Court of Appeal (WA)|2003-02-07|Before: Mr P, Murray J, Scott J, Steytler J

Re Monger; Ex Parte Velsberry Pty Ltd [2003] WASCA 9 (7 February 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RE MONGER; EX PARTE VELSBERRY PTY LTD [2003] WASCA 9

MATTER : Application for a Writ of Certiorari against ROSS MONGER, DIRECTOR OF CONCILIATION & REVIEW under the Workers' Compensation and Rehabilitation Act 1981

Administrative law - Availability of certiorari - Decision of Director of Conciliation & Review under Workers' Compensation and Rehabilitation Act 1981 (WA) - Referral to review officer of dispute as to degree of disability

Workers' Compensation & Rehabilitation Act 1981, s 93B, s 93D(2), s 93D(5), s 93D(6), s 93E(4)

Workers' Compensation & Rehabilitation Regulations 1982, reg 19J

Commonwealth of Australia v Janssen (1994) 2 QLR 596

Peters v Oscar Mayer Pty Ltd [1963] VicRp 54; [1963] VR 390

Re Skirving & Ors; Ex parte Forward, unreported; FCt SCt of WA (Murray J); Library No 980737; 18 December 1998

Re Monger; Ex parte Ivey [1999] WASC 250

1 MURRAY J: This application for certiorari has something of a history. Its progress before this Court has been delayed. I need not refer to the circumstances in these reasons. They are not matters which it is suggested should result in the discretionary refusal of relief.

2 This is another of those cases concerned with the procedures under the Workers' Compensation and Rehabilitation Act 1981, Div 2 of Pt IV whereby a worker seeks to obtain not only workers' compensation, but also damages at common law for negligence or another tort committed by the worker's employer. By s 93C, if the Division applies, a Court is not to award damages to a person contrary to its provisions. I shall return to the provisions in more detail but, essentially, what is involved is an assessment of what is described as the relevant level of the degree of disability of the worker. The significant points are where there is a degree of disability of 30 per cent or a degree of disability of 16 per cent, as calculated pursuant to the statutory scheme set out in s 93D.

3 Expressing the provision broadly, s 93E provides that damages at common law may only be awarded if it is agreed or determined that the degree of disability is not less than 30 per cent, or the worker has a significant disability, being one agreed or determined to be not less than 16 per cent, and the worker elects to retain the right to seek damages (at the expense of the continuation of payment of workers' compensation). That election is to be made within six months after the day on which weekly payments of worker's compensation commenced within the meaning of the section, although there is a capacity to extend that time under the statute.

4 By s 93F, there is another significance to an agreement or determination of the degree of disability. If the relevant level is below 30 per cent, the mode of assessment changes and the amount of damages to be awarded is a proportion, determined according to the severity of the disability, of the maximum amount which may be awarded, that amount being calculated in accordance with a statutory formula and being applicable only in a most extreme case of a disability of less than 30 per cent. There are provisions concerned to cap the contribution of employers to the damages so that they may not exceed the maximum amount.

5 The policy of the legislation seems to me to be clear. It does not seek to interfere with the capacity to obtain an award of damages at common law against an employer in a case where the relevant level of the degree of disability is 30 per cent or more within the meaning of the statute, but below that, the capacity of the courts to award damages at common law is capped and below a degree of disability of 16 per cent, a worker to whom the Division applies loses the capacity to seek damages at common law. As has been seen, in the case of a level of disability of between 16 per cent and 29 per cent the election process is designed to encourage the worker simply to pursue a claim for compensation under the Act.

6 The writ of certiorari is sought to quash what is described as the decision of the first respondent, the Director of Conciliation & Review, to accept the referral to him of the question of the degree of disability. Section 93D(5) provides that:

"If the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level, the worker may, subject to subsection (6), refer the question to the Director."

That decision is said to have been made on 16 November 2000.

7 Further, the applicant seeks to quash what is again described as the decision of the Director made on or about 23 November 2000 to notify the applicant, the employer, by means of a Form 23, of the referral under s 93D(5). Section 93D(7) provides:

"As soon as practicable after receiving a referral under subsection (5) the Director is to notify the employer in accordance with the regulations."

