Workers' compensation - Medical assessment panel - Obligation to give sufficient reasons for determination - Turns on own facts

Prerogative writs - Certiorari - Obligation of Medical Assessment Panel to give sufficient reasons - Turns on own facts

R v Gillett; ex parte Rusich [2001] WASCA 11

Re Babban; ex parte Suleski [2001] WASCA 289

1 WALLWORK J: I agree with the reasons for judgment and the conclusions which have been reached by Wheeler J.

3 ANDERSON J: I have had the advantage of reading in draft the reasons to be published by Wheeler J. I agree with them and have nothing to add.

4 WHEELER J: This is the return of an order nisi for a writ of certiorari in respect of a decision of the Medical Assessment Panel ("the Panel") dated 3 April 2001.

5 On 6 June 1999 the applicant was employed by the Brightwater Care Group Inc as a nursing assistant. She was employed at a home which provided nursing care to young accident victims with acquired brain injury. On that day, while preparing to commence her shift, she was assaulted by a patient, being struck from behind, punched in the head and thrown across the corridor onto a table. Immediately thereafter, not surprisingly, she suffered pain in a variety of parts of her body. Also, her right ankle and foot began swelling. A fracture in her right foot was diagnosed. She was also diagnosed as suffering from reflex sympathetic dystrophy and was referred to a pain clinic. She says that following the accident she continued to suffer aching in her lower limbs, numbness and tingling in the right foot and right calf muscle and other discomfort. There is, it appears, no question in this case that the physical injuries have now resolved. In addition however, the applicant asserts that she suffered from psychological trauma, observations in that respect being made by her general practitioner, Dr Beel and by a psychiatrist, Dr Booth. In addition, she has attended on Dr Febbo, a psychiatrist, for a review arranged by the workers' compensation employer.

6 In about September 2000 the workers' compensation insurer lodged an application seeking to cease weekly payments of compensation pursuant to s 60 and s 62 of the Workers' Compensation & Rehabilitation Act 1981 ("the Act"). The application was referred for a review and a preliminary review was held. The review officer referred the matter to the Panel pursuant to s 84ZH of the Act. The Panel comprised Dr Phillipa Brown, psychiatrist (Chair), Dr Robert McWilliam, orthopaedic surgeon and Dr Katrina Alexander, general practitioner. The report of the proceedings of the Panel reads as follows:-

"The Medical Assessment Panel constituted pursuant to section 145C of the Workers' Compensation and Rehabilitation

Act 1891 ('the Act') to determine the question referred to it, concluded its determination on the 28th day of March 2001.

The determination took place at 21 Havelock Street, West Perth and the worker was in attendance. The panel had read all the reports and other documents provided. X-rays and other radiological investigation were not viewed but all the reports were read. A history was taken from the worker and questions were put to her. She was submitted to a medical examination.

The findings of the Medical Assessment Panel were unanimous.

QUESTIONS FOR DETERMINATION BY THE MEDICAL ASSESSMENT PANEL.

The Medical Assessment Panel determines as follows:

1. What is the nature of the worker's disability?

1.1 Fracture right calcaneus.

1.2 Marked abnormal illness behaviour.

2. What is the extent of the worker's disability?

2.1 No residual disability.

2.2 Current abnormal illness behaviour is significant but not permanent

3. Is the worker from a physical point of view fit to undertake her full-unrestricted pre-accident duties?

REASONS

The reasons for this determination are as follow [sic]:

1. There is good evidence that the fracture of the right calcaneus has fully healed and there is a lack of evidence of any physical disability.

2. The panel discussed at length the place of abnormal illness behaviour in the diagnostic spectrum of psychiatric disability. The decision was that in this case the abnormal illness behaviour appears to be intermittent and variable and does not represent a formal psychiatric diagnosis."

7 The grounds of the applicant's application upon which the applicant sought to rely on the return of the order nisi were those lettered (c) and (d) in the order nisi which read as follows:-

"(c) the Panel failed to determine the questions referred to it and in particular the Panel failed to determine the nature of the Applicant's psychiatric or psychological disability, the extent of the Applicant's psychiatric or psychological disability or whether the Applicant was from a psychiatric point of view fit to undertake her full pre-accident duties.

