MATTER : An Application for Writ of Certiorari against ROSS MONGER, Director of the Conciliation & Review Directorate constituted under the Workers' Compensation and Rehabilitation Act 1981

Workers' compensation - Prerogative writs and orders - Certiorari - Decision of Director of Conciliation Directorate under Workers' Compensation and Rehabilitation 1981 (WA) to accept application under s 93D of Act - Whether medical opinion supported by medical evidence - Whether medical evidence sufficient

Workers' Compensation and Rehabilitation Act 1981

1 MILLER J: This is the return of an order nisi for a writ of certiorari made by Roberts-Smith J on 8 April 2002 ordering the Director of the Conciliation & Review Directorate ("the Director") and any other interested party, to show cause why a writ of certiorari should not be issued to remove into this Court for the purpose of being quashed, certain decisions made by the Director on or prior to 23 April 2001 and 24 May 2001. By the first decision, the Director accepted the referral of one William Alan Quinlan ("Quinlan") pursuant to s 93D(5) of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") regarding whether his alleged degree of disability was not less than the relevant level. By the second decision, the Director, pursuant to s 93D(10) of the Act, referred Quinlan's referral for resolution under the provisions of Pt IIIA of the Act.

2 The order nisi was granted on the grounds that:

(a) the Director erred in accepting the referral when it was not evident that the medical report filed in accordance with s 93D(6) complied with the assessment process identified in s 93D(2) of the Act; and

(b) the Director erred in making the referral under Pt IIIA of the Act when he ought to have found that Quinlan's referral under s 93D(5) was invalid and as a consequence a referral under s 93D(10) was not open to him.

3 The first ground is particularised in the following way:

"The Director ought to have rejected the referral on the ground that it was not evident that the assessment made by Dr Donal Watters in his report dated 9 April 2001:

(i) was not less than the relevant level;

(ii) contains no clinical findings or reasoning and is not 'medical evidence' of the type required by Section 93D(6) of the Act;

(iii) did not provide an assessment of disability which was permanent."

4 The matter came on for hearing before me on 7 June when Ms Pritchard sought leave to intervene on behalf of the Attorney General. Leave was granted and her submissions to the Court were of considerable assistance.

5 There is no doubt that certiorari is available in a proper case to quash a decision of the Director made under the Act: Re Monger; Ex parte Ivey [1999] WASC 250; Re Monger; Ex parte Dutch & Ors [2001] WASCA 220. I have found it unnecessary to consider the import of the judgment of Anderson J (with whom Scott J agreed) in Re Monger; Ex parte WMC Resources Ltd & Anor [2002] WASCA 129, where doubts are cast on aspects of the decision in Re Monger; Ex Parte Dutch & Ors (supra). For present purposes the decision in Ex parte Dutch can be taken to be the law in this State.

6 It is unnecessary to set out the scheme of the Act contained in Pt IV Div 2. The relevant provisions have been set out in detail in Re Monger; Ex parte Dutch & Ors at [16] - [24].

7 The central issue in this case is whether, a dispute having arisen as to the worker's degree of disability under s 93D(8) of the Act, the Director, having considered the dispute in consultation with the worker and being unable to resolve the dispute by agreement, should have referred the question of the worker's degree of disability for resolution under Pt 111A (other than Div 2) of the Act: s 93D(10).

8 Section 93D(6) of the Act provides that a question can only be referred under s 93D(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. It has been held that the purpose of s 93D(6) of the Act is that the Director should carry out a screening function to ensure that frivolous, vexatious or fanciful claims of liability are not accepted, but referred for adjudication to review officers before being allowed to pass through the system to a superior court as claims for damages: Re Monger; Ex parte Dutch & Ors (supra) at [52]. The role and function of the Director was described by Malcolm CJ at [52] as follows:

"In this context, the function of the Director under s 93D(6) is not purely administrative. In other words, it is not his function simply to receive the medical evidence and, if it indicates some level of disability, to act in accordance with s 93D(7) and the other relevant provisions: R v Monger; Ex parte Ivey, supra, at [22] per Miller J. On the contrary, the Director is required to examine the medical evidence and to make some analysis of it so as to confirm whether it indicates a degree of disability not less than the relevant level, namely, whether it is not less than 16% or not less than 30%: R v Monger; Ex parte Ivey, supra, at [21] - [23] per Miller J."

9 In Re Monger; Ex parte Dutch, Malcolm CJ at [54] set out what he considered to be the proper requirements of "medical evidence" within the meaning of s 93D(6):

"I consider that the proper construction of s 93D(6) is that it requires the provision of a medical report which, on its face, states the medical practitioner's opinion as to the degree of disability or contains information which permits a conclusion from the opinion expressed that the medical practitioner has formed a relevant opinion. It was submitted on behalf of the Attorney General that s 93D(6) contemplates that the respondent must be satisfied that a medical practitioner has formed the requisite opinion. It is not a requirement that the Director form that opinion. I accept that submission."

