MATTER : An application for a Writ of Certiorari against Dr George Wong, Dr Caroline Zanetti, Dr John Low constituted under the Workers' Compensation & Rehabilitation Act 1981 (WA)

Prerogative writs - Workers compensation - Referral to medical assessment panel - Whether panel provided adequate reasons

Workers' Compensation and Rehabilitation Act 1981, s 145E

Alexander Machinery (Dudley) Ltd v Crabtree [1974] ICR 120

Bone v Mental Health Review Tribunal [1985] 3 All ER 330

Re Babban; Ex parte Suleski [2001] WASCA 289

Re Croser; Ex parte Rutherford [2001] WASCA 422; (2001) 25 WAR 170

Re Croser; Ex parte Rutherford [2003] WASCA 8

Re Gillett; Ex parte Rusich [2001] WASCA 111

Re Narula; Ex parte Atanasoski [2003] WASCA 156

Re Wong; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998

Ansett Australia Ltd v The Medical Assessment Panel (1998) 19 WAR 395

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Palazzolo v Brown [2002] WASCA 49

Re McWilliam and Ors; ex parte Pajdak [2002] WASCA 203

Re Monger; ex parte Welsby [2003] WASCA 191

1 MURRAY J: I agree with Templeman J that, for the reasons given by his Honour, the reasons of the Medical Assessment Panel were adequate in the circumstances.

2 The order nisi for certiorari should be discharged.

3 STEYTLER J: I have had the advantage of reading, in draft, the judgment of Templeman J. I agree with him that the application should be dismissed and the order nisi discharged.

4 As Templeman J has said, this Court has, on a number of occasions, dealt with the requirements for the giving of an acceptable set of reasons by a Medical Assessment Panel. Without wishing to be taken to have resiled from anything that has been said in those cases (most of which are discussed in the judgment of Templeman J), it is important to bear in mind that each case must be considered individually, having regard to the purpose for which reasons are required and the nature of the areas of contention: cf Re Wong; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998, per Wheeler J; and Re Croser; Ex parte Rutherford [2001] WASCA 422; (2001) 25 WAR 170 at [73], per Olsson AUJ.

5 In this case there was, as Templeman J has said, general agreement as between the conclusions of the Medical Assessment Panel, made after its examination of the worker, on the one hand, and those expressed in the various medical reports considered by the panel, on the other. There was a broad consensus that the worker had suffered only a mild physical disability in the form of a soft tissue injury to the lumbar and cervical spine and that the severity of her symptoms was ascribable primarily to psycho-social factors. Also, the worker's history appears to have been uncontentious. In these circumstances there was little point in the panel providing details of the history provided by the worker, or of its physical examination of the worker or any greater detail as regards its conclusions in respect of the various reports and other information provided to it.

6 While the panel's reasons are particularly Spartan and cannot be described as a model of what is ordinarily required, I agree with Templeman J, essentially for the reasons that he has given, that, in the particular circumstances of this case, those reasons were adequate for their purpose and sufficiently disclosed the evidence relied upon by the panel and the reasoning process which led to its decision.

7 TEMPLEMAN J: This is yet another application for a writ of certiorari to quash the determination of a medical assessment panel made pursuant

to s 145E of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") on the basis that the panel failed to give adequate reasons for its determination.

8 The application demonstrates the care which must be taken in analysing reasons given by a medical assessment panel in the light of the circumstances in the particular case, there being no universal formula by which such determinations may be judged.

9 The applicant is the employer or former employer of Angelina Kristanoska ("the worker") who made a claim pursuant to the Act in relation to an injury she claimed to have suffered on 8 August 2001, in the course of her employment. Initially, on or about 14 August 2001, the worker claimed to have sustained injury to her lower back and neck. Following some inconclusive attempts to conciliate the claim, the worker gave notice on 13 February 2003 that she had sustained a psychiatric disability as a result of the physical disability.

