Workers' compensation - Prerogative writ - Return of order nisi for writ of certiorari - Determination of a Medical Assessment Panel - Adequacy of reasons of Medical Assessment Panel - Whether effective determination of temporary psychiatric condition

Workers' Compensation and Rehabilitation Act 1981, s 25, s 84ZH, s 93D, s 145A,

Order nisi for certiorari made absolute as to part of determination only

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

Dorran v Riordan (1990) 95 ALR 451

1 BARKER J: An order nisi for writ of certiorari was granted in these proceedings on the motion of the applicant on 20 March 2002. It required that the application for the writ to be made absolute should be heard before a single Judge in Chambers. This is the hearing of that application.

2 At the hearing of the application, leave was granted pursuant to O 56 r 7 of the Supreme Court Rules to BHP Iron Ore Pty Ltd, the employer of the applicant, to appear in the matter by counsel.

3 The applicant seeks to quash a decision of a medical assessment panel constituted under the Workers' Compensation and Rehabilitation Act 1981 which found in respect of the applicant amongst other things that:

(1) he is partially incapacitated for work by reason of his psychiatric condition.

4 Three issues are raised by the grounds upon which the application is made:

(1) Were the panel's reasons for its determination sufficient for the purposes of s 145E(3) of the Act?

(2) Did the panel err in law in determining that the applicant's psychiatric condition was temporary when its answer was based on the assumption that the applicant would take and be improved by increased dosages of his present medication or alternative medications?

(3) Did the panel further err in law as a result in finding that the applicant retained a capacity for work?

5 At material times, the applicant was an applicant under the Act in proceedings AP38/99 in the Conciliation and Review Directorate. In the proceedings under the Act, the applicant sought to have his relevant level of disability assessed for the purposes of s 93D of the Act. As to the manner in which the Act provides for this to be done, see Re Monger; Ex parte Dutch [2001] WASCA 220 at [7] - [41] per Malcolm CJ.

6 By s 93E(3) of the Act, damages under the general law, as affected by the definition of "damages" in s 93A, can only be awarded if it is agreed or determined that the "degree of disability" is not less than 30 per cent and that agreement or determination is recorded in accordance with the regulations, or the worker has a "significant disability" (as defined in s 93E(4) as a degree of disability agreed to be, or determined to be, not less than 16 per cent) and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.

7 Section 93E(1) defines "degree of disability" to mean the degree of disability of the worker assessed in accordance with s 93D(2). Section 93D(2), for the purposes of s 93E, specifies how the degree of disability of the worker is to be assessed, and refers in particular to Sch 2 of the Act. Schedule 2 of the Act is described as "Table of compensation payable". It itemises particular injuries and the ratio which the sum payable bears to the prescribed amount. The prescribed amount is defined in s 5(1).

8 Section 93D(2)(a)(ii) provides that, where Sch 2 applies, in circumstances where two or more items of the schedule apply to the disability, the degree of disability is to be assessed as "the sum of the percentages of the prescribed amount provided for by those items, as read with section 25". Section 93D(4) provides guidance as to how the calculation is to be made.

9 By reason of s 25 of the Act, where the expression "loss of" is used in Sch 2 it includes the "permanent loss of the use of" and "permanent loss of the efficient use of". In the latter case, a lump sum payment may be made that represents "such percentage of the appropriate amount payable as is equal to the percentage of the diminution of the full efficient use".

10 The expression "Permanent loss of the efficient use of" is not expressly used in respect of any particular item in Sch 2, although the expression "Permanent loss of the full efficient use of" is used in items 36A, 36B and 36C of Sch 2. Item 8 of Sch 2, which refers to "Permanent and incurable loss of mental capacity resulting in total inability to work" is the only other item in Sch 2 that expressly includes the word "permanent".

11 In Re Croser; Ex parte Rutherford [2001] WASCA 422, Murray J at [21], having referred to the terms of Item 8 of Sch 2, observed that:

"When the table is read with s 25 of the Act, it becomes clear that a loss of mental capacity which although permanent is not complete, is to be expressed as a percentage of the degree of diminution of mental capacity found by the panel."

12 Where a dispute in connection with a claim for compensation under the Act arises, any party to the dispute may refer the dispute to the Director of Conciliation and Review appointed under the Act for conciliation: s 84N.

13 A conciliation officer under the Act is obliged to refer a dispute for review if any of the parties so requests unless of the opinion that the party making the request has not made reasonable endeavours to have the dispute resolved through conciliation: s 84Y.

14 By s 84ZA(1), a review officer under the Act is to commence review within 14 days after the day on which a matter is referred for review, or as soon as practicable thereafter. The review officer is required to act fairly, economically, informally and quickly in resolving the dispute, whether by bringing the parties to agreement or otherwise: s 84ZA(2). The review officer is also to act according to the substantial merits of the case without regard to technicalities or legal forms or precedent: s 84ZA(3).

15 If permitted by s 145A to do so, a review officer may refer a question as to -

(b) whether a disability is permanent or temporary; or

for determination by a medical assessment panel: s 84ZH(1).

16 Without limiting s 84ZH(1), s 84ZH(2) provides that s 84ZH(1) applies to questions as to the loss of, or the permanent loss of, the efficient use of, any of the parts or faculties of the body referred to in column 1 of Sch 2, or to the degree of that loss, and as to the degree of disability assessed in accordance with s 93D(2).

