Workers' compensation - Degree of disability - Whether medical opinion supported by "medical evidence" - Meaning of "medical evidence"

Workers' Compensation and Rehabilitation Act 1981 (WA), s 25, s 93A, s 93D, s 93E(5), s 93F, s 93(2)(b)

Workers' Compensation and Rehabilitation Regulations 1982 (WA), reg 19J(1)

Amcor Packaging (Australia) Pty Ltd : Mr H M O'Sullivan

Amcor Packaging (Australia) Pty Ltd : Srdarov Richards Burton

1 SIMMONDS J: This is the return of an order nisi for writs of certiorari and mandamus granted by Roberts-Smith J on 25 August 2003 and made returnable before a single Judge in chambers.

2 By way of background, the applicant had suffered two accidents, one on 17 February 2000 causing injury to his right knee then, the other on 18 November 2001 causing injury to his right hand then, both in the course of his employment at Amcor Packaging (Australia) Pty Ltd ("the employer"). Two applications were made to the Director of Conciliation & Review, WorkCover Western Australia, Mr Ross Monger ("the Director") in respect of those injuries for the purposes of s 93D(5) of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act"). This was to permit a move to a determination of the degree, expressed as a percentage, of the disability of the applicant, a determination that might make possible a claim for relief in respect of that disability independently of the Act. Both applications were on Form 22 pursuant to reg 19J(1) of the Workers' Compensation and Rehabilitation Regulations 1982 (WA).

3 The first of these applications was dated and filed 23 April 2002 ("the first application") and was accompanied by a report of an orthopaedic surgeon, Mr Halliday, dated 8 April 2002, as well as a letter from the applicant's solicitors to Mr Halliday requesting that report. The first application showed a degree of disability assessed as "20%" and nominated as the relevant level of disability "not less than 16%". The significance of this nomination has to do with the time within which an election to proceed in this way has to be made under s 93E(5) of the Act, which entails certain restrictions on awarding an amount of damages under s 93F. This is to be distinguished from the other possible nomination on the Form 22, "not less than 30%", which is the subject of the further application I return to below. There is no time limit like that in s 93E for the latter election, nor such restrictions on damages in such a case. There is a comprehensive description of the procedural framework in which Form 22 applications are to be understood, as well as the compensation regime created by the Act, set forth in the principal authority on this aspect of the Act in Re Monger; Ex parte Dutch [2001] WASCA 220, in the principal judgment of the Court delivered by Malcolm CJ. This relieves me of the need for any further description of that regime, except in the limited ways returned to below.

4 Returning to the first application and its attached report from Mr Halliday dated 8 April 2002, that report and two later reports were the focus of the present proceedings. The 8 April 2002 report read in full as follows:

"Thank you [solicitors for the applicant to whom the report was by way of reply] for your letter dated 2 April 2002.

In my opinion, Mr McLaughlin has a 25%-30% disability of his right wrist and hand according to Item 14 of Schedule 2 of the Workers' Compensation and Rehabilitation Act. It should be noted that this disability may change with time."

5 The Director, by letter dated 1 May 2002, responded to the first application by stating that he was unable to process the referral for the purposes of the Act as there was no "medical evidence", as required by s 93D(6) of the Act. That subsection, referring to cases where the worker and the employer are unable to agree on whether the degree of disability is not less than the relevant level, following which the worker may refer the question to the Director, reads as follows:

"(6) A question can only be referred under subsection (5) if the worker produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level."

6 The letter of the Director was, in material part, as follows:

"In my view, the information submitted by Mr Halliday is not sufficient to satisfy the requirements of 'medical evidence' for the purposes of Section 93D(6). I take that view for the following reasons:

1 Mr Halliday's report does not provide any material or comment of a medical kind, which supports his opinion.

2 Mr Halliday's report does not provide any reasons to support the assessment made.

3 The report is not clear in terms of the permanency of the disability or of the degree of disability as the statement 'Mr McLaughlin has a 25%-30% disability' does not enable the making of a calculation under the provisions of Schedule 2 (in this case of Item 14)."