10 Following further attempts to conciliate the claim, the matter was referred to a medical assessment panel which convened on 14 August 2003. The panel comprised Dr George Wong, a neurosurgeon, Dr Caroline Zanetti, a psychiatrist and Dr John Low, an occupational physician.

11 The panel had been provided with eight medical reports, each from a different doctor, and dated between 28 August 2001 and 31 March 2003.

12 Significantly among those reports, was that of Dr Christopher Hammersley dated 30 August 2001. Dr Hammersley reported:

"My objective clinical findings at today's examination were consistent with a non-organic pain complaint ... I was unable to detect any objective signs of a physical condition. (The worker's) status is best described as muscle tension and pain reporting."

13 Similarly, Dr Martin Flahive reported on 28 September 2001 that the worker:

"is a 44 year old grader/packer who presents with a 7 week history of wide spread neck pain, shoulder pain, arm pain and low back pain ... I feel it is difficult to explain her symptoms or the examination findings on a patho-anatomical basis and it is likely that a number of psycho-social factors are modifying her presentation."

14 In a report dated 28 December 2001, Dr Flahive said:

"At the time of my review I was unable to identify any sign of significant pathology that would account for (the worker's) ongoing symptoms."

15 On 22 October 2001 Dr Jane Dymond provided a report in which she agreed with Dr Hammersley's opinion to the effect that the worker's physical injury was relatively minor and would have been expected to resolve within one month. Dr Dymond agreed also that the worker's absence from work "is related to abnormal pain behaviour and psycho-social factors rather than physical factors".

16 On 24 October 2001 Dr John Hayes examined the worker. He reported:

"This lady most likely has a Chronic Pain Disorder and I feel there are strong non-organic factors associated with her Pain Syndrome.

Unfortunately the prognosis with these patients is poor and the prospect of a successful rehabilitation is remote."

17 Finally, the worker was examined on 12 July 2002 by Mr Peter Watson who reported:

"I suspect (the worker) has had a minor soft tissue and ligamentous injury to her lumbar spine as a result of the injury on the 8th August 2001 and there has been significant abnormal illness behaviour that has developed since that time. I could find no consistent neurological examination nor could I find any explanation for her global weakness in arms and legs.

...

In summary, I believe that (the worker) started on the 8th August with a minor lower lumbar soft tissue injury and since this time has compounded with significant abnormal illness behaviour into a complex of symptoms throughout the spine and into arms and legs. In my own opinion her treatment should follow very conservative lines and I see no reason that she cannot return to work in a graduated return to work programme. The prognosis for her recovery however is extremely poor."

18 The medical assessment panel was asked a number of questions. The questions and the determination of the panel are as follows:

"1. What is the nature of the worker's physical disability, if any?

The nature of the worker's physical disability is soft tissue injury to the lumbar and cervical spine.

2. What is the extent of the worker's physical disability, if any?

3. Does the worker have the physical capacity for her pre-injury employment as a packer?

4. If the answer to question 3 is yes, for how many hours per week does the worker have a capacity for her pre-injury employment.

5. What is the nature of the worker's psychiatric disability, if any?

1. Adjustment disorder with depressed mood.

2. Pain disorder with associated psychological factors and a general medical condition.

6. What is the extent of the worker's psychiatric disability if any?

1. Mild to moderate.

2. Moderate to severe.

7. Does the worker have the psychiatric capacity for her pre-injury employment as a packer?

8. If the answer to question 7 is yes, for how many hours per week does the worker have the psychiatric capacity for her pre-injury employment?

19 The panel gave the following reasons for their determination:

"The Panel has taken a detailed history, carried out a physical examination, and reviewed all reports and radiology provided.

From a physical point of view, no significant pathology is found. She has a mild soft tissue injury affecting the cervical and lumbar spines. Her pre-injury employment entails spending the entire workday standing and using both upper limbs repetitively to work on a conveyor system in a paced manner. She also reports having to lift crates of chicken on an occasional basis. Given these biomechanical demands, the Panel does not believe she has the physical capacity to return to her pre-injury employment.