17 By s 145A of the Act, questions arising in proceedings under the Act may be referred to a medical assessment panel. Section 145A(1) provides that, subject to subs (2), a question may be referred for determination by a medical assessment panel, including under s 84ZH, only if there is a conflict of medical opinion on a question of the type therein referred to and one of the parties wishes the proceedings to continue. Subsection (2) applies in those cases where a question as to the degree of permanent loss of the full and efficient use of the back, neck or pelvis arises.

18 In this case, it appears that a review officer decided to refer questions to a medical assessment panel pursuant to s 84ZH.

19 Workers' compensation legislation has long employed the technique of listing particular "injuries" and providing for lump sum payments in respect of them, including where there is less than a 100 per cent occurrence of the listed injury. In Australia, such legislation has also long included an item concerning permanent and incurable loss of mental capacity, although the particular description of the injury has differed from place to place and time to time. The Workers' Compensation Act 1927 - 1954 (Tas) was considered by the High Court of Australia in Brugnoni v Hydro Electric Commission [1957] HCA 59; (1957) 97 CLR 548. In respect of a scale of compensation for specified injuries, r 4(1) of the Act provided:

"In respect of an injury specified in the second column of the table set forth hereunder, the compensation payable under this Act, where total or partial incapacity results from the injury, shall, subject to sub-r (2) of this rule, be the amount respectively specified opposite that injury in the second column of that table."

"Total and incurable loss of mental powers involving inability to work."

20 Rule 5 provided, amongst other things, that in any case where a worker sustains an injury "which consists of a lesser but substantial degree of any injury for which compensation is payable under that rule, the injury shall, subject to this rule, be regarded as an injury for which compensation based on the Table set forth in r 4 shall be payable, and a judge may award as compensation such amount as, having regard to the provisions of r 4, appears to be just and proportionate to the degree of injury sustained by the worker".

21 Williams J (with whom Dixon CJ agreed entirely) said of item 6 and this legislation, at 557:

"It is not easy to determine what is an injury to a lesser but substantial degree of an injury described as the 'total and incurable loss of mental powers involving inability to work'. But broadly it may be said that the loss of mental powers must be such as to involve an inability to do the sort of work the worker was capable of doing at the date of the accident and that this loss must be incurable. Total and incurable loss of mental powers would probably involve complete inability to do such work while partial loss of mental powers incurable to the extent of that loss would probably involve at least partial inability to do such work. It was pointed out that r 4(1) only refers to total or partial incapacity resulting from the injury and does not like r 2(1) refer to total or partial incapacity for work resulting from an injury, but the total and partial incapacity to which r 4(1) refers must be total or partial incapacity for work and this is at least clear in respect of item 6 which refers to total and incurable loss of mental powers involving inability to work. It is clear from the evidence that the physical damage to the plaintiff's brain has caused a considerable incurable loss of part of his mental powers involving inability to work, that he was at the date of the hearing of the summons unable to work, and that unless he recovers from the neurosis, as to which the prognosis is on the whole unfavourable, it is unlikely that he will be able to work in the future. He was therefore at the date of the hearing of the summons in a condition very closely approximating total and incurable loss of mental powers involving inability to work. In these circumstances the award of only fifty per cent of the maximum amount can only be described as unreasonably low."

22 Thus, it was recognised, in relation to item 6 of the Tasmanian Act, that the reference to "total and incurable loss of mental powers involving inability to work" could include a "partial loss of mental powers incurable to the extent of that loss" which resulted in a "partial inability to do such work".

23 The importance of the words actually used in the statute in this regard is emphasised by the decision of the Appeal Division of the Supreme Court of Victoria in Accident Compensation Commission v Hawkins [1992] VicRp 39; [1992] 1 VR 589. In a statutory regime not dissimilar from that considered in Brugnoni's Case and presently under consideration, s 98(4) of the Accident Compensation Act 1985 provided that, if a worker suffers any injury which "consists of a lesser but substantial degree of any injury for which compensation is payable" the injury should be regarded as an injury for which compensation based on the relevant table, "and the worker may be awarded as compensation such amount as ... appears to be just and proportionate to the degree of injury suffered". In terms identical to item 6 considered in Brugnoni's case, item 6 of the relevant Victorian table read: "Total and incurable loss of mental powers involving incapacity to work - 100 percentage".

24 Murphy J (with whom McGarvie J agreed) at 593 - 594 observed of the legislation and table as follows:

On a reading of the decision of Williams J in Brugnoni's Case ... it might be thought that proof of a complete inability to do the sort of work in which the respondent was engaged pre-injury would entitle the respondent to 100 per cent of [the prescribed amount]. His Honour does use the word 'probably' when discussing this matter, and I prefer, with respect, a somewhat different construction.

This table injury is really a condition of impairment. It is a description of a result of an injury: cf per Gowans J in Stevenson v Buchanan & Brock Pty Ltd [1971] VicRp 63; [1971] VR 503 at 511 and per Barwick CJ in Commissioner for Railways v Bain [1965] HCA 5; (1965) 112 CLR 246 at p 259. This injury by its own description involves a loss of capacity. Such loss of capacity may be total, so that the worker may be totally unable to work, because of an incurable loss of mental powers. I should think that in such a case he would be entitled to 100 per cent of [the prescribed amount]. I do not think that he would in addition be required to prove that he had suffered a total and incurable loss of all mental powers. To do that he would need to be a vegetable, and, if that were so, I do not think that the words 'involving inability to work' would have any meaning. They would be mere surplusage. (Emphasis in original.)

....

Accordingly, I am of the view that the tribunal was correct to have regard to the inability of the respondent to continue his employment as a policeman, because of his incurable loss of mental powers consequent upon his injury.