7 A further application dated 21 June 2002 was filed on behalf of the applicant ("the second application"), accompanied by two reports from Mr Halliday, his 8 April 2002 report and a further report, dated 24 May 2002, as well as a report by Dr Galton-Fenzi, a specialist occupational physician, dated 22 May 2002, although without any letters from the solicitors of the applicant to Dr Galton-Fenzi.

8 The report of Mr Halliday dated 24 May 2002 accompanying the second application read in full as follows:

"Thank you [solicitors for the applicant] for your letter dated 21 May 2002 regarding the above patient.

In my opinion Mr McLaughlin has a 25-30% disability of his right wrist and hand according to Item 14 of Schedule 2 of the Workers' Compensation and Rehabilitation Act. This applies for the foreseeable future."

9 This second report of Mr Halliday had, in fact, previously been sent separately in support of the first application to the Director, and the Director by letter dated 12 June 2002 indicated in that regard that he did not consider the second report of Mr Halliday "adds anything" to the medical information already supplied. This was stated by the Director to be except for the last line of the report, which the Director said "may satisfy the requirement for medical evidence to indicate that a disability is a permanent one".

10 Pausing at this point, I should indicate that, in view of my conclusions on the matters in this return of the order nisi, it is unnecessary for me to conclude whether or not the Director was correct in the last respect. However, it appears to me that, indeed, the second Halliday report met the permanence standard that emerges on the authorities on s 93D(6) of the Act. I refer to the most useful analysis of this matter, albeit obiter, in the judgment of Miller J in Re Monger; Ex parte Shire of Wyndham-East Kimberley [2002] WASC 165. The permanence requirement is discussed in Dutch (supra) per Malcolm CJ at [40] - [41] and in the authorities on its application referred to in Re Monger; Ex parte Shire of Wyndham-East Kimberley at [16].

11 Returning to the letter of the Director dated 12 June 2002 in relation to the second Halliday report, the Director concluded his letter by saying that his position on the first application remained the same.

12 The report of the other medical practitioner, Dr Galton-Fenzi, in support of the second application, read in full as follows:

"Acknowledgement is made of your [solicitors for the applicant] letter, dated 16 May 2002. It was addressed to myself, though commenced Dear Dr Campbell.

You state that you act for Mr McLaughlin in regards to his personal injury claim relating to his right knee injury, which occurred on or about January 2000, in the course of his employment with Amcor Fibre Packagers.

You remind me that the injured worker's right with respect to lump sum, common law claims have been severely affected by the recent changes to the workers' compensation laws. You indicate these laws require a certification of at [sic] a 16% whole body disability (or in the case of a lumbar thoracic injury, 16% lumbar thoracic disability) before an injured worker has the right to commence common law lump sum proceedings.

You ask if I could provide my assessment:

In percentage terms of your client's permanent loss or [sic of] efficient use of his right leg at or above the knee as set out in Item 28 of Schedule 2 of the Worker's Compensation and Rehabilitation Act 1981:

Having clinically assessed Mr McLaughlin, I have formulated a diagnosis that he has a right-sided retropatellar chondromalacia (currently called patellofemoral syndrome). I assess his permanent loss of the efficient use of his right leg at or above the knee as set out in Item 28 of Schedule 2 of the Workers' Compensation and Rehabilitation Act 1981, to be 25%." (Bold in original.)

13 The second application itself was the same in all material respects as the first application except that the second application showed the degree of disability assessed as "37.5%" and nominated as the relevant disability "not less than 30%". I have previously noted the significance of this different nomination.

14 The Director by letter dated 1 July 2002 stated that he was unable to process this referral as there was no "medical evidence" in support of it. The Director's letter said, in material part:

"The report of Mr Halliday dated 8 April 2002 states;

'In my opinion, Mr McLaughlin has a 25%-30% disability of his right wrist and hand according to Item 14 of Schedule 2 of the Workers' Compensation and Rehabilitation Act. It should be noted that this disability may change with time.' (Underlining added)."

15 In his further report of 24 May 2002, Mr Halliday states:

"In my opinion, Mr McLaughlin has a 25%-30% disability of his right wrist and hand according to Item 14 of Schedule 2 of the Workers' Compensation and Rehabilitation Act. This applies for the foreseeable future. (Underlining added)

Whilst the addition of this line satisfies the requirement for medical evidence to indicate that the disability is a permanent one, in my opinion the information submitted by Mr Halliday is not sufficient to satisfy the requirements of 'medical evidence' for the purposes of section 93D(6). I take that view for the following reasons:

(1) Mr Halliday's reports do not provide any material or comment of a medical kind, which supports his opinion.

