Administrative law - Workers' compensation - Certiorari and mandamus - Decision of Director of Conciliation and Review Directorate rejecting worker's application for Referral of Question of Degree of Disability (Form 22) - Whether medical reports satisfy requirement of "medical evidence" for purposes of s 93D(6) Workers' Compensation and Rehabilitation Act 1981 (WA)

Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D

Orders nisi for certiorari and mandamus discharged

Bird v The Commonwealth [1988] HCA 23; (1988) 165 CLR 1

Thorp v Wanneroo City Council, unreported; CM (WA); 49/00; 31 July 2000

1 ROBERTS-SMITH J: This is the return of an order nisi for writs of certiorari and mandamus against Mr Ross Monger, the Director, Workcover Conciliation & Review Directorate ("the Director") calling upon him to show cause why a certain decision made by him should not be quashed and an order absolute for mandamus should not be made.

2 The application is made pursuant to O 56 of the Rules of the Supreme Court ("RSC").

3 The order nisi was sought by application filed 25 February 2003 and supported by the affidavit of Rebecca Jane McGinty sworn 18 February 2003.

4 The orders nisi for writ of certiorari and mandamus were made by Heenan J on 5 March 2003. The terms of those orders included a requirement that a copy of them together with the application and supporting affidavit be served on the director and on the applicant's employer, Dampier Salt Ltd ("Dampier Salt") within 14 days of the date of the order. That has been done, as appears from the affidavit of Dean Albert Ellis sworn 18 July 2003.

5 On 17 March 2003 the Director filed a notice advising that he did not intend to appear by way of counsel and would abide the decision of this Court, save as to costs.

6 On 28 March 2003, SGIO Insurance (which is apparently the insurer for Dampier Salt in the matter) wrote to the applicant's solicitors, noting that neither Dampier Salt nor SGIO are a party to the proceedings and advising that neither would be entering an appearance.

7 Accordingly when the matter came on for hearing before me on 18 July 2003 with Mr Gandini appearing on behalf of the applicant, there was no appearance on behalf either of the Director or Dampier Salt.

8 The applicant sustained an injury to his back in the course of his employment with Dampier Salt on 11 February 2000. According to his claim form dated 5 April 2000 the applicant, a plant operator, was working in the Dampier Salt harvest pan at Lake McLeod near Carnarvon. The circumstances in which the injury was suffered are set out in the "Detailed Incident Investigation Report" of Dampier Salt Operations No 1533.

9 According to that, the applicant was checking the engine on a 16G grader about 2.45 am. He had set a light vehicle up so the lights were shining on the equipment but still had problems with shadows around his footing area. He climbed up on the appropriate hand and foot holds and was shining a torch at his feet area because of the shadows and the narrowness of the walkway. While doing this he was holding onto the hand rail on top of the engine cabinet and as he moved along, concentrating on his feet, went to grab the hand rail to move out and around an air receiver dryer unit mounted on the side of the engine bay. However, at that point there was a gap of approximately 300 mm in the hand rails and his hand went through the gap. He lost his balance and fell between the tyres to the ground, grazing both legs, bruising his hand and wrist and landing on his rectum, which also jarred his back.

10 The report notes that on the side of the vehicle from which the applicant fell, there is an air cleaner clamp which is in the way of the hand rail which therefore does not continue through. It notes that on the other side there is no reason why the hand rail could not be continued through, so eliminating the gap between them.

11 Annexure RM 3 to Ms McGinty's affidavit is a letter from the applicant's solicitors to Dr Peter Honey, an orthopaedic surgeon. The letter is undated but Ms McGinty deposes that it is a letter of 21 October (which in the context of the other material I take to be October, 2002).

12 The applicant relies upon the following portions of this letter in particular:

"You may be aware that injured workers rights with respect to lump sum common law claims were severely affected by the 1999 changes to workers compensation laws. These laws require a certification of at least a 16% whole of body disability (or in the case of lumbar thoracic injury, a 16% lumbar thoracic disability) before an injured worker has the rights to commence common law lump sum proceedings.

Accordingly we would appreciate it if you could provide your assessment, in percentage terms, of our client's permanent loss of the efficient use of his left shoulder at or above the elbow as set out in Item 13 and his right shoulder at or above the elbow as set out in Item 13, left leg at or above the knee as set out in Item 28 and right leg at or above the knee as set out in Item 28 of Schedule 2 of the Workers Compensation & Rehabilitation Act 1981 (copy enclosed).

