Victorian WorkCover Authority & Anor v Wilson [2004] VSCA 161

Court of Appeal (Vic)|2004-09-10|Before: WINNEKE, P., CALLAWAY and NETTLE, JJ.A.

Accident compensation - Independent medical examination "to obtain ... a determination" for purposes of s.98E - Whether determination binding on Authority - Condition precedent to referral of medical questions to medical panel - Whether words should be read in to effect Parliament's intention - Accident Compensation Act 1985, ss.39, 52, 98C, 98E, 104B.

The issues in dispute between the parties in this litigation are the direct consequence of amendments made to the Accident Compensation Act 1985 by successive Parliaments in 1997 and 2000[1]. As I said with respect to the 1997 amendments in the recent decision of Victorian Workcover Authority v. Del Borgo[2], those amendments (at least insofar as they related to claims for "industrial deafness"):

"pay little regard to the contexual setting into which they were introduced, and have added to the difficulties which have been faced by the Courts of this State generally in interpreting this constantly changing legislative scheme ..."[3]

The same remarks are apposite to the amendments made to s.104B of the Act by Act No.26 of 2000, which were calculated to amend the scheme of that section which had been introduced into the legislation by Act No. 107 of 1997.

The difficulties of interpretation of s.104B have led to the differences of opinion to be seen in the respective judgments of Callaway, J.A. and Nettle, J.A. Each of those opinions has much to recommend it, notwithstanding that each requires some violence to be done to the language of the section.

In my view the interpretation given to the section by Callaway, J.A. is to be preferred. It is, in my view, an interpretation which is consonant with the historical scheme of s.104B when it was introduced in 1997; a simple scheme pursuant to which an independent medical examiner was required to make a "Section 91 permanent impairment assessment" and a "total loss determination", in order for the worker to be advised of his or her "entitlement to compensation" under s.98C or s.98E [4]. The worker was then entitled to accept or dispute "the assessment and the entitlement to compensation" (sub-s. (7)); and, if the worker disputed them, the medical questions of "the degree of permanent impairment" and the "total loss" injury were referred to the Medical Panel for an opinion which was binding on the parties and unchallengeable in any Court (sub-ss. (9) and (12)).

There is no doubt that the amendments which were introduced into the section in 2000 have unsettled the symmetry of this simple scheme; but I can see nothing in those amendments (or, indeed, in the Second Reading Speech which introduced them)[5] which suggests any intention to interfere with the purpose of the scheme when initially enacted. Those amendments appear to have been made, predominantly, to ensure that the benefits provided to workers pursuant to s.104B will not over-compensate a worker who has, or may have, rights to common law damages under the new s.134AB, introduced by the 2000 amendments.

It is the historical scheme of the section, and the purpose of the amendments made in 2000, which have led me to the view that sub-section 104B(6) does not bind the Authority to accept the medical examiner's "determination" of total loss, or advise the worker of it. Those amendments compel me to the view that the independent medical examination pursuant to sub-s. (5) is to have, as its purpose, the production of two "impairment assessments" carried out in accordance with s.91 for two discrete purposes; one for the purpose of assessing the worker's entitlement to lump sum compensation under s.98C of the Act; and the other for the purpose of assessing whether the degree of impairment entitles the worker to bring an action for damages pursuant to sub-s.134AB(16) of the Act. Thus the section is consistent throughout in referring to "assessments", and "each" or "both" or "either" of them; and it draws a distinction between the "assessments" and the "determination" of a "total loss" injury within the meaning of s.98E. It is the "assessments" of permanent impairment, of which the worker is entitled to be advised; not the "determination". Rather, the scheme of the Act is that it is for the Authority to gauge for itself the entitlement of the worker to lump sum compensation (if any) under s.98C or s.98E deriving from the assessment made by the independent medical examiner under s.104B(5)(a)(i) and his or her determination made under s.104B(5)(b). This is consistent with the Authority's function, given to it by s.20(1) of the Act, to assess and pay compensation to those claiming it. True it is that the entitlement to compensation under s.98C or s.98E will, ordinarily, be readily calculable from the permanent impairment assessments and determination made by the independent medical examiner. However, if there are inconsistencies between the permanent impairment assessment and the "total loss" determination which preclude the Authority from assessing the "lump sum" entitlement to compensation of the worker (as is arguably the case here), I can see nothing in the scheme of the section which obliges the Authority to assess the entitlement to compensation and advise the worker of it, even though it means that the apparent "self-executing" nature of section will be impeded for a time.