(2) Mr Halliday's reports do not provide any reasons to support the assessment made.

(3) The reports are not clear in terms of the degree of disability as the statement 'Mr McLaughlin has a 25%-30% disability' does not enable the making of a calculation under the provisions of Schedule 2 (in this case of Item 14).

It seems that Mr Halliday's reports are an opinion as to an assessment of your client's degree of disability rather than medical evidence of the kind required for the purposes of section 93D.

Your attention is drawn to the Full Court decision in the matter of Re Monger; Ex parte Dutch [2001] WASCA 220.

I note Dr Galton-Fenzi's report of 22 May in relation to the right knee injury provides his assessment that the worker has a 25% permanent loss of the efficient use of his right leg at or above the knee. However this assessment does not meet the requirements of medial evidence as required for the purposes of section 93D.

For the above reasons I am not satisfied you have provided 'medical evidence' as required for the purposes of section 93D(6)."

16 Pausing at this point, I should note that it is not necessary for me to reach a final conclusion with respect to the matter of the range form in which the percentage assessment is indicated in the second Halliday report. It was pressed on me by solicitors for the applicant in this return that, for the purposes of s 93D, the low point in the range can be taken as the relevant percent for the purpose of determining the nomination percent category (16% or more; 30% or more). This view is clearly correct. Authority, if it is needed, appears in the judgment of Roberts-Smith J in Re Monger; Ex parte Urquhart [2004] WASC 48 at [35].

17 Returning to the factual background to this case, the third of the medical reports the focus of these proceedings was one by a Dr Shannon. It was a psychiatric report, dated 10 July 2002 and sent by the applicant's solicitors to the Director under cover of their letter dated 1 August 2002. The solicitors' letter indicated the report was being sent in reference to both the first application and the second application. Dr Shannon's report ran to four pages and thus was much lengthier than the two Halliday reports, or that of Dr Galton-Fenzi. The Shannon report referred to Dr Shannon having met with Mr McLaughlin on two occasions, to the circumstances of the injuries that had been sustained, to the physical symptoms and problems that had followed the injuries, to the psychological symptoms and problems that had followed them, to the treatments for the physical problems, and to the impact of the psychological problems on the work and family life of the applicant and related matters. Dr Shannon's report has a conclusion appearing after a series of listed headings describing the attendances of the applicant on Dr Shannon, his significant psychiatric findings on each such occasion, his exact diagnosis of the applicant's condition, and his summary of the applicant's current symptoms and complaints. That conclusion reads as follows:

"(5) Your assessment, in percentage terms, of our client's permanent loss of the efficient use of his mental capacity.

In reviewing this man's psychiatric impairment, I would refer to the Social Security Act: Psychiatric Impairment Rating Scale. From a purely psychiatric diagnosis, I would say this man has an impairment rating of TEN. That is, there are mild to regular symptoms which tend to cause subjective distress, and cause minor interference with functioning in everyday situations. There is, at times, exacerbation of these symptoms. There is also occasional friction with the family. Medical therapy and also psychological treatment is required.

It must be emphasised that this impairment rating is directly concerning Mr McLaughlin's psychological symptoms. It does not include the physical impairment and pain which Mr McLaughlin experiences."

18 The Director, by letter dated 9 August 2002, noted the 1 August 2002 letter from the solicitors for the applicant and its request for him to consider the report from Dr Shannon in regard to both the first application and the second application. The Director in that letter also indicated he had considered all of the reports in relation to both applications, including both reports of Mr Halliday and the report of Dr Galton-Fenzi. The Director's letter read, in material part, as follows:

"I acknowledge that Dr Shannon's report indicates your client has a permanent psychiatric impairment rating of TEN.

Application claiming not less than 30% - AP355/02

Specifically in terms of this application I refer you to my letter of 1 July 2002 [above] wherein I advise that the earlier reports of your client submitted from Dr M Halliday dated 8 April 2002 and Dr B Galton-Fenzi dated 25 May 2002 [it is clear to me that the references here, although omitting the date of the second Halliday report and misdating the Galton-Fenzi report, were to the ones that I have previously quoted from] were not sufficient to satisfy the requirements of 'medical evidence' for the purposes of Section 93D(6). The position is unchanged and accordingly I am unable to process the referral.

