Holdings
Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].'
See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the existing state of the law, the history of the legislative scheme and the general purpose and policy of the provision (in particular, the mischief it is seeking to remedy). See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
As Crennan J noted in Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619, '[s]econdary material seeking to explain the words of a statute cannot displace the clear meaning of the text of a provision (Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at 538 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ), not least because such material may confuse what was "intended … with the effect of the language which in fact has been employed" (Hilder v Dexter [1902] AC 474 at 477 per Earl of Halsbury LC)' [99]. That statement of principle applies to extrinsic evidence admissible at common law and also to extrinsic evidence admissible under s 19 of the Interpretation Act 1984 (WA). In other words, the statutory text, and not non-statutory language seeking to explain the statutory text, is paramount. See Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 [22] (Gleeson CJ, Gummow, Hayne & Heydon JJ).

I add that as a general rule delegated legislation should not be taken into account for the purpose of construing enabling legislation (see Pearce and Geddes, Statutory Interpretation in Australia (8^th ed, 2014) 3.41).
I return to consider s 93L and s 93N more closely.
The word 'condition' in the phrase 'the worker's condition' in s 93N is not defined but is to be contrasted to the phrase 'the injury' that is employed in s 93K(4) (and indeed throughout the Act when describing the construct which enlivens the compensation provisions of the Act).
The phrase 'secondary condition' is given a limited definition (see [24]).
In my opinion, it follows from that limited definition that 'condition' is wide enough to include sequelae (including some psychological or psychiatric conditions) that result from a single compensable injury.
Next, on the clear language of s 93L(3) the requirement is that the AMS 8 which formed the basis of the request for a special evaluation be given to the Director.
The statutory purpose of that particular AMS 8 is twofold. In the first instance it can be relied upon as the basis of an extension of the termination day pursuant to s 93M(4). Secondly, it can be relied upon as the basis for a request for a special evaluation if one becomes necessary prior to the termination day (s 93N(4)).
The legislation thus contemplates an integrated or interdependent process whereby the basis for an extension of the termination date and the basis for requesting a special evaluation are the same, and predicate the contemporaneous existence of one and the same unstabilised condition. In my opinion, the purpose of s 93L(3) and s 93N(4) is to ensure that this integrity and contemporaneity is demonstrated to the AMS who performs the evaluation and then to the Director.
I turn now to consider the parties' submissions.
At the risk of over‑simplification, it seems to me that the defendant's case turns on two contentions.
First, in effect Dr Beinart was cast as the lead assessor of a complex evaluation involving two AMS's (under cl 3.10 of the Guidelines), the authority for which (on the true construction of the Act) turned upon him receiving two AMS 8 Certificates (his own and that of the other assessor, namely Dr Ng). A fortiori, both AMS 8 Certificates had to be given to the Director.
The difficulty with that contention is that the Act is silent about complex evaluations and contemplates a single evaluation by a single AMS (see [23]). In any event, cl 3.10 (which does provide for complex evaluations) only contains machinery provisions (see [36]), compliance with which could not condition the jurisdictional authority of the AMS.
In summary, the defendant may or may not have a grievance as to how Dr Beinart undertook the evaluation in terms of the Guidelines. But, I reiterate what I said at [65] about an integrated process and accept Mr Myers' submissions at [53] – [55]. The fact that Dr Beinart embarked upon a complex evaluation does not alter the fact that, on their face, the documents which were given to the Director complied with s 93L(3). That is, the AMS 8 Certificate of condition not stabilised, and the condition therein certified, provided the basis of an extension of the termination date until 20 January 2016 and the basis of the request for Dr Beinart's special evaluation. Dr Beinart was vested with jurisdiction which could not, and cannot, be challenged by reference to how he exercised his authority.
The defendant's second broad contention is that the statutory bar on judicial review of a decision of an AMS is not applicable to decisions of the Director in respect of such decisions. As such, it is contended that this court may find (and must take into account) that the Director's actions were ultra vires and a nullity. However, if such was the case (and it was not: see [70]) then the defendant's proper remedy would be to challenge, by judicial review, the Director's decision to record the special evaluation and register the plaintiff's election. Mr Myers submitted that the Director's actions stand whilst they are on the record and I concur.
In my opinion the requirements of s 93L(3) were satisfied and the jurisdictional issue should be resolved in the plaintiff's favour.
In the circumstances it is not necessary for me to rule upon Mr Myer's alternative submission ([56]).