8 Finally, it is sought to quash what is again described as a decision of the Director made on or about 9 March 2001 to notify the worker, Ms Tran, that the applicant employer agreed that her degree of disability was not less than 30 per cent. This is said to have been done under s 93D(12) which provides that the employer is to be regarded as having agreed that the degree of disability is not less than the relevant level (in this case 30 per cent) where the employer fails to notify the Director within 21 days after being notified of the worker's claimed degree of disability that the employer considers that the degree of disability is less than the relevant level so that a dispute arises which will require resolution under Pt IIIA of the Act: section 93D(8).

9 The grounds upon which certiorari is sought are that the Director made an error of law on the face of the record or, alternatively, a jurisdictional error in that he erred:

"1.4 in accepting the Referral in circumstances where the statutory form prescribed by s. 93D(5) of the Act and regulation 19J of the Workers Compensation & Rehabilitation Regulations 1982 ('the Regulations') was not utilised in that the Second Respondent's 'Form 22' was not the form then prescribed by the Regulations and did not provide any details as to whether the worker and the employer could or could not agree the degree of disability, nor did it provide details of 'action taken by or on behalf of the worker to obtain the employer's agreement'. Further, the form also failed to provide the Applicant's Insurer's details.

1.5 in accepting the Referral in the absence of any evidence of prior conferral as required by s 93D(5) of the Act and regulation 19J of the Regulations.

1.6 in accepting the Referral in the absence of prior conferral as required by s 93D(5) of the Act and regulation 19J of the Regulations in circumstances where the Applicant contends:

1.6.1 no prior conferral took place; and

1.6.2 the Second Respondent did not sustain any injury at the Applicant's workplace on 3 November 1998 (as alleged in the Second Respondent's form 22) because the Second Respondent did not work for the Applicant on that date.

1.7 in accepting the Referral in circumstances where it was clear that the Second Respondent had not established any entitlement to compensation under the Act and at all times the Applicant disputed liability and causation in relation to the Second Respondent's alleged 'disability' as evidenced by the Applicant's opposition to the Second Respondent's Form 1 application dated 11 September 2000 ultimately withdrawn by the Second Respondent on or about 11 April 2001.

1.8 in accepting the Referral when it was evident that the medical evidence filed in accordance with s 93D(6) was deficient in one or more of the following respects in that it:

1.8.1 failed to indicate that the Second Respondent's degree of disability was not less than the relevant level, ie 30%;

1.8.2 further or alternatively, failed to assess the Second Respondent's degree of disability in accordance with section 93D(2) of the Act in that it was not evident that the various assessments were made having regard to either the Second Schedule of the Act or the AMA Guides;

1.8.3 further or alternatively, failed to assess the Second Respondent's degree of disability in terms of permanent disability, this being a necessary prerequisite because s 93D(2) imports reference to the Second Schedule of the Act and s 25 of the Act, which between them require permanent loss of the use of or the efficient use of some bodily function before a percentage disability can be calculated.

1.9 in making the First Notification when the First Respondent ought to have found, on the grounds referred to in paragraphs 1.4 to 1.8 above, that the Second Respondent's referral under s 93D(5) was invalid, and as a consequence any notification under s 93D(7) would also be invalid.

1.10 in failing to send the First Notification to the registered office of the Applicant in accordance with the requirements of section 109X of the Corporations Law.

1.11 in making the Second Notification when the First Respondent ought to have found that:

1.11.1 s 93D(12) did not authorise the First Respondent to make any such notification;

1.11.2 on the ground referred to in paragraphs 1.4 to 1.8 above the Second Respondent's referral under s 93D(5) was invalid and as a consequence, the Second Notification was also invalid.

1.11.3 on the grounds referred to in paragraphs 1.9 to 1.10 above the First Notification under s 93D(7) was invalid and as a consequence the Second Notification was also invalid."

10 In Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96 it was held that the decisions of the Director to accept the referral to him of the question of the degree of disability of a worker so as to put in train the statutory procedure designed to lead to the determination of the degree of disability involves an adjudicative function, albeit of a limited kind. The adjudication arises under s 93D(5) and s 93D(6). I have set out the terms of s 93D(5) which provides that the worker may, "subject to subsection (6)," refer to the Director the question of the degree of disability if the worker and the employer cannot agree that the degree of disability is not less than the relevant level. Section 93D(6) provides:

"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."