It is for these reasons that, in my opinion, the appellant is correct in its contention that it was not obliged to advise the respondent pursuant to s.104B(6) that he had an entitlement to compensation for "total impairment of the spine" in the amount of $170,000; and that the judge was in error in concluding that it was so obliged. In this respect, it is to be noted that it was the respondent who initiated the curial proceedings before receiving any "advice" of the Authority pursuant to the sub-section. It is, however, apparent that, to make the section work in the manner intended, a "circuit-breaker" is needed, That would be achieved if sub-section (9) was construed in the manner suggested by Callaway, J.A. Such a construction would be consistent with the provisions of sub-s. (12). However, the construction which Nettle, J.A. places on the word "assessments" in sub-s.(7) and sub-s.(9), although convenient, seems to me to create too much of a deviation from the meaning already established for that word in the earlier sub-sections. Much depends upon the purpose behind the amendments to sub-s.(7) which, as it seems to me, have been made with a view to the introduction of the provisions conferring rights to common law damages. Thereafter it was significant for the Authority to know whether the worker's impairment, as assessed, gave rights to a common law damages claim and/or to rights under s.98C. Independently, it was important for

the Authority to know whether the injury was a "total loss" within the meaning of s.98E. The fact that knowledge of each of these three matters was of significance to the Authority in the overall scheme of the legislation makes it unlikely, in my view, that the word "assessments" where used in sub-ss.(7) and (9) are intended to comprehend the word "determination".

It follows that the appellant should have leave to substitute its proposed Amended Notice of Appeal for that which was initially filed; and that grounds 1 and 2 of the substituted Notice of Appeal should be upheld. The appeal should therefore be allowed; the orders made below set aside; and in lieu thereof there be judgment for the defendants.

The respondent, Ronald Wilson, was employed for many years by the second appellant, P & O Ports Ltd., as a wharf labourer or stevedore. On 14th January 2001 he sustained a back injury whilst berthing a ship. Later that year he underwent back surgery and developed unstable angina. In January 2002 he lodged a claim for impairment benefits pursuant to s.98C of the Accident Compensation Act 1985 ("the Act"). The injuries the subject of the claim were described as "back injury" and "heart attack". The first appellant, Victorian WorkCover Authority ("the Authority"), by its agent, accepted the respondent's claim in so far as it concerned back strain. The claim in respect of the heart attack was later withdrawn.

The respondent attended for an independent medical assessment by Mr Wilson Carter, an orthopaedic surgeon, on 1st May 2002. Mr Carter wrote two reports following his examination of the respondent. In the first report, dated 2nd May 2002, he expressed the opinion that the respondent had a capacity for light work and that, in accordance with the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, the respondent had a whole person impairment of the lumbo-sacral spine of ten per cent.

10 The second report, dated 19th September 2002, followed a request for clarification from the Authority's agent. Omitting formal parts, the second report read:

"I can confirm that your specific question is in regard to `total loss' under section 98E of the Accident Compensation Act. I would reply by stating that I consider the patient may be able to undergo `retraining' as indicated on page 5 of my report (item 6) however I cannot believe that the patient would ever be able to return to his former occupation as a stevedore which has been his predominant employment during his working life. I have described the patient's continuing symptoms of lumbar radiculopathy. Specifically, from the section 98E - Compensation Table, in my opinion the patient would rate under `total impairment of the spine' insomuch that he has a total inability to perform his normal duties. Further to this comment, I believe it has been established following a recent decision by Judge Lewis that this patient's condition should be appropriately considered as a `total impairment of the spine'."