10 At [43] Malcolm CJ explained what is meant by "medical evidence indicating an opinion":

"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."

11 His Honour did, however, point out (at [44]) that the extent of the facts and the reasons to be supplied in a medical report will vary from case to case according to the nature of the disability. At the least, however, there must be material which satisfies the requirement for "medical evidence" and this contemplates material "of a medical kind which is logically capable of supporting the opinion".

12 In the present case the Director made his referral in consequence of the receipt of a report of Dr Donal Watters, senior medical officer with the Kununurra District Hospital, dated 9 April 2001. This report, which was supplied to Quinlan's solicitors read as follows:

"I am Mr Quinlan's General Practitioner. He has consulted me on numerous occasions regarding his left shoulder injury dating back to 30/10/2000.

At present I would assess him as having a not less than 50% loss of efficient use and function of the left arm above the elbow (in accordance with item 13 of Schedule 2 of the Workers Compensation Act).

Even allowing for improvement in Mr Quinlan's condition, with treatment and time, I believe there is a significant chance that Mr Quinlan will have a permanent loss of function in his left arm of greater than 20%."

13 On any view of it, this report was inadequate to satisfy the requirement of information of a medical nature logically capable of supporting the conclusion reached. All that Dr Watters recorded was that Quinlan had consulted him on a number of occasions regarding his left shoulder injury. He assessed him as having a "not less than 50% loss of efficient use and function of the left arm above the elbow", but gave no explanation or reasons for holding that opinion. In the circumstances, the employer had no basis upon which he could agree the worker's claimed degree of disability. It is clear that the information provided to the Director did not enable him to make any examination of any medical evidence in support of the opinion which had been given. There was no medical evidence.

14 Whilst the Act does not indicate how comprehensive the medical evidence must be, there must be something more than there was in this case. In Ex parte Dutch (supra), Malcolm CJ at [53] gave some indications as to what evidence will be required:

"Ordinarily, however, the medical evidence is likely to be in more general terms, which, when analysed, must provide an indication that the degree of disability in relation to the particular injury in Sch 2 is not less than the relevant level: R v Monger; Ex parte Ivey per Miller J at [21]."

15 The inadequacy of medical evidence contained within the report of Dr Watters in this case was such that, in my view, the report could not be said to constitute "medical evidence" of the kind required by s 93D(6) of the Act.

16 It is unnecessary to decide whether the final paragraph of the report of Dr Watters sufficiently indicated that Quinlan suffered permanent disability. As I pointed out in Re Monger; Ex parte Ivey (supra) at [21], unless a medical practitioner's assessment confirms a disability to be a permanent one, the calculations that need to be made in accordance with the formula contained within the Act, cannot be made. The term "permanent" is not defined in the Act, but in Re Croser; Ex parte Rutherford & Anor [2001] WASCA 422, Olsson AUJ at [93] - [94] made some relevant observations in relation to the responsibility of a Medical Assessment Panel to reach a postive fixation of any permanent disability which, in the opinion of the Panel, may have existed. His Honour said:

"93 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.

94 As Packington CM pointed out in his reasons in Kinsella v Seton Catholic College, unreported; CM-112/00 1125; 22 February 2001, neither the words 'permanent' or 'permanently' are defined in the Act. 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. In terms, the assessment of the MAP simply does 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."

17 In the present case Dr Watters expressed the view that even allowing for improvement in Quinlan's condition with treatment, there was a "significant chance that (he) will have a permanent loss of function in his left arm of greater than 20%". Although counsel for the applicant contended that this assessment was speculative, and amounted to conjecture, it seems to me that the assessment of permanent disability fitted the description of something which was likely to continue indefinitely or into the foreseeable future. That is, the permanent loss of function in the left arm of greater than 20 per cent was something that the doctor considered likely. As Ms Pritchard pointed out in the course of her submissions, medical practitioners will often be unable to express a positive opinion as to permanent disability when called upon to express their opinion under s 93D(6) of the Act. That is because sufficient time may not have elapsed for an assessment of permanent disability to be made in absolute terms.

18 I am therefore of the view that there was a sufficient determination of the extent of likely permanent disability to be suffered by Quinlan.

19 The result is that in my view the applicant has made good ground 1(a)(i) and (ii) upon which the order nisi was granted. It follows that ground (1)(b) has been made out, as the referral by the Director under s 93D(10) of the Act was invalid by reason of the conclusions I have reached in relation to ground (1)(a). The order nisi should be made absolute, quashing the decisions of the Director to accept the referral of Quinlan pursuant to s 93D(5) of the Act and pursuant to s 93D(10) of the Act to refer that referral for resolution under the provisions of Pt IIIA of the Act.