Before the accident, he was capable of working as a policeman and did in fact so work. The tribunal was also correct to consider that the respondent, as a result of his injury, no longer had the ability, which he enjoyed before loss of mental powers, to do the sort of work that he was capable of doing before the injury.

In my opinion, these were appropriate matters to consider when assessing what was 'just and proportionate to the degree of injury suffered'."

25 It will be noted that Item 8 of Sch 2 of the Western Australian Act is worded in a significantly different way from those examples, as it refers to "Permanent and incurable loss of mental capacity resulting in total inability to work" (emphasis added). The full injury so described therefore seems to require a permanent and incurable loss of mental capacity, whether involving total or partial loss, being a loss that results in a "total inability to work". Section 25 of the Act helps to produce this result: Re Croser (supra) per Murray J at [21]. However, there does not seem to be anything in the terms of s 25 of the Act, or in the terms of s 84ZH(2), that qualifies or permits some diminution of the requirement that such loss should result in a "total inability to work" for the type of injury described in Item 8 of Sch 2 to exist.

26 Therefore, if a question relating to an Item 8 injury arises, as it does amongst other issues here, an important aspect of the assessment to be made is whether the loss of mental capacity is "permanent" whether or not it is complete or partial.

The medical assessment panel's determination

27 In this case, a number of questions of the type contemplated by s 84ZH(1)(a), (b) and (c) were submitted to a medical assessment panel by the review officer. The panel concluded its determination on 24 August 2001. The chairman of the panel then reduced the determination to writing and provided the written determination dated 3 September 2001 to the Director, Conciliation and Review.

28 The questions for determination and the answers provided by the panel in its written determination were as follows:

"QUESTIONS FOR DETERMINATION BY MEDICAL ASSESSMENT PANEL

The medical Assessment Panel determines as follows:

1. What is the percentage of the worker's physical disability (if any) assessed in

2. Is the worker totally or partially incapacitated for work as a result of his psychiatric condition?

3. Is the worker's psychiatric condition permanent or temporary?

4. If the worker has no capacity for work as a result of his psychiatric condition, what is the percentage of his psychiatric disability assessed in accordance with Item 8 of Schedule 2 of the Act?

5. If the worker has a capacity for work notwithstanding his psychiatric condition, what is the rating of his impairment according to the Commonwealth Social Security Rating of Impairment?

Current our assessment according to the Commonwealth Social Security Rating of Impairment is 15.

This man was examined by the panel Drs Hagan, Galton-Fenzi and Alexeeff. A full history and clinical examination of the cervical spine and shoulders was performed. All the available medical reports, x-rays and video were reviewed.

Examination findings indicate ongoing (R) cuff arthropathy, cervical spondylopathy, (No radiculopathy) but no objective evidence of (L) shoulder dysfunction.

The Panel accepted there was a reduction in his social contacts, recreational activities, and the beginnings of family conflict. He is being treated for a psychiatric condition. Partial incapacity exists because there are intermittent adverse effects on his emotions, physiological functioning and cognition. The condition is considered to be temporary because whilst there has been partial response to his medication, increased dosage or alternative medications will optimise function. Cognitive behavioural therapy is very likely to improve outcome."

29 On 14 September 2001, the review officer made a record of determination that the relevant level of the worker's disability for the purposes of those proceedings is not less than 16 per cent.

30 The applicant now complains about three things, which comprise the grounds of the application -

(1) that the reasons for determination provided by the panel are not adequate, having regard to the obligation imposed on the panel by s 145E(3) to give reasons;

(2) that, in determining whether the applicant's psychiatric condition is permanent or temporary, the panel inappropriately considered the effect of increased dosages of present medication or alternative medications;

(3) that the panel as a result inappropriately concluded that the applicant had retained a capacity for work.

The question of the adequacy of the reasons

31 The role of the medical assessment panel under the Act is significant. In its present form, it came about as a result of amendments to the Act introduced into Parliament in 1999. Members of a medical panel are selected from a register of names of medical practitioners approved under s 145B of the Act. Under s 145C, one of the members of the panel must be a specialist in the particular branch of medicine or surgery that is relevant to the question referred to the panel. Once a determination is made, unless rescinded under s 145F, or varied thereunder, the determination is "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 and the written determination given under subsection (3) is, in the absence of evidence that the determination was so rescinded or varied, "conclusive evidence" as to the matters determined: s 145E(5).

32 By reason of s 145E(5), the determination of the panel in a particular case is final and binding and conclusive evidence as to the matters determined, so far as the review officer was concerned.

33 Notwithstanding that a determination of a panel has this significant effect, the panel is required to make its determinations with a degree of despatch. By s 145D(1), the panel in determining a question is to act "speedily and informally, and in accordance with good conscience, without regard to technicalities or legal forms and is not bound by rules of practice nor evidence".

34 By s 145E(2), the determination must be made as soon as practicable, but in any event within 28 days after the day on which a medical examination of a worker concerned is carried out by the panel. There is, however, no obligation on the panel to examine a person the subject of a referral, or to examine a person within a specified period, although under s 145D(2), the panel may require a worker to attend before it, answer questions put, produce documents and submit to medical examination.

35 The panel is also required to give reasons for the making of its determination. The obligation to do so arises under s 145E(3), which is in these terms:

"The determination and the reasons for making it are to be given in writing signed by the Chairman in a form approved by the Director, and are to be given to the Director within 7 days after the day on which the determination is made."

