Department of Family & Children's Services v Furnace [2001] WASCA 285 (14 September 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DEPARTMENT OF FAMILY & CHILDREN'S SERVICES -v- FURNACE [2001] WASCA 285

MATTER : An Application for Writ of Certiorari and a Writ of Mandamus, alternatively a Writ of Prohibition against PAUL BROOKS, Conciliation Officer, Conciliation & Review Directorate constituted under the Workers' Compensation and Rehabilitation Act 1981

BETWEEN : DEPARTMENT OF FAMILY & CHILDREN'S SERVICES

Workers' compensation - Proceedings to obtain compensation - Dispute as to causation of injury - Whether conciliation officer could refer to Medical Assessment Panel - Jurisdiction of Medical Assessment Panel - No jurisdiction to determine issues of causation

Prerogative writs - Prohibition - Certiorari - Mandamus - Referral to Medical Assessment Panel in excess of jurisdiction

Workers' Compensation & Rehabilitation Act 1981, s 84, s 145E

ANI Products v Anthony Brian Taylor CM 9/97, unreported; Compensation Magistrate, Heath SM; 19 March 1997

Hamilton Hill Tavern v Simon Maddox CM 72/98, unreported; Compensation Magistrate, Heath SA; 23 December 1998

Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182

Main Roads of Western Australia v Latta [1997] CM 82/96, unreported; Compensation Magistrate, P C Cockram; 4 February 1998

Re Peter Hales, Graeme Carroll and Katrina Alexander as members of a Medical Assessment Panel established under the Worker's Compensation and Rehabilitation Act 1981; Ex Parte Barr [2001] WASCA 89

Ross David Crake v WA Fire Brigade CM 39/94, unreported; Compensation Magistrate, Packington SM; 10 January 1995

1 MALCOLM CJ: I agree with the reasons to be published by Miller J with the consequence that I would discharge the orders nisi for those reasons. I specifically agree with Miller J that it is not necessary in this case to resolve the difference of opinion in Re Alan Skirving & Ors; Ex parte Forward, unreported; SCt of WA; Library No 980737; 18 December 1998 between Anderson J at 4 - 5 (with whom Murray J agreed) and Kennedy J at 3.

2 WHEELER J: I have had the advantage of reading in draft the reasons for decision to be delivered by Miller J. I agree with them and I would discharge the orders nisi for the reasons which his Honour gives.

3 MILLER J: This is the return of orders nisi for writs of certiorari, mandamus and/or prohibition directed to a Conciliation Officer of the Conciliation and Review Directorate, calling on him to show cause why those writs should not be issued against him for the purpose of quashing a decision and commanding him to refer an application to a Review Officer within the meaning of the Workers' Compensation and Rehabilitation Act 1981 ("the Act").

4 The decision in issue was one made by the Conciliation Officer to refer certain questions to a medical assessment panel pursuant to the provisions of s 84R of the Act and to refuse to list an application for hearing before a Review Officer, contrary to the provisions of s 84Y(1) of the Act.

5 The relief sought by way of writ of mandamus is directed to command the Conciliation Officer to refer a worker's application to a Review Officer and in the alternative, the writ of prohibition is sought to prevent the Conciliation Officer from referring to the medical assessment panel the question which he has referred.

6 The application raises questions relating to the role of the Conciliation Officer and the specific power given to him to refer certain questions to a medical assessment panel. These matters are the subject of Pt IIIA, Div 2 of the Act, which is headed "Conciliation".

7 Where a dispute arises between a worker and an employer, any party to that dispute may, by application under s 84N of the Act, refer the dispute to the Director for Conciliation. Under s 84O the Director is to make arrangements as to the Conciliation Officer who is to conciliate in connection with a particular dispute.

8 Under s 84P, conciliation by a Conciliation Officer is to commence within 14 days after the date on which a dispute is referred. Section 84P(2) provides that the Conciliation Officer is "to act fairly, economically, informally and quickly in making all reasonable efforts to bring the parties to the dispute to agreement." Section 84P(3) requires him to act according to the substantial merits of the case without regard to technicalities or legal forms or precedent. Section 84Q of the Act gives to the Conciliation Officer the power to require a party to the dispute to attend before him, answer questions, produce documents and attend at a conciliation conference.

9 Under s 84R of the Act a Conciliation Officer is given the power to refer certain questions to a medical assessment panel. Section 84R(1) is in the following terms:

"(1) If permitted by section 145A to do so, a conciliation officer may refer a question as to -

(a) the nature or extent of a disability;

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

(c) a worker's capacity for work,

for determination by a medical assessment panel."

10 Medical assessment panels are dealt with in Pt VII of the Act and s 145A(1) provides:

"(1) Subject to subsection (2) a question may be referred for determination by a medical assessment panel under section 84R, 84ZH or 84ZR only if -

(a) there is a conflict of medical opinion on the question between -

(i) a medical practitioner engaged by the worker; and

(ii) a medical practitioner provided and paid by the employer, or each medical practitioner so provided and paid if there is more than one of them;

and

(b) one of the parties wishes the proceedings to continue."