The Authority did not agree with Mr Carter's opinion that the respondent had suffered a total impairment of the spine. The respondent contended that the Authority was nevertheless bound by Mr Carter's opinion as a "determination" pursuant to s.104B(5)(b) of the Act and was obliged, pursuant to sub-s.(6) of that section, to advise him that he was entitled to compensation under s.98E appropriate to total impairment of the spine. He brought a proceeding in the County Court claiming an order directing the Authority to advise him accordingly.[6] On 10th September 2003 a judge of the County Court made an order to that effect.[7] The present appeal is from that order.

The appeal lies pursuant to s.52 of the Act, but the notice of appeal was drafted in a form appropriate to an appeal pursuant to s.74 of the County Court Act 1958. An affidavit, filed by leave after the hearing, shows that the procedural steps required by s.52 were in fact taken.[8] The Authority desires to substitute an appropriate notice of appeal, among other things specifying the questions of law on which the appeal is brought. In my opinion, leave to substitute that notice of appeal should be given. Such an order was foreshadowed at the hearing and was not opposed.

"1. In concluding that the Authority was bound to apply the opinion of Mr Carter, contained in his written report dated 19 September 2002, in advising the worker of the assessments and the entitlement to compensation for the purposes of s.104B(6) of the Act, the learned trial judge erred in law. 2. The learned trial judge should have concluded that the Authority was not mandatorily required to apply the opinion of Mr Carter in undertaking its statutory function under s.104B(6) of the Act. 3. Alternatively to ground 2, the learned trial judge should have concluded that, because the opinion of Mr Carter was, on its face, erroneous, for that reason the Authority was not mandatorily required to apply the opinion of Mr Carter in undertaking that statutory function. 4. The learned trial judge should have concluded that the independent medical examiner applied the wrong legal test when considering whether the respondent had total impairment of his spine in that he considered that a total inability to perform his normal duties (as a wharf labourer/stevedore) constituted such impairment."

In lieu of the order made below, the appellants ask that judgment be entered for the defendants in the County Court proceeding or, alternatively, that the matter be remitted to the County Court for determination consistent with the reasons of this Court.

Before turning to counsel's submissions, it will be convenient to summarize or set out some of the relevant provisions of the Act as in force at the relevant time.[9] For convenience I shall use the present tense. Section 98C(1) provides that a worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with s.91, entitled to compensation for non-economic loss calculated in accordance with s.98C. The amount of that compensation, in the present case, would be $10,300 subject to indexation.

Section 98E contains a table specifying various injuries in the left-hand column and the minimum compensation payable for total loss, in relation to each such injury, in the right-hand column. The minimum compensation specified for total impairment of the spine is $161,390. As a result of the indexation provisions it would, in the present case, be $170,700. Sub-section (1) provides that, if a worker suffers an injury which entitled the worker to compensation and the injury is a total loss mentioned in the table and the amount of compensation calculated under s.98C is less than the amount payable for total loss specified in the table in respect of that injury, the worker is entitled to compensation equal to the amount specified in the table instead of compensation calculated under s.98C.

Section 104B applies to or in relation to a claim for compensation under s.98C or 98E. Sub-section (4) provides, among other things, that, if the Authority accepts liability in relation to a claim, the Authority must request the worker to attend an independent examination by a medical practitioner referred to in s.91(1)(b). Sub-section (5) provides:

"(5) The purpose of the independent examination is to obtain - (a) assessments in accordance with section 91 as to the degree of permanent impairment, if any, of the worker resulting from the injury to the worker - (i) for the purposes of determining the entitlement of the worker, if any, to compensation under section 98C; and (ii) for the purposes of sections 134AB(3) and 134AB(15); and (b) a determination as to whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1)."