36 The nature of the obligation to give reasons imposed by s 145E(3) and the consequence of failing to satisfy it, have been the subject of elucidation by the Full Court of the Supreme Court of this State. Most recently, in Re Croser (supra), Olsson AUJ, with whom Steytler J agreed, found that there is now firm authority for the proposition that the failure of a judicial officer to give adequate reasons for decision will normally constitute an error of law. His Honour stated that the same reasoning is no less apposite to a situation in which a tribunal such as the medical assessment panel is bound by statute, in arriving at its determination, to publish reasons for making it.

37 As to the nature or extent of the obligation to provide reasons, Olsson AUJ adopted what Kennedy J said in Re Bannan & Ors; Ex parte Suleski [2001] WASCA 289, with which Wallwork and Steytler JJ agreed:

"The essence of reasons for decision is that they disclose the reasoning processes of the Tribunal. Fulfilment [sic] 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: see Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 47, Ansett Transport Industries (Operations) Pty Ltd v Wrath [1983] FCA 179; (1983) 48 ALR 500 at 507, Telescourt v Commonwealth [1991] FCA 205; (1991) 29 FCR 227.

....

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."

38 In Re Croser at [72] and [73], Olsson AUJ added:

"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 a fair construction of it, does convey the basis of the decision arrived at, with sufficient particularity to satisfy the above dicta. (Emphasis in original)

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 & Ors; Ex parte Rusich [2001] WASCA 111 at [39]."

39 In Re Croser, Murray J, while he disagreed with the majority as to the adequacy of reasons provided for the determination of the medical assessment panel in question, agreed with Olsson AUJ as to the test to be applied and with the views expressed by Kennedy J in Re Bannan & Ors; Ex parte Suleski. Murray J at [8] and [9] put the test of sufficiency or adequacy of reasons in these terms:

"It cannot be the case that in such circumstances more is required of the panel than the expression of reasons which make clear, in terms which may be understood by a layman, what the extent of the disability is held to be, its nature and how the determination has been reached. If a particular body of medical opinion has been preferred it may be necessary to briefly indicate why that is so. Where the determinative consideration is the examination of the worker, it would ordinarily be necessary to briefly discuss what aspects of that process and the history obtained were relied upon.

....

The adequacy of the reasons may be tested by asking whether the party upon whom the determination may have an adverse impact in the context of the statutory scheme, may understand why the determination was not more favourable and so that that party may know that the panel has performed its statutory function."

40 In this case, in answer to question 1, concerning the percentage of the worker's physical disability, if any, assessed in accordance with Sch 2 of the Act, the panel provided the short answers:

"Left shoulder 0%

Right shoulder 20% (Item 13)

Cervical spine 10% (Item 36B)"

The references in parenthesis to items are references to the items as they are stated in Sch 2 of the Act.

41 A person whose interests are affected who seeks to understand each of these answers, must go to the statement of reasons in the determination. In this regard, the first paragraph of the statement of reasons does not so much provide reasons, but a statement that the panel examined the applicant, obtained a full history from him and clinically examined his cervical spine and shoulders. It also indicates the panel reviewed relevant medical reports, x-rays and video. This provides some assurance that the members' medical knowledge and experience was in fact brought to bear on the questions to be answered.

42 The second paragraph of the statement of reasons, so far as the assessment of physical disabilities is concerned, very shortly states that:

"Examination findings indicate ongoing (R) cuff arthropathy, cervical spondylopathy, (No radiculopathy) but no objective evidence of (L) shoulder dysfunction."

43 In this context, the answer that the left shoulder has 0 per cent disability is intended to be explicable by reference to the reason that there was "no objective evidence of (L) shoulder dysfunction". In the circumstances, this is a sufficient explanation for that answer; little can be said in such circumstances.

44 In relation to the answer concerning the right shoulder, that there is a 20 per cent disability, the reason or explanation provided is that "examination findings indicate ongoing (R) cuff arthropathy". That is all that is said about the right shoulder. The question is whether that statement is sufficient to explain a finding of a 20 per cent physical disability of the right shoulder.

45 It is argued by counsel for the intervener, that the percentage of disability expressed in the answer to the question is merely an "expression of opinion" and so no more can be expected in the reasons given. Counsel suggested that all that has occurred is that the panel has expressed itself "according to the language used by doctors to identify particular conditions". It was submitted that, because the answer involves an element of opinion, it is not capable of precise and scientific analysis as to whether the percentage of disability is 20 or 15 or 25 or 30. According to this submission, the panel is merely expected to assemble the collective experience and specialisation of its members in order to form an opinion which is necessarily expressed as a percentage. It is an admittedly artificial exercise and not one that lends itself easily to a "step-by-step analysis". I do not find this submission compelling. To assert the answer is ultimately a matter of "opinion" does not advance the matter very far. The panel may be of that opinion, but it does nothing to explain to a person affected why the disability has been assessed at 20 per cent and not some other percentage. In reality, the panel has examined the applicant, considered relevant materials and stated its conclusion, but not its reasons, about the applicant's disability percentage.

46 For my part, I consider there is an obligation on a medical assessment panel, notwithstanding that it is comprised of busy medical practitioners (although there is no evidence that this is so in this case), to explain in more detail than they have, why 20 per cent is the appropriate disability percentage. I have little doubt that if the panel were to be interrogated as to why the panel concluded that the physical disability of the right shoulder was assessed at 20 per cent instead of, say, 50 per cent or 5 per cent, precise and short reasons could be articulated.

