CSR Ltd v General Medical Assessment Tribunal - Thoracic & Anor [2010] QSC 321

SUPREME COURT OF QUEENSLAND CITATION: CSR Ltd v General Medical Assessment Tribunal – Thoracic & Anor [2010] QSC 321 PARTIES: CSR LIMITED (ACN 90 000 001 276) (applicant) v Dr RICE-McDONALD, Dr ARMSTRONG and Dr ALLEN constituting the General Medical Assessment Tribunal – Thoracic (first respondent) AND ALEXANDER ARTHUR KERR (second respondent) FILE NO/S: BS1688 of 2010 DIVISION: Trial Division PROCEEDING: Hearing ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 3 September 2010 DELIVERED AT: Brisbane HEARING DATE: 30 July 2010 JUDGE: Martin J ORDER: 1. The Tribunal’s decision is quashed. 2. The reference is to be remitted to the Tribunal to proceed according to law. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the second respondent was employed by the applicant – where the second respondent claimed to have sustained bagassosis over a period of time – where the first respondent made a decision that the second respondent had suffered an injury under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether the first respondent failed to afford the applicant natural justice – whether the first respondent provided adequate reasons pursuant to s 516 Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether the first respondent applied an incorrect legal test -- 1 of 10 -- 2 Acts Interpretation Act 1954 (Qld) Workers’ Compensation and Rehabilitation Act 2003 (Qld) Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462 Kioa v West (1985) 159 CLR 550 Lidono Pty Ltd v Commissioner of Taxation (2002) 191 ALR 328 Masters v McCubbery [1996] 1 VR 635 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 COUNSEL: G P Long SC with S A McLeod for the applicant C J Murdoch for the first respondent P B O’Neill for the second respondent SOLICITORS: CLS Lawyers for the applicant Q-COMP for the first respondent Sciaccas Lawyers for the second respondent [1] This is an application for judicial review of a decision of the first respondent (“the Tribunal”) dated 22 January 2010 (“the decision”) in which it determined that the second respondent had suffered an ‘injury’ within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”). [2] The applicant (“CSR”) seeks orders setting aside the decision and remittal of the reference to a differently constituted General Medical Assessment Tribunal – Thoracic and costs. [3] CSR had originally named the “General Medical Assessment Tribunal – Thoracic (constituted by Dr Rice-McDonald, Dr Armstrong and Dr Allen)” as the first respondent. At the hearing it was accepted that, while the decision is issued in the name of the Tribunal, it is not a juristic entity and that the better description of the decision-maker is “Dr Rice-McDonald, Dr Armstrong and Dr Allen constituting the General Medical Assessment Tribunal – Thoracic”. Background [4] CSR is a licensed self insurer under the Act. [5] In November 1980 Mr Kerr commenced working at the Plane Creek Sugar Mill when it was owned by Pioneer Sugar. CSR became the owner at a later time. He worked as an assistant sugar boiler in the crush and as a trade assistant during maintenance time. For 15 years his maintenance work required him to travel across the sugar mill site. [6] On 25 February 2009 CSR received an application for compensation from Mr Kerr. He claimed that he suffered an injury, namely “bagassosis”, and that the injury had been sustained over a period of time due to exposure to bagasse. Bagassosis is a type of hypersensitivity pneumonitis caused by exposure to spores from mouldy stored bagasse, which is a fibre derived from dried sugar cane. -- 2 of 10 -- 3 [7] CSR rejected the application for compensation on 26 May 2009. Mr Kerr applied to Q-Comp (the trading name of the Workers’ Compensation Regularity Authority) for a review of the decision to reject his claim. [8] On 20 November 2009, Q-Comp set aside CSR’s decision and directed it to refer the matter to the General Medical Assessment Tribunal for a determination: “On the medical matters involved in the worker’s application for compensation including: • Is there a work related injury and is employment a significant contributing factor to the injury.” [9] Consistent with that direction, CSR submitted the appropriate reference together with annexures including reports from medical practitioners. Relevant Legislation [10] The provisions of the Act which are relevant to this matter include the following. [11] The capacity to make a reference to a tribunal is provided for in s 500. So far as is relevant it provides: “(1) An insurer may refer the following matters in relation to an injury under this Act to the appropriate tribunal for decision on the medical matters involved - (a) a worker's application for compensation for an alleged injury;” [12] As the applicant did not admit that an injury had been sustained s 501(2) is relevant: “(2) If the insurer has not admitted that an injury was sustained by a worker, and the nature of