Application seeking degree of disability of not less than 16% - AP237/02

This application relies upon the same medical reports and therefore for the reasons mentioned above I remain unable to process this referral."

19 The order nisi granted by Roberts-Smith J in the present proceedings was to quash the Director's decisions not to accept the first application and the second application and to compel the Director to process them further. The grounds referred to in those orders were as follows:

"A By virtue of s93D(6) of the Act, the Director was required, in relation to the first Form22, to only decide if the Applicant had produced to him medical evidence, which indicates the medical practitioner's opinion that the degree of disability is not less than 16%.

B By virtue of s93D(6) of the Act, the Director was required, in relation to the second Form22, to only decide if the Applicant had produced to him medical evidence, which indicates the medical practitioner's opinion that the degree of disability is not less than 30%.

C The Applicant's medical evidence in relation to the first Form 22 does comply with the requirements of section 93D(6);

D The Applicant's medical evidence in relation to the second Form 22 does comply with the requirements of section 93D(6);

E The Applicant's medical evidence in relation to the first Form 22 is sufficiently clear in respect of the indication of 'permanency' of the disability for the purposes of s93D(6);

F The Applicant's medical evidence in relation to the second Form 22 is sufficiently clear in respect of the indication of 'permanency' of the disability for the purposes of s93D(6);

G The Director should have accepted the first Form 22 on the basis that it did comply with the Act.

H The Director should have accepted the second Form 22 on the basis that it did comply with the Act.

I The Director should have determined, in relation to the first Form 22, that a dispute pursuant to Section 93D(8) of the Act has arisen for the purposes of Part IIIA of the Act.

J The Director should have determined, in relation to the second Form 22, that a dispute pursuant to Section 93D(8) of the Act has arisen for the purposes of Part IIIA of the Act.

K The Director should have referred under Section 93D(10) of the Act, the question of the Applicant's degree of disability in relation to the first Form 22 for resolution under the provisions of Part IIIA of the Act.

L The Director should have referred under Section 93D(10) of the Act, the question of the Applicant's degree of disability in relation to the second Form 22 for resolution under the provisions of Part IIIA of the Act."

20 To conclude this account of the background to this return of the order nisi, I note that by notice dated 13 March 2003 the Director indicated it did not intend to appear by counsel in this matter, and would abide the decision of the Court, save as to costs.

21 At the hearing, I gave leave under O 56 r 7 of the Rules of the Supreme Court 1971 (WA) for Mr O'Sullivan to be heard as counsel for the employer. Mr O'Sullivan informed me that the Attorney-General had indicated he had no intention of seeking leave to appear in this matter as amicus curiae or otherwise.

22 In the course of the hearing, it became evident that the principal issues were whether or not either report of Mr Halliday, or the report of Dr Galton-Fenzi, was such that the Director should have found it complied with s 93D(6). Further issues were addressed, however. They had to do with whether or not, if Dr Galton-Fenzi's report so complied, but neither report of Mr Halliday did, the report of Dr Shannon so complied, and, if so, at what level. On the face of it, if Dr Galton-Fenzi's report complied, it would not appear to be important whether any of the others did. That is because his report would have been sufficient at the level of "not less than 16%" for the purposes of the first application. The reference in the report to "Item 28 of Schedule 2 of [the Act] to be 25%" would equate to a level of disability of not less than 16 per cent for that item in Sch 2, because 25 divided by 100, multiplied by 70, is 17.5 per cent (see s 93D(4)). That would appear to be sufficient, on the authorities on this area, to get the first application referred. This might result in a final determination following referral at the 30 per cent or more level.

23 At the hearing, counsel for the applicant, Mr Melville, appeared to concede that the report of Dr Galton-Fenzi was relevant only to the second application, however. If that concession were correctly made, and no argument was directed towards it, then, even if Dr Galton-Fenzi's report was compliant, it would be necessary to show either that Dr Shannon's report should have been taken by the Director as establishing a percentage disability at the 12.5 per cent level or above, or that the matter should be remitted to the Director for the purpose of determining the level it established. In the event, on my determinations below, it is not necessary for me to decide whether or not the concession was correctly made. I have considerable doubts on reflection that it was correctly made, however.

