Workers' compensation - Application for writ of certiorari - Medical Assessment Panel - Adequacy of reasons - Jurisdiction of this court to judicially review a decision of a Medical Assessment Panel

Workers' Compensation and Injury Management Act 1981 (WA), s 145E

1 This is an application for a writ of certiorari to quash a decision of a Medical Assessment Panel. It began badly, in the sense that it sought to attack a determination which did not, on its face, have anything wrong with it, let alone anything which might amount to jurisdictional error. It went from bad to worse when the applicant's submissions failed to grapple with a legislative amendment which was apparently intended to prevent applications of this kind. It deteriorated still further, when the applicant sought leave, subsequent to the hearing, to add a ground raising an issue which had been explored at the hearing, and which the court had then indicated to be lacking in merit. The application must be dismissed, for the reasons which follow.

2 In broad terms, the applicant in this case said that he had a disability which had as one component back pain, as another component loss of sexual function, and as a third component a psychiatric impairment. The precise source of the back pain, the nature of the psychiatric condition, and the level of disability in relation to all three of the conditions were the subject of numerous medical reports. There were many and varied views, to the extent that the review officer noted at [93] of his reasons, "As with a number of applications lately, the question must be asked as to whether the practitioners have examined the same patient". It was because of that great variation in opinion that the review officer considered that a Medical Assessment Panel should consider the question of the applicant's disability.

3 The Medical Assessment Panel concluded that the applicant had a 10 per cent permanent disability of the thoracic and lumbar spine, a zero per cent permanent disability in relation to loss of genitals, and a 15 per cent permanent disability in relation to psychiatric disability. The Panel gave some three and a half pages of reasons for its conclusions.

4 Before we turn to the grounds of the application, we would observe that the reasons of this Medical Assessment Panel are clearer and more detailed than any that we can recall reading in the past. They are far more detailed than many reasons which have been the subject of criticism in other cases.

5 The way in which the Panel set out its reasons was, in broad terms, as follows. It noted that it had read the various reports, including radiological and nuclear scan investigations. It was noted that the Panel obtained a relevant history from the applicant and undertook a detailed assessment of his condition with respect to present complaints and symptoms and the manner in which they restrict his day-to-day activities. Following that, a full and detailed physical examination was undertaken.

6 Moving on to specific observations, the Panel considered that, in relation to the thoracic and lumbar spine, the symptoms were consistent with degenerative disc disease and there was nothing to suggest that the symptoms were anything other than non-specific back pain, the commonest cause of back pain in the population. It was noted that the history indicated a restriction of activity which was unusual in relation to such a condition and that there were certain inconsistencies on examination and a number of abnormal signs. It was noted that certain medical practitioners, including Dr Home and Mr Wong, described abnormal physical signs consistent with the Panel's findings. However, Mr McCloskey, Dr Finch and Dr Warner did not mention the presence or absence of abnormal physical signs and the report from Mr Woodland indicated no inconsistency or deliberate exaggerated behaviour. The Panel therefore, in effect, determined that its assessment should be more consistent with that of Dr Home and Mr Wong, since in the reports of the other practitioners mentioned, there was "no obvious attempt to determine the presence or otherwise of abnormal physical signs to authenticate the severity of the problem".

7 This portion of the reasons gives rise to the complaint that the Medical Assessment Panel disregarded the medical reports of Drs Finch, Warner and Woodland and that the Panel's reasoning was inadequate in relation to the back pain. Specifically, it was submitted that the Panel should have set out the abnormal physical signs and abnormal posture which had been observed and should have explained how those findings led to its conclusion (relying on Re Anastas; Ex parte Welsby [2002] WASCA 83).

8 So far as the failure to set out the various abnormalities is concerned, it is sufficient to deal with this ground to note that Dr Home had provided four medical reports, totalling more than 15 pages, while Mr Wong had provided two reports. Dr Home's report, in particular, set out in very considerable detail the applicant's presentation, and it would appear to be obvious that, when the Panel described its findings as consistent with that of Dr Home, it should be understood as indicating that its findings relevantly replicated those of Dr Home. The present case is therefore very different from that of Welsby, in which the only reasons provided were apparently that there was "inconsistency on examination with forward flexion of his spine and straight leg raising", and no reference whatever to what the applicant in Welsby actually did or reported that he was able to do.