If you believe our client's disability may include a further Item in the attached Schedule, can you please provide your percentage assessment of that Item as well."

13 By letter dated 16 May 2002 the solicitors wrote in virtually identical terms to Dr Peter Woodland (another orthopaedic surgeon).

14 Dr Woodland wrote to the solicitors on 26 June 2002. That letter was in the following terms:

"Thank you for your further letter 16 May 2002 in regard to your client Mr Dennis Morgan.

I can confirm that I saw him in the office again today, 26 June 2002.

I note that my last report to your office, 3 April 2002 indicated that I felt he had 20% - 25% loss of full efficient use of the back as a consequence of the work related incident 11 February 2000.

I note that your client does have ongoing complaints of left shoulder pain and right knee pain. I have actually taken the liberty of referring him to my colleague, Dr Peter Honey, for assessment on those problems.

From my viewpoint I would assess him as having 25% loss of full efficient use of the back, including the lumbar and thoracic spine, as is set out in Item 26A of Schedule 2 of the Workers' Compensation and Rehabilitation Act 1981. This is totally related to the injury 11 February 2000 and subsequent requirement for treatment.

I will be seeing Dennis in three months time to check his progress.

Yours sincerely

(signed)

PETER WOODLAND

Orthopaedic Surgeon

Spinal Surgeon."

15 Dr Honey's report was provided by letter dated 20 November 2002. That read as follows:

"I am in receipt of your letter dated 6 November 2002 regarding Mr Dennis Morgan. He has recently undergone surgery to his left shoulder and it is not clear exactly what his residual disability will be. He continues to complain of bilateral knee pain but MRI scans do not show surgically correctable pathology. He is still undergoing treatment to his knees from a Physiotherapist. Exactly how he goes in the longer term is not clear but I suspect that the residual disabilities would be as follows:

1. Right leg: 5% loss of efficient function at or above the knee of the right lower extremity.

2. Left leg: 5% loss of efficient function at or above the knee of the left lower extremity.

3. Left shoulder: 5-10% loss of efficient function at or above the elbow of the left upper extremity.

Adding these up it doesn't get the magic 16%. He does have neck problems/back injury and has undergone surgery to his lumbar spine. I am not sure what his whole body disability would be on the basis of his spinal injuries. I suspect that when added in that would be over the 16% level. You would have to contact Dr Peter Woodland for his opinion regarding the spinal disability and then add the numbers up using calculator.

Yours faithfully,

(signed)

PETER R HONEY

MB.BS. FRACS (Orthopaedics)"

16 On 6 January 2003 the applicant's solicitors wrote to the Director forwarding a "Referral of Question of Degree of Disability" form (Form 22) under the provisions of s 93D(5) of the Workers Compensation and Rehabilitation Act 1981 (WA) ("the Act") together with a copy of their letter to Dr Woodland dated 16 May 2002 and his report dated 26 June 2002 and their letter to Dr Honey dated 6 November and his medical report dated 20 November 2002.

17 In the Form 22 the relevant level of disability for the purposes of s 93E(3) of the Act was nominated as not less than 30 per cent. The "degree of disability as assessed by medical practitioner" was claimed to be 31 per cent. The form indicated that the applicant and his employer could not agree on whether the degree of disability was not less than the relevant level.

18 The Director wrote to the applicant's solicitors by letter dated 10 January 2003 advising that he was unable to process the application. His letter was in the following terms:

"I refer to the Form 22 Referral lodged with this Directorate on 7 January 2003, together with the medical reports of Mr Peter Woodland of 26 June 2002 and Mr Peter Honey of 20 November 2002.

The Form 22 indicates the worker's disability to be 'Back, right leg, left leg, left shoulder, neck', which occurred on 11 February 2000.