11 The adjudication required of the Director is to assess whether the medical evidence produced does in fact indicate that the degree of disability is not less than the relevant level and it is not sufficient, despite the wording of the subsection, that there be proffered the mere expression of an opinion as to the degree of disability. The medical evidence must be capable of supporting the expressed opinion. Whether or not that is so is a question which involves a question of law because there is a need to relate the expression of opinion and the supporting medical evidence to the question of its capacity to support a conclusion about the degree of disability of the worker within the meaning of the statute. It follows that where in that process an error of law appears on the face of the record or in relation to some matter of jurisdictional fact in determining whether the jurisdiction or power of the Director to put in train the statutory scheme may lawfully be exercised, then certiorari will lie to quash a decision by the Director adversely affected by an error of law on the face of the record or made in circumstances which reveal that the Director has misconceived the nature of the statutory power and so has acted without jurisdiction: see per Malcolm CJ at 104 [14] and [15], 107 [26] and 111 - 112 [44] - [47].

12 The decision of the Full Court in Ex parte Dutch in relation to the availability of certiorari in such cases as these depended on the decision of the High Court in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 as to the circumstances in which the prerogative remedy will lie. Whether, as held in Ex parte Dutch, the Director's decision as to the sufficiency of the material tendered to demonstrate that a question has arisen as to whether the degree of disability is not less than the relevant level, is a decision of an adjudicative character was a matter in respect of which doubts were expressed in Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129, a case in which the majority granted orders nisi for certiorari and leave to appeal in respect of four matters before the Court at the same time: see per Anderson J, with whom Scott J agreed, at [78] - [85]. In the same case I referred to such matters in my dissenting opinion at [26] - [28] and [48] - [52].

13 Before giving consideration to the grounds of the application it is necessary to summarise the relevant facts and events in chronological order.

14 The applicant conducts a fruit and vegetable processing business. Until 2 November 1998 it employed Ms Tran as a casual process worker. On 24 November 2000 the Director wrote to the applicant with respect to Ms Tran, enclosing a copy of a Form 22, "Referral of Question of Degree of Disability". The form was dated 13/11/2000 and it had been generated by Ms Tran's solicitors. It gave as the description of the injury suffered by Ms Tran, "Neck, shoulder, L & R arms, psychiatric". The injuries were said to have occurred on 3 November 1998 which, it will be noted, is the day after, the applicant says, Ms Tran ceased to be employed by the company. There is no reference to the commencement of weekly payments of workers' compensation because it appears that the applicant's liability to pay compensation had not been formally determined. The relevant level of the disability is identified as being not less than 30 per cent. The form is date stamped by the Conciliation and Review Directorate 16 November 2000.

15 It is said to be a form relevant to reg 19J of the Workers' Compensation and Rehabilitation Regulations 1982 which provides that a referral under s 93D(5) of the Act is to be made in the form of Form 22 in Appendix I, nominating only one relevant level of disability in respect of which the referral is made. The regulation goes on to provide that the notification under s 93D(7) of the Act is to be made in the form of Form 23 in Appendix I, accompanied by a copy of the medical evidence produced to the Director under s 93D(6) of the Act. The regulation provides that Form 23 is also to be used to provide the notification that a dispute has arisen under s 93D(8) of the Act.

16 The copy of the Form 22 provided by the Director to the applicant under cover of his letter of 24 November 2000 differs from that provided in Appendix I of the regulations. The official form, amended by the Government Gazette of 14 December 1999 at 6153 - 6154, provides for information to be separately provided about the worker, the employer and the employer's insurer. The latter information was not formerly required. In addition, the term "disability" replaced the term "injury" and in that respect additional information was required relative to the operation of s 93D(5). The worker is required to indicate if he or she and the employer cannot agree whether the degree of disability is not less than the relevant level. In addition, the worker is required to provide information as to the action taken by the worker, or on his or her behalf, to obtain the employer's agreement. The latter information may arise out of the operation of s 93D(5), but no provision of the Act conditions the decision of the Director upon a consideration of the efforts made by the worker to obtain agreement.