24 In the event, this also determines the lack of relevance for me of the question whether Dr Shannon's level could be aggregated with that of Dr Galton-Fenzi. Counsel for the employer, Mr O'Sullivan, indicated at the hearing he would wish to reserve the right to address that matter. In the event, he did not, because of the concession indicated.

25 In determining the compliance of the Halliday and Galton-Fenzi reports, the starting-point, as both counsel conceded, is Dutch. Counsel for the applicant, Mr Melville, made particular reference to Malcolm CJ's judgment, at [61], which reads:

"When one has regard to the nature of the function of the Director under s 93D(6), I consider that, in the absence of any evidence to the contrary, the Director is entitled to accept at face value medical evidence in the form of a medical report, which indicates that the degree of disability is not less than a certain level, and to accept that the assessment was made in accordance with s 93D(2) unless the contrary is shown."

26 Counsel for the applicant, Mr Melville, made further reference to the judgments in Girrawheen Tavern v Joseph [2003] WASCA 244, of Parker J at [18] and the principal judgment, of Wheeler J at [32]. Both paragraphs emphasise the need to answer the question whether or not a medical report satisfies s 93D(6) using a "relatively non-technical and generous approach" (Wheeler J at [32]; approved by Parker J at [12]). As Wheeler J in that case indicates, this is in line with the approach in Dutch. From the judgment in the latter case of Malcolm CJ, I note [43] which, in material part, reads as follows:

"In my opinion, the reference to 'medical evidence indicating an opinion' necessarily requires something to be added to support the expression of an opinion indicating a particular degree of disability for the purposes of s 93D(6). If that were not the case the provision could and should have referred simply to an 'opinion by a medical practitioner' indicating that the degree of disability was not less than the relevant level. Further, the use of the expression 'medical evidence' is significant, as the subsection could simply have referred to 'evidence from a medical practitioner'. However, in my opinion, the use of 'indicating' in the relevant provision requires the Director to make an examination of the medical evidence referred to in support of the opinion to determine whether it was objectively capable of so indicating."

27 Applying the test from the two paragraphs of Dutch to which I have referred, and after taking account of Dutch at [61] as well as Girrawheen (supra), I am convinced that neither report of Mr Halliday meets the standard. While the second report is likely to overcome the permanence problem, as I have indicated, there is simply no indication from either report of Mr Halliday of the basis upon which his opinion was formed, and which appears to be what Malcolm CJ is requiring. See also the judgment in Dutch of Owen J at [115], read with [114]. At [114] his Honour says, in material part:

"Had the legislature intended that the obligation on the worker under s 93D(6) could be satisfied by the provision of nothing more than a written confirmation that a medical opinion existed, it could very easily have said so."

28 From [115], in material part, his Honour says as follows:

"In my view the context that I have described compels the conclusion that something more is required. That 'something more' need not be the entirety of the material of a medical nature on which the worker intends to rely. Given the limited nature of the role which the Director is required to carry out at that stage it might be very brief indeed and it will certainly vary from case to case. But it must, in my view, be capable of being characterised as 'medical evidence'. I can do no better than to adopt the description used by the Chief Justice at par [44], namely 'material of a medical kind which is logically capable of supporting the opinion'."

29 Dutch, at [61] from Malcolm CJ's opinion, read in context, does not detract from the thrust of this analysis by Owen J, which, in my view, re-expresses [43] and [44] from Malcolm CJ's judgment. The reference to a "generous" or "non-technical" approach from Girrawheen is one that I believe points to the sort of matter referred to in Owen J's judgment at [115], namely, its allowance for relative brevity, and to the lack of any necessity for the medical report to reference the Act itself, for example, s 93D(2), s 25 or s 93D(4).