Section 104B(6) is the provision with which this appeal is directly concerned. It provides:

"(6) The Authority ... must within 14 days of obtaining the assessments and determination advise the worker of the assessments and the entitlement to compensation, if any, under section 98C or 98E and of the consequences as specified in sub-section (11A) of confirming in writing that he or she wishes to receive any compensation to which he or she is entitled."

Sub-section (7) provides that the worker must, in turn, advise the Authority as to whether the worker accepts or disputes "each of the assessments" and, "if the worker accepts both of the assessments", whether or not the worker accepts or disputes the entitlement to compensation, if any, under s.98C or 98E and, if the worker accepts the entitlement to compensation, whether or not the worker wishes to receive the compensation to which the worker is entitled. Sub-section (8) provides for the payment of entitlements where there is no dispute.

"(9) The Authority ... must within 14 days of being advised by the worker that the worker disputes either of the assessments refer the medical questions as to the degree of permanent impairment resulting from the injury to the worker for both the purposes specified in sub-section (5)(a) and whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1) to a Medical Panel for its opinion under section 67. (10) The Authority ... must within 14 days of obtaining the opinion of the Medical Panel under section 67 advise the worker of the opinion and the entitlement of the worker, if any, under section 98C or section 98E and of the consequences as specified in sub-section (11A) of confirming in writing that he or she wishes to receive any compensation to which he or she is entitled.

...

(12) No appeal lies to any court or Tribunal from an assessment or opinion - (a) as to the degree of permanent impairment of a worker resulting from an injury; or (b) as to whether a worker has an injury which is a total loss mentioned in the Table to section 98E(1)."

The Authority contends that a determination under s.104B(5)(b) is not binding. It is simply an expression of opinion by the medical practitioner conducting the independent examination. It is for the Authority to decide the worker's entitlement, if any, under s.98E. That is why sub-s.(6) does not oblige it to advise the worker of the determination but rather of his or her entitlement to compensation. It is unsurprising in those circumstances that sub-s.(9) contemplates a reference to a medical panel only if the worker is dissatisfied.

The respondent contends that that undervalues the plain language of sub-s.(5). The natural meaning of "a determination" is not an opinion or even a decision, importing finality, a decision that brings a matter to an end. The purpose of the independent examination under sub-s.(5) is not to facilitate a decision by the Authority but "to obtain" a determination from the medical practitioner conducting the examination. If sub-s.(9) operates in favour of the worker but not the Authority, that is part of the legislative trade-off for common law rights. Moreover, there may not even be an asymmetry between the Authority and the worker, because, on one view, not even the worker may proceed to a medical panel via sub-s.(9) if he or she is dissatisfied with a determination under sub-s.(5)(b).

The reason is this: although sub-s.(9) contemplates a reference to a medical panel of two medical questions, the medical question corresponding with sub-s.(5)(a) as to the degree of permanent impairment and the medical question corresponding with sub-s.(5)(b) as to whether the worker has an injury which is a total loss mentioned in the table in s.98E, the condition precedent to that reference is advice by the worker that he or she disputes "either of the assessments". The natural reading is, and the legislative history confirms, that that means either of the assessments in sub-s.(5)(a)(i) or (ii).[10] The problem is that a worker may accept those assessments but still wish to dispute the medical practitioner's determination as to whether the worker has an injury which is a total loss mentioned in the table. The language of sub-s.(9) suggests that such a worker cannot satisfy the condition precedent for a reference of that medical question to a medical panel.

Such a literal construction of sub-s.(9) would remove any asymmetry between the worker and the Authority. Neither could cause the medical question corresponding with sub-s.(5)(b) to be referred to a medical panel. It may be that judicial review would be available in the Supreme Court but, if so, it would be available to either party. The relevance of the true construction of sub-s.(9) is that, if there is no asymmetry as regards appeal and review, there is more reason to construe the words "obtain ... a determination" in sub-s.(5) according to the meaning for which the respondent contends.