The report of Mr Honey states in part:

'He has recently undergone surgery to his left shoulder and it is not clear exactly what his residual disability will be... Exactly how he goes in the longer term is not clear but I suspect that the residual disabilities would be as follows:

1. Right leg: 5% loss of efficient function at or above the knee of the right lower extremity.

2. Left leg: 5% loss of efficient function at or above the knee of the left lower extremity.

3. Left shoulder: 5 - 10% loss of efficient function at or above the elbow of the left upper extremity.'

In my view the report is not clear in terms of permanency or a specific degree of disability to the left shoulder as '5-10%' does not enable the making of a calculation under the provisions of Schedule 2 (in this case item 13). The comment made by Mr Honey 'He has recently undergone surgery to his left shoulder and it is not clear exactly what his residual disability will be' leads me to believe that the degree of disability is not permanent at the level claimed.

As you are aware part of my function in relation to a worker's referral under section 93D(5) of the Act is to examine the medical evidence produced pursuant to section 93D(6).

In my view the information submitted by Mr Woodland and Mr Honey are not sufficient to satisfy the requirements of 'medical evidence' for the purposes of section 93D(6). I take that view for the following reasons:

1. The reports do not outline the nature of the injury.

2. The reports do not provide any material or comment of a medical kind which supports the doctors' opinions.

3. The reports do not provide any reasons to support the assessment made.

It seems therefore that both Mr Woodland's and Mr Honey's reports are simply an opinion as to your client's degree of disability rather than 'medical evidence' of the kind required.

For the above reasons I am not satisfied you have provided 'medical evidence' to indicate a permanent level of degree of disability above the relevant level claimed. Accordingly, I am unable to process the application."

19 In their reply to the Director dated 16 January 2003 the applicant's solicitors noted that nowhere in his correspondence of 10 January 2003 did the Director refer to copies of the solicitor's correspondence sent to both doctors, which was enclosed with the applicant's Form 22. They wrote that they found it difficult to understand how he formed his view that the applicant had not provided "medical evidence" to indicate a permanent level of degree of disability above the relevant level claim. They indicated that they would take instructions as to the way in which the applicant wished to proceed and concluded:

"[We] note again that you appear to be taking an over technical approach that is not supported by the legislation, or your understanding of the various authorities. Your continual approach is, as you are now becoming aware, leading to many of our client's (sic) bringing Supreme Court proceedings against you and this can only lead to unnecessary delay and legal costs."

20 Despite that rather pointed exhortation, the Director adhered to his previous view, as he advised by letter to the applicant's solicitors dated 23 January 2003:

"I acknowledge having received copies of your letters to Mr Woodland and Mr Honey, which were enclosed with your client's Form 22 Referral.

The basis upon which I take the view the information submitted by Mr Woodland and Mr Honey is not sufficient to satisfy the requirements of 'medical evidence' for the purposes of section 93D(6) is contained in my letter of 10 January 2003.

Therefore I remain of the view that your client has not provided sufficient medical evidence to indicate a permanent degree of disability above the relevant level claimed.

As your client's application is not one to which the time restrictions for the commencement of proceedings apply, your client has the opportunity of obtaining the required medical evidence."

21 The applicant seeks an order absolute for certiorari quashing the Director's decision:

"(a) not to accept an application ('Form 22') issued by Dennis Morgan ('the Applicant') on the basis that it did not comply with Section 93D(6) of the Workers' Compensation and Rehabilitation Act 1981 ('the Act');

(b) that a dispute pursuant to Section 93D(8) of the Act had not arisen for the purposes of Part IIIA of the Act; and

(c) not to refer the question of the claimant's degree of disability pursuant to Section 93D(10) for resolution under the provisions of Part IIIA (other than Division 2) of the Act;

which non-acceptance of the Form 22, and failure to acknowledge and refer the dispute, were contrary to the provisions of the Act;"

22 An order absolute for mandamus is sought to compel the Director to:

"(a) accept the Form 22 issued by the Applicant on the basis that it does comply with Section 93D(6) of the Act;

(b) acknowledge that medical evidence lodged with the Form 22 does constitute medical evidence for the purposes of section 93(D)(6) (sic);

(c) acknowledge that a dispute pursuant to Section 93D(8) of the Act has arisen for the purposes of Part IIIA of the Act; and

(d) refer the question of the Applicant's degree of disability pursuant to Section 93D(10) for resolution under the provisions of Part IIIA (other than Division 2) of the Act."

23 The grounds of the application for writs of certiorari and mandamus are:

"1. By virtue of s93D(6) of the Act, the Director was required to only decide if the Applicant had produced to him medical evidence which indicated in the medical practitioner's opinion that the degree of disability is not less than 30%.

