- Unreported Judgment
SUPREME COURT OF QUEENSLAND
6 May 2003
14 March 2003
(a)the decision of the General Medical Assessment Tribunal (Psychiatric) made on 14 March 2001 be set aside;
(b)the matter in which that decision was made be remitted to a differently consti tuted General Medical Assessment Tribunal to be dealt with according to law;
(c)the application to review the decision of the Neurology/Neurosurgical Assessment Tribunal dated 14 March 2001 be dismissed.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – APPLICATION FOR A STATUTORY ORDER OF REVIEW - where application for damages certificate under Workcover Queensland Act referred by third respondent to first respondent tribunal – where tribunal found applicant had not sustained an injury as defined by the Act –whether applicant denied natural justice – whether York v GMAT & Anor applies
ADMINISTRATIVE LAW – JUDICIAL REVIEW – APPLICATION FOR A STATUTORY ORDER OF REVIEW - where application for damages certificate under Workcover Queensland Act referred by third respondent to second respondent tribunal – where tribunal found applicant had not sustained an injury as defined by the Act – whether reasons given by tribunal contained a factual finding requiring a conclusion the applicant had sustained an injury as defined by the Act
Judicial Review Act 1991, s 3(a), s 20, s 20(2)(e), s 23(a), (b) and (g)
WorkCover Queensland Act 1996, s 34, s 265(2), s 265(4), s 440(2), s 442(2)(a) and (b), s 447
Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539
York v The General Medical Assessment Tribunal & Anor
K D Dorney QC, with him P L Feely for the applicant
D J North SC, with him S A McLeod for the respondents
Ferguson Cannon Lawyers for the applicant
Brodley & Company for the respondents
- McMURDO J: On 24 July 1997, the applicant was sent by his employer to perform work at the Tarong Power Station. He was required to clean a large metal acid storage tank. He was equipped with protective clothing and an oxygen line. However the oxygen supply failed. He was deprived of oxygen for some time. He lost consciousness and was off work for the next five days. He then continued to work for about three years.
- The applicant wishes to prosecute an action for damages against his former employer. On 1 July 2000, he applied for the issue of a damages certificate pursuant to s 265(2) of WorkCover Queensland Act 1996 (Qld) (“the Act”). He described the nature of his alleged injuries as “psychological injury hypoxia, acid burns”. WorkCover gave him a conditional damages certificate pursuant to s 265(4). That certificate was given in respect of “psychological injury (including stress), burns to face and brain injury (including headaches)”. Subsequently, his application for a damages certificate was referred by WorkCover to two medical assessment tribunals for determination, in accordance with s 440(2) and s 442(2)(a) and (b) of the Act. One of those references was to the General Medical Assessment Tribunal (Psychiatric); the other was to the Neurology/Neurosurgical Assessment Tribunal. Each Tribunal decided that “the matters alleged for the purpose of seeking damages do not constitute an injury”. The first respondents constituted the General Medical Assessment Tribunal (Psychiatric) and the second respondents constituted the Neurology/Neurosurgical Assessment Tribunal. His application is opposed by the third respondent, WorkCover. The applicant seeks an order of review in relation to each decision, pursuant to s 20 of the Judicial Review Act 1991 (Qld).
Decision of the First Respondents
- The principal attack upon this decision was the contention that the applicant was denied natural justice, in that his case was said to be relevantly indistinguishable from York v The General Medical Assessment Tribunal & Anor  QCA 519 (“York”). In addition, it was submitted that the decision involved an improper exercise of the Tribunal’s power in that the Tribunal failed to consider relevant matters, did consider irrelevant matters, and the decision was such that no reasonable Tribunal could have so exercised the power. It was further alleged that the decision involved errors of law.