17 Forwarded with the Form 22 was a bundle of medical reports. In date order they were:

(1) A report dated 5 May 1999 from a consultant rheumatologist, Dr Hayes, with respect to neck and back pain which Dr Hayes said in his opinion was work related.

(2) A report dated 20 December 1999 by Dr Sam, Ms Tran's general practitioner, attempting an assessment of percentage loss of function of the neck, right arm and hand and a condition described by him as "depression, stress and insomnia".

(3) A report dated 15 February 2000 from an occupational physician, Dr Harper, generally describing Ms Tran's physical condition and making an assessment of permanent loss of function of the neck, left arm and a loss of mental capacity described as "dizziness". Incidentally, Dr Harper, in this report, provides the hearsay information that Ms Tran was dismissed by the applicant when her doctor provided a first medical certificate certifying her to be unfit for work (3 November 1998), having developed symptoms earlier in the year.

(4) A report dated 19 July 2000 from Mr Narula, a neurosurgeon, providing a diagnosis of a neck disability, left carpal tunnel syndrome and mild left shoulder syndrome attributed to her work and providing an assessment of 30 per cent loss of effective function of the cervical spine and 10 per cent loss of effective use of the left upper arm, which Mr Narula observes is an assessment provided in accordance with Sch 2 of the Act.

(5) A report dated 4 August 2000 by Dr Ng, a psychiatrist, diagnosing "a pain disorder associated with both psychological factors and a general medical condition" with secondary depressive symptoms. Dr Ng refers in the report to item 8 of Sch 2 of the Act and provides the opinion that, as Ms Tran has been suffering chronic pain for a long period and that her physical situation is related to her mental state, "the prognosis for a change in her psychiatric state in the face of this is relatively poor." He assessed her level of disability as 10 - 15 per cent.

(6) A report dated 25 October 2000 by Dr Anderson, a rehabilitation physician, reviewing the state of Ms Tran's cervical spine and left upper limb and providing an assessment of the level of disability in relation to those disabilities of "20 per cent total body disability level", which Dr Anderson observes is an assessment made relative to Sch 2 of the Act.

18 Also under cover of the Director's letter of 24 November 2000 the Director sent his notification to the employer under s 93D(7) and reg 19J by enclosing a Form 23, containing the provision for the employer to notify the Director that the employer considers the degree of disability to be less than the relevant level pursuant to s 93D(8). That has to be done within 21 days and it was not done.

19 On 9 March 2001 the Director wrote to Ms Tran, copying the letter to the applicant, and advised that pursuant to s 93D(12) the employer was regarded as having agreed that the degree of disability was not less than the relevant level claimed in the Form 22, ie, that it was not less than 30 per cent. The Director advised that that agreement had therefore been recorded. In the result, by a writ issued out of the District Court on about 15 March 2001, Ms Tran claimed damages against the applicant for personal injuries sustained in the course of her employment with the applicant between 1992 and 3 November 1998 "as a result of the defendant's negligence and/or breach of contract of employment and/or statutory duty". As a result of the applicant's failure to notify the Director by the return of the Form 23 that the degree of disability, in its view, was less than the relevant level claimed by Ms Tran, the applicant's insurer declined liability to indemnify the applicant for the common law aspects of the claim.

20 A claim for workers' compensation was originally made on 9 November 1998, but liability was disputed by the applicant's insurer, acting on its behalf, on the ground that in its view "the disability did not arise out of or in the course of the worker's employment". Ms Tran was advised accordingly. She might then have referred the dispute to the Director for conciliation under the Act, s 84N, and she appears to have done so by filing on 2 December 1998 the appropriate Form 1 dated 30 November 1998. A conciliation conference was to be held on 3 February 1999, but there is no evidence before the Court as to whether that conference was held or, if it was, what occurred.

21 However, it seems that the application for compensation was not pursued because on 15 September 2000 Ms Tran, by her solicitors, filed a further Form 1, dated 11 September 2000, claiming weekly payments of workers' compensation and statutory allowances from 3 November 1998. It seems to be clear that that application did not proceed because on 11 April 2001 it was ordered by a review officer, on the motion of Ms Tran, to be withdrawn.

