Willis v State of Queensland - [2016] QSC 80

SUPREME COURT OF QUEENSLAND

CITATION:

Willis v State of Queensland [2016] QSC 80

PARTIES:
SIMON WILLIS

(applicant)

v

DR RINGROSE, DR HARDEN AND DR RICE CONSTITUTING THE GENERAL MEDICAL ASSESSMENT TRIBUNAL - PSYCHIATRIC

(first respondents)

STATE OF QUEENSLAND

(second respondent)

FILE NO/S:

SC No 3695 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application for statutory order of review

DELIVERED ON:

24 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2016

JUDGE:

Bond J

ORDER:
Delivered ex tempore on 24 March 2016:

The orders of the Court are that:

1.   the tribunal's decision of 11 March 2015 insofar as it assessed the applicant's degree of permanent impairment at 5% be set aside.

2.   the matter be remitted to a differently constituted Medical Assessment Tribunal - Psychiatric to assess the applicant's degree of permanent impairment sustained from the applicant's adjustment disorder with anxiety and depressed mood.

3.   the second respondent pay the applicant’s costs of the application, to be assessed on the standard basis.

CATCHWORDS:
WORKERS’ COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - PROCEDURE - where tribunal assessed applicant under s 502 of the Workers Compensation and Rehabilitation Act 2003 (Qld) (“the Act”) - where tribunal made findings in respect of the applicant’s degree of permanent impairment - where applicant argued that the tribunal failed to comply with the procedures required by the Act and the Guidelines for Evaluation of Permanent Impairment (“the Guides”) - whether the tribunal complied with the procedures required by the Act and the Guides

ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REASONS FOR ADMINISTRATIVE DECISIONS - ADEQUACY OF REASONS - where the reasons of the tribunal made reference to the categories of the Psychiatric Impairment Rating Scale (“PIRS”) provided for in the Guides - where the applicant submitted that, on the face of the tribunal’s reasons, the tribunal erred at law in its application of the PIRS - whether, on the face of the tribunal’s reasons, the tribunal erred at law

Acts Interpretation Act 1954 (Qld), s 27B
Judicial Review Act 1991 (Qld), s 20

Workers Compensation and Rehabilitation Act 2003 (Qld)

Craig v The State of South Australia (1995) 184 CLR 163, cited
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, cited
Ergon Energy Corporation Ltd v Rice-McDonald [2010] 1 Qd R 516, cited
Griffin v State of Queensland [2016] QSC 43, considered
Masters v McCubbery [1996] 1 VR 635, considered
Mentink v Minister for Home Affairs [2013] FCAFC 113, cited
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, cited
Thompson v WorkCover Queensland [2002] QSC 119, cited
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, considered

York v The General Medical Assessment Tribunal [2003] 2 Qd R 104, cited

COUNSEL:

M A Robinson SC for the applicant

S A McLeod for the first and second respondents

SOLICITORS:

Shine Lawyers for the applicant

Crown Law for the first and second respondents

The applicant was physically injured…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QSC 80
Decision Date: 24 March 2016

CaseChat Overview and Summary

In the case of Willis v State of Queensland, the applicant challenged a decision by a Medical Assessment Tribunal under the Workers Compensation and Rehabilitation Act 2003 (Qld) regarding the assessment of the applicant's degree of permanent impairment. The applicant argued that the tribunal did not comply with the procedures outlined in the Act and the Guidelines for Evaluation of Permanent Impairment ("the Guides"). The applicant further contended that the tribunal's reasons for the assessment contained errors of law, specifically in its application of the Psychiatric Impairment Rating Scale ("PIRS"). The court was required to determine whether the tribunal had adhered to the required procedures and whether the tribunal's reasons demonstrated an error of law.

The court examined the tribunal's decision and the Guides to ascertain whether the tribunal had followed the prescribed procedures. The court noted that the Guides required the tribunal to provide a rationale for the rating based on the injured worker's psychiatric symptoms, and the diagnosis should not be the sole criterion. The Guides outlined six scales for assessing behavioural consequences of psychiatric disorders, with class descriptors ranging from one to five, according to the severity. The court found that the tribunal had not provided a comprehensive rationale for its rating, and had relied heavily on the diagnosis instead. Furthermore, the court found that the tribunal's reasons for the assessment did not adequately explain the application of the PIRS, and contained errors of law.

Based on the court's findings, it set aside the tribunal's decision of 11 March 2015 insofar as it assessed the applicant's degree of permanent impairment at 5%. The matter was remitted to a differently constituted Medical Assessment Tribunal - Psychiatric to reassess the applicant's degree of permanent impairment sustained from the applicant's adjustment disorder with anxiety and depressed mood. The second respondent was ordered to pay the applicant’s costs of the application, to be assessed on the standard basis.

Orders

Orders of the court

Delivered ex tempore on 24 March 2016:

The orders of the Court are that:

1. the tribunal's decision of 11 March 2015 insofar as it assessed the applicant's degree of permanent impairment at 5% be set aside.

