DR F NG and DR S BLACKWELL members of the Medical Assessment Panel under the Workers' Compensation and Rehabilitation Act 1981

Prerogative writ - Certiorari - Workers' Compensation and Rehabilitation Act 1981 - Degree of disability of worker - Obligation of Medical Assessment Panel to give reasons - Statutory entitlement to refer to AMA Guides

Justices Act 1902, s 187

Workers' Compensation and Rehabilitation Act 1981

Workers' Compensation and Rehabilitation Regulations 1982

Amicus Curiae : Attorney General for Western Australia

1 McLURE J: This is an application for an order nisi for a writ of certiorari against Mr N C Anastas, Dr F Ng and Dr S Blackwell ("Panel") to quash the Panel's determination on 23 November 2000 that the applicant's degree of disability as assessed in accordance with s 93D of the Workers' Compensation and Rehabilitation Act 1981 ("Act") was 15 per cent.

2 The application came before McKechnie J on 24 May 2001 who adjourned the matter for one week to enable the proposed respondents or the Director of Conciliation and Review ("Director") to have the opportunity of making submissions on whether an order nisi ought be granted.

3 The matter came before me on 31 May 2001. The Panel had filed a notice of intention to abide the decision of the Court. Ms J Pritchard sought leave to appear on behalf of the Attorney General for Western Australia as amicus curiae in the proceedings. The applicant did not object to that course and leave was granted.

4 The applicant's grounds on which he seeks relief are:

1. The Panel did not give adequate reasons for its determination:

(a) The Panel did not set out the basis or method it utilised in assessing the degree of disability;

(b) The Panel did not state or analyse what medical reports or evidence it relied upon;

(c) There is no examination of the relevance of 'inconsistency on examination with forward flexion of his spine and straight leg raising' nor the extent of such inconsistency by way of objective measurements and its impact upon the Panel's determination;

(d) There is no explanation of the basis upon which the Panel concluded that "there is no evidence of radiculopathy" or the nature and extent of its relevance to the Panel's degree of disability assessment;

(e) There is no description of the "imaging viewed";

(f) The reasoning of the Panel is unclear as to whether they attached any weight to the medical reports before them and if so why.

(g) There is no explanation of nature and extent of the relevant discussions that were exchanged between the Panel members.

2. The Panel wrongly used "a manual on disability" being the WA AMA Guide.

5 During the course of the hearing the applicant applied for leave to amend ground 2 of the appeal to read:

"The Panel wrongly used "a manual on disability" being the WA AMA Guide when the Panel should have only used item 36A of the Second Schedule of the Act."

6 At the hearing of the order nisi it was not clear from the affidavit of Liana Marche sworn on 21 May 2001 and filed in support of the application that all documents referred to the Panel for its consideration were in evidence. Further, the applicant had not exhibited relevant extracts from the WA AMA Guide referred to in ground 2 of the application. Accordingly, I ordered the applicant to file a further affidavit covering these matters. A further affidavit of Liana Marche sworn on 6 June 2001 was subsequently filed.

7 The relevant facts are contained in Ms Marche's affidavits. The applicant had made a claim for compensation in respect of personal injuries sustained by him on or about 30 July 1999 in the course of his employment. On 25 February 2000 the applicant referred the question of the degree of his disability to the Director for determination pursuant to the Act. The applicant described his disability as "back injury and psychological illness". By letter dated 31 October 2000 from the Medical Panel liaison officer to the applicant, the applicant was advised that his matter had been referred to the Panel and all the medical reports and other documents which had been referred to the Panel for its consideration were identified. The documents are annexed to Ms Marche's affidavit and comprise fourteen medical reports by a variety of doctors covering the period August 1999 to October 2000.

8 On 23 November 2000 the Panel convened pursuant to s 145C of the Act and determined that the applicant's degree of disability as assessed in accordance with s 93D of the Act was 15 per cent. Information relating to the Panel's determination is contained in a pro forma document in the following terms:

"QUESTIONS FOR DETERMINATION BY MEDICAL ASSESSMENT PANEL

The medical Assessment Panel determines as follows:

What is the worker's degree of disability as assessed in accordance with section 93D of the Act?

Answer:

He has a permanent disability of 15%. 5% of this disability is in his thoraco-lumbar spine (excluding cervical spine) and 10% of this disability is contributed to by his mood disorder.

REASONS

The reasons for this determination are as follows:

1. Correspondence read, history taken, examination performed, imaging viewed, referral to a manual on disability, discussion with panel members, unanimous agreement by panel.