22 Similarly, there had been a Form 22 filed on 14 December 1999. A Form 23 was generated on 29 December 1999. The present applicant, by its insurer, appears to have notified the Director of its objection to the degree of disability claimed (then being not less than 16 per cent) by returning the s 23 notice on 8 January 2000, but again the question of the degree of disability does not appear to have been pursued or determined because on 12 July 2000 Ms Tran's solicitors informed the review officer that she did not wish to proceed on the current Form 22.

23 As at November 2000, therefore, and through to March 2001 when Ms Tran issued her writ out of the District Court, there was in existence an application for workers' compensation in respect of which liability was in issue and which had not been resolved before the withdrawal of the claim on 11 April 2001. So far as this Court was aware, that remained the position when the order nisi for certiorari was granted on 19 June 2001 and when the return of the order nisi was argued on 21 June 2002.

24 However, since that hearing, on 10 December 2002, the applicant's solicitors, with the approval of the solicitors for the second respondent, filed a further affidavit which, in my opinion, should be received in evidence in relation to the application for certiorari. It establishes that on 13 March 2002 Ms Tran made yet another application to refer a disputed claim for workers' compensation with effect from 3 November 1998 and continuing" for conciliation. This Form 1 gives as the date of injury 2 November 1998. The injury is described as "neck, left shoulder, L & R arms, psychiatric", and so this is evidently a renewal of the claim previously made and ultimately withdrawn. The defence of the claim was taken over by the applicant's insurer and a hearing was conducted before a review officer on 22 July 2002. Both the applicant and Ms Tran were represented. By consent, it was ordered that the applicant should pay Ms Tran weekly payments of compensation and statutory allowances as for total incapacity from 3 November 1998, the weekly payments being for those periods covered by medical certification establishing total incapacity. It is not helpful that I should now comment on the belated provision to the Court of this information, but it does appear that Ms Tran's successful claim for compensation was initiated a year after she sued out her writ claiming damages at common law for what appears, on the face of it, clearly to be the same set of injuries or disabilities.

25 That history gives rise to an important threshold question with respect to the application of Div 2 of Pt IV of the Act. It is touched upon in the applicant's ground 1.7 from which I think, having regard to the argument now presented for the applicant, it would resile. The application of the Division is, so far as is presently material, provided for in s 93B(1) which is in the following terms:

"(1) This Division applies to the awarding of damages against a worker's employer independently of this Act in respect of a disability suffered by a worker if --

(a) the disability was caused by the negligence or other tort of the worker's employer; and

(b) compensation has been paid or is payable in respect of the disability under this Act, or would have been paid or be payable but for section 22."

26 The general purport of this subsection is, therefore, that the Division is concerned to control the capacity to award damages at common law for negligence, or some other tort, if "compensation has been paid or is payable" in respect of the disability for which the worker proposes to sue at common law. As has been seen, the capacity to pursue a common law action is sought to be controlled in the cases mentioned at the commencement of these reasons by reference to the nature of the disability suffered and the capacity of the common law courts to award damages. The question which arises in this case is whether this is a case where compensation has been paid or is payable in respect of the disability for which Ms Tran sues. Clearly that is now so, although it may be that it was not so at the time when the statutory procedures within Div 2, which are now called into question, occurred: cf Janssen v Commonwealth of Australia (1994) 2 Qd R 596.

27 The relevant time for considering the application of the Division is the time, which I assume has not yet arrived, when damages are to be awarded at common law. As compensation had already been paid or, on any view, is payable as a result of the consent order made on 22 July 2002, the Division applies and, in effect retrospectively, the validity of the procedures employed in this case fall to be determined to the extent required by the application for certiorari.

28 It cannot matter, in my opinion, in those circumstances that at the time when those procedures purported to be employed the only application for workers' compensation on foot was that ultimately withdrawn in respect of which there had been no determination in accordance with the statutory procedures of the liability to pay compensation and no payment of compensation had occurred. Ground 1.7, in my opinion, cannot be made out.

29 Grounds 1.4 - 1.6 inclusive may be taken together. Before discussing them, I note that in relation to the previous Form 22 dated 14 December 1999, which, as I have said, ultimately fell away when on 12 July 2000 it was formally withdrawn, Ms Tran's solicitors wrote to the applicant on 14 December 1999, enclosing reports by a Dr Goodheart, and asking whether it could be agreed or determined that the degree of disability was not less than 16 per cent. The applicant seems to have taken no action with respect to that inquiry whatsoever and there is no record of a similar approach prior to, or at about the time of, the Form 22 dated 13 November 2000 which is called into question in these proceedings.