2. the matter be remitted to a differently constituted Medical Assessment Tribunal - Psychiatric to assess the applicant's degree of permanent impairment sustained from the applicant's adjustment disorder with anxiety and depressed mood.

3. the second respondent pay the applicant’s costs of the application, to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Clause 11.7 of the guides provides:It is expected that the [tribunal] will provide a rationale for the rating based on the injured worker's psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker's own description of his or her functioning and limitations; from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals, results of standardised tests, including appropriate psychometric testing performed by a qualified clinical psychologist, and work evaluations may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to “whole person impairment”. I make the same observation in relation to the requirement that a rationale be provided that I made in relation to cll 1.29, 1.30, 1.31 and 1.56 of the Guides. Psychiatric impairment is assessed by the tribunal using and applying the Psychiatric Impairment Rating Scale (“PIRS”), which is provided for in the Guides from cl 11.12 to the end of the chapter. Clause 11.12 of the Guides provides:Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment:• Self-care and personal hygiene (Table 11.1) • Social and recreational activities (Table 11.2) • Travel (Table 11.3) • Social functioning (relationships) (Table 11.4)• Concentration (Table 11.5)• Employability (Table 11.6) The clause makes it clear that the first three categories are concerned with the activities of daily living. Clause 11.13 of the guides provides:Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person's cultural background. Consider activities that are usual for the person's age, sex and cultural norms. There follows six tables, setting out class descriptors for each category listed in cl 11.12. The application of the descriptors would enable a classification in the range of one to five to be made in relation to each area. The descriptors for each class include:(a)words which are simply descriptive, for example, class 1 of table 11.1, dealing with “self care and personal hygiene” provides:Class 1: No deficit, or minor deficit attributable to the normal variation in the general population(b)words which are descriptive, but which are supplemented by words which list exemplars, for example, class 2 of table 11.1 and class 2 of table 11.2, which respectively provide:Class 2: Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.Class 2: Mild impairment: occasionally goes out to such events without needing a support person, but does not become actively involved (eg, dancing, cheering favourite team).

CITATION:	Willis v State of Queensland [2016] QSC 80
PARTIES:	SIMON WILLIS (applicant) v DR RINGROSE, DR HARDEN AND DR RICE CONSTITUTING THE GENERAL MEDICAL ASSESSMENT TRIBUNAL - PSYCHIATRIC (first respondents) STATE OF QUEENSLAND (second respondent)
FILE NO/S:	SC No 3695 of 2015
DIVISION:	Trial Division
PROCEEDING:	Application for statutory order of review
DELIVERED ON:	24 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	24 March 2016
JUDGE:	Bond J
ORDER:	*Delivered ex tempore* on 24 March 2016: The orders of the Court are that: 1. the tribunal's decision of 11 March 2015 insofar as it assessed the applicant's degree of permanent impairment at 5% be set aside. 2. the matter be remitted to a differently constituted Medical Assessment Tribunal - Psychiatric to assess the applicant's degree of permanent impairment sustained from the applicant's adjustment disorder with anxiety and depressed mood. 3. the second respondent pay the applicant’s costs of the application, to be assessed on the standard basis.**
CATCHWORDS:	WORKERS’ COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - PROCEDURE - where tribunal assessed applicant under s 502 of the Workers Compensation and Rehabilitation Act 2003 (Qld) (“the Act”) - where tribunal made findings in respect of the applicant’s degree of permanent impairment - where applicant argued that the tribunal failed to comply with the procedures required by the Act and the Guidelines for Evaluation of Permanent Impairment (“the Guides”) - whether the tribunal complied with the procedures required by the Act and the Guides ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REASONS FOR ADMINISTRATIVE DECISIONS - ADEQUACY OF REASONS - where the reasons of the tribunal made reference to the categories of the Psychiatric Impairment Rating Scale (“PIRS”) provided for in the Guides - where the applicant submitted that, on the face of the tribunal’s reasons, the tribunal erred at law in its application of the PIRS - whether, on the face of the tribunal’s reasons, the tribunal erred at law Acts Interpretation Act 1954 (Qld), s 27B Judicial Review Act 1991 (Qld), s 20 Workers Compensation and Rehabilitation Act 2003 (Qld) Craig v The State of South Australia (1995) 184 CLR 163, cited Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, cited Ergon Energy Corporation Ltd v Rice-McDonald [2010] 1 Qd R 516, cited Griffin v State of Queensland [2016] QSC 43, considered Masters v McCubbery [1996] 1 VR 635, considered Mentink v Minister for Home Affairs [2013] FCAFC 113, cited Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, cited Thompson v WorkCover Queensland [2002] QSC 119, cited Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, considered York v The General Medical Assessment Tribunal [2003] 2 Qd R 104, cited
COUNSEL:	M A Robinson SC for the applicant S A McLeod for the first and second respondents
SOLICITORS:	Shine Lawyers for the applicant Crown Law for the first and second respondents