30 There is also support for my application of Dutch here, as counsel for the employer, Mr O'Sullivan, strongly contended, in the judgment of Roberts-Smith J in Re Monger; Ex parte Morgan [2003] WASC 146, especially at [27], [29] and [30(6)] (in the last of which his Honour notes Dutch, at [61] and [46]). It is evident, after the report upon which his Honour was providing his analysis is read, that the only material difference from the ones in this case from Mr Halliday are the indication of the occasion on which the medical practitioner in Morgan had seen the worker in the medical practitioner's office. It is the case, as counsel for the applicant indicated, that the letter from the solicitor to the medical practitioner can be used by the Director, if it is included with the materials provided to him, to determine the nature of the material in the medical report before him: see Morgan (supra) at [40]. But the letter from the solicitor in this case that was before the Director, in relation to the first Halliday report, does not add anything of a "medical evidence" sort. I also note further authority referred to me by counsel for the employer, Mr O'Sullivan, Re Monger; Ex parte Shire of Wyndham-East Kimberley (supra), especially at [12] and [13], which involved a similar report where the consultations between the medical practitioner and the worker were referred to, but no explanation or reasons for the opinion provided were shown.

31 It follows from all of this that I cannot accept the submission pressed upon me by counsel for the applicant, Mr Melville, that I should read from Dutch in the judgment of Malcolm CJ at [61] that his Honour only required written evidence of a medical opinion. This interpretation simply cannot stand with the other materials from his Honour's judgment that I have referred to, as well as the other authorities in this area.

32 A somewhat closer question is represented by the matter of compliance or otherwise of the opinion of Dr Galton-Fenzi, as to the leg injury and the disability it produced. That matter is one that, in material terms, is similar to that in the second report of Mr Halliday, except that Dr Galton-Fenzi makes express reference to the solicitors' letter. Dr Galton-Fenzi also refers to Mr McLaughlin as having been "clinically assessed", and Dr Galton-Fenzi also formulates the diagnosis of the applicant in respect of the leg injury that I have previously quoted ("right-sided retropatellar chondromalacia (currently called patellofemoral syndrome)"). Neither of the first two differences is, I believe, sufficient for compliance without more. Nor do I believe that the provision of the diagnosis is sufficient additional material. Counsel for the employer, Mr O'Sullivan, submitted to me that more than the diagnosis is required. This should include how it was arrived at, which would normally require some reference to symptoms or effects of the injury observable by the practitioner, in addition to the basis for concluding that such a diagnosis indicated the degree of permanent disability assessed. I have determined that this analysis in relation to the facts of this case is, on the authorities I have referred to, the correct one.

33 I draw for the purpose of this determination at [33] from the judgment of Wheeler J in Girrawheen (supra). Her Honour contrasts the reports in Dutch which were found to be insufficient, with the report in Girrawheen, which her Honour found was sufficient. The material in the report in Girrawheen, to which her Honour makes particular reference is:

" ... the actual physical problems or disabilities which the respondent suffers from, together with reference to a psychological disability which is plainly considered by Dr Calabro to be the most significant problem."

34 It is true on the authorities that the nature of the disability the subject of the report allows for variation in the detail in it. The most obvious such case is the loss of a part of the body. But the report must still explain how the determination or assessment it makes was made ("clinically assessed" is not enough, at least standing alone), and how that determination or assessment as to the relevant level of disability can be seen to be indicated by the medical evidence referred to. No technical calculation is required using Sch 2. But, to repeat, medical evidence logically pointing to the relevant percentage minimum level of permanent disability assessed is required. This means, in my view, that diagnosis without impact indications is not enough.

35 This approach also seems to me to be one that meets the test proffered by counsel for the employer, Mr O'Sullivan, that the Director needs to examine the report for the purpose of s 93D(6) by reference to what a reasonable employer would need for the purposes of an informed decision as to how to proceed in relation to the assessment of the worker under s 93D(8). It seems to me that such a consideration is a necessary part of the analysis: see Dutch, judgment of Malcolm CJ at [55].

36 If the report from Dr Galton-Fenzi is insufficient, then all that is left is the report from Dr Shannon. As I have indicated in the background material, this report was put to the Director by solicitors for the applicant for the purposes of both the first application and the second application, and responded to by the Director for both. At the hearing, as with Dr Galton-Fenzi's report, counsel for the applicant, Mr Melville, appeared to concede its relevance only for the purpose of the second application. Again, I am unclear as to the basis for this concession and I am not certain that it was correctly made. In any event, the report of Dr Shannon is insufficient for either application, in my view.