- The applicant put before the Tribunal two reports of psychiatrists. At least one of those reports, being that of Dr Persley dated 25 October 2000, strongly supported the applicant’s claim that he had suffered an injury in the nature of a “post-traumatic stress disorder directly related to the injury at work (which) has precipitated the co-morbid condition of a major depressive disorder of mild to moderate severity (and which) precipitated a period of alcohol abuse”. The other was from Dr Oelrichs dated 26 July 2000. The applicant submits that her report is unequivocally to the effect that the applicant was suffering from “(an) adjustment disorder with anxious and depressed mood. Alcohol abuse and dependence. Dependent personality traits. Previous unresolved stressors, severe stressors at work”, and that these matters were the result of the relevant accident. Each of the reports referred to the applicant’s personal, medical and psychiatric history. It is unnecessary to detail that history here, but plainly the applicant had reported a very unhappy childhood with a violent alcoholic father, and that the applicant had himself become a very heavy consumer of alcohol at various times in his life prior to the accident. This history indicated the potential for an issue as to whether any psychiatric disorder or cognitive impairment was caused by the accident, in the required sense, according to the definition of “injury” in the relevant version of s 34 of the Act as “personal injury arising out of, or in the course of employment if the employment is the major significant factor causing the injury”. Although this Tribunal was involved in a psychiatric assessment of the applicant, it was also given copies of reports going to the applicant’s neurological condition, which certainly indicated an issue as to whether his neurological problems were sufficiently caused by the accident, rather than by his heavy use of alcohol.
- The applicant’s case before each Tribunal was conducted by his solicitor, Mr Cannon. He says that after completing his submissions to the Psychiatric Tribunal, he was asked whether he had any further submissions to make, and he replied that he “did not at that stage”. The Tribunal then asked questions of the applicant relating to the accident and his symptoms, as well as a number of questions relating to “his alcohol intake”. He says that he was not informed or otherwise made to feel that the “Tribunal had reached a preliminary opinion contradictory to the medical opinion that I had relied upon”. Objection to this evidence was at first taken, on the basis that Mr Cannon should not be allowed to assert that the Tribunal had reached a “preliminary opinion”. I understood the effect of Mr Cannon’s evidence in this respect to be that nothing was said by any Tribunal member that he or she was minded to disagree with the diagnosis of Dr Persley and what the applicant submits is the like diagnosis of Dr Oelrichs. I accept Mr Cannon’s evidence as to the course of the hearing before this Tribunal, as I accept his evidence generally.
- The Tribunal gave its decision in writing, in which it recorded the questions for its determination and that it had heard Mr Cannon on the applicant’s behalf, it had conducted a clinical examination of the applicant and it had certain medical evidence and other material available to it, including those psychiatrists’ reports. It then made a determination in these terms:
“The Tribunal determined that:
- The matters alleged for the purpose of seeking damages do not constitute an injury.
Mr Maher worked as a Painter for Gardner Perrott. One of his duties was cleaning corrosive acid tanks.
On 24 July 1997 he was working in a corrosive acid tank wearing a special suit with breathing apparatus. While working in the tank his mask malfunctioned cutting off his oxygen supply. Somehow he made his way to the surface and it is not clear on how he got there. His mask was removed. He was off work about five days.
He returned to work and continued to perform the same style of duties and continued for a further two years approximately when he accepted redundancy when the employer was discontinuing business. He has not worked since.
At some stage he attended his local medical officer and was prescribed anti-depressant medication but he has not sought any further treatment for a psychiatric condition. It was noted that he continued to work in the same capacity as previously and had ceased work when offered redundancy.
The Tribunal noted that this man had a history of alcohol abuse dating back many years and that this preceded the accident.”
- As I have mentioned, the questions for the Tribunal’s determination were referred under s 440 and s 442. Under s 440(2), the Tribunal had to decide whether “the matters alleged for the purpose of seeking damages constituted an injury to the worker and, if so, the nature of the injury”. Under s 442(2), the Tribunal was required to decide whether that injury (if any) had resulted in a degree of permanent impairment and if so, it had to assess the degree of permanent impairment and “the nature and degree of the impairment”. The Tribunal’s reasons are in terms of a decision adverse to the applicant under s 440, so that there was no matter for determination under s 442.
