The Reasons Argument
85 The Council submitted that even if the Cabramatta Nuclear Medicine report constituted fresh evidence, then, absent a proper disclosure in the Panel's reasons as to why it was considered "helpful", or as to the way in which it was used, the Panel had failed to discharge the obligation which rested upon it. A similar submission was made in relation to the Panel's findings as to the existence of "anomalies" in the history, which constituted the demonstration of "incorrect criteria" without any identification or explanation, in its reason of what the "anomalies" or the "incorrect criteria" were.
86 The decision to alter the assessment, without further explanation of why that should occur was said to be the subject of the same vice.
87 In this regard the Council submitted that, where an Appeal Panel decided to revoke a certificate of an AMS, and to issue a fresh certificate in its place, then that certificate, and the Panel's published reasons, must conform with all of the requirements of s 325(2) of the WIMWC Act. As a result, it was submitted, it was necessary for the Panel to state the facts that were found, and the reasons for its decision. That followed, in its submission, from the fact that, in accordance with s 328(5), the new certificate effectively replaces the original certificate, and has the status, for all further proceedings in a Court, or in a Commission, which is conferred under s 326.
88 Reliance was placed by the Plaintiff on three decisions concerned with the review upon administrative law grounds, of determinations made by Medical Assessment Panels under the Workers Compensation and Rehabilitation Act 1981 (WA): Re Narula; ex Parte Atanasoski [2003] WASCA 156; and Re Croser; ex Parte Rutherford (2001) 25 WAR 170, and subsequently [2003] WASCA 8.
89 The effect of these decisions was that, while Panels of this kind, which are constituted by medical practitioners, are not expected to produce the closely reasoned decisions of a lawyer, they are required to provide a determination which, upon a fair construction of it, does convey the basis of the decision arrived at, with sufficient particularity to show that the questions referred had been properly considered according to law, and that the answers were founded upon an appropriate application of the members' medical knowledge and experience.
90 In the second Groser case Roberts-Smith J cited at para 40 the observations of Rolfe AJ concerning the general principles, which he had set out in an earlier case, for the guidance of medical assessment panels under the Western Australian legislation, when giving the reasons, which they were required to provide for their assessments.
91 There is, however, a difference between these cases and the present. First there is the circumstance that the Panel under the Western Australian legislation is under a statutory obligation to give reasons (s 145E(3)). Secondly, it is the primary decision maker, whereas that role is performed in New South Wales by the AMS who is also under a statutory duty to disclose the matters identified in s 325(2), including the reasons for the assessment (s 325(2)(c)) and the facts upon which it is based (s 325(2)(d)), whereas s 328 is silent as to any such duty in relation to the Panel.
92 There is some force in the Plaintiff's submission, arising from the fact that a matter may be referred for further medical assessment by the Commission or by a court (s 329). In those circumstances the supply of reasonably detailed reasons would be of assistance should occasion arise to consider whether such a reference should be made.
93 A further possible reason for the replacement certificate to be one that would accord, in all respects, with the original certificate of the AMS, might arise from the circumstance that this certificate provides the basis for the Commission's determination under s 294 of the Act. In that regard s 294(2) does require the Commission to attach a brief statement of its reasons for the determination.
94 To the contrary however are a number of propositions. First, there is a difference between the assessment by the AMS and by the Panel, in that the decision of the former is subject to review while the decision of the latter is not. For the review of the AMS to be effective, and for a relevant ground of appeal to be detected by the Registrar, and either corrected under s 325(3) or referred to an Appeal Panel under s 327(4), there is a need for the AMS to disclose his or her reasons in some little detail.
95 Secondly, there is the circumstance that s 325(2) specifies the content of the certificate which is to be provided by the AMS, and specifically requires that the reasons for the assessment, and the facts on which it is based, be disclosed, whereas no comparable provision is contained in s 328 in relation to the certificate which the Appeal Panel is to issue.
96 Thirdly, while in relation to each of the certificates, whether issued by the AMS or by the Appeal Panel, the same conclusive presumption as to its correctness applies, what is relevant for the Commission (for the purposes of s 294) is the assessment of the five matters set out in s 326(1), not the reasons therefore. In this regard there is also no provision in s 328, comparable to that appearing in s 325(3), permitting the Registrar to take steps to correct error in the Panel's certificate.
97 Fourthly, there is the circumstance that s 328(5) does not require the Appeal Panel to do any more than to "confirm the certificate" that was given by the AMS, or to "revoke that certificate and issue a new certificate as to the matters concerned". Precisely what is meant by the closing words which I have highlighted is somewhat unclear, but presumably they relate to the individual items of loss, for which the reference to assessment was initially made (cf s 325(1) and (2)).
98 Fifthly, if the Panel confirms the assessment it does not issue a new certificate, in which case it is difficult to see why s 325(2) should be invoked and call for compliance with its provisions.
99 In my view these five propositions are persuasive, although I accept that the position is far from clear, and note that the legislation could have been framed with greater clarity.
100 If I am correct in this conclusion, then the Plaintiff's complaints about the adequacy of the reasons are to no avail. It also remains the case that limited reasons were given, which show that, having undertaken a review de novo, the Appeal Panel came to the conclusion that the available medical reports including the further reports of Dr Manohar (other than the one which was rejected) and the nuclear medicine report, along with the conceded error in relation to the back impairment, justified changes to the assessment. While the precise reasons were not disclosed, this conclusion essentially involved a clinical judgment or opinion based upon this information which, assuming its correctness, provided a sufficient disclosure of the Panel's reason for its decision.
101 As such it would not disclose either an error on the face of the record or a jurisdictional error.
102 I would add that while there was a reference in the Panel's determination to the "anomalies" concerning the history of the matter, it does not inevitably follow that the Panel preferred that history advanced by the worker, in her submissions, to that recorded by Dr Adler, and then used it as part of the basis for its decision. In the absence of any further reference to aspects of the history in para 33 of its Determination, the more obvious inference is that those "anomalies" invited a re-examination of the available material reports, and of Dr Adler's clinical findings, and that it was upon the basis of such material that the reassessment was made.
103 In all of these circumstances, I am not persuaded that error has been shown, with the consequences that the proceedings should be dismissed. I reserve the question of costs for further submissions.
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