9 So far as any other alleged inadequacy in the reasons concerning the thoracic and lumbar region is concerned, those reasons would be inadequate only to a person who was making a serious effort not to understand them. The Panel plainly considered that, having regard to the sort of back pain diagnosed, the condition was one of minor to moderate disability. The Panel plainly considered that other medical practitioners who had examined the applicant fell broadly into two categories, being those who had attempted to determine whether the applicant's presentation was or was not consistent with what would be expected from a disability of this kind, and those who had not, and preferred to rely upon the former. There is no inadequacy in the reasons, and there is no other reviewable error in the reasoning in relation to the thoracic and lumbar spine.

10 So far as the loss of sexual function is concerned, the Panel noted two things. First, it noted that the applicant was apparently not altogether honest in his history in relation to his sexual activity and an example was given. More importantly, the Panel noted that six months prior to his accident, he commenced treatment with Methadone for his heroin addiction. The dose of Methadone which he was taking was a large dose and can be associated with impotence. His Methadone dose was increased after his injury to 100 milligrams daily, which the Panel noted was above the recommended daily maximum of 80 milligrams. On the advice of Dr Finch, he had recently decreased it to 75 milligrams. The Panel noted that two medical practitioners upon whose reports the applicant apparently sought to rely had not mentioned that the immediate precursor to the loss of libido and impotence was the use of Methadone. The Panel considered that the applicant's impotence stemmed from his Methadone use, was not permanent, and should reverse if the Methadone use was ceased. It was on that basis that the Panel found no permanent disability.

11 In relation to the loss of sexual function, there were two grounds of the application. One of those grounds, ground 4, was abandoned. Ground 3 contended that the determination exceeded the referred question (and thus that the Panel exceeded its jurisdiction) by dealing with issues of causation.

12 It is submitted that the Panel is precluded from considering questions of causation. That is not the law. It is no part of the Panel's task to determine questions of causation, when it is asked to assess the degree of a worker's disability. However, on occasion, it will not be possible to determine whether a disability exists at all, or whether the disability is permanent, without ascertaining how the disability arose. In Bloomfield v Liebherr [2007] WASCA 154, for example, there was a question as to whether the applicant's cognitive problems and skin disorder in that case were or were not permanent. It seems to have been accepted that if those conditions arose from poisoning or chemical injury, they would be permanent, but if they stemmed from other causes, they would not. It was necessary to consider causation before the question of permanency could be decided.

13 In the present case, the Panel was considering the question of whether the applicant's loss of libido was permanent. If it stemmed from the use of Methadone, which he was able to cease, then it was plainly not permanent. The Panel addressed the correct question - whether the disability was permanent - and considered causation issues only as a step in the process of reasoning in relation to that question. There was therefore no error in that respect.

Amendment to s 145E: The jurisdictional issue

14 The review officer referred the question for determination by the Medical Assessment Panel pursuant to s 84ZH of the Workers' Compensation and Injury Management Act 1981 (WA). Section 145E(5) at that time provided that the determination was "final and binding on the worker and his employer and on any court or tribunal hearing a matter in which any such determination is relevant". A provision of that kind does not prohibit judicial review of such a decision by way of prerogative relief. See Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124 at 130.

15 Before any determination was made by the Panel, s 145E was amended by s 108 of the Workers' Compensation Reform Act 2004 (WA). This repealed s 145E(5) and then added new subss (5), (6), (7), (8) and (9). The new s 145E(6) once again stated that the determination was "final and binding on the worker and the worker's employer and on any court or tribunal hearing a matter in which any such determination is relevant". However, it also added in subs (9) a provision which read:

A decision of a medical assessment panel or anything done under this Act in the process of coming to a decision of a medical assessment panel is not amenable to judicial review.

16 This amendment came into force on 14 November 2005. The Medical Assessment Panel made its determination on 31 January 2006.

17 The applicant, by originating motion dated 15 March 2006, sought an order nisi against the chairman of the Panel requiring him to show cause why a writ of certiorari should not be issued for the purpose of quashing the Panel's determination dated 31 January 2006.