Her more significant problem however is her psychological problem of illness behaviour.

The worker presents with chronic low mood that waxes and wanes with the severity of her perceived pain. There are no accompanying physiological shift symptoms or regular diurnal mood variation. She remains hopeful about her future and does not express any nihilistic thoughts. This presentation is consistent with an adjustment disorder with depressed mood.

The worker presents with significant feelings of dependency and helplessness that appear to be an expression of her physical pain. In the absence of physical injury or disease that can be identified as causing the degree of pain she reports, and her chronic limitation of activity in all spheres where help is available, she meets the criteria for Pain Disorder with associated psychological factors and a general medical condition.

The worker is poorly educated and demonstrates a limited understanding of physiological functions. Her strong belief that she has a serious injury is likely to be resistant to modification and she is therefore very unlikely to see herself as capable of returning to her pre-accident duties, or other work requiring constant physical exertion."

20 The applicant contends that those reasons are inadequate. The applicant relies on the following particulars:

"1.1 The Panel has not provided any detail of the history provided by the worker, the physical examination, or what reports or radiological examinations the Panel has considered and accepted.

1.2 The Panel did not state or analyse what medical reports or evidence it relied upon or discounted. The reasoning of the Panel is unclear as to whether they attached what (if any weight) to the medical reports before them and if so why;

1.3 There is nothing readily apparent from the Panel's reasons, which is logically capable of supporting the Panel's determination regarding the worker's physical disability."

21 The applicant supports its contentions by reference to the decision of this Court in Re Croser; Ex parte Rutherford [2003] WASCA 8. That decision is one of the more recent in what has become a long line of cases dealing with the adequacy of reasons given by medical assessment panels in relation to a whole range of different circumstances. In Ex parte Rutherford (supra) Rolfe AJ with whom Murray J and I agreed, set out "some advice to panels" under that heading. One of the reasons for doing so was that the matter had been twice to the same medical assessment panel, which had given inadequate reasons on both occasions. In those circumstances, the Court discussed with counsel whether it would be desirable to offer general guidance. There were conflicting views about the utility of that course. His Honour therefore embarked upon the exercise with a degree of circumspection. His Honour said:

"... I am not to be taken as suggesting that I am laying down any formula, let alone a rigid one, within which a panel must seek to structure a determination. I make it clear that in every case, the determination must be that of the panel. ...

In my opinion, and I stress that I am speaking generally and by no means purporting to cover all the circumstances which may arise for a panel's consideration, it seems to me that a panel must keep in mind that:

(a) It is particularly suited by its medical training to furnish a determination on medical issues. In effect, the determination has some close similarity to a medico-legal report, which usually sets out the history obtained, the symptoms complained of, the examination carried out, what that examination discloses and a view of the extent, nature and severity of the medical condition supported by the doctor's reasons for reaching that conclusion.

(b) In relation to many medical issues, there may be, and often is, a legitimate difference of medical opinion as to the nature, extent and severity of the injury.

(c) The panel's task is to determine from all the medical reports before it, its examination of the worker and its own experience, the conclusion as to which of those differing opinions it favours in the case before it.

(d) The expression of the conclusion, however, is made insufficient by the Act. The Act demands that the panel gives reasons. The law does not demand that the reasons should extend beyond those sufficient to enable the lay reader and, in some cases, the medical reader, to determine how the panel reached its decision.

(e) In these circumstances, one task for the panel is to determine which medical reports it accepts and which it does not. However, it is insufficient to simply make that statement.