37 The issue of compliance so far as Dr Shannon's report is concerned, is different from the reports of Mr Halliday or Dr Galton-Fenzi. Dr Shannon's report clearly complied in respect of its detail as to consultations, its report of findings, its diagnosis based on those, and the way in which all of that material indicated a permanent loss of efficient use of mental capacity on the "Scale" at "TEN". The compliance issue was rather what it was possible for the Director to infer from that level.

38 A problem would seem to arise because the level is not expressed in percent terms, but rather those quoted. This is not a problem, on the face of it, because of s 93(2)(b), which permits the degree of disability to be assessed, to the extent Sch 2 does not provide for the disability in question, "as the degree of permanent impairment assessed in accordance with the AMA Guides", those Guides being defined in s 93A. It was conceded by both counsel that s 93(2)(b) applied, and that those guides directed the medical practitioner to the Scale that Dr Shannon in fact used. That Scale is expressed in terms of a numeric score out of 70.

39 However, an indication in the medical report as to a percentage level of disability or some basis from which one can be reliably computed is required because of the concluding words of s 93D(2). On that computation, the leading authority appears to be Clough Engineering v Thomas [2004] WASCA 36, in the principal judgment of Hasluck J at [92]. As that judgment indicates at [93], a requirement to state a percentage is one applicable to the medical report of the sort represented by Dr Shannon's. As that judgment also indicates, a statement of a number in terms of the Scale is not a basis from which a calculation of a percent can be made, as the Scale is clearly indicated in the AMA Guide to be non-linear. This means that the percent cannot be derived by simply multiplying the fraction of 70 represented by the Scale score by 100: Clough (supra) per Steytler J at [10] and per Hasluck J at [93]. The percent can be derived by a medical practitioner or a Review Officer following a referral from the criteria of the Scale and the symptoms: Clough per Hasluck J at [112]. However, the determination of the percentage from the Scale criteria and the symptoms as that exercise is referred to in Clough does not appear to me to be a matter for the Director. Unlike the Review Officer, a Director examining a s 93D(6) medical report is performing a review on the papers, without the possibility of further inquiries: see on the processes of the Review Officer Clough per Hasluck J at [29].

40 Counsel for the applicant, Mr Melville, invited me to conclude that I could see a score of "TEN" as at least 10 per cent by reference to the opinion of the Review Officer in Clough referred to in the judgment of Hasluck J at [77]. On my determination as to the other medical reports in this case, 10 per cent would not be sufficient for the purposes of compliance. (Nor, I note, would 10 divided by 70 multiplied by 100.) However, it is possible that, if the Scale score could by closer analysis in the context of the other material in the report, be used to determine a percent, an order might be made in a case such as this for the matter to be remitted to the Director for a determination in accordance with the law. That determination would be to work out whether a score of "TEN" might translate to a level of disability of at least 16 per cent. Such is at least a possibility on a non-linear scale. However, I do not read the reference to the Review Officer's views as quoted at [77] by his Honour in Clough as an endorsement by the Court of such a minimum percentage determination, but rather as a reference by his Honour to the way the Review Officer used the Scale score as part of a process of reasoning properly employed by the Review Officer to arrive at his own independent assessment: Clough per Hasluck J at [98]. Such a process would not be one I would consider it a matter for the Director to undertake under s 93D(6). The papers here represented by the opinion of Dr Shannon simply do not permit the use of them by the Director to calculate a particular percent level of disability.

41 Thus, I have concluded that Dr Shannon's report does not comply with s 93D(6) on this particular basis. This made it unnecessary for me to consider forming a final view on the further objection taken by counsel for the employer, Mr O'Sullivan, to Dr Shannon's report as not being a certification as to permanency. However, I should indicate that I find that submission hard to sustain in light of the context that I have quoted in relation to that report above. I particularly refer to the heading to the Scale rating reference in the solicitors' request for an assessment. It was in this kind of connection particularly that the Girrawheen emphasis on the need to approach the analysis of medical reports in a "generous" and "non-technical" way is relevant.

42 It follows that I would discharge the order nisi accordingly. I will hear from the intervener and the applicant as to the appropriate costs orders.