I do not think that sub-s.(9) should be construed literally. Parliament must have intended that a dissatisfied worker would be able to cause not only the medical question corresponding with sub-s.(5)(a) but also the medical question corresponding with sub-s.(5)(b) to be referred to a medical panel. Parliamentary counsel may have been under the mistaken impression that a worker dissatisfied with a determination under sub-s.(5)(b) would necessarily dispute one of the assessments, but that is not so. The question whether a worker has an injury which is a total loss mentioned in the table in s.98E is independent of an assessment as to his or her degree of impairment resulting from the injury.

In those circumstances, the Court should read in the words that are necessary to make sense of sub-s.(9). In his dissenting but influential judgment in Kingston v. Keprose Pty. Ltd.[11] McHugh, J.A. referred to the three conditions which Lord Diplock had said, in Jones v. Wrotham Park Settled Estates[12], must be satisfied before words could be read into a statute. First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that, by inadvertence, Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.

Those conditions are satisfied in the present case. It is unnecessary to decide whether they are necessary or necessary and sufficient or usually necessary and sufficient.[13] The Act itself, without the need for reference to any extrinsic materials, discloses what Parliament must have intended and that the opening words of sub-s.(9) could not have been intended to prevent recourse to a medical panel if the worker disputed only the determination or the entitlement to compensation advised by the Authority.[14] Sub-section (9) applies after the Authority is advised by the worker pursuant to sub-s.(7). Sub-section (7) expressly recognizes that the worker may accept both the assessments but still dispute the entitlement to compensation. If the respondent's contentions as to the meaning of sub-s.(5)(b) are accepted, it is necessary to read in the words "or the determination" after "either of the assessments" in sub-s.(9). If the Authority's contentions are accepted, it is necessary to read in the words "or the entitlement to compensation" after "either of the assessments".[15]

If sub-s.(9) is emended in the first of those ways, the apparent asymmetry between the worker and the Authority is confirmed. A worker dissatisfied with a determination under sub-s.(5)(b) may proceed to a medical panel, but the Authority may not. Its only remedy would be judicial review in the Supreme Court. It is unlikely that that was intended. It is also unlikely, in my opinion, that the legislature would have intended a medical practitioner to determine, in the sense of making a final decision about, the mixed question of law and fact postulated by s.98E.[16] The present case illustrates the difficulties to which that would give rise.[17] The Authority's contentions avoid those anomalies without doing any injustice to the worker.

Section 104B(12) is a further indication that the Authority's contentions should be accepted. That sub-section refers to an assessment or opinion. It does not refer to a determination. It is understandable that an appeal would be barred from an assessment under sub-s.(5)(a) or from an opinion of a medical panel. It is equally to be expected that an appeal would be barred from a determination under sub-s.(5)(b) if it were a binding determination of the kind for which the respondent contends. The omission of "determination" from sub-s.(12) is explained if a determination under sub-s.(5)(b) is simply a matter for the Authority to take into account in making its own decision as to the worker's entitlement, if any, to compensation under s.98E. Any appeal would be from that decision to the County Court pursuant to s.39.

For these reasons, I consider that the learned County Court judge erred, albeit that his Honour followed an earlier decision of that Court.[18] Grounds 1 and 2 should be upheld. It is unnecessary to consider grounds 3 and 4 and we were not asked to do so if we upheld the first two grounds. I would allow the appeal, set aside the

order below and, in lieu thereof, order that there be judgment for the defendants.

I have had the advantage of reading in draft the reasons for judgment of Callaway, J.A. I regret that I do not agree with the conclusion to which his Honour has come.

