WCRA: right of the worker to have a physical injury assessed by a doctor first

Merton v Queensland Local Government Workcare Scheme [2016] QSC 17

Philip McMurdo JA.

The applicant sustained a hip injury for which he was seeking compensation. The applicant wished to have his degree of impairment assessed by a doctor as per s 179(2)(c) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”). The respondent argued it is not obliged to have a doctor complete the assessment, and is entitled to have the applicant first assessed by the Medical Assessment Tribunal (the MAT) under pt 3 ch 11 of the Act. As such the respondent referred the decision to the MAT.

Section 179 provides, in part, as follows:

179    Assessment of permanent impairment

(1)       An insurer may decide, or a worker who has made an application under section 132 may ask the insurer, to have the worker’s injury assessed to decide if the worker’s injury has resulted in a degree of permanent impairment.

(2)       The insurer must have the degree of permanent impairment assessed—

(a)       for industrial deafness—by an audiologist; or

(b)       for a psychiatric or psychological injury—by a medical assessment tribunal; or

(c)       for another injury—by a doctor.

(3)       The degree of permanent impairment must be assessed in accordance with the GEPI to decide the DPI for the injury, and a report complying with the GEPI must be given to the

insurer.

(underlining added)

 

The issue on appeal was whether the proper construction of the Act entitled the applicant to have a doctor assess his injury first, or if the insurer could insist on the assessment being undertaken, once and for all by the MAT.

Upon interpretation of the applicable sections of the Act, McMurdo JA held that the respondent was obliged to have the applicant’s injury assessed by a doctor, and that the MAT has no power to determine the degree of permanent impairment so as to affect the operation of pt 10 of ch 3 or ch 5 of the Act, where the applicant had asked for an assessment by a doctor.

His Honour concluded at [32] that the alternative interpretation being argued by the respondent would require “extensive intrusion” of many of the provisions referred to. In particular, it would require “effectively a rewriting of s 186” of the Act, which could not be accepted.

The declarations sought were granted and the respondent was ordered to pay applicant’s costs of the proceeding.

David Cormack – Brisbane Barrister & Mediator

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