2. He has complained of symptoms since the incident on the 30th July 1999.

3. There is inconsistency on examination with forward flexion of his spine and straight leg raising.

4. There is no evidence of radiculopathy."

9 Thereafter the applicant's solicitors wrote to the chairman of the Panel placing the Panel on notice that they regarded the reasons as being inadequate and requested supplementary information. The Director responded to the letter from the applicant's solicitors advising, inter alia, that the chairman of the Panel advised that the manual referred to in the reasons is the AMA Assessment of Disability Guide, first edition, which was read in conjunction with the Second Schedule of the Act_._

10 Section 93E of the Act deals with restrictions on awarding damages to an applicant. Pursuant to s 93E(3)(b), damages can only be awarded if the worker has, inter alia, a significant disability. A worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16 per cent (s 93E(4)).

11 Section 93D of the Act deals with the assessment of disability. Subsection (2) materially provides:

"For the purposes of section 93E, the degree of disability of the worker is to be assessed -

(a) so far as Schedule 2 provides for such a disability, as a percentage equal to -

(i) if only one item of that Schedule applies to the disability, the percentage of the prescribed amount provided for by that item, as read with section 25; or

(ii) if two or more items of that Schedule apply to the disability, the sum of the percentages of the prescribed amounts provided for by those items, as read with section 25;

(b) to the extent, if any, that paragraph (a) does not apply, as the degree of permanent impairment assessed in accordance with the AMA Guides."

12 The AMA Guides means the edition of the Assessment of Disability Guide published by the Western Australian branch of the Australian Medical Association Incorporated which is prescribed in the regulations: s 93A of the Act. Pursuant to reg 19IA of the Workers' Compensation and Rehabilitation Regulations 1982 ("the Regulations") the first edition of the AMA Guides is prescribed.

13 Section 145E(3) of the Act requires that the determination of the Panel and the reasons for making it are to be given in writing signed by the chairman in a form approved by the Director.

14 Although a determination of the Panel is final and binding (s 145E(5) of the Act), it does not oust the jurisdiction of this Court to grant prerogative relief: Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996.

15 Different views have been expressed by members of this Court as to the threshold test that has to be met in order to justify the grant of an order nisi. It is accepted that an applicant must have an arguable case. However, one view is that although there must be an arguable case, it is sufficient that the case is merely capable of being argued and it is not necessary to show reasonable or real prospects of success (unless relief is sought in respect of quasi criminal proceedings): Re Capobianco; ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998; Re Matthews; ex parte MacKenzie [2000] WASC 147 at [11].

16 The other view is that an arguable case is one that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it has "some" prospect of success: Perpetual Trustees WA Ltd v City of Joondalup, unreported; SCt of WA (McKechnie J); Library No 990195; 16 April 1999. There is no necessary conflict between the two formulations in relation to the level of the prospects of success.

17 McKechnie J in Perpetual Trustees adopted the test of arguable case as it was put by Malcolm CJ in Dempster v National Companies and Securities Commission (1993) 9 WAR 215 at 262. Malcolm CJ said that "arguable case" in the context of s 187 of the Justices Act has the same meaning as "reasonable case" in O 20 r 19 of the Supreme Court Rules. That is a reference to "reasonable cause of action" in O 20 r 19(1)(a) of the Rules. A claim will not be struck out under O 20 r 19(1)(a) as disclosing no reasonable cause of action unless it is manifestly groundless or is so clearly untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 130. This too is a very low threshold test. In this case nothing turns on the differences in the formulation of the test of arguable case. It may be the practical difference is more apparent than real.

18 The requirement in s 145E(3) of the Act that the Panel provide reasons has been considered by the Full Court of this Court on at least two occasions: Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998; Ex parte Rusich [2001] WASCA 111.

19 In both cases the Full Court held that the Panel had failed to comply with its statutory obligation to provide reasons. In Hays the information described as the reasons for its determination was no more than a list of the steps the Panel had taken in reaching its determination. In particular, the reasons for the determination were said to be:

"* a full history has been taken,

* a relative examination has been performed,

* discussion among three Panel members,

* the video has been reviewed."

20 Wheeler J (with whom Pidgeon and White J agreed) said [at page 7] that the Panel:

"... should at least have set out what it considered to be the material facts which emerged from the materials to which it referred, and its process of reasoning from those material facts to its conclusion. Although each case must be considered individually, having regard to the purpose of the obligation to provide reasons, it is generally sensible for a fact-finding body of this kind to make particular reference to material which would appear to be inconsistent with the conclusion which it reached ... and to explain why such material was considered not to be relevant, or to be outweighed by other considerations.

In this case, one would have expected at least a list of findings arising from the history taken by the Panel, a list of findings on examination, a summary of relevant portions of the discussion amongst the Panel members, and a description of relevant portions of the video. Assuming that medical reports were considered, a reference to those considered to be of relevance and an indication of the extent to which they were considered to be consistent or inconsistent with the findings of the Panel would have demonstrated that they had not been simply overlooked."