I gratefully adopt his Honour's recitation of the facts and relevant provisions of the Accident Compensation Act 1985, and with respect I agree with his Honour as to the principles of statutory construction that are to be applied to s.104B of the Act. I take a different view, however, as to the way in which those principles are to be applied. As his Honour demonstrates, it is inappropriate to construe the section literally - for to do so would bring about a result that Parliament plainly cannot have intended - but, in the view which I take of the object of the section, it is unnecessary to read in or imply words which are not within its text.

I start with s.104B(5) . It provides that:

"(5) The purpose of the independent examination is to obtain- (a) assessments in accordance with section 91 as to the degree of permanent impairment, if any, of the worker resulting from the injury to the worker- (i) for the purposes of determining the entitlement of the worker, if any, to compensation under section 98C; and (ii) for the purposes of sections 134AB(3) and 134AB(15); and (b) a determination as to whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1)."

Evidently, the "assessments" which are referred to in s.104B(5)(a) are conceived of as being different to the "determination" which is referred to in s.104B(5)(b).

I turn then to s.104B(6), which provides that:

"(6) The Authority or self-insurer must within 14 days of obtaining the assessments and determination advise the worker of the assessments and the entitlement to compensation, if any, under section 98C or 98E and of the consequences as specified in sub-section (11A) of confirming in writing that he or she wishes to receive any compensation to which he or she is entitled." (Emphasis added).

Given the close correspondence between sub-ss.(5) and (6), I take the expression "the assessments and determination" to be used advisedly, and therefore I read "assessments" as referring to the assessments mentioned in s.104B(5)(a) and "determination" as referring to the determination mentioned in s.104B(5)(b).

The pattern alters at s.104B(7), which provides that:

"(7) The worker must within 14 days of being advised under sub-section (6) advise the Authority or self-insurer as to whether the worker accepts or disputes each of the assessments and, if the worker accepts both of the assessments, whether or not the worker accepts or disputes the entitlement to compensation, if any, under section 98C or 98E and if the worker accepts the entitlement to compensation, whether or not he or she wishes to receive the compensation to which he or she is entitled."

The purpose of s.104B(6) appears to be to provide the worker with both the s.104B(5(a) assessments and the s.104B(5)(b) determination (which I take to be the minimum information necessary to calculate the worker's entitlement to compensation as so assessed and determined), so that the worker may decide whether to accept or reject the entitlement to compensation as so assessed and determined. The purpose of s.104B(7) appears to be to ensure that, within 60 days of the worker being provided with that information, the worker will advise the Authority of whether he or she accepts or rejects the entitlement to compensation as so assessed and determined and, if not, why not. In order, however, that the Authority may know why a worker has not accepted his or her entitlement to compensation, it will be necessary, at least in some cases, for the Authority to be advised as to both the worker's decision to accept or reject the s.104B(5(a) assessments and of his or her decision to accept or reject the s.104B(5)(b) determination. Consequently, in my opinion, it is to be assumed that s.104B(7) requires the worker to advise the Authority of whether he or she accepts or rejects the assessments and as to whether he or she accepts or rejects the determination. The sub-section would not have that effect if "assessments" in s.104B(7) were limited to assessments provided pursuant to s.104B(5)(a). Accordingly, I read the expression "each of the assessments" in s.104B(7) as embracing both the assessments provided pursuant to s.104B(5)(a) and the determination provided pursuant to s.104B(5)(b). As will be seen, the probability of that being so is supported by s.104B(9).

"(9) The Authority or self-insurer must within 14 days of being advised by the worker that the worker disputes either of the assessments refer the medical questions as to the degree of permanent impairment resulting from the injury to the worker for the relevant purposes specified in sub-section (5)(a) and whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1) to a Medical Panel for its opinion under section 67."