18 The applicant's grounds in the order nisi commenced with the words "Notwithstanding the provisions of section 145E(9) ... the Applicant seeks relief by way of Certiorari" and the grounds were then stated. The applicant's written outline of submissions, filed on 14 September 2006, dealt with s 145E(9) by completely ignoring it.

19 The respondent filed an outline of submissions on 11 October 2006, taking a preliminary point, namely that the Panel's determination was not amenable to judicial review because of s 145E(9). This amounts to a submission that this Court has no jurisdiction to judicially review the Panel's determination.

20 Ten months later, without leave and only four days before the hearing in this Court, the applicant filed submissions in response to the respondent's preliminary point. The submissions consist of three pages, which counsel for the applicant described as being in "dot point form". The submissions did not deal with the question whether s 149E(9) was effective for all purposes to exclude certiorari, but implicitly assumed that it was. The submissions contended that the right to a determination of degree of disability was under the "old regime", that "Referral to a panel is a proceeding or investigation in respect of that statutory right alternatively it is in respect of the broader underlying common law right to damages determinable under the old regime".

21 There was then a reference to Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88 and Musgrove v Minister for Transport [2000] WASCA 232. The written submissions also contained a reference to s 37(1) of the Interpretation Act 1984 (WA), which the applicant submitted preserved for this applicant the right of judicial review by way of certiorari, which existed before the enactment of s 149E(9).

22 If s 37(1) was to apply, it is necessary to consider first whether the Workers' Compensation Reform Act 2004 "repeals an enactment". The applicant contended that "a comparison of the old s 145E with the new s 145E shows that the significant 'amendments', in substance, effect the 'repeal' of [significant parts of] the old scheme and its replacement with a new scheme". Clearly s 145E, as it existed before 15 November 2005, did not confer jurisdiction on the Supreme Court to judicially review a decision of the Panel. As a result, the new s 145E(9) could not have repealed a non-existent provision.

23 It is perhaps arguable that s 108 of the Workers' Compensation Reform Act 2004 impliedly partly repealed s 16(1)(a) of the Supreme Court Act 1935 (WA). That provision conferred the same jurisdiction on the Supreme Court as the Court of Queen's Bench had at the time of the commencement of the Supreme Court Ordinance 1861. The Court of Queen's Bench at that time had jurisdiction to grant prerogative relief. As to an implied repeal of a statute, see Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1. However, none of this was addressed by the applicant or the respondent in written submissions. Nor did the applicant or the respondent refer at all to transitional provisions in the Workers' Compensation Reform Act 2004. There are transitional provisions which may be relevant. See s 183(1) and s 177. No reference was made to case law which has at least to be considered in dealing with this jurisdictional issue. See for example Colonial Sugar Refining Co Ltd v Irving [1905] AC 369; Abbott v Minister for Lands [1895] AC 425 at 431; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at 155 and 165 to 166. See also Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; [2004] 1 AC 816 at [196]; Colley v Futurebrand FHA Pty Ltd [2005] NSWCA 223; (2005) 63 NSWLR 291 and Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303.

24 It may be accepted that there are cases which give a very broad interpretation to the expression "accrued rights", such as Barminco's case and the Colonial Sugar Refining case, but there are other cases which may also support argument that no accrued rights existed. See Abbott's case.

25 In view of the applicant's failure to make any timely written submissions, and in view of the cursory nature of those written submissions, it would be an unsatisfactory course to decide the jurisdiction issue without further argument. See Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107 at [149].

26 If there had been any merit in the applicant's grounds of appeal, it would have been necessary to have called for further written submissions and then to list the matter for further hearing in order to decide the jurisdiction issue. Normally it is desirable to decide a jurisdictional issue first, but in view of the lack of merit in the grounds of appeal, the Court would prefer in this case to dismiss the appeal and flag the existence of the jurisdiction issue, which may have to be considered in another case where the matter is fully argued.

27 The application arises in this way. Ground 3, as we have noted, contended that the Panel exceeded its jurisdiction by considering questions of causation. When the court pointed out the contrary authority of Bloomfield, an alternative submission was made that the Panel should have considered that the applicant was taking Methadone in order to control his back pain, and that, as his back pain was permanent, he would be likely to continue taking the Methadone, with the result that his impotence should also be considered to be permanent. This is a pure question of fact. The applicant's counsel was unable to explain how the Panel's allegedly erroneous reasoning in this respect amounted to either jurisdictional error or error of law on the face of the record. In the end, it was simply said, as we understand it, that there was some material in the medical reports which suggested that the applicant's use of Methadone was for control of his pain and that the Medical Assessment Panel should have made a specific finding in that respect.