2. The Applicant's medical evidence does comply with the requirements of section 93D(6);

3. The Applicant's medical evidence is sufficiently clear to allow a calculation of the disability for the purposes of s93D(6);

4. The Director should have accepted the Form 22 on the basis that it did comply with the Act.

5. The Director should have determined that a dispute pursuant to Section 93D(8) of the Act has arisen for the purposes of Part IIIA of the Act.

6. The Director should have referred under Section 93D(10) of the Act, the question of the Applicant's degree of disability for resolution under the provisions of Part IIIA of the Act."

24 The function of the Director under s 93D(6) and what is required for a referral under s 93D(5) and (6) of the Act were considered and explained by the Full Court in Re Monger; Ex parte Dutch & Ors [2001] WASCA 220; (2001) 25 WAR 96.

25 It is not necessary for me to describe the statutory framework, nor the compensation regime created by the Act: that was comprehensively done by Malcolm CJ in Ex parte Dutch. For present purposes it is sufficient to note that s 93D(6) provides that:

"A question can only be referred under subsection (5) if the worker produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level."

26 The point at issue in the present case is whether or not the material provided on behalf of the applicant to the Director meets that requirement.

27 The effect of the decision in Ex parte Dutch was summarised by Anderson J in Re Monger; Ex parte WMC Resources Ltd & Anor [2002] WASCA 129 relevantly for present purposes as follows at [64]:

"It was further held that such evidence as the worker produces will not be "medical evidence ... indicating ... [a] ... degree of disability" as required by s 93D(6) if the evidence does not indicate a degree of permanent disability of the kind contemplated by s 93D(2). It was held that a purported assessment of a degree of disability expressed in terms of a percentage function of the whole body, or which did not say that the disability is permanent, did not indicate a degree of disability of the kind contemplated by s 93D(2). It was also held that there must be "material of a medical kind" capable of supporting the opinion expressed by the medical practitioner so that a bare expression of opinion in the form of an unsupported conclusion as to the relevant degree of disability was, without more, not "medical evidence ... indicating that in the medical practitioner's opinion, the degree of disability is not less than the relevant level". And it was held that a dispute referral from a worker which was not accompanied by medical evidence meeting these criteria did not confer any "jurisdiction" on the Director to refer the dispute to a compensation review officer for resolution; and a decision, nevertheless, to refer the dispute to a review officer was liable to be quashed for invalidity."

28 The leading judgment in Ex parte Dutch was given by Malcolm CJ with whom Wallwork and Owen JJ agreed.

29 Malcolm CJ accepted the relevant "dispute" to be referred to a Review Officer for resolution is whether the worker's disability is not less than the requisite level, rather than whether the medical evidence produced by the worker indicated that to be the case ([28]), but observed that if the "medical evidence" were not such as to be sufficient to be capable of supporting or justifying the opinion expressed there would be a failure to establish that the degree of disability was not less than the requisite level. The absence of any evidence of any examination, observations, tests or other steps taken to arrive at the diagnosis or condition related to the worker would raise an issue whether there was any evidence capable of sustaining a finding of the relevant fact or facts namely, the diagnosis or opinion about the degree of disability of the worker.

30 The following propositions going to the proper construction of s 93D(6) of the Act may be distilled from his Honour's judgment:

(1) The expression "medical evidence indicating an opinion" necessarily requires something to be added to support the expression of an opinion indicating a particular degree of disability for the purposes of s 93D(6). The term "indicating" in the relevant provision requires the Director to make an examination of the medical evidence referred to in support of the opinion, to determine whether it was objectively capable of so indicating ([43]).

(2) Whilst the extent of facts and reasons to be supplied will vary from case to case, according to the nature of the disability, there must at least be material which satisfies the requirement for "medical evidence". This contemplates material of a medical kind which is logically capable of supporting the opinion (at [44]; and see Owen J at [115]).

(3) the assessment of the degree of disability would necessarily require reference to the relevant statutory criterion or criteria - that is to say the evidence must demonstrate that the degree of disability has been properly assessed in accordance with the Act. The material produced must reveal that the correct statutory criterion has been applied ([45]).