- The applicant’s written submissions, dated May last year, contended that the Tribunal failed to give adequate reasons. This was before the decision of the Court of Appeal in York, in which Jerrard JA (with whom the other members of the Court agreed) said that a tribunal, making a determination under s 440 or s 442, is not obliged to give reasons. Accordingly, this criticism does not make out a ground for review. As I read its brief reasons, the Tribunal has rejected the proposition that the applicant had suffered and was suffering any psychiatric disorder. This view is suggested firstly by the reference to the applicant’s prompt return to work and his work performance in “the same style of duties” for some years until he left his employment because of redundancy (rather than incapacity). That is fortified by the reference to the one instance of any treatment for any psychiatric condition, that being from “his local medical officer”, after which the Tribunal repeated its observation as to the applicant continuing to work in the same capacity and ceasing work only when offered redundancy. The noting of the applicant’s prior history of alcohol abuse confirms the impression that the Tribunal had concluded that he had not suffered any psychiatric disorder.
- In York, orders were made setting aside a decision of the General Medical Assessment Tribunal and remitting the matter to a differently constituted Tribunal to be dealt with according to law, on the ground that the Tribunal had denied natural justice to the applicant worker, Mr York. His case had been presented to that Tribunal in reliance upon the reports of two psychiatrists, each of whom had made a diagnosis clearly supporting his claim. The primary judge, Helman J, held that because the psychiatric evidence given to the Tribunal was of the same effect, the applicant and his representative were reasonable to assume that the Tribunal would accept that evidence, absent some contrary indication before the determination. As no such indication was given, he held that the Tribunal had breached the rules of natural justice which required it to notify the applicant’s representative “of a preliminary opinion contradictory to those of Drs Gray and Byrne in order to give him the opportunity to address the Tribunal on the issue, and possibly, to call further evidence”. The judgment was upheld on appeal, essentially upon the same ground. But whilst Helman J had understood the Tribunal to have reached an opinion contradictory of those of the two psychiatrists whose reports were submitted to it, Jerrard JA was unable from the brief reasons given by that Tribunal to identify the particular point which caused it to find that Mr York had not suffered an “injury” in the required sense, saying at paras  to :
“ … I consider the appellant still faces the difficulty that the Tribunal’s decision does not actually reveal the reasons on which its critical determination was based. The facts recited avoid any reference to the existence or otherwise of a psychological or psychiatric injury, and it is possible that the Tribunal members actually agreed with the diagnoses of both doctors that there did exist either one or both of the two disorders or syndromes described in their respective reports. However, the operative definition of “injury” in s 34 of the Act at the relevant time was that of an injury to the causation of which the worker’s employment was the major contributing factor. The Tribunal may have determined that Mr York’s employment was not the major contributing factor to either of the two existing and diagnosed disorders or syndromes, or that only one existed, or that some other disorder or disorders existed, but that in any event the employment was not the major contributing factor to any of them. Alternatively, the Tribunal may have determined that accepting all that Mr York said there was nevertheless no existing disorder and never had been; or it may have just disbelieved Mr York as to the facts he asserted. The problem is that it did not say why it reached the conclusion it did.
 If any of these possible views other than the last one was the reason for the determination, I am satisfied that the obligation to afford procedural fairness required that in this case Mr York’s solicitor had the opportunity to argue against, or even lead further evidence in his favour, on whatever provisional or preliminary views adverse to his client the Tribunal held. …
 I agree with the conclusion of the learned primary Judge that a number of the possible grounds on which the Tribunal may have reached its decision could fairly be described as an adverse conclusion arrived at which would not obviously be open on the known material. …”
- To establish a ground for judicial review upon this basis, an applicant must surely identify the critical issue or factor on which the decision turned, so as to show that natural justice was denied by the decision maker not bringing it to the applicant’s attention so that he or she could deal with it. Where the precise issue or factor is unknown, the ground for review could be established by proving that, more probably than not, the decision turned upon a critical issue or factor which should have been brought to the applicant’s attention. Upon the analysis of the Court of Appeal, York was such a case. In the present case, the reasoning of this Tribunal is more apparent than the Tribunal’s reasoning in York. As I have said, the Tribunal appears to have concluded that there was no injury because the Tribunal was of the opinion that the applicant had not suffered any psychiatric disorder. According to York, where the Medical Assessment Tribunal, determining a reference or references under s 440 and s 442, proposes to determine a reference adversely to the applicant upon the basis that its own medical opinion was contradictory of the unanimous medical opinion presented to it, it is obliged to inform the applicant of that matter, and to provide the applicant with an opportunity to make further submissions or, if so advised, to put further evidence before it. For WorkCover, it was contended that York was distinguishable, because the psychiatric evidence given to this Tribunal was not unanimous.