30 There is no doubt that the Form 22 used by Ms Tran was not that prescribed by the regulations, but a form previously prescribed, the regulations having been amended, as I have noted, by the Government Gazette of 14 December 1999. As I have said, the form used did not, as the form prescribed by the regulations required, provide the details of the employer's insurer (which, I would think, would not necessarily be known by the worker) and, more importantly for present purposes, there was no indication formally on the form that the worker and the employer could not agree on whether the degree of disability was not less than the relevant level and no indication of the action taken by, or on behalf of, the worker to obtain the employer's agreement.

31 I have set out the terms of s 93D(5). It only requires referral of the question of the level of the degree of disability to the Director where the worker and the employer cannot agree that the degree of disability is not less than the relevant level. If there is agreement as to the degree of disability, the Workers' Compensation and Rehabilitation Regulations 1982, reg 19K, requires the agreement to be made in the form of Form 24 in Appendix I. That form is to be lodged with the Director and copies returned to the worker and the employer. Form 24 provides for the worker's details, the employer's details and the insurer's details all to be recorded. The disability is to be described and the date when it occurred specified. There is provision to specify the agreed degree of disability and, rather unnecessarily, to indicate whether it is not less than 30 per cent or not less than 16 per cent. The form is to be signed by or on behalf of the worker and the employer.

32 There is provision for the date when the Director records the agreement to be set out, together with the number given to it in the register. The Director is then to sign and date the form. The short point is that Form 22 is the form used under s 93D(5) of the Act when the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level. I think there can be no question that the form is validly prescribed: s 176(1)(a). Its use is required by reg 19J.

33 The Interpretation Act 1984 (WA), s 74, provides:

"Where a form is prescribed or specified under a written law, deviations therefrom not materially affecting the substance nor likely to mislead shall not invalidate the form used."

34 I cannot think that the form is invalidated by the failure to completely specify the details of the applicant's insurer, particularly as the contact person for the applicant is identified as one Tracy Wilson, a claims officer with SGIO, whose telephone number is then given. That would seem to me to sufficiently comply with that requirement of the form.

35 The grounds of application assert that the Director erred in law in accepting the referral of the question of the degree of disability under s 93D(5) when there were no details provided to confirm that the applicant and Ms Tran could not agree that the degree of disability is not less than the relevant level and because there was no reference to the action taken by Ms Tran, or on her behalf, to obtain the applicant's agreement. It is said that there was an absence of evidence of "prior conferral" as required by the Act, s 93D(5) and reg 19J. Neither the subsection nor the regulation require prior conferral in any formal sense. It is simply the case that the procedure identified is one to be used where there is not agreement between worker and employer.

36 In this case it is argued for Ms Tran that the previous history which showed that the worker and employer could not agree that the level of disability was not less than 16 per cent makes it fanciful to suggest that before any subsequent referral of the question whether the relevant level of the degree of disability was not less than 30 per cent could be validly referred to the Director, there was required to be further consultation or conferral between the parties.

37 I agree the purpose of referring to the fact that the worker and employer cannot agree and identifying the action taken by or on behalf of the worker to obtain the employer's agreement is presumably designed to assure the Director that the referral procedure is being properly employed. It is not suggested that the Director is bound to evaluate the effort made by the worker. In this case, particularly in view of the fact that there had been a history to which I have referred and that the Form 22 was signed on behalf of the worker by her solicitors, it would be perfectly clear that the procedure envisaged by s 93D(5) was being employed because there was not agreement and could not be agreement, in view of the applicant's attitude, that the degree of disability was not less than the relevant level claimed of 30 per cent.

38 The jurisdictional prerequisite provided for by s 93D(5) is an inability to agree, not a statement accordingly on the appropriate form. There is, in this case, no dispute that the parties could not agree on whether the degree of disability was not less than the relevant level.

39 To my mind, the omission of the matters of which these grounds complain constituted no more than a deviation from the prescribed form, not materially affecting its substance, the purpose of the Form 22 being to identify the question of the claimed degree of disability and the parties in relation to whom the question arose.