28 Even if it were open, on an application for certiorari, to raise a factual issue of this kind, the reasoning contended for by the applicant is, in any event, erroneous. First, it is clear from the Medical Assessment Panel's description of the back condition as being one of "minor to moderate disability" that the Panel is not likely to have considered that any unusual pain relief measures would be required on a permanent basis.

29 Further, there was nothing in the evidence to which the applicant's counsel referred us which suggested that the applicant should continue to take the quantity of Methadone which he was at that stage taking into the foreseeable future in order to control his pain. Mr Wong and Dr Skerritt (AB 78 and 84) appear merely to have indicated that they understood, or were told, that he was taking Methadone for pain relief. Neither indicated the source of that information, and neither indicated a view about the desirability of that course. Dr Finch, a pain medicine specialist, noted (AB 119) that the Methadone was originally started as a treatment programme for the applicant's opioid (heroin) addiction, but that he was continuing to take it in significant amounts as a "strong analgesic agent". Dr Finch commented that it would be better if he could reduce that dosage so that his bowel function improved. Even if that report was read as impliedly suggesting that the applicant should take Methadone for his back pain (which, in our view, it should not), Dr Finch was one of the medical practitioners whose reports the Medical Assessment Panel considered should not be preferred, in relation to the applicant's back condition. The occupational physician, Dr Home (upon whose reports the Panel did rely), noted that the applicant continued to use Methadone, and observed that the Methadone was "ostensibly for the control of back pain, although we do note preceding use of Methadone as part of a longstanding narcotic drug addiction problem" (AB 102). Dr Home went on to add that "pain report can be a feature of narcotic addiction. We are aware that certain individuals with such addiction do present with back and other pain as a method of justifying continuing narcotic use. However, such a conclusion would be speculative in any particular case" (AB 110).

30 The increase in the Methadone usage from 50 milligrams to 100 milligrams seems to have been prescribed by Dr Goucke in the Department of Pain Management at Sir Charles Gairdner Hospital (although he refers to an escalation to 90 milligrams, not 100) (AB 54). That medical practitioner had said in January 2003 (a full three years prior to the Medical Assessment Panel's report) that "he really should try and get back to his pre-injury Methadone dose" (AB 55).

31 In short, all the medical practitioners who commented on the subject were of the view that it would be desirable if the applicant at least reduced his Methadone usage. The Medical Assessment Panel in its reasons impliedly asserted that it was possible for him to do so, and there was nothing in the medical reports to suggest that he should not.

32 The factual difficulties indicated above were canvassed at the hearing of the application for certiorari. At that hearing, the applicant's counsel agreed that the submission was, in effect, "We want to look at the merits ... and if you really looked at the whole thing again ... you'd reach a different conclusion" (ts 56). It was pointed out that that was not a proper ground for certiorari.

33 After the hearing, the applicant's solicitors wrote to the court seeking leave to have substituted a new proposed ground 3, which alleged that the Panel committed jurisdictional error in failing to determine:

(a) whether the worker's accident-related pain would continue into the foreseeable future;

(b) whether there was an increased use of or reliance upon Methadone for control of the accident-related pain;

(c) whether the increased use of or reliance upon Methadone contributed to the worker's sexual dysfunction;

(d) whether the worker's use or reliance upon Methadone for the control of accident-related pain will in fact fully cease in the foreseeable future.

34 Written submissions in support of the application were received. Wheeler JA heard oral submissions on 10 October, and referred the application to be dealt with by us on the papers (being the written submissions and transcript of the oral submissions).

35 Leave to amend is refused, for two reasons. First, although the applicant submits that the application "arises out of" Bloomfield, it does not. It is an attempt to substitute a completely different ground, which the applicant could have raised at any time, for a ground which had been shown in argument to be doomed. If an application were to be granted on this basis, the hearing of an appeal or application would be no more than an interim stage, and a respondent would never be sure of knowing the case to be met until the day judgment was delivered. In any event, for the reasons outlined above, the proposed ground cannot succeed.