(d) the Panel failed to give adequate reasons for its Determination as required by Section 145E(3) of the Act."

8 Although (c) was relied upon by the applicant, it does not I think stand as a separate ground. The Panel clearly did determine that the disability consisted of abnormal illness behaviour and that its extent was that it was significant but not permanent and it clearly answered that the applicant was fit to undertake her pre-accident duties, from a psychiatric point of view. As I understood the way in which the argument developed, it was that there were not adequate reasons given for these determinations, and that the determination that there was abnormal illness behaviour did not appear to be consistent with the finding of fitness to undertake pre-accident duties.

9 Before turning to the question of whether the reasons given were adequate, it is necessary to set out something of the nature of the dispute which appears to have existed. By way of background, it is to be noted that in the November 1999 report of the neurologist Mr Carroll, it was observed that the applicant did "unfortunately exhibit a distinct flavour of elaboration" while in February 2000 Dr Graziotti, the pain medicine specialist, described her as "very aggressive and defensive" in relation to questions about her prospects of return to work.

10 Her general practitioner, Dr Beel, expressed the view on 13 March 2000 that she was suffering from a very serious "post-traumatic stress disorder". He described her as displaying anger, anxiety and depression. He did recognise that he was not a qualified psychiatrist but strongly expressed the view that she required psychological treatment and support. In March 2001, approximately a year later, he described her as suffering from "severe anxiety/depression" which he predicted "will persist for a very long time".

11 In March 2000 Dr Booth diagnosed her as suffering from a "major depressive disorder". He described a number of symptoms, including weight loss, poor sleep, shaking and sweating, reliving of her father's death, and irrational fear, anxiety and nightmares. It appears that this diagnosis was at variance with views expressed by Dr Febbo. A report of Dr Febbo dated 12 October 1999 is listed amongst the medical reports and relevant documents forwarded to the Panel, but unfortunately has not found its way into the application book, so that it is not clear precisely what it said. The tenor of Dr Booth's report, in which he refers to Dr Febbo somewhat sarcastically as "the great Dr Febbo" and reports that he cannot concur with Dr Febbo "at all" suggests that Dr Febbo was firmly of the view that there was no psychiatric condition at that time. However this is a matter of inference only.

12 Again towards the middle of 2000, it was apparently the case that the applicant was seen again by Dr Febbo. It was Dr Booth's view that the review with Dr Febbo had worsened the applicant's psychiatric state, since it was necessary for her to attempt to relive those matters which distressed her during the course of that review. It is evident from Dr Booth's comments in relation to that review that he was of the view that she was still suffering from the psychiatric condition which he had diagnosed.

13 In June of 2000, a report from Dr Febbo set out what appears to have been a very full history of the applicant's mental state from the time of the assault onwards, together with a history of physical manifestations of anxiety and the like. His findings were that there had been a deterioration in the applicant's mental state following his earlier review, the major reason for it being stress related to "the compensation-litigation process". More recently, he formed the view that there had been a significant improvement. He noted that some of the anxiety symptoms she described would fall within the category of post-traumatic stress disorder but that he was left with a degree of doubt as to the reliability of the history which he had obtained. He expressed the view that "It is not my view that a return to the workforce, for example to the Manjimup Nursing Home (as I understand her rehabilitation provider has negotiated), is contra-indicated". This I understand as being a finding that it was his view that there was no reason in his expert opinion why she should not return to the workforce. He then expressed the view that the overall nature, severity and extent of her symptoms was not in keeping with a diagnosis of post-traumatic stress disorder but that the mental state examination was "not inconsistent" with residual anxiety and depressive symptoms. He suggested that major contributors to those symptoms were her pre-existing anger towards her employer and stress related to the compensation process. He expressed the view that there was not likely to be a permanent disability from the psychiatric perspective. He thought it would be appropriate to continue anti-depressant medication for about the next 6 to 12 months but that it was not his view that treatment would incapacitate her from employment.

14 In September of 2000 Dr Booth wrote to the applicant's then general practitioner a brief note which read as follows:-

"I have been looking after this girl with a severe depression which started many, many months ago.