There would not be any point in requiring the Authority to refer medical questions relating to whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1), unless the Authority were aware that the worker did not accept the determination provided pursuant to s.104B(5)(b). But the only way in which the Authority may be assured of learning of the worker's rejection of the s.104B(5(b) determination is if s.104B(7) requires the worker to advise the Authority of his or her rejection of the determination. There are no other provisions which in terms require the worker to provide that information or in substance constitute such a requirement. Therefore, and consistently with the meaning which I attribute to the expression "each of the assessments" in s.104B(7), I read the expression "either of the assessments" in s.104B(9) as meaning either of the assessments provided pursuant to s.104B(5)(a) or the determination provided pursuant to s.104B(5)(b). I appreciate that the s.104B(5)(a) refers to "assessments" and not "assessment", and in a way that is inconsistent with the meaning which I give to "each of the assessments" in s.104B(9). But the problem is not as great as might first appear. While s.104B(5)(a) refers to "assessments", there is in truth only one assessment contemplated in s.104B(5)(a) - of the degree of impairment calculated in accordance with s.91. The things which are referred to in s.104B(5)(a)(ii) and (iii) are in substance mere consequences of that assessment.

That brings me to s.104B(10), which provides that:

"(10) The Authority or self-insurer must within 14 days of obtaining the opinion of the Medical Panel under section 67 advise the worker of the opinion and the entitlement of the worker, if any, under section 98C or section 98E and of the consequences as specified in sub-section (11A) of confirming in writing that he or she wishes to receive any compensation to which he or she is entitled."

As I see it, the purpose of that provision is to ensure that the worker is provided with the results of the Medical Panel's decision on the issues referred to the Panel in accordance with s.104B(9). Since the issues so referred to the Panel may include the degree of permanent impairment resulting from the injury to the worker for the relevant purposes specified in sub-section (5)(a), and whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1), I read the word "opinion" as referring to the Medical Panel's opinion on degree of impairment for the purposes of s.98C and on total loss for the purposes of s.98E.

I turn then, finally, to s.104B(12), which provides that:

"(12) No appeal lies to any court or Tribunal from an assessment or opinion- (a) as to the degree of permanent impairment of a worker resulting from an injury; or (b) as to whether a worker has an injury which is a total loss mentioned in the Table to section 98E(1)."

Since that section follows ss.104B(7), (8), (9) and (10), and for that reason appears to be directed to the assessments and opinions to which they refer, I read the word "assessment" in s.104B(12) in the same sense in which I take it to be used in s.104B(7), (8), (9) and (10), namely, as referring both to assessments provided pursuant to s.104B(5)(a) and a determination provided pursuant to s.104B(5)(b), and I read the word "opinion" in the same sense in which I take it to be used in s.104B(10), which is to say as referring both to the Medical Panel's opinion on the degree of impairment for the purposes of s.98C and to the Medical Panel's opinion on total loss for the purposes of s.98E.

Unlike Callaway, J.A. I do not regard it as particularly significant that the effect of s.104B(12), so construed, is to deprive the Authority of a right of appeal from the results of an independent examination conducted pursuant to s.104B(4). The questions to be decided upon such an examination are essentially medical questions. It makes sense, therefore, that Parliament intended those questions to be decided by medical experts. And to the extent that anything relevant is to be found in the Second Reading Speech, it is consistent with that intention. The Minister noted there that:

"...permanent impairment assessments will be conducted using the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment developed in 1993..."[19] and that: "...a number of changes will be made to improve the efficiency of the dispute resolution process. Opinions of the medical panels will be made final and conclusive irrespective of who referred the medical question and must be adopted by the courts as the answer to the medical question...[20]" and that: "The government considers that doctors, not lawyers, are the best qualified people to offer medical opinions. Currently, the opinion of a medical panel on a medical question is binding only when a court has referred a medical question to the panel. This gives rise to `duelling experts' which becomes an obstacle to the resolution of disputes, leads to their escalation and drives up costs unnecessarily. Therefore, and in line with practice in other jurisdictions, the act will require that the opinion of a medical panel on a medical question be final and conclusive irrespective of who referred the medical question and the opinion must be adopted by the courts as the answer to that question."[21]