- Dr Oelrichs set out an extensive account of information provided to her by the applicant, and of her own examination, before the section of her report headed “Summary and Conclusions”. In that section she said:
“Mr Maher is a 50 year old married man who presents having left work in December 1999. It appears that since an injury he experienced at work in 1997 that his work performance has deteriorated significantly. This appears to be related to the psychological trauma he has received from being in a situation which was potentially life threatening. I believe it significant that Mr Maher has an extremely prejudicial childhood history with a violent alcoholic father. It appears that he has been able to resolve this partially because of a good relationship and strong relationship he has with his mother, however this has prejudiced him into precipitating into episodes of heavy alcohol consumption when he is under stress.
I believe that his presentation now could conform to a DSMIV diagnostic formulation as:
Adjustment disorder with anxious and depressed mood.
Alcohol abuse and dependence
Dependent personality traits
Previous unresolved stressors, severe stressors at work
Currently poor to moderate level of functioning
Currently Mr Maher presents with a history of injury which is related to a work accident. It is unfortunate that he has been unable to address the anxiety and depression that he has been experiencing since the accident completely.
I also believe that he needs help with rehabilitation for his heavy alcohol consumption. I discussed the likelihood of him being referred for consultation with a psychiatrist or a psychologist for management of these problems. I believe if Mr Maher’s adjustment disorder and depressed mood and alcohol dependence were addressed and managed correctly he may be able to return to work. Prior to this it would be beneficial for him to undergo full neuropsychological testing to assess any memory difficulties related to alcohol abuse. This would not be of benefit now as he has been alcohol-free for only a short period.
It is unlikely that he would be able to perform duties related to e.g. painting inside a tank where he requires an oxygen mask because of the stressful nature of this to him. I would believe that his condition would improve over the next few months and that he is motivated positively to cease his alcohol consumption and to resume work.”
- For WorkCover it is submitted that Dr Oelrichs was saying no more than it was possible that the applicant conformed to that diagnostic formulation. Reliance is placed upon the word “could” where Dr Oelrichs says “I believe that his presentation now could conform to a DSMIV diagnostic formulation as: …”. It is said that her use of the word “appears” in the first paragraph of this section of the report indicates that Dr Oelrichs was uncertain as to those matters and that her observations are qualified. However, this is not the way in which I read it. It seems to me that Dr Oelrichs is expressing an opinion to the effect of the diagnosis set out in this section of her report. When she says that “it is unfortunate that he has been unable to address the anxiety and depression that he has been experiencing since the accident completely”, Dr Oelrichs is saying unequivocally that the applicant has experienced anxiety and depression since the accident, and was still experiencing that to some extent at the time of her examination. Again, in the next paragraph she refers to the applicant’s “adjustment disorder and depressed mood” as well as his alcohol dependence, as matters of fact. She does not suggest the need for any further investigation or examination as necessary to enable a psychiatrist to make a diagnosis, although she does suggest “neuropsychological testing to assess any memory difficulties related to alcohol abuse”. In my view the effect of her report is that she has made what she considers to be a sufficiently reliable diagnosis as set out in this section. This was the effect attributed to her report by Dr Persley.
- Dr Persley expressed the opinion “that Mr Maher has developed a post-traumatic stress disorder directly related to the injury at work (which) has precipitated the comorbid condition of a major depressive disorder of mild to moderate severity (and) a period of alcohol abuse”. He was uncertain as to whether “the cognitive impairments noted on formal neuropsychiatric assessment” were due to hypoxic damage in the accident or previous alcohol abuse. But that did not affect his conclusion that the applicant had developed a post traumatic stress disorder directly related to this accident.