Leah is currently the best I have seen her thanks to Mianserin 80 mg and Zyprexa 4 mg daily. I would advocate that she stays on this for many, many months to come.

Meanwhile, Leah is now renting a 3 acre farmlet next to the family farm, living there alone and obviously flourishing."

Dr Booth's notes show symptoms of anxiety and anger over the months March to June 2000. However, later notes of July 2000 describe her as "obviously well and almost bursting out of her skin". A note in August describes her as being in "great shape", while a September note describes her as "not as good as she could be" although it is not clear to what extent that description may be attributable to any psychiatric condition related to the assault and to what degree it relates to other matters.

15 Finally, it should be noted for the purpose of these reasons that there was no evidence as to the generally accepted medical understanding, if any, of the term "abnormal illness behaviour". However, it was accepted before us that it was an expression which was apt to describe the exhibiting of symptoms which were not consistent with the patient's physical condition.

16 A medical assessment panel does have an obligation to provide reasons for its decision: s 145E of the Act. A failure by a medical assessment panel to adequately set out the reasons for its decision will constitute an error of law which can found an order in the nature of certiorari: Re Croser; Ex parte Rutherford [2001] WASCA 422 at pars 11 and 67 - 68.

17 However, it is important that such panels are not saddled with what in practical terms are unrealistic and unduly burdensome obligations: Re Croser at pars 72 and 81. They are constituted by medical practitioners who have a large number of cases before them, and it is not to be expected that they will produce a decision similar to that which might be provided by a lawyer. The Panel is to act speedily and informally and is required to provide its determination and reasons as soon as practicable and in any event within 28 days of examination of the worker (s 145D and s 145E). A medical assessment panel is able to, as the Panel did in the present case, require a worker to attend before it and to question and to examine the worker. The Panel has specialist medical skills relevant to the questions required to be answered (s 145C) and in this case was chaired by a psychiatrist.

18 It is in my view particularly important that any alleged failure to provide reasons or adequate reasons should be assessed against the circumstances of the particular case. It is not appropriate to extract from previous decisions of this Court lists of things which it was thought should have been done by medical assessment panels in those other cases, and to generalise from those decisions some list of matters which the reasons of every medical assessment panel must contain in order to be considered to be adequate. For example, it is to be noted that in the case of R v Wong; Ex parte Hayes (unreported; FCt SCt of WA; Library No 980757; 5 October 1998) there was an analysis of the materials available to the Panel and the nature of the dispute arising in that case, and it was against this background that I said (at 6) that "In this case, one would have expected at least a list of findings arising from the history taken by the Panel [and so on]" (emphasis supplied).

19 In the present case, Dr Beel considered, so far as one can tell, at all relevant times, that the applicant suffered from a severe psychiatric disorder. However, as Dr Beel himself acknowledged, that was a diagnosis which lay outside his area of expertise. Dr Booth had taken the view that the applicant suffered from a psychiatric disorder, although it appears that Dr Febbo did not. However, even Dr Booth appears to have taken the view that, at least in the later part of 2000, the applicant was not a person who presented with disabling symptoms.

20 Against that background, it is difficult to see how the answer to the question as to whether the applicant was fit, from a psychiatric point of view, to undertake pre-accident duties could have been answered in any way other than it was. All of the relevant findings and issues appear to have been fairly fully set out in the reports of Drs Booth and Febbo, and it was in my view unnecessary for the Panel to recite them again. The reason given for the Panel's view appears to centre upon the finding that although there was abnormal illness behaviour it "appears to be intermittent and variable". Apart from the strongly expressed views of Dr Beel, which were however (as I have noted) not those of an expert, and which were not in the reports in the application book supported by any detailed history, all of the materials before the Panel, so far as one can tell from the application book, appear to support the view that the symptoms of the applicant which might be attributable to a psychiatric condition were indeed "intermittent and variable" and that they had tended to improve towards the later part of 2000. In those circumstances, it was not necessary in my view for the Panel to embark on any detailed and elaborate review of the facts, or to attempt to reconcile competing views. It is my view that the Panel's reasons, although extremely brief, were adapted to the particular circumstances of this case and sufficiently explain, against the background of materials available to the Panel, the considerations which led it to the conclusion which it reached.