(4) Section 93D(6) requires the provision of a medical report which, on its face, states the medical practitioner's opinion as to the degree of disability, or contains information which permits a conclusion from the opinion expressed that the medical practitioner has formed a relevant opinion ([54]).

(5) It is not necessary for the medical evidence the subject of the report to be comprehensive, nor to set out any detailed clinical findings, nor the detailed process of reasoning by which the medical practitioner formed his or her opinion, in order for the employer to be able to decide whether the degree of disability claimed by the worker should or should not be accepted ([57]).

(6) In the absence of any evidence to the contrary, the Director is entitled to accept at face value medical evidence in the form of a medical report, which indicates that the degree of disability is not less than a certain level, and to accept that the assessment was made in accordance with s 93D(2), unless the contrary is shown ([61]).

(7) A medical practitioner's report produced for the purposes of s 93D(6) need not make reference to, nor be set out in accordance with, the requirements of s 93D(2) and s 25. Nor must such a report demonstrate on its face that the calculation exemplified in s 93D(4) has been carried out. Both of those suggestions are unreasonable and impracticable ([62]).

(8) The medical evidence produced to the Director must indicate that the disability is permanent ([62]).

"In some cases a medical practitioner will indicate a degree of disability by reference to the formulae within s 93D(2) of the Act. Ordinarily, however, the medical evidence is likely to be in more general terms, which, when analysed, must provide an indication that the degree of disability in relation to the particular injury in Schedule 2 is not less than the relevant level: R v Monger; Ex parte Ivey per Miller J at [21]".

32 In Ex parte Dutch there were five orders nisi for writs of certiorari and mandamus returned before the Court. They related to applications by different employers in respect of different workers.

33 On the application with respect to the worker Dutch, the medical report was held to be insufficient to meet the statutory requirements because it did not indicate that in the medical practitioner's opinion the degree of disability was not less than the required level and it referred to an irrelevant degree of disability, namely loss of function of the whole body.

34 In relation to the worker Batten, the medical report was insufficient because it made no reference to any relevant statutory criterion, gave no indication of any relevant permanent loss (the doctor having opined that the degree of loss "could increase or decrease in future") and referred to an irrelevant consideration, namely degree of loss of function of the whole body.

35 The medical report in relation to the worker Cronin referred to "heat stress/illness". There was no evidence whether that was a "disabling disease ... or disability". Further, the absence of any relevant "medical evidence" to support the opinion expressed was a sufficient basis for the Court to conclude the report was not sufficient to activate the Director's decision to return the case to a Review Officer.

36 In respect of the worker McCann, a report from a dentist outlining substantial and permanent damage to the worker's face, mouth and teeth was seen to throw up a deficiency in the Act - it being held that a dentist cannot give "medical evidence" and a dentist's report is not one from "a medical practitioner". It could not therefore enliven the Director's power to refer the claim for review.

37 The report in respect of the worker Judges, suffered from the same defects as that in respect of the worker Dutch.

38 In Re Monger; Ex parte Barminco Pty Ltd [2002] WASC 279, McLure J held medical reports provided by the worker did not satisfy the requirements of s 93D(6) of the Act because they did not refer to any medical evidence upon which the medical practitioner relied to support his opinions. In addition, there was no sufficient indication, save perhaps in relation to one item, that the disabilities were, in the medical practitioner's opinion, permanent disabilities. Those deficiencies were in fact conceded by the worker.

39 Mr Gandini submits that in making his determination under s 93D(5), the Director should have taken into account as part of the material properly before him, the letters from the applicant's solicitors to the medical practitioners, a copy of each of which had been forwarded to the Director with the Form 22 and the medical reports dated 26 June and 20 November 2002 respectively. He submits further that if the two medical reports are read with the Form 22 and the solicitors' letters, they meet the requirement of s 93D(6) of the Act.

40 I accept the first of those submissions. It is consistent with the propositions extracted from Ex parte Dutch. There can be no objection in principle nor as a matter of commonsense, in referring to material clearly shown to have been before the medical practitioner (or expressly referred to by the practitioner), for the purpose of understanding and giving content and context to the medical practitioner's reports. Furthermore, as Murray J (with whom Scott and Steytler JJ agreed) held in Re Monger; Ex parte Velsberry Pty Ltd [2003] WASCA 9 (at [42]):

"... the Director may have regard to all the reports of medical practitioners submitted in support of the Form 22 so as to satisfy himself that the medical evidence may logically support the opinion expressed about the degree of disability assessed, as provided by Sch 2 to the Act as read with s 25 or, to the extent that Sch 2 does not apply, in accordance with the relevant AMA Guides."