- It follows that each of the psychiatrists diagnosed the applicant as suffering a psychiatric disorder caused by this accident. This Tribunal also had other medical reports, including reports from neurologists whose views were not unanimous. But they related to his neurological problems and not the existence or otherwise of a psychiatric disorder. Similarly, the report of Ms Anderson, a neuropsychologist, did not contradict the psychiatric opinion presented to the Tribunal.
- The applicant and his representative went before this Tribunal knowing that it had to be persuaded that the applicant had suffered an injury as claimed, and appreciating that it was open to the Tribunal, as a specialist body, to act upon its own assessment based upon its personal examination of the applicant. The Tribunal was not obliged to accept the correctness of the psychiatric opinion presented to it. But the effect of York is that, before the Tribunal disagreed with that opinion, it was obliged to notify the applicant or his representative that it was minded to do so and to provide an opportunity for further submissions and evidence. If, as I have concluded, the psychiatric evidence was unequivocal and unanimous, it follows that this Tribunal denied natural justice and there exists a ground for a statutory order of review in relation to its decision.
- As I have mentioned, there are other alternative grounds upon which the applicant relies to seek a review of this Tribunal’s decision. In my view, none of those other matters provides a basis for review of the decision. It is submitted that the Tribunal failed to “address the question of whether the incident had any psychiatric psychological effect on the Applicant at the time of the incident or subsequently” so that it thereby failed to consider a relevant matter. But as I have held, it plainly considered that question and decided it adversely to the applicant. Much of the applicant’s written submissions are inconsistent with the view I have reached as to the reasoning of the Tribunal. Criticism was made of each Tribunal for considering the fact that the applicant returned to work very shortly after the accident. This was a matter which each Tribunal was plainly entitled to consider. There was no error of law in finding that the applicant did not suffer an “injury” in the required sense, if the Tribunal was of the view that the applicant was not suffering a psychiatric disorder as claimed. It is suggested that each Tribunal should have concluded that there was an injury constituted by the applicant’s hypoxia during the accident, and that no reasonable Tribunal could have failed to conclude that this was an injury. From this it was argued that each Tribunal erred in law and misconceived its function, for given the alleged injury of “hypoxia”, there was a matter for determination of the nature and degree of impairment from that injury. This submission should be rejected. The evidence certainly established the hypoxic episode but the primary issue for each Tribunal was whether the applicant had, through this deprivation of oxygen or otherwise from the accident, suffered an injury in the relevant sense. The question for the Tribunal was not whether there was any personal injury but whether the applicant had suffered an injury of the kind or kinds for which he wished to seek damages. It is an injury of that kind for which he sought the certificate of WorkCover pursuant to s 265(2), and in turn, which was referred by WorkCover to the respective Tribunals: see s 437(c), s 440. Each Tribunal was to decide whether there was an injury constituted by “the matters alleged for the purpose of seeking damages:” s 440(2). The proposed damages suit is not to recover for the deprivation of oxygen, but for its alleged effects together with the other alleged effects of the incident. The existence, nature, and extent of those alleged effects were the matters for determination by these Tribunals. In my view, neither Tribunal was obliged to find that there was an injury constituted by the hypoxia itself, and there is no basis for reviewing either decision in this respect.
- The result is that the decision of the Tribunal constituted by the first respondents should be reviewed for what I have found was the breach of the rules of natural justice. The decision should be set aside, and the matter to which the decision relates should be remitted to a differently constituted General Medical Assessment Tribunal to be dealt with according to law.