Under s 145E of the Act the determination of a medical assessment panel is conclusive evidence as to the matters determined by it.

11 In the case of conciliation, it is clear that parliament has intended that a Conciliation Officer shall do all that is possible to bring the parties in dispute to a resolution of that dispute. In this regard, a determination by a medical assessment panel may be of assistance at the conciliation stage. If, however, conciliation proves impossible, under s 84Y of the Act a conciliation officer is required to refer a dispute for review if any of the parties so request. Such a requirement is negated should the officer be of the opinion that the party making the request has not made reasonable endeavours to have the dispute resolved through conciliation. Upon review the matter is referred to a Review Officer who is chosen by the Director (s 84Z) for that purpose.

12 A Review Officer is given the power (s 84ZF) to confirm, vary or revoke an order made by a Conciliation Officer. In this case it was suggested that a Review Officer could revoke a determination by a Conciliation Officer to refer a question to a medical assessment panel. I would not think, however, that s 84ZF of the Act is directed to that purpose. Rather, it is directed to an order made by a Conciliation Officer under s 84S of the Act by which an employer or insurer has been ordered to pay to a worker a sum of money.

13 In the present case the intervener (a worker) made a claim for compensation against the applicant (his employer) contending that on 3 February 2000 at his place of work; a hostel in Greenmount, he had suffered anxiety/acute stress reaction whilst escorting a young client out of the office. This client was alleged to have verbally abused and physically threatened the intervener.

14 The applicants insurer clearly advised the intervener that no decision on the question of liability could presently be made, inviting the intervener to refer a dispute to the Director of Conciliation and Review. This duly occurred and on 9 November 2000 the intervener's application was heard before a Conciliation Officer. An advocate for the applicant advised the officer that the applicant disputed liability for the intervener's claim on the ground that any injury sustained by him was not caused or contributed to by his employment. The issue of causation was thus raised.

15 Medical reports were put before the Conciliation Officer. The applicant had a report from Dr Lawrence Terace and the intervener had a report from Dr Peter W Burvill. Both are consultant psychiatrists and each has expressed quite different views on the intervener's condition and its cause.

16 Dr Terace's report dated 2 April 2000 is very lengthy. In it Dr Terace expresses the view that the intervener is suffering from a low-grade adjustment disorder which is a low-grade recognisable psychiatric condition. Dr Terace also expresses the view that the intervener's psychiatric condition developed after the incident he complained of at work and was a product of factors other than the intervener's employment. Specifically, it was considered to be due to his inherent personality and constitutional vulnerability; his fears that out of anger or panic he would commit an act of misconduct or criminal assault and his financial concerns arising out of the risk of having his house repossessed. In the doctor's view it was more likely than not that there was no specific factor in the workplace that led to the contraction of his condition.

17 Dr Burvill vehemently disagreed with the opinion of Dr Terace. In a report dated 23 August 2000 he considered the intervener to be suffering from a major depressive illness of at least moderate severity with marked anxiety symptoms including panic attacks and a degree of agoraphobia. In Dr Burvill's opinion this condition had been present since early 2000 and, in his opinion, was directly related to stress experienced by the intervener at his workplace whilst working at the Immoniche Hostel for the four weeks 9 January 2000 to 3 February 2000. Dr Burvill disagreed with Dr Terace's conclusions in relation to the psychiatric diagnosis he made, the severity of the intervener's condition and the claim that the underlying causation was due to an inherent personality difficulties.

18 Faced with these medical reports the Conciliation Officer determined to make a referral to a medical assessment panel under s 84R of the Act. He referred two questions:

"1. What is the nature and extent of any psychiatric disability, the worker may have?

2. What is the capacity of the worker to undertake his pre-accident duties or any other light duties, having regard to any psychiatric disability he may have?"

19 Following this referral the applicant requested the Conciliation Officer to reconsider the matter, to revoke the referral and immediately list the dispute for hearing before a Review Officer. The Conciliation Officer declined to revoke the referral to the medical assessment panel and declined to list the matter for hearing before a Review Officer. By implication he decided that it would be appropriate to await the determination of the medical assessment panel before taking any further steps in the matter.

20 The applicant's central submission was that a Conciliation Officer has no power to refer a matter to a medical assessment panel until such time as it has been determined that a worker has a "disability" as defined in s 5 of the Act. Counsel for the applicant submitted that the Conciliation Officer's referral to the medical assessment panel would inevitably result in the panel reaching conclusions relating to the disputed issue of causation. Counsel accepted that it has been held in this Court that the jurisdiction conferred upon a medical assessment panel is strictly circumscribed. As it held in Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395 (at 399) the task of the panel is essentially "diagnostic in character". The issue of causation is not within the province of a medical assessment panel.