47 It is one thing for a panel to conclude that a physical disability of a worker can be expressed as a percentage (as, in effect, required under the Act, Sch 2 and by the form of the question referred to it), and another thing to provide a statement of reasons for arriving at the conclusion. The division between a conclusion and a statement of reasons for arriving at a conclusion, is well recognised as a matter of logic and by the law. For example, in the area of criminal sentencing law, it has been observed that for a Court to say that a sentence is "manifestly inadequate" is a conclusion. In reviewing the decision of a Court which had found a sentence to be manifestly inadequate, Gleeson CJ and Hayne J in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325 par [6] observed:

"[A sentence] may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of the reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case." (Emphasis supplied)

48 In this case, in my opinion, it cannot be said that the applicant has been told in "clear and unambiguous language" why he has been assessed as having a 20 per cent physical disability of his right shoulder. He has simply been told there is an ongoing right cuff arthropathy. He knows the nature of his physical disability and that the panel has concluded it is considered to be a 20 per cent disability, but he does not know why his disability has been assessed at 20 per cent.

49 I note that in Re Croser Olsson AUJ, in dealing with a set of reasons for answers provided in the determination that were more detailed than those provided here, found, at [83]:

"At the end of the day, it is impossible to see how the parties could discern, with any real degree of confidence, on what basis the assessments made were arrived at. That being so, the MAP has not discharged its obligations, as spelt out in Re Babban [sic] and Re Wong."

See also the Judgment of the Court in Re Anastas & Ors; Ex parte Welsby [2002] WASCA 82 at [4].

50 While it is always a question of judgment, I find the same should be said here of the reasons given in respect of the 20 per cent disability of the right shoulder.

51 I find that the reasons given in respect of the answer that there is a 20 per cent disability of the right shoulder of the applicant, are insufficient to satisfy the requirement for the giving of reasons imposed on the panel by s 145E(3).

52 In relation to the answer concerning the cervical spine, that there is a 10 per cent disability, the reason or explanation provided is "cervical spondylopathy". Nothing more is said than that. The worker thereby knows the nature of his spinal disability, but not why his disability has been assessed at 10 per cent. For the reasons expressed above in relation to the finding of 20 per cent disability of the right shoulder, I consider the determination again fails to disclose the reason in sufficient detail to enable a person interested to understand why the percentage of disability stated, and not some other percentage, is appropriate. In short, the panel has expressed a conclusion without adequate reasons to support it.

53 I find that the reasons provided in respect of the answer that there is a 10 per cent disability of the cervical spine of the applicant, is insufficient to satisfy the requirement for the giving of reasons imposed on the panel by s 145E(3).

The finding of a "temporary" psychiatric condition

54 The applicant also attacks the determinations of the medical assessment panel involving the answers to questions 3 and 4; that is to say, the answer that the applicant's psychiatric condition was "temporary" (question 3) and the answer that the applicant "retains a capacity for work" as a result of his psychiatric condition (question 4).

55 The primary attack is in relation to the answer to question 3 and the statement that the applicant's psychiatric condition is "temporary". It arises, it is contended, as a matter of law, on account of the particular reasons given by the panel. The applicant says that the panel should have reported a "permanent" condition. The significance of a finding being "permanent" was explained above in the context of the Act and by reference to the legal history of such provisions as Item 8 of Sch 2 of the Act.

56 In its reasons concerning the psychiatric condition of the applicant, the panel noted that the applicant "is being treated for a psychiatric condition". Without saying so expressly, it appears from the reasons given in the third paragraph of the section headed "Reasons" and the answers given to the questions 3 and 4, that the panel accepted that the applicant did in fact have a "psychiatric condition". While the panel was not asked to answer a question as to whether or not he did have a psychiatric condition, that question was implicit in questions 2 and 3.

57 The panel then stated that "Partial incapacity exists because there are intermittent adverse effects on his emotions, psychological functioning and cognition". Those reasons appear to support the answer to question 2 ("Is the worker totally or partially incapacitated for work as a result of his psychiatric condition?"), that the applicant is "Partially incapacitated". There does not appear to be an express challenge in this application to that particular answer or the adequacy of the reasons given for it by the panel. However, the applicant does challenge the answer that the applicant has a "retained capacity for work". This answer appears to be dependent upon the answer to question 2, as explained below.

58 What is expressly attacked is the further answer that the applicant's psychiatric condition is "temporary" and the statement of reasons that "The condition is considered to be temporary because whilst there has been partial response to his medication, increased dosage or alternative medications will optimise function. Cognitive behaviour or therapy is very likely to improve outcome". The applicant says, in essence, that such a finding, as a matter of law, is incapable of supporting the answer or finding that the applicant's psychiatric condition is temporary.

59 The applicant argues that, where a psychiatric condition is found to exist and, as a matter of fact, will continue to exist unless certain medical strategies are adopted, such as increased dosage of medications, prescription of alternative medications to those prescribed, and the undergoing of cognitive behavioural therapy, it is inapposite, not just as a matter of language, but as a matter of law, to categorise the psychiatric condition as merely "temporary".

60 In pressing his argument, counsel for the applicant relied upon a decision of the Compensation Magistrate in Kinsella v Seton Catholic College, unreported; CM-112/00 1125; 22 February 2001, referred to in the reasons of Olsson AUJ in Re Croser.

61 In Kinsella v Seton Catholic College, the Compensation Magistrate had to deal with a question the subject of a referral to him by a review officer pursuant to s 84ZM of the Act, which included the following questions:

"1. Does a Medical Assessment Panel have jurisdiction to determine the extent of the applicant's permanent impairment in accordance with s 93D(2)(b) of the Act? (Emphasis in original)

....

6. Can a Review Officer or a Medical Assessment Panel make a determination on the applicant's permanent impairment in percentage terms with reference to section 93D(2)(b), if they determine the degree of impairment may reduce if the applicant has aggressive psychiatric treatment?