41 In that case, although individually a number of the six medical reports submitted were incapable of satisfying the requirements of s 93D(6), a number of others, when read together, did do so.

42 Whether or not the second submission by Mr Gandini can be accepted turns upon an examination of the material provided to the Director.

43 For the applicant it is submitted that the reports of Dr Woodland and Dr Honey certify him as having a not less than 30 per cent permanent disability in the following manner:

o 25% of lumbar/thoracic spine (item 36A) is 15%

o 5% of right leg at or above the knee (item 28) is 3.5%

o 5% of left leg at or above the knee (item 28) is 3.5%

o 10% (say) of the left arm at or above the elbow (item 13) is 9%"

44 Each of Dr Woodland and Dr Honey had before him the letter from the applicant's solicitors pointing out, inter alia, that the legislation required a certification of at least a 16 per cent whole of body disability (or in the case of lumbar thoracic injury, a 16 per cent lumbar thoracic disability). The solicitors' letters specifically requested an assessment, in percentage terms, of the applicants permanent loss of the efficient use of his left shoulder at or above the elbow as set out in item 13, and his right shoulder at or above the elbow as set out in item 13, his left leg at or above the knee as set out in item 28 and his right leg at or above the knee as set out in item 28 of Sch 2 of the Act. A copy of Sch 2 was enclosed in each instance.

45 Dr Woodland assessed the applicant as having 25 per cent loss of the full efficient use of the back "as set out in" item 26A of Sch 2 of the Act, as a result of the work-related incident on 11 February 2000. The reference to item 26A is clearly a typographical error, as loss of the full efficient use of the back (including thoracic and lumbar spine) is the description given in item 36A of Sch 2. That is certainly a sufficient indication of Dr Woodland's opinion that the degree of disability is not less than 25 per cent loss of the full efficient use of the back. In addition, given the express (albeit wrongly enumerated) reference to the relevant schedule item, Dr Woodland must be taken to be expressing his opinion that the loss is permanent (since item 36A itself refers to "permanent loss ..."). As the relevant ratio set out with respect to item 36A in Sch 2 is 60 per cent, a loss of 25 per cent under item 36A would be a 15 per cent degree of disability for the purposes of s 93E of the Act.

46 However, all that is advanced by Dr Woodland in support of his opinion is the comment that he saw the applicant in his office on 26 June 2002. There is nothing expressed in the nature of medical evidence which the Director could examine to determine whether or not it is capable of supporting Dr Woodland's opinion as to the degree of disability. The Director's conclusion that Dr Woodland's report did not provide any material or comment of a medical kind capable of supporting his opinion in that regard, and that it was no more than an expression of opinion and so was not sufficient for the purposes of s 93D(6) of the Act, was correct.

47 So far as Dr Honey's report of 20 November 2002 is concerned, the Director was also correct to take the view that it did not meet the requirement that the medical evidence must indicate that the disability is permanent and that neither did it sufficiently specify the percentage disability in respect of the left shoulder.

48 The comments that "... it is not clear exactly what his residual disability will be", "exactly how he goes in the longer term is not clear ..." and "I suspect that the residual disability would be ..." all suggest an incapacity to specify a necessary degree of disability. Likewise, the stipulation of "5-10% loss ..." cannot be taken as an expression of opinion that the degree of permanent loss in respect of the left shoulder is 10 per cent. Reading Dr Honey's report in the context of the material before him at the time, does not add any greater certainty to his opinion.

49 If the left shoulder disability were taken as 5 per cent, the proportion of whole body degree of disability would be 4.5 per cent. That would make the overall degree of disability 26 per cent, not the 31 per cent claimed. Be that as it may, the problem remains that the report does not demonstrate Dr Honey's opinion is as to any particular degree of permanent disability.

50 For the reasons given above, the medical reports were not sufficient to enliven the power of the Director to refer the dispute to a Review Officer and the Director was correct to so conclude. The orders nisi must be discharged.