40 Whilst I do not doubt that the question of the sufficiency and validity of the form used involves a question of law which will condition the validity of the process of referral of the question to the Director and his acceptance of that referral so as to ground his further action under s 93D, in my opinion in this case the matters of which grounds 1.4 - 1.6 complain do not reveal error sufficient to cause the Director's action in accepting the referral to be quashed by certiorari.

41 Ground 1.8 complains of the sufficiency of the medical evidence to support the opinion that the degree of disability is not less than the relevant level claimed, 30 per cent. I have mentioned the case of Ex parte Dutch. It is clear authority for the proposition that if the Director errs in his conclusion that the requirements of s 93D(6) are satisfied, he makes an error of law, and if he then embarks upon his part in the dispute resolution process which follows the acceptance of the referral of the question of the degree of disability, he makes a jurisdictional error. He does so because he acts in excess of jurisdiction when he wrongly concludes that the requirements of s 93D(6) are satisfied, having regard to the nature of the medical evidence relied upon in support of the Form 22.

42 In my opinion, the Director may have regard to all the reports of medical practitioners submitted in support of the Form 22 so as to satisfy himself that the medical evidence may logically support the opinion expressed about the degree of disability assessed, as provided by Sch 2 to the Act as read with s 25 or, to the extent that Sch 2 does not apply, in accordance with the relevant AMA Guides. It is clear from those sources that where there has not been actual loss of a limb or faculty, there must be permanent loss of use or permanent loss of efficient use of a limb or a faculty and it is also clear that the mere expression of an opinion by the medical practitioner will not suffice. I need not for present purposes set out in any more detail the discussion of the requirements of the law which may be extracted from the decision in Ex parte Dutch.

43 I must deal with the medical reports provided with the Form 22 and I shall do so in chronological order. Dr Hayes' report dated 5 May 1999, while useful in relation to issues of causation in respect of a claim for workers' compensation or for damages at common law, of itself provides no opinion as to the degree of disability and could not therefore satisfy the requirements of s 93D(6). Counsel for Ms Tran concedes that the report of the general practitioner, Dr Sam, dated 20 December 1999, whilst it provides an assessment of disability which can be related to the statutory scheme, is not adequately supported by any discussion of the medical grounds and concludes with the observation that the assessment could change if the specialists consulted by Ms Tran gave further opinions.

44 The report of Dr Harper, the occupational physician, dated 5 February 2000, seems to me to be in a rather different position. He says:

"My current estimate of disability is 30% loss of effective function of the neck (Item 36B), 5% - 10% loss of effective [use] of the whole left arm (Item 13) and 10% loss of mental capacity (dizziness) (Item 8). This equates to a whole body disability level of 28%. The basis for this assessment is the severity and nature of the impairment to the neck coupled with the reduced function affecting balance, movement and activities of daily living."

45 The fact that Dr Harper provides a "current estimate" of the degree of disability is to my mind of no moment. He says in his report that her condition is relatively stable and historically has not shown any improvement. Presumably it might worsen. That would not prevent the conclusion that the current level of disability was permanent within the meaning of the Act. The addition of a reference to "whole body disability" does not to my mind adversely affect the assessment made, which is quite apparently related to the relevant items of Sch 2 to the Act.

46 Further, Dr Harper appears to be having regard to the provisions of s 25. I take his references to loss of effective function and loss of effective use to be references to the concept of "permanent loss of the efficient use of" which emerges from s 25. If his percentages are the result of a calculation of percentage diminution of the full efficient use of the neck, arm and mental capacity, then they clearly well and truly exceed the 30 per cent relevant level. On the other hand, if the calculation provided by s 25(b) and Sch 2 is to be applied to each of the percentages quoted in the report and the results added as required by s 93D(2)(a)(ii), then the minimum level of the total disability would be less than 30 per cent. In that event, it seems to me that Dr Harper's report is not necessarily capable of satisfying the requirements of the law and supporting the level of disability claimed in the Form 22.