In any event, it is not unprecedented for parties to agree or for legislation to provide that a question is to be determined by an expert of the parties' own choosing and that there will be no appeal from the decision of the expert. Granted that agreements and legislation of that kind ordinarily result in neither party having a right of appeal, it may be that there is here a degree of imbalance, or asymmetry as Callaway, J.A. has described it: an assessment or determination under s.104B(5) is binding on the Authority, but the worker gets the right to require that the assessment or determination be reconsidered by a Medical Panel under s.104B(9). In practical terms, however, the imbalance or asymmetry seems to me to be more imagined than real. As has been seen, the Authority gets to choose the independent expert to undertake the assessment and determination for the purposes of s.104B(5). That may be thought of as the Authority's protection against an unlikely outcome. The worker gets no such choice. Consequently, it does not seem unreasonable, or in my opinion unlikely to have been intended, that the worker should have an unmatched right to initiate a second opinion under s.104B(9).

In the result I agree with the construction of the section adopted by the learned County Court judge, and I would answer the first and second questions of law, set out in paragraph 6 of the reasons for judgment of Callaway, J.A., as follows:

[1] Act No. 107 of 1997 and Act No. 26 of 2000.

[3] See also the comments made in the same case by Ormiston, J.A. at [5].

[4] Sub-sections (5)(a) and (b); and (6).

[6] The respondent claimed to be entitled to bring the proceeding pursuant to s.39. That was contested below but was not the subject of submissions before us.

[7] The authenticated order is practically unintelligible, but his Honour's intention emerges from the transcript of his reasons.

[8] In particular, there was compliance with s.52(2), in contrast with the position in Keon-Cohen v. Victorian Workcover Authority (2002) 4 V.R. 367. Section 52 is in urgent need of amendment: see Linfox Transport (Australia) Pty. Ltd. v. Toohey [2004] VSCA 122.

[10] As originally enacted by Act No. 107 of 1997, s.104B(5)(a) referred to only one assessment and subsequent sub-sections referred simply to "the assessment". The present form of sub-s.(5)(a), referring to two assessments, was substituted by Act No. 26 of 2000 and sub-ss.(6), (7), (8) and (9) were amended to refer to "the assessments", "each of the assessments", "both of the assessments" and "either of the assessments". Section 104B was amended again by Act No. 82 of 2001. Since then sub-s.(5)(a) has contained three sub-paragraphs and the periods of 14 days referred to in these reasons have become periods of 60 days.

[12] [1980] A.C. 74 at 105-106. The case is reported as Wentworth Securities Ltd. v. Jones, in addition to its title below. I am told that it is, in fact, more correct to cite such a case in the House of Lords by its title below, so that McHugh, J.A. did not err, as James, J. appears to have thought in R. v. Young [1999] NSWCCA 166; (1999) 46 N.S.W.L.R. 681 at 734 [291]. See also Practice Direction (House of Lords: Case Title) [1974] 1 W.L.R. 305.

[13] See R. v. Young at 685 [3]-[37] and 730 [269]-[318].

[14] Compare Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 C.L.R. 297.

[15] As originally enacted, sub-s.(9) did refer to "the assessment and the entitlement to compensation". Unfortunately, even in that version, it appeared to be a condition precedent that the worker dispute both the assessment and the entitlement. For similar reasons to those given above, it would have been necessary to read "and" as "or". The words "either of the assessments" were substituted for "the assessment and the entitlement to compensation" by s.16(4)(d)(i) of Act No. 26 of 2000.

[16] A medical panel, unlike an individual medical practitioner, is better able to answer such a question. See Victorian WorkCover Authority v. Del Borgo [2004] VSCA 108 at [82].

[17] See ground 4 and the terms of Mr Carter's letter set out in [10] above.

[18] Willmott v. Friway One Pty. Ltd., 21st November 2001.

[19] Victorian Parliamentary Hansard, Legislative Assembly, 12 November 1997, at p. 1075.

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Judgment (79 paragraphs)

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