7. Can a Review Officer of Medical Assessment Panel take into account the reasonableness or otherwise of the applicant's reasons for refusing aggressive treatment in determining the extent of permanent (psychiatric) impairment?"

62 In the course of providing answers to these questions, the Compensation Magistrate addressed the proper interpretation of the expression "permanent impairment" in this particular statutory context. Having reviewed a number of authorities and legislative definitions, the Compensation Magistrate noted (at [54]) that a permanent degree of disability or permanent impairment might possibly be characterised as one:

3. that is more likely than not to persist in the foreseeable future; or

4. that is stabilised, and unlikely to change substantially.

The Compensation Magistrate had regard to the overall purpose of the Act, which he (rightly, in my view) considered to be beneficial in light of the limitation by the Act of a general law right to take action for damages, and expressed the opinion that the most appropriate interpretation to be placed upon the concept of "permanence" for the purposes of s 93D(2) is "more likely than not to persist in the foreseeable future".

63 The Compensation Magistrate expressed the further opinion at [56] that -

"In considering whether the applicant's degree of disability is permanent or temporary, the review officer or the MAP is required, then, to consider whether it is more likely than not to persist in the foreseeable future. It follows, ineluctably in my opinion, that it is open for the review officer or the MAP to consider the impact of aggressive (or, indeed, any) treatment on that likelihood."

64 In Croser, Olsson AUJ at [94] made reference to the Compensation Magistrate's interpretation of the words "permanent" and "permanently" in Kinsella v Seton Catholic College and, without expressly approving or contradicting it, observed:

"However, all of the dictionary definitions of those words convey the notion of that which is continuing indefinitely (ie for the foreseeable future), or enduring, as opposed to temporary."

65 Notwithstanding that Murray J in Re Croser appears to have adopted an understanding of what "permanent" means by reference to the composite expression "permanent and incurable" as it appears in Item 8 of Sch 2, his interpretation of that expression at [26] appears similar, if not the same, as the interpretation of "permanent" preferred by Olsson AUJ.

66 It follows, in my view, that the touchstone of the test of whether or not a psychiatric condition is "permanent" or "temporary" is to be found in the observation of Olsson AUJ at [94], that a condition will be permanent if it is considered likely to continue indefinitely, that is, for the foreseeable future, or enduring, as opposed to temporary.

67 In Re Croser, the medical assessment panel expressed the opinion that the worker suffered from a "permanent psychiatric disability pursuant to Item 8 of schedule 2 of the order of 15-20%". The reasons for decision in Re Croser do not set out the precise question in respect of which the panel gave this answer, but presumably it made express reference to Item 8 of Sch 2 of the Act. Item 8 is in these terms:

"8. Permanent and incurable loss of mental capacity resulting in total inability to work."

68 In this case, the express question was never put by the review officer whether, in terms of Item 8 of Sch 2 of the Act, the applicant suffered from an injury described as "permanent and incurable loss of mental capacity". The panel was asked, however, whether the "psychiatric condition" of the applicant was "permanent or temporary" (question 3). The question may have been formulated in this way because of the terms of s 84ZH(1)(b). As explained above, if the answer to the question is "temporary", it precludes the possibility of the applicant suffering from a "permanent and incurable" condition described in Item 8 of Sch 2.

69 Thus, the review officer appears to have chosen to put a number of discrete questions to the panel that had a bearing on the Item 8 issue, but did not expressly put questions about the applicant's condition in terms of Item 8, save for question 4. As noted above, question 2, "Is the worker totally or partially incapacitated for work as a result of his psychiatric condition?", assumes that the applicant in fact has a psychiatric condition. It is not possible to say whether it also assumes that the psychiatric condition is "permanent and incurable loss of mental capacity".

70 Question 3 asks, "Is the worker's psychiatric condition permanent or temporary?" It may be that the review officer intended to ask whether that condition is a "permanent and incurable loss of mental capacity", but it is not, in terms, such a question. It is confined to the question of permanence.

71 Question 4 is the first of the questions concerning psychiatric condition that makes express use of the words used in Item 8 of Sch 2. It asks, "If the worker has no capacity for work as a result of his psychiatric condition, what is the percentage of his psychiatric disability assessed in accordance with Item 8 of Schedule 2 of the Act?" The question seems to assume that, unless there is a total incapacity for work as a result of the psychiatric condition, the percentage of mental loss under Item 8 would not arise. In this context, the answer given to the question asked is that, "He retains a capacity for work." Presumably, this answer was given by the panel because it had already answered question 2 by saying that the applicant was "Partially incapacitated" for work as a result of his psychiatric condition. In effect, the panel could have answered question 4, in these circumstances, by saying "Not applicable - see answer to question 2". In any event, the question was answered literally.

72 As noted, the determination of the panel reviewed in Re Croser involved the answer, inter alia, that the worker suffered from a permanent psychiatric disability pursuant to Item 8 of sch 2 of the order of 15-20 per cent. In their reasons, the panel said:

"The Psychiatric Determination is based on a Major Depressive Disorder with strong reactive component stemming from the physical problems and the associated consequences on the worker, social, personal and family level. In view of the nature and genesis of the psychiatric condition and the difficulties in foreseeing its course in the indefinite future, the assessment covers the present and the foreseeable future (a period of 2-5 years from now). In the future, various factors could change the psychiatric disability in either direction."