the injury, the tribunal must decide - (a) whether the matters alleged in the application for compensation constitute an injury to the worker and, if so, the nature of the injury;” [13] Part 4 of chapter 11 of the Act deals with the way in which proceedings are to be undertaken in the exercise of the Tribunal’s jurisdiction. Section 510C sets out which documents are to be exchanged: “(1) After an insurer refers a matter to a tribunal, relevant documents can only be exchanged between an insurer, the worker and the tribunal. (2) To remove any doubt, it is declared that an employer who is not an insurer or any other person not mentioned in subsection (1) whose interests may be affected by a decision made by a tribunal can not be given copies of relevant documents after a matter is referred to a tribunal. (3) The tribunal must give the worker a copy of a relevant document given by the insurer to the tribunal-- -- 3 of 10 -- 4 (a) if the document is given under section 500A--within 10 business days after a matter is referred to the tribunal; or (b) otherwise--within 5 business days after the tribunal receives the document. (4) At least 10 business days before the worker is scheduled to attend before the tribunal, the worker must give the tribunal and the insurer a copy of any relevant document the worker wants considered by the tribunal. (5) At least 3 business days before the worker is scheduled to attend before the tribunal, the insurer may give the tribunal and the worker a written submission on the factual matters referred to in the relevant documents given by the worker under subsection (4). (6) A tribunal may proceed to decide a matter even though an insurer has not given a written submission to the tribunal and the worker. (7) A tribunal can not consider or rely on any relevant document given by the insurer or worker that has not been exchanged under this part. (8) However, subsection (7) does not prevent the tribunal from relying on either of the following-- (a) a report resulting from an examination of a worker by a doctor nominated by the tribunal under section 510(1)(b); (b) a medical image given to the tribunal by the worker. Examples of medical images-- CT, MRI, ultrasound scan, X-ray” [14] Section 511 restricts the right to appear before the Tribunal to the worker and his or her representative: “(1) Despite any Act or law, this section is the only provision of law under which a person may be heard in relation to a matter referred to a tribunal, whether in relation to an injury mentioned in section 490A(1)(a) or (b). (2) On a reference to a tribunal, the worker is entitled to be heard before the tribunal in person or by the worker's representative. (3) Only the worker and any representative of the worker may be present or heard before the tribunal. (4) To remove any doubt, it is declared that an insurer, employer, or any other person (not being the worker) whose interests may be affected by a decision made by a tribunal can not be present, represented or heard before a tribunal.” [15] If new medical information comes to the Tribunal’s knowledge then s 511A applies: “(1) This section applies if - (a) new information about a medical matter, other than information in a relevant document, comes to the tribunal's knowledge when a worker attends before the tribunal; or -- 4 of 10 -- 5 (b) the tribunal receives a report resulting from an examination of a worker by a doctor nominated by the tribunal under section 510(1)(b). (2) The tribunal is not required to give the information or report to an insurer or the worker's employer or to anyone else for any purpose, either before or after the tribunal makes its decision.” [16] If the Tribunal is of the view that non-medical matters are included in the terms of a reference then it can refer those back to the insurer under s 514: “(1) If the tribunal considers that the terms of a reference to it involve - (a) both medical and non-medical matters; or (b) entirely non-medical matters; the tribunal may refer the non-medical matters back to the insurer for a decision. (2) To remove any doubt, it is declared that if the tribunal decides a medical matter mentioned in subsection (1)(a), section 515 applies to that decision. (3) Section 513 applies to a reference back to the insurer under subsection (1).” [17] Apart from review under the Judicial Review Act, finality of the Tribunal’s decision is provided for in s 515: “(1) Either of the following decisions of the tribunal is final and can not be questioned in a proceeding before a tribunal or a court, except under section 512 - (a) a decision on a medical matter referred to the tribunal under section 500; (b) a decision under section 514(1). (2) Subsection (1) has no effect on the Judicial Review Act 1991.” [18] The Tribunal is required, under s 516, to give a written decision for any matter referred to it together with reasons: “(1) A tribunal must give a written decision for any matter referred to it with reasons for the decision. (2) A tribunal must