47 The report of the neurosurgeon, Mr Narula, dated 19 July 2000, is to my mind capable of supporting an assessment and opinion of the kind to which Dr Harper refers in relation to the physical symptoms. Mr Narula agrees that they have stabilised. He says they have "remained the same", "with some worsening". He refers, for the reasons he gives, to a 30 per cent loss of effective function of the cervical spine and a 10 per cent loss of effective use of the left upper limb. He says that is an assessment made in accordance with Sch 2. The sum of those percentage disabilities once the calculations have been performed in accordance with the statute is a percentage disability of 21 per cent, to which, of course, must be added the mental problem to the extent that it falls within item 8 of Sch 2, a "permanent and incurable loss of mental capacity resulting in total inability to work".

48 Not only is the loss of mental capacity referred to by Dr Harper, but it is, of course, the particular subject of the report of the consultant psychiatrist, Dr Ng, dated 4 August 2000. Dr Ng was referred by Ms Tran's solicitors to item 8 of Sch 2, a copy of which was sent to the psychiatrist for his information. In his report he specifically addresses the question of permanency and gives as his opinion that her condition has "stabilised". To my mind, his opinion as to permanency is not adversely affected by the addition of an observation which he makes that if her chronic pain could be improved, there might be an improvement in her psychiatric state. That observation was immediately followed by the comment, mentioned earlier in these reasons, that, because the chronic pain had been there for so long, and because Dr Ng believed that there were unconscious psychological and physical factors driving this, the prognosis for a change in her psychiatric state was relatively poor. Dr Ng goes on to give as his opinion that the level of disability is between 10 and 15 per cent. Although he supports this conclusion by reference to the Social Security Act Psychiatric Impairment Scale published by the AMA in January 1994, to my mind it is clear that the assessment is made in terms of and for the purpose of being related to item 8 of Sch 2.

49 Finally, there is the report of the rehabilitation physician, Dr Anderson, dated 25 October 2000. Counsel for Ms Tran concedes that, as this report only provides an assessment in terms of her "total body disability level", it cannot be regarded as satisfying the requirements of the law, even though Dr Anderson says that it is made in accordance with the AMA guidelines and pursuant to Sch 2. However, for the reasons given in relation to the various reports, in my opinion there was sufficient medical evidence to support the opinions proffered in terms of the Act and its Schedule and sufficient to support the conclusion that the degree of

disability might be found to be not less than the relevant level of 30 per cent. I would not uphold the application for certiorari having regard to ground 1.8.

50 Ground 1.10 was not pursued. In light of my view that the action of the Director in accepting the referral of the question of the level of the disability was not adversely affected by excess of jurisdiction or error of law patent on the face of the record, it was proper and appropriate that the Director should have notified the employer of the referral under s 93D(7) and, the applicant having failed to notify the Director that in its view the degree of disability is less than the relevant level claimed, no dispute arose and the Director rightly notified the parties under s 93D(12) that the employer was to be regarded as having agreed that the degree of disability is not less than 30 per cent. Grounds 1.9 and 1.11 therefore fall away. In the final result, I would discharge the order nisi.

51 SCOTT J: In this matter I have had the opportunity of reading in draft the reasons to be published by Murray J.

52 I agree generally with his Honour's reasons and the conclusion that the order nisi should be discharged.

53 Murray J has referred to the views expressed by Anderson J in Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129, with which I agreed. My reservations as to the adjudicative character of the Director's decision remain. The fact that I generally agree with the reasons of Murray J in this case should not be taken as any indication that I resile from the views that I expressed in Re Monger; Ex parte WMC Resources Ltd. That issue remains open for another day and need not be resolved in these proceedings in view of the fact that, in my view, the order nisi should be discharged.

54 STEYTLER J: I have had the advantage of reading the reasons for decision of Murray J. I agree with them. There is nothing I wish to add.

Rehabilitation Act 1981

Rehabilitation Regulations 1982

Compensation and Rehabilitation Regulations 1982

Compensation and Rehabilitation Act 1981

Re Monger; Ex Parte Velsberry Pty Ltd [2003] WASCA 9 (7 February 2003)

At a glance

Court

Decision date

Before

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Judgment (86 paragraphs)

Re Monger; Ex Parte Velsberry Pty Ltd [2003] WASCA 9 (7 February 2003)

Legislation Cited (4)

Cases Cited (3)