21 Counsel for the applicant contended that whilst the medical assessment panel was precluded from determining the issue of causation, its diagnosis of the "nature and extent of any psychiatric disability" which the intervener might have, would inevitably incorporate matters relevant to the question of causation and thereby, because of the finality of determination of the medical assessment panel, effectively govern the outcome of the issue of causation before a Review Officer or Compensation Magistrate. Although a Conciliation Officer has no power to determine the issue of causation, it was also argued that the conciliation process would be affected in this regard by the determination of the medical assessment panel in this regard.

22 Counsel for the applicant questioned the judgment of Anderson J in Re Alan Skirving, Graeme Carroll and Rosanna Capolingua as members of a Medical Assessment Panel established under the Workers Compensation and Rehabilitation Act 1981; Ex parte Forward, unreported; SCt of WA; Library No 980737; 18 December 1998. There, Anderson J (at 4 - 5) concluded as follows:

"A question arose on the return of the order nisi as to whether the word 'disability' in s84JZ is used in its defined sense to mean an injury by accident arising out of or in the course of employment or is used in a non-technical sense to mean simply a physical incapacity. I think it must be used in the latter sense. The word is to be given its defined meaning 'unless the contrary intention appears' (s5(1)). In my opinion, the contrary intention does appear from the context in which the word 'disability' is used in s84ZH. The power of the Directorate on a review of weekly payments includes a power to decide that any weekly payment may be discontinued (s62(1)). So, the power must include a power to decide whether the disability complained of by the worker is a disability within the meaning of s18; that is, a disability as defined in s5(1). It would be absurd to construe s84ZH to mean that there is no power in a review officer to refer a question to the medical assessment panel unless and until he or she had decided in point of fact that the worker is suffering from a disability, when that may be the very question under consideration by the review officer in respect to which the determination of the medical assessment panel was required."

23 Murray J apparently agreed with Anderson J, but Kennedy J refrained from agreeing with this view. His Honour said (at 3):

"As Anderson J has pointed out, a question as to the meaning of 'disability' in s84ZH was raised in the course of the hearing of this appeal. 'Disability' is a term which is of central importance in the legislation and I would hesitate to conclude, without further argument, that the legislature did not use it in s84ZH in its defined sense. There will obviously be a significant number of occasions on which a panel will be required to embark upon a quite unhelpful exercise if it is not able to discriminate between work caused and non work caused 'disabilities'. In other jurisdictions, it would seem that medical panels or boards are empowered to determine which matters constitute injuries or disabilities under their legislation."

24 It is unnecessary to resolve this issue. It is sufficient to say that the scheme of Pt IIIA, Div 2 of the Act is to provide for a process of conciliation in relation to which a Conciliation Officer may, if he thinks fit (where permitted to do so by s 145A of the Act) refer to a medical assessment panel the questions which were here the subject of the referrals. That is, the nature and extent of any psychiatric disability and the capacity of the worker to undertake pre-accident duties (or any other light duties) having regard to any psychiatric disability he might have. Clearly, Div 2 does not contemplate that before referral under s 84R by a Conciliation Officer he or she should have determined the issue of causation and therefore whether a "disability" within the meaning of s 5 of the Act has been suffered by the worker. Indeed a Conciliation Officer has no role in making that determination. A Review Officer may do so upon referral by the Conciliation Officer under s 84Y of the Act.

25 In the present case the Conciliation Officer was clearly entitled to make the referral he did to the medical assessment panel. This referral may lead to complications for the applicant in relation to the issue of causation, but the referral might also have the desirable consequence of bringing about a resolution of the dispute between the applicant and the intervener. Answers adverse to the intervener are likely to see an end to any proceedings. Answers favourable to him still leave open the entitlement of the applicant to contest the issue of causation before a Review Officer and elsewhere, notwithstanding any observations which the panel may make relevant to that issue. The panel is in any event to bear in mind at all times that it is strictly confined in relation to the answers to the questions posed by the Conciliation Officer.

26 Although it might generally be thought that a Conciliation Officer would utilise the provisions of s 84R of the Act to refer a question or questions to a medical assessment panel where both parties accepted that the worker had a disability, there is nothing to preclude the Conciliation Officer from utilising the section in circumstances where that issue remains at large. The section contains no restrictions or restraints upon the Conciliation Officer in that regard.

27 Given this conclusion, it must follow that the Conciliation Officer is not obliged to refer the dispute between the applicant and the intervener for review at this time. Although s 84Y of the Act requires the Conciliation Officer to do so if any of the parties so requests, the Conciliation Officer has a residual discretion and is not required to make the referral if he or she is of the opinion that the party making their request is not made reasonable endeavours to have the dispute resolved through conciliation. At this time, the medical assessment panel has not reported to the Conciliation Officer. Until the panel does report and a further attempt is made for conciliation between the parties, the Conciliation Officer would be justified in declining to refer the dispute for review at this time.

28 Given these conclusions, it is clear that the relief sought by the applicant is unavailable to it. In my view the orders nisi should be discharged in each case.