Decision of the Second Respondents
- The applicant does not contend that the rules of natural justice were breached in relation to the decision of the Neurology/Neurosurgical Assessment Tribunal. There was some difference of opinion amongst the neurologists whose reports were presented to the Tribunal, and the applicant was already on notice that it was an issue as to whether the employment was the major significant factor causing any neurological problems. The grounds relied upon in relation to this Tribunal’s decision are very much the same as those grounds which I have rejected in relation to the Psychiatric Tribunal. However, there is a distinct point arising from the brief reasons given by this Tribunal, which is to the effect that there is within those reasons a factual finding which required the conclusion that there was an injury. The Tribunal’s reasons were as follows:
“The Tribunal determined that:
- The matters alleged for the purpose of seeking damaged do not constitute an injury.
The Claimant suffered oxygen deprivation when he was working in a closed acid tank on 24 July 1997. His memory was impaired for subsequent events for a short period.
The Claimant was off work for five (5) days and then returned to work where he continued for three (3) years.
During this period, the Claimant noted memory impairment, anxiety and depressive symptoms. Also during this period, the Claimant was drinking alcohol heavily. The Claimant was made redundant in late 2000.
On examination, there was impairment of memory and cognitive function. There were signs of cerebellar impairment in arms and legs and his gait was unsteady. There was evidence of a peripheral sensory neuropathy.
The Tribunal considers that the Claimant’s neurological impairment is due to the effects of excess alcohol intake. It does not considered that it is due to the incident of oxygen deprivation in July 1977.”
It is submitted that in finding that “his memory was impaired for subsequent events for a short period”, the Tribunal has found that the incident, including the oxygen deprivation, did cause some injury. I think that is correct, but again, it is necessary to identify the Tribunal’s function by reference to the applicant’s proposed damages case. The Tribunal was not bound to enquire whether there was any injury, but rather whether the injuries claimed for the purpose of obtaining a damages certificate amounted to an injury in the required sense.
- On the applicant’s case, for which he wishes to sue his employer, his brain injury has had a more lasting impact than a short period of impairment of memory for events subsequent to the incident. His case is that he has suffered, and continues to suffer, from substantial memory impairment and impairment of executive function, and the Tribunal was obliged to assess whether there was an injury in the nature of an ongoing neurological problem, sufficiently caused by the incident. This Tribunal’s reasons make it clear that it found that he did continue to suffer neurological problems, but that they were not sufficiently caused by his employment, and that upon this reasoning, it was concluded that the matters alleged for the purpose of seeking damages did not constitute an injury. Alternatively, if the Tribunal was obliged to determine whether there was an injury constituted by this loss of memory of subsequent events for a short period, then the decision fairly reveals that it made a finding of an injury in that sense, and that the employment was the factor causing that injury. In terms of the reference under s 442 the Tribunal has obviously seen such an injury as not involving any degree of permanent impairment, for this particular impairment was for but “a short period”. The result is that if the Tribunal was obliged to characterise this short term memory impairment as a distinct injury, it did so and expressed its findings sufficiently to discharge its functions under s 440 and s 442.
- Otherwise I think the remaining grounds relied upon in relation to this Tribunal have been sufficiently canvassed in what I have said in rejecting those grounds common to the challenges to the respective decisions. In my view the applicant has not established any basis for reviewing the decision of the Tribunal constituted by the second respondents.
- I order that:
- the decision of the General Medical Assessment Tribunal (Psychiatric) made on 14 March 2001 be set aside;
- the matter in which that decision was made be remitted to a differently constituted General Medical Assessment Tribunal to be dealt with according to law;
- the application to review the decision of the Neurology/Neurosurgical Assessment Tribunal dated 14 March 2001 be dismissed.
- I shall hear the parties as to costs.
 Section 20(2)(e), s 23(a), (b) and (g).
 Being the definition of injury applying to an injury sustained before 1 July 1999: See s 561.
 Paras 11 and 12 of his affidavit.
 See  – .
  QSC 014, 
 Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 per Merkel J.
 Page 5 of his report.
- Published Case Name:
Maher v Dr Lawrence, Dr Hayes and Dr Coghlan as Members of The General Medical Assessment Tribunal (Psychiatric) & Ors
- Shortened Case Name:
Maher v The General Medical Assessment Tribunal
 QSC 108
06 May 2003
No Litigation History