73 Olsson AUJ considered the latter comment in those reasons to be "very difficult to reconcile with the notion of the assessment of a permanent psychiatric disability". At [93] his Honour said that:

"It was the responsibility of the MAP to arrive at a positive fixation of any permanent psychiatric disability which, in their opinion, existed. If the Panel was not satisfied that the material before it established the existence of a permanent psychiatric disability at the time of examination, it should have said so. Its qualified determination indicates to me that it was not so satisfied (cf Juras (supra) per Murray J at 13). Indeed, what was said is, in reality, a contradiction in terms." (Emphasis in original)

74 Olsson AUJ then found at [94] that the assessment of the panel simply did not meet that description:

"To say that the assessment covers a period of 2-5 years and that this disability could change in either direction is to indicate that the determination is not one in relation to a permanent disability."

75 Olsson AUJ found that such an error of law was an error on the face of the record and that it did not, in any event, make a determination of the worker's permanent psychiatric disability according to law.

76 Murray J, at [26], agreed with Olsson AUJ that there was a further difficulty with the determination in this respect:

"That qualification makes it perfectly apparent that the psychiatric disability has not been assessed within the framework imposed by Item 8 of Sch 2. It would seem that the panel considered that it had not been established that there was any 'permanent and incurable loss of mental capacity' and it is not clear what the determination of the panel might have been (and why it would have made it) if it appreciated that it was being asked for a determination of an indefinite or enduring kind, rather than temporary incapacity, resulting in total inability to work. As to the nature of the determination required I would only note that Item 8 of Sch 2 refers to 'permanent and incurable' loss of mental capacity. The judgment about that must clearly be made as at the time when the matter is before the panel. It must then appear that the mental incapacity to work will extend indefinitely into the future and is incapable of being cured if the matter is to be dealt within the framework of Sch 2."

77 The factual circumstances raised in Kinsella v Seton Catholic College are different again from those dealt with in Re Croser. In Kinsella, the relevance of the availability of "aggressive psychiatric treatment" was in issue, the question being whether that is something that should be taken into account by the panel in answering a question concerning the permanence of a psychiatric condition. To that question, the Compensation Magistrate plainly accepted (at [56]) that it is open to the review officer or the panel to consider the impact of aggressive or, indeed, any treatment on the likelihood that a condition is more likely than not to persist in the foreseeable future. However, the Compensation Magistrate then stated (at [59]):

"If the MAP is of the opinion that it is more likely than not that in the foreseeable future the applicant's degree of disability, or impairment will be reduced it the applicant has aggressive psychiatric treatment, then it should record that opinion, but assess in any event the applicant's degree of disability as if it were permanent (ie: as if the applicant will not undergo that treatment)."

78 The reason the Compensation Magistrate adopted this approach followed the view he took of the different roles of the medical assessment panel and the review officer under the Act. He noted that a panel under s 84ZH(1)(b) of the Act has jurisdiction to determine the question of whether a disability is permanent or temporary, but so also does a review officer to whom a question has been referred under s 93D(10). Having regard to the division of responsibility under the Act, the Compensation Magistrate noted (at [60]) "the MAP is not a general fact-finding body, and the review officer is better equipped to deal with such a question, both factually and legally". In saying this, the Compensation Magistrate plainly had in mind that certain factual circumstances of the type discussed in par [58] of his reasons, not being medical ones, might lead a worker to decline further medical treatment, including aggressive treatment. Some of these reasons might be religious, cultural or logistical.

79 In my view, nothing in Kinsella v Seton Catholic College affects the proposition that is implicit, if not express, in Re Croser that it is the responsibility of a medical assessment panel to make a proper judgment at the time of assessment as to whether or not, having regard to available medical treatments and medication, a particular psychiatric condition should be considered permanent or temporary. It cannot be the case, as a matter of principle or logic, that every psychiatric (or indeed physical) condition that will remain problematic unless treated in some available and appropriate way must be considered "permanent" for the purposes Sch 2 of the Act. Nor, in my view, can it be the case that, whenever a panel considers that medication is likely to alleviate an illness but is uncertain about the precise effect the medication will have in the future, the panel is obliged to record that a psychiatric condition is permanent.

80 Indeed, the problem perceived by Olsson AUJ in Re Croser was that the panel, having found that the psychiatric condition was "permanent", then went on to say that their answer was merely an assessment that covered "the present and foreseeable future (period 2-5 years from now)", and that "in the future various factors could change the psychiatric disability in either direction". As noted, Olsson AUJ found the latter comment very difficult to reconcile with the notion of the assessment of a "permanent" psychiatric disability.

81 While it may be open to contend that the panel, in expressing the opinion that an increase of existing medications or alternative medications will "optimise" the applicant's functions (which in context is a reference to his "psychological functions" referred to in the preceding sentence of the reasons) and that cognitive behavioural therapy is likely to "improve" outcome, fell short of expressly stating that the applicant's psychiatric condition would thereby be alleviated, I do not consider that, in context, the choice of verbs used by the panel indicates a different conclusion. In its context, the verb "optimise" simply means "become optimal". "Optimal" means "Best, most favourable, esp. under a particular set of circumstances": Shorter Oxford English Dictionary. It follows, in my view, that the panel expressed the view that the applicant's physiological function will be free from the intermittent adverse effects he is presently experiencing if increased dosages or alternative medications are taken. The panel may be right or wrong in expressing such a conclusion, but the reasons for that conclusion are evident. What is said in the reasons is not a "contradiction in terms" of the answer given, as the reasons of the panel reviewed in Re Croser were said to be.