(f) In concluding which medical reports to accept or reject, the panel may have regard to matters such as the sufficiency of the history given to the doctor providing each report by the worker; the extent to which, if at all, the doctor has examined the worker and what the doctor has ascertained from that examination; whether the examining doctor has overlooked some matter, which the panel has observed on its examination and which it considers to be relevant; and whether the views expressed by the doctor accord with a respected body of medical opinion. There may be other reasons for rejecting some medical reports. They should be stated.

(g) Insofar as the panel questions the worker, the determination should set out, albeit briefly, the nature of the questioning and the effect that the answers and the manner in which they were given impacted upon the panel's determination.

(h) Insofar as the panel examines the worker, it should record what is found on examination and what the panel derives from such findings perhaps, more particularly, in the light of the history and complaints made by the worker.

(i) From all this information, although much will be contained in writing what I have said, the panel should disclose its reasons upon which it bases its conclusions."

22 In expressing himself as he did, Rolfe AJ was not breaking new ground. In Re Wong; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998, Wheeler J with whom the other members of the Court agreed, said:

"As has been said on many occasions, no standard of perfection is required in preparation of the reasons [of a medical assessment panel] and they are to be considered fairly and not combed through 'with a fine appellate toothcomb to find error': Minister for Immigration and Ethnic Affairs v Wu Chan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291, Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157. At a minimum, however, it seems to me that in a case of this kind the panel must not merely list the materials upon which it relied, without any hint as to what portions of those materials is considered particularly relevant or the way in which it reconciled any portions of those materials which might have been in conflict. It should at least have set out what it considered to be the material facts which emerge from the materials to which it referred, and its process of reasoning from those material facts to its conclusion. Although each case must be considered individually, having regard to the purpose of the obligation to provide reasons, it is generally sensible for a fact finding body of this kind to make a particular reference to material which would appear to be inconsistent with a conclusion which it reached ... and to explain why such material was considered not to be relevant, or to be outweighed by other consideration."

23 That approach was adopted by the Court in Re Babban; Ex parte Suleski [2001] WASCA 289 where the Court made reference also to Re Gillett; Ex parte Rusich [2001] WASCA 111, which had just been decided.

24 In Ex parte Rusich (supra), a differently constituted Court followed the approach of Nolan J in Bone v Mental Health Review Tribunal [1985] 3 All ER 330 who said the question at issue was whether the panel had provided sufficient reasons to enable the parties to discern whether any error of law had been made in the findings of fact which it had reached.

"... Parliament having provided that reasons shall be given, in my view that must clearly be read as meaning that proper, adequate, reasons must be given; the reasons that are set out ... must be reasons which not only will be intelligible, but also can reasonably be said to deal with the substantial points that have been raised ..."

26 His Lordship went on to refer to Alexander Machinery (Dudley) Ltd v Crabtree [1974] ICR 120 at 122 in the National Industrial Relations Court, where Donaldson P said:

"It is impossible for us to lay down any precise guidelines. The overriding test must always be: is the tribunal providing both parties with the materials which will enable them to know that the tribunal has made no error of law in reaching its finding of fact?"

27 Then, in an earlier application made in respect of Mr Croser: Re Croser; Ex parte Rutherford [2001] WASCA 422; (2001) 25 WAR 170, Olsson J (with whom Steytler J agreed) adopted the following passage from the judgment of Kennedy J in Re Babban; Ex parte Suleski (supra):

"12 The essence of reasons for decision is that they disclose the reasoning processes of the Tribunal. Fulfilment of the obligation to give reasons ensures that a person whose interests may be adversely affected by a decision understands why the decision has been made, and allows a party dissatisfied with a decision to determine whether there has been a reviewable error: [citations omitted] ...

14 It is important that the applicant should be able to understand, from the reasons for decision, why he has had his claim dismissed. He should be told in clear and unambiguous language why he has lost. What is required, at the least, in the Panel's reasons is that they give the medical reasons in sufficient detail to show that the questions referred to it have been properly considered according to law, and that the answers furnished are founded upon an appropriate application of the members' medical knowledge and experience - cf Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635, per Callaway JA at 661."