21 The Full Court in Rusich also upheld a challenge to a Panel decision on the ground that the Panel had failed to give adequate reasons for its determination. In that case the Panel was asked about the worker's capacity to undertake the duties of a courier driver (to which the Panel responded that the applicant had capacity for full-time courier duties) and the applicant's percentage permanent loss of function under Item 36A of the Second Schedule of the Act being permanent loss of efficient use of the back including thoracic and lumbar spine (to which the Panel responded that the applicant had a permanent loss of efficient use of the back in the range of 6-7 per cent). The Panel's reasons were as follows:

"The panel was unanimous in its belief that Mr Rusich has demonstrated an ongoing ability for driving duties with restrictions on repetitive bending and heavier manual handling activities.

The panel acknowledges that Mr Rusich has primarily mechanical low back pain, together with evidence of long-standing degenerative change radiologically. There are no demonstrated abnormal neurological signs in this case.

The determination of the loss of the efficient use of the back was undertaken with the use of the US Guide for the Evaluation of Permanent Impairment - 4th Edition in conjunction with the AMA Assessment of Disability Guide - 1st Edition 1994.

The panel wishes to acknowledge Mr Rusich's assistance and co-operation in this matter whilst recognising he has recently had an exacerbation of his pain.

The panel wishes to record that without his assistance it would have been hampered in arriving at its determination."

22 Following a review of the authorities, Miller J concluded that the Panel should have included in its reasons, inter alia:

(a) an analysis of what medical evidence was accepted by it;

(c) the specific distinction (if it existed) between

non-compensable disability and compensable disability;

(d) the ultimate disability in terms of Item 36A of Schedule 2

23 It is apparent from a consideration of the Panel's reasons in this case by reference to the authorities that the applicant has an arguable case that the Panel's reasons do not comply with s 145E(3) of the Act. One issue which may arise for consideration is the extent to which any gaps in the Panel's reasons may be filled by considering the various (and contradictory) expert reports supplied to the Panel. The applicant's grounds of objections in par 1(a) to (g) are of varying strength. However, I see no merit (and no arguable case) in the objection in par 1(g). There can be no requirement for exchanges between members of the Panel to be recorded in its reasons.

24 Ground 2 of the application (as amended) alleges error in the Panel's reliance on or reference to the WA AMA Guide. It is said that on a proper construction of s 93D(2) of the Act, the only relevant matter the Panel should have considered was Item 36A of the Second Schedule to the Act. Item 36A refers to "permanent loss of the full efficient use of the back (including thoracic and lumbar spine)".

25 In his claim the applicant describes his disability as "back injury and psychological illness". The question considered by the Panel was the applicant's "degree of disability as assessed in accordance with s 93D of the Act". The Panel's answer referred to a permanent disability of 15 per cent, 5 per cent of which was in his thoraco-lumbar spine and 10 per cent is contributed by his mood disorder.

26 It is unclear from the Panel's pro forma document whether it found one disability of an organic nature (back injury) exacerbated by causally related inorganic findings of mood disorder or two disabilities, one organic and one inorganic together totalling a permanent disability of 15 per cent. If regard is had to the psychiatric report by Dr P W Skerritt annexed to the affidavit of Ms Marche of 21 May 2001, it may be inferred that the Panel's finding is of two disabilities. Dr Skerritt is of the view that the applicant had an estimated permanent percentage inorganic disability of 10 per cent and he based that view on that part of the AMA Guides in evidence which refers to the Commonwealth Social Security rating of psychiatric impairment. If it is correct to draw the inference of two disabilities (one inorganic) the Panel would not be in error in referring to the AMA Guides for assessing the percentage of permanent disability attributable to inorganic causes because the Second Schedule makes no provision for that disability. Further, even if the applicant's disability related solely to his back, it is arguable that Item 36A of the Second Schedule does not apply because that item refers to the loss of the "full efficient use" of the back.

27 In any event, it would not necessarily be an error to refer to the AMA Guides even if the disability is referred to in an item of the Second Schedule of the Act. The AMA Guides cover a number of areas including matters relating to the content and application of the Second Schedule of the Act as well as disabilities not specifically contained in the Second Schedule and an explanation of how to convert an impairment rating under the United States "Guides to Permanent Impairment" to "disability" under the Act: see Re Rusich at pars 24 - 30. It is not clear from the Panel's reasons whether or not it used the AMA Guides for an impermissible purpose.

28 However, because there may be an overlap between grounds 1 and 2 of the appeal and the answer to ground 2 may to some extent depend on the answer to question 1, I am not prepared to say that ground 2 is unarguable. Accordingly, I propose to make an order nisi on the basis of grounds 1(a) to (f) inclusive and 2 of the application. I will also order that the order nisi be served on the Director and the applicant's employer (whose insurer is HIH Insurance).