WCRA: s.179 – refusal to issue notice of assessment following re-assessment?

Van Eyk v Workcover Qld [2017] QSC 253

Jackson J

In August 2014, the applicant sustained a right hip injury as a result of slipping on loose gravel while at work. The applicant also sustained a right hip injury in 1988 as a result of a motorcycle accident, but denied suffering any pain in the years leading to the August 2014 injury.

In September 2015, the respondent, Workcover Queensland, gave a notice of assessment of zero percent. Upon the applicant’s request, the respondent accepted to have the applicant re-assessed. In November 2015, the applicant’s injury was again assessed and was reported in December 2015, and confirmed in a report in February 2015, as 20% degree of permanent impairment. Relevantly, however, it was found that the impairment was not stable or stationary because it could be improved by surgical treatment.

In June 2016, the respondent declined to give a notice of assessment based on the re-assessment on the grounds that the re-assessment did not comply with the guidelines for evaluation of permanent impairment (“GEPI”). The respondent reiterated its view later in June 2016 and provided two grounds of non-compliance, namely the opinion that the applicant’s injury was stable and stationary and that an incorrect methodology was used.

In August 2016, a third report was prepared for the applicant’s injury which stated that the applicant’s injury should be regarded as stable and stationary because the applicant declined hip replacement surgery. On 1 September 2016, the respondent maintained its refusal to issue a notice of assessment.

Legislation

Relevantly, the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA“) provides:

“179      Assessment of permanent impairment

  • 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.

  • 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.

Relevantly, “permanent impairment” as used in s 179 WCRA, is “an impairment that is stable and stationery and not likely to improve with further medical or surgical treatment”.

Consideration

The respondent forwarded three grounds in support of its argument:

  • The first respondent did not receive an assessment of the applicant’s permanent impairment within the meaning of s 185(1) of the WCRA;
  • The respondent did not receive an assessment of the applicant’s permanent impairment because it withdrew its agreement to the appointment of the re-assessor before the third report was given to the respondent; and
  • The respondent did not receive an assessment of the applicant’s permanent impairment because the re-assessment report did not comply with s 179(3) of the WCRA

Stable and stationary – s 185(1) WCRA

As to whether the applicant’s injury was stable and stationary, Jackson J stated:

[33] The respondent submitted that before the third report was given to the respondent the applicant’s permanent injury had not been assessed, because his impairment was not assessed and reported upon as being stable and stationary and was therefore not assessable as a permanent impairment. The applicant did not dispute this contention.

[34] Conversely, the applicant submitted that, by the third report, the applicant’s impairment was assessed and reported upon as a permanent impairment. The respondent did not dispute this contention.

[35] Instead, the respondent submitted that the third report was not a report upon the assessment of the applicant’s permanent impairment because by that time the respondent had withdrawn its agreement to have Dr Kilian carry out the assessment and report and because the assessment and Dr Kilian’s reports did not comply with the GEPI in their methodology.

Withdrawal from assessment process

Determining whether the respondent had effectively withdrawn from the assessment process, his Honour found that an email to the assessing doctor meant that he was still appointed:

[38] … by the email of 25 August 2016 set out above, the respondent requested that Dr Kilian review his original assessment and provide a further report that complied with the GEPI. Nothing in the WCRA prohibited the respondent from doing so if it had received a non-complying report within the meaning of s 179(3).

[39] In my view, assuming that the respondent has the power to unilaterally terminate its agreement to the appointment of an assessing doctor under s 186(2)(b)(i),[16] the respondent did not do so as a matter of fact. Dr Kilian was still the assessing doctor appointed under s 179(2)(c) when the respondent asked that he provide a further report on 25 August 2016.

Compliance with GEPI

Discussing the requirements of GEPI, his Honour concluded that the assessing doctor’s reports did comply, stating:

[52] In my view, given the factual assumptions that the applicant’s pre-existing arthritic condition was symptomless and the applicant did not have a loss of use from it, s 1.51 of the GEPI did not require a reduction of the assessed DPI. The applicant’s impairment, ie loss of use, was related to the compensable injury, notwithstanding that it was caused as well (even almost entirely caused) by his underlying arthritic hip. There was at least some evidence that he was not suffering an impairment in the form of loss of use of his body or part of his body that pre-existed the injury.

[53] However, it must be accepted that s 3.19 of the GEPI appears to operate in a way that suggests Dr Kilian should have made a deduction for a pre-existing arthritic “condition”. On balance, however, in my view, s 3.19 should be construed so that it operates consistently with s 1.51 of the GEPI and both provisions of the GEPI should be construed having regard to the operation of the provisions of the Act under which they were made, so that word “condition” in s 3.19 is construed to mean “impairment”.

[54] In that way, ss 3.19, 1.51 and the sections of the WCRA under which they were made can be seen to operate harmoniously, and consistently with the wider purposes of the WCRA.

The respondent’s decision to refuse issue of the notice of assessment was set aside.

David Cormack – Brisbane Barrister & Mediator

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