28 Olsson AUJ went on to make the following observation (at [72] - [73]):

"I would merely wish to add to what fell from Kennedy J that it needs to be borne in mind that Medical Assessment Panels are constituted of medical practitioners who have a large number of cases coming before them. It is not to be expected that they will produce the closely reasoned decision of a lawyer. What is required is the writing of a determination which, on fair construction of it, does convey the basis of the decision arrived at, with sufficient particularity to satisfy the above dicta.

What will suffice will, no doubt, vary from case to case, dependent on the nature of the areas of contention to be addressed. Some situations will permit of a fairly brief statement of reasons. Others may require a somewhat more detailed analysis of the medical evidence, the findings on examination and other aspects as, for example, adverted to in Re Gillett; Ex parte Rusich [2001] WASCA 111 (at [39])."

29 Many of these authorities were reviewed by this Court in Re Narula; Ex parte Atanasoski [2003] WASCA 156. There, Roberts-Smith J with whom Murray and Barker JJ agreed, referred to and set out the guidelines proposed by Rolfe AJ in Re Croser (supra). However, his Honour went on to accept a submission that in a particular case, a medical assessment panel might rely entirely on its own clinical examination and material such as x-rays. His Honour said:

"There is no problem with that in principle if the case is one in which that approach is appropriate. But for a panel to proceed in that way would not relieve it of its statutory obligation to give reasons. It would still be required to say that was what it had done, describe the results of its examination and observations, explain why it had not given weight to such medical reports as were before it and set out the reasoning by way (sic which) it came to the conclusion it did."

30 The position is, therefore, that although the Court in Re Croser (supra) sought to give guidance to medical assessment panels, the only unassailable proposition to emerge from that and other decisions is that the reasons must be such as to enable the persons concerned to understand why the panel came to the conclusion it did and in particular, where it has been provided with conflicting opinions, to explain the way in which it dealt with those conflicts.

31 Viewed against that background, the reasons of the medical assessment panel in the present case are, I think, adequate.

"From a physical point of view, no significant pathology is found. (The worker) has a mild soft tissue injury affecting the cervical and lumbar spine."

That conclusion was entirely consistent with the medical reports received by the Panel. None of the authors of those reports could find any physical cause for the worker's symptoms.

33 This was not a case, therefore, which called for the panel to refer to the earlier medical reports. Neither was it necessary to set out the medical history, at least insofar as it related to the worker's physical condition.

34 In going on to refer to the worker's "more significant problem ... her psychological problem of illness behaviour", the panel set out, albeit in summary form, a psychiatric diagnosis. It was within the competence of the panel to do so, having regard to the fact that one of its members was a psychiatrist. In my view, the reasons for the diagnosis are not only intelligible, they are, with respect, entirely clear. Further, there were no psychiatric reports which conflicted with the panel's own opinion.

35 I accept that the panel might have set out a more detailed history insofar as it related to the worker's psychiatric condition. However, although given only in a summary form in the panel's reasons, I consider that the history is adequate to demonstrate the basis on which the diagnosis has been made. That is presumably the applicant's view also, because it has not asserted any inadequacy in the reasons relating to that matter.

36 Thus, while the reasons given by the panel did not follow the pattern proposed by Rolfe AJ in Re Croser (supra) in my view, the panel discharged its obligation to provide adequate reasons.

37 There is a further point. It will be noted from the particulars of the grounds of appeal set out above, that the applicant challenges only the adequacy of the panel's reasons relating to the worker's physical condition. No challenge is made to the panel's determination that the worker's more significant problem was "her psychological problem of illness behaviour".

38 As the panel did not disagree with the applicant's view that the worker had suffered only a mild physical injury, it would be futile to remit the matter to the panel, even if, contrary to my view, the panel's reasons were inadequate.

39 I therefore consider that the application should be dismissed and the order nisi discharged.