give a copy of its decision to the insurer and to - (a) the worker; or (b) the worker's representative.” [19] The requirement in s 516 necessitates reference to s 27B of the Acts Interpretation Act 1954 (Qld): “If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression 'reasons', 'grounds' or another expression is used), the instrument giving the reasons must also - -- 5 of 10 -- 6 (a) set out the findings on material questions of fact; and (b) refer to the evidence or other material on which those findings were based.” Tribunal hearing and decision [20] The Tribunal heard the application by Mr Kerr on 22 January 2010. Members of the Tribunal interviewed him and he provided information to them. The Tribunal also carried out its own clinical examination of Mr Kerr. [21] In its decision the Tribunal set out a brief history of the application for compensation, Mr Kerr’s current situation, and the details of the examination performed at the hearing. The reasons for decision given by the Tribunal were as follows: “Reasons for decision The Tribunal notes the differing opinions from the treating physicians to that of Dr David McEvoy with regards to the possible presence of bagassosis. The Tribunal notes the difficulty in ascertaining a positive diagnosis of bagassosis due to the lack of typical acute or subacute symptoms, the lack of positive precipitins testing, the lack of ground glass opacification on CT near time of diagnosis and the pathology findings failing to reveal typical findings of hypersensitivity pneumonitis. However, the Tribunal notes Mr Kerr worked in his job for an unusual length of time, he gave a clear history of exposure to bagasse and other dusts, he did develop a significant cough during the course of his employment and that some of the negative findings (negative precipitins testing and lack of typical features of acute or active hypersensitivity pneumonitis) do not exclude an occupational cause for his lung condition due to the chronicity of exposure and potential longevity of the condition. The Tribunal therefore considers that Mr Kerr has sustained a work- related injury secondary to prolonged exposure to a variety of dusts in the workplace environment. Decision Following consideration of all medical and other evidence presented, interview and clinical examination of the worker, the Tribunal determined that: Section 501 (2) (a) the matters alleged in the application for compensation constitute an injury to the worker and, the nature of the injury is chronic interstitial pneumonitis with fibrosis secondary to occupational workplace dust exposures.” Grounds of the application [22] In its amended application for a statutory order of review, CSR describes the grounds of its application as: -- 6 of 10 -- 7 (a) In making its decision, the first respondent failed to afford the applicant natural justice because it did not provide the applicant with an opportunity to present information in respect to “occupational workplace dust exposure” which was a matter not obvious to the applicant in relation to the second respondent’s application for compensation, but in fact, regarded by the first respondent as important and critical to its decision making process. (b) The first respondent, contrary to section 516 of the Workers Compensation and Rehabilitation Act 2003, failed to provide reasons which adequately disclosed a proper basis for its decision, namely that the applicants injury is chronic interstitial pneumonitis with fibrosis was secondary to occupational workplace dust exposure. (c) The decision involved an error of law in that the first respondent applied a wrong legal test when determining the reference. [23] The complaint made by CSR is that the Tribunal entered into a field other than “medical matters” when it decided that Mr Kerr had sustained a work related injury secondary to prolonged exposure to a variety of dusts in the workplace environment. The applicant argues that the Tribunal was not entitled to determine facts relating to the type and extent of exposure to dusts because such an issue was not a medical matter. Further, an adverse determination based upon some form of exposure to dust was said not to be an issue upon the exchanged material. [24] The first issue, then, relates to the apparent finding by the Tribunal that Mr Kerr had been exposed in the manner described, that is, exposed for a prolonged period to a variety of dusts. What, then, was the evidence before the tribunal about the level and extent of exposure to dust? [25] Dr David Douglas reported that the second respondent had worked all over the sugar mill site and had had some exposure to asbestos lagging and that Mr Kerr was aware that bagasse and other dusts were present in the working environment throughout the years that he was at the factory. He noted that the second respondent had been exposed to low levels of dry bagasse dust particles but not to the level sufficient to cause bagassosis. Dr Douglas was confident that the levels of bagasse