82 In short, where a person is considered by the panel, as in this case, have a psychiatric condition by which he is experiencing "intermittent adverse effects on his emotions, physiological functioning and cognition" (which affect his capacity for work), and has been found to have already partially responded to medication, and the view of the panel is that increased dosage or alternative medications will "optimise function", and that cognitive behaviour or therapy is very likely to "improve outcome", it must be considered open to the panel to express the conclusion, in effect, that the psychiatric condition will not continue indefinitely, that is to say, for the foreseeable future, or be enduring, and so should be considered temporary. In approaching the questions in the way they did, it cannot be said that the panel conflated issues of ability to work with the permanence of the psychiatric condition.

83 For these reasons, unlike the reasons provided in relation to the psychiatric condition considered in Re Croser, I consider the reasons given by the panel enable the applicant sufficiently to understand the reasoning processes of the panel as to why his psychiatric condition is considered temporary and not permanent. There is no logical inconsistency between the reasons given and the finding that the psychiatric condition is considered "temporary". In my view, put another way, if the panel had given the answer that the condition was "permanent", the reasons given would have been inconsistent with the answer, because they did not suggest a conclusion that the loss of mental capacity would extend indefinitely, into the foreseeable future, or be enduring.

84 A contention that the panel is not entitled to assume that a person in the position of the applicant would actually take increased dosages of his present medication or alternative medications and so is obliged to determine that a present psychiatric condition will not thereby be abated, is hardly compelling in terms of logic or authority. In Re Croser, as indicated above, Olsson AUJ and Murray J accepted that the uncertainty as to what the future might hold beyond a 2 -5- year period was hardly consistent with a finding that the diagnosed psychiatric condition was permanent. Plainly, the availability of medications that, in the ordinary course of events, are likely to optimise a person's condition, is relevant to the assessment to be made whether the condition is permanent or temporary. If, by adopting available and appropriate forms of medication or other treatment, a condition may be alleviated, it can hardly be concluded that the condition will be an enduring one. Once that position is arrived at, it is open to a panel to conclude that the condition is "temporary". To so find, of course, says nothing about the person's present, or long term, capacity for work. A person may have, for example, a temporary medical condition and a present total inability to work or a present partial capacity for work.

85 While it may be accepted that some forms of treatment, such as the "aggressive forms of treatment" described in Kinsella v Seton Catholic College, should not be taken into account in assessing the question of permanence of a condition, and that what the Compensation Magistrate suggested at par [59] of his reasons may be appropriate in such a case, there is nothing on the face of the record before the Court in this case to suggest the panel had in mind the prescription of medications or treatment not normally prescribed for the psychiatric condition suffered by the applicant.

86 I reject, therefore, the submission that, where a psychiatric condition exists and may be treated by available and appropriate medication that will optimise the physiological function of a person, the panel must assess that person's disability as if it were permanent, leaving it to the review officer to determine, in effect, whether the administration of medication or other therapies is likely to remove the permanence of the disability over time. Indeed, to state the proposition in that way is to reveal its weakness. The purpose of a medical assessment panel is to resolve medical questions. It is not the designated function of a review officer where medical issues are in dispute. In any event, where a review officer refers such questions to a medical assessment panel, it is the responsibility of the panel fully and properly to respond to them.

The question of "retained capacity for work"

87 The third ground of the application before me is that the panel further erred in law as a result in finding that the applicant retained a capacity for work. While stated as a third discrete ground for review, it is both expressed in the order nisi and argued in the written and oral submissions before me, as a ground that depends upon one or other of the first two grounds being made good.

88 As I have noted above, the question put by the review officer to the panel in this case did not ask, either expressly or by implication, whether the applicant suffered a "permanent and incurable loss of mental capacity". Nor was the panel expressly asked the question whether, if the applicant suffered from such an injury, it was one "resulting in total inability to work". Indirectly, however, the answer to such a question was provided by the answer to question 2, in which the panel indicated that, as a result of his psychiatric condition, the applicant was "Partially incapacitated" for work. In providing this answer, the panel reasoned that this was because of "intermittent adverse effects on his emotions, physiological functioning and cognition". It was not an answer that depended on an assumption that the applicant would be required to undertake a course of medication or therapy. It was a finding as to the applicant's then current condition.

89 The only reference to "capacity for work" in the determination of the medical assessment panel is in the answer to question 4. However, question 4 is a question put concerning the percentage of "psychiatric disability" assessed in accordance with Item 8 of Sch 2 of the Act, "if the worker has no capacity for work as a result of his psychiatric condition". The answer, that "He retains a capacity for work", is plainly based on the view that the psychiatric condition does not prevent him from working. As noted above, the panel expressly found that the applicant has a partial incapacity for work as a result of his psychiatric condition. That is the answer provided to question 2. The reason why the panel considered that to be so is set out in the passage of the reasons quoted in the preceding paragraph. In any event, as I have suggested above, it does not necessarily follow that a demonstrated permanent partial loss of mental capacity deprives a person of a capacity for work.

90 In these circumstances, I am not satisfied that the particular finding concerning a retained capacity for work in the answer to question 4 constitutes any error of law.

91 In the result, I find that the medical assessment panel failed in its duty to give reasons for decision in accordance with the obligation imposed on it by s 145E(3) of the Act, but only in respect of the answers given to question 1 concerning the Right Shoulder and the Cervical Spine. I would make the order nisi for certiorari absolute but only as to that part of the determination of the medical assessment panel that pertains to the Right Shoulder and Cervical Spine. It is conceded by counsel for the applicant that, if the Court were to make such a finding, the balance of the determination is severable and would not fall with an order quashing that part of the determination now found to be invalid. I so find.

92 A writ of certiorari should go directing the panel to remove into this Court its determination concerning the applicant dated 3 September 2001 for the purpose of quashing so much of it as determines the answer to question 1 concerning the right shoulder and the cervical spine and the reasons given in respect thereof.