dust to which Mr Kerr had been exposed to over the years would have been low and that he would never had been exposed to the spores from mouldy bagasse. [26] Dr David McEvoy provided a number of reports. In his first report he noted that during the dry season dry bagasse is distributed through the mill in windy conditions. He noted that there was no history of dust fumes or chemicals that are likely to have caused his lung disease and was of the opinion that Mr Kerr does not have bagassosis but a mild non-specific form of chronic interstitial pulmonary fibrosis consistent with usual interstitial pneumonia. [27] Mr Kerr’s condition was also reviewed by Dr Peter Hopkins. He recorded that on systems review Mr Kerr had no relevant exposure to other organic or inorganic dusts that may be implicated in patients with interstitial lung disease. He concluded that the likely diagnosis was of hypersensitivity pneumonitis or extrinsic allergic alveolitis secondary to his long association with the sugar cane industry. -- 7 of 10 -- 8 [28] CSR points to these matters as supporting its case that it should not have been obvious to it that the finding made by the Tribunal would be open. [29] Mr Kerr argues that the issue of the workplace exposure to dust had been considered on a number of occasions by medical practitioners and there had been consideration given to his injury occurring as a consequence of exposure to the workplace environment. What was done by the Tribunal, says Mr Kerr, was not a finding of fact but an appropriate analysis of the available evidence which had been placed before it. [30] Prior to the consideration of this matter by the Tribunal all the medical evidence was that Mr Kerr either had bagassosis (which is agreed by the parties to be caused only by the spores from wet bagasse) or that he had interstitial lung disease which had not been caused by exposure to dust. [31] CSR argues that it should have brought to its attention the fact that the Tribunal intended to rely upon exposure to dust as a catalyst for the development of the disease suffered by Mr Kerr. This, says CSR, engages the principle that a decision maker must bring to the attention of the relevant party the critical issue or factor on which the decision is likely to turn. See Kioa v West (1985) 159 CLR 550 at 587. As against that, the Tribunal submits that natural justice only requires a decision maker to expose for comment by the affected party an undisclosed conclusion, head of liability or fact, and not the decision maker’s reasoning process. See Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592, Lidono Pty Ltd v Commissioner of Taxation (2002) 191 ALR 328. It was argued that, in the present case, the reference to the Tribunal merely required it to consider on the available evidence the injury to Mr Kerr’s lungs and to determine whether he had an injury and, if so, the nature of the injury. In doing that the Tribunal was not required to afford CSR the benefit of its preliminary review or allow CSR to make further submissions to address them. [32] The Tribunal, did, in this case, proceed upon an assumption which had not been established before it, namely, that there had been prolonged exposure to a variety of dusts. In order for that conclusion to have been properly drawn the Tribunal would have needed to have before it evidence to support that. Presumably the Tribunal relied on Mr Kerr’s account which they described as “a clear history of exposure to bagasse and other dusts”. While there had been references made in the reports to the existence of dust it had been consistently dismissed as the cause of his symptoms. Mr Kerr argues that the Tribunal was entitled to use that information without alerting CSR. But what has occurred here is that the Tribunal has effectively made a finding that the extent of exposure was sufficient to cause the disease. [33] The extent of exposure is not a “medical matter”. It is a finding of fact which should have been referred to CSR for comment or further evidence before it could be used as the basis on which a decision was made. Failure to provide reasons [34] CSR argues that the reasons provided do not “enable clarity of understanding as to precisely what has been determined and how such conclusions were reached.” -- 8 of 10 -- 9 [35] It is well recognised that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleamed from the way in which the reasons are expressed. A court reviewing such a decision must always be careful not to turn a review of the reasons of the decision maker into a reconsideration of the merits of the decision. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272. [36] The difference between the reasons which should be given by a court and those which should be given by a Tribunal was considered by McPherson and Davies JJA in Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462 at 484-5: “However, before turning to the particular matters decided by the Tribunal, it is necessary to add that virtually all of the decisions which have been referred to here involve appeals from courts exercising judicial power in the full sense, and not administrative or quasi-judicial bodies or tribunals. The second and third of the three purposes identified by McHugh J in Soulemezis, which are to maintain judicial accountability and to furnish precedents for the future, obviously have little or much less force in the case of a tribunal whose members and functions are not strictly judicial. The calibre, legal training and experience of members of the judiciary raise expectations that reasons they give for their decisions will attain a high level of sophistication. The same would not always be true of decisions of persons whose primary qualification for decision- making consists of specialist knowledge or experience rather than ability to produce reasons conforming to accepted judicial tradition. Reasons that would not be considered adequate if given by a judge may nevertheless suffice for some other decision-makers not chosen for their task because of their resemblance to the judiciary. In the end, the question whether reasons are “adequate” falls to be considered in the context afforded by the nature of the question which has to be decided and other factors, including the functions, talents and attributes of the tribunal members or the individual in whom the duty of deciding questions of that kind has been vested. Considerations of the cost to litigants and the general public in requiring reasons to be given is another factor which must be weighed …” [37] In Masters v McCubbery [1996] 1 VR 635 the Victorian Court of Appeal dealt with an argument that there had been insufficient reasons given by a medical panel. President Winneke said that the extent of that tribunal’s obligation to give reasons was as follows: “A medical panel is not required to do more than provide sufficient reasons to enable it to be seen by the court and the parties that it has arrived at its decision in accordance with its statutory functions … As I have already pointed out they are required to do no more than to provide a succinct statement of why they came to the conclusions which they did sufficient to enable to the parties and the court to see that they have addressed their mind to relevant matters and have not -- 9 of 10 -- 10 acted unreasonably: see Iveagh (Earl of) v Minister of Housing and Local Government [1964] 1 QB 395 at 410.” [38] Before one can determine whether reasons are sufficient it is necessary to commence with the identification of the issue to be determined by the Tribunal. The terms of reference to the Tribunal in this case are found in s 501(2) of the Act, that is, to decide whether the matters alleged in the application for compensation constitute an injury to the worker and, if so, the nature of the injury. [39] The Tribunal has satisfied the appropriate standard with respect to the reasons it has given. It identified a number of factors upon which it relied to lead it to its conclusion that the second respondent had sustained a work related injury. Those were: (a) the longevity of his employment in the sugar cane industry; (b) the history of exposure to bagasse and other dusts; (c) the development of a significant cough during the course of his employment; and (d) that some of the negative findings referred to in the medical reports did not exclude an occupational cause for his lung condition due to the chronicity of exposure and potential longevity of the condition. [40] While the reasons provided for the decision would not satisfy the more exacting standards required for reasons given by a court, they fall within the general ambit of reasons given by specialist tribunals. It is precisely because a specialist tribunal is engaged that the reasons it gives do not need to expose the fine detail of reasoning that might otherwise be regarded as necessary. Wrong legal test [41] The basis for this argument rests upon the wording of the Tribunal’s reasons, in particular, where they use the words “do not exclude an occupational cause for his lung condition”. CSR says that that demonstrates that the Tribunal proceeded upon a basis which ignored the requirement that an applicant for compensation had to establish the entitlement. CSR argues that the reasons disclosed by the Tribunal proceed upon the basis that a claim should be accepted unless an insurer disproves the entitlement. [42] I do not agree with this reading of the reasons. The reference to “do not exclude an occupational cause for his lung condition” is a reference to the “negative findings” only, and not to the preceding factors taken into account by the Tribunal. The Tribunal did not apply the wrong test. Orders [43] CSR has succeeded on the first of the grounds it argued. As that ground involved a finding outside the Tribunal’s jurisdiction I make the following orders: (a) The Tribunal’s decision is quashed. (b) The reference is to be remitted to the Tribunal to proceed according to law. -- 10 of 10 --