WCRA: s.186 ‘decision’ & agreed doctor on a further assessment

Wright v Glencore Queensland Limited [2016] QSC 247

Henry J

The applicant suffered an ankle injury in the course of his work. An initial assessment, to be performed by Dr Ness, of the injury pursuant to s 179 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”) was arranged by the insurer of the employer which the applicant was dissatisfied with.

The applicant requested a second assessment, to be undertaken by Dr Shaw, pursuant to s 186 of the Act, which relevantly provides:

(1) This section applies if –

(a) the worker’s degree of permanent impairment has not been assessed by a medical assessment tribunal; and

(b) the worker does not agree with the degree of permanent impairment stated in the notice of assessment (the “original notice”).

(2) The worker must advise the insurer within 20 business days after the original notice is given (the “decision period”) that the worker –

(a) does not agree with the degree of permanent impairment; and

(b) requests –

(i) that the insurer has the worker’s injury assessed again under section 179 by an entity mentioned in section 179(2) and agreed to by the worker and the insurer, (other than the entity that gave the report to the insurer under section 179(3)); or

(ii) that the insurer refer the question of degree of permanent impairment to a tribunal for decision.

(3) If the worker makes a request mentioned in subsection (2)(b)(i), the insurer must decide, within 10 business days after receiving the request, whether to have the worker’s injury assessed again under section 179 to decide if the worker’s injury has resulted in a degree of permanent impairment.

(4) If, under subsection (3), the insurer decides to have the worker’s injury assessed again under section 179, the original notice is taken to have never been given.

(underlining added)

The respondent agreed for the reassessment to be undertaken by Dr Shaw, however following the further assessment, the respondent argued Dr Shaw’s assessment did not satisfy the “GEPI” – Guidelines for Evaluation of Permanent Impairment, made and published by the Regulator pursuant to s 183 of the Act, and required for the purposes of s.179 of the Act. The applicant conceded separately that the assessment by Dr Shaw did not comply with GEPI, and it was not necessary for Henry J to decide that issue.

Nevertheless, the applicant sought to undertake a further assessment by Dr Shaw (in compliance with GEPI) but the respondent refused, and put forward a panel of three alternative doctors.

The applicant filed an application seeking a declaration that the ‘decision’ by the respondent under s 186(3) of the Act extended to have Dr Shaw (previously agreed to) conduct the assessment and remain operative and that no other doctor could be substituted. The respondent argued that the ‘decision’ was to have the injury assessed again under s.179 of the Act. Provided that ‘decision’ was made under subsection 3 within 10 business days, ancillary decisions could be made.

In finding for the respondent, Henry J stated that:

[7] In what is likely a drafting oversight, a s 186(2)(b)(i) request contemplates mutual agreement as to the entity – in this instance, a doctor – who will carry out the second assessment. Yet, s 186(3) contemplates the second assessment is to be carried out, “again, under section 179”, and s 179 contains no requirement that the assessing entity engaged by the insurer must be an entity agreed to by the worker.

[8] The parties are at common ground, and I find, that such a requirement ought be inferred by reading s 186(3) in the context of s 186 and, for that matter, the broader context of chapter 3 of the Act. Such an interpretation is also consistent with the Act’s purpose (see, for example, s 5(4)(b)) and it ought be adopted consistently with s 14A(1) Acts Interpretation Act 1954 (Qld).

[9] Thus, a s 186(3) decision is, “a decision whether to have the worker’s injury assessed again under s 179 by an entity mentioned in s 179(2), and agreed to by the worker and the insurer, to decide if the worker’s injury has resulted in a degree of permanent impairment.”

[10] The parties are also at common ground that once a s 186(3) decision has been made by the insurer, the insurer cannot change its decision to have the second assessment. I need reach no final conclusion on that point for the purposes of this decision.

[18] This application turns upon the merits of an argument that the agreement as to who will conduct the second assessment is itself part of the s 186(3) decision and that once such agreement is reached the party cannot withdraw its agreement and remains bound to use the doctor it agreed to.

[23] Section 186(3) only speaks of a decision, “whether to have the worker’s injury assessed again” (emphasis added). Once that decision is made, arrangement must be made in order to implement the decision. This includes the representatives of the insurer and worker communicating and reaching agreement about the doctor who will conduct the assessment as well as arrangements being made for when and where the assessment will occur. It may be accepted these arrangements and any agreements reached in making them involve decisions, but such decisions are merely made in consequence of the s 186(3) decision “whether” to have the worker’s injury assessed, and only in the event that decision is to have the worker’s injury assessed again. Plainly they would not even arise at all if the decision was not to have the worker’s injury assessed again. The first declaration sought conflates the decision to agree on which doctor will perform the second assessment with the insurer’s decision under s 186(3) whether or not there will even be a second assessment. They are clearly not one and the same decision. The decision of 13 June 2016 alleged in the terms of the first declaration sought was at best a decision as to whom the insurer agreed ought conduct the assessment and was not a s 186(3) decision.

[24] I am conscious in so reasoning that I was earlier in this decision prepared to infer from the language and purpose of the statute and s 186(2)(b)(i)’s reference to “agreement” that if the insurer decides a second assessment will occur, it must be by a doctor whom both the insurer and worker agree to. The same considerations, however, do not justify the inference effectively sought by the worker that the insurer’s decision to be made within only 10 working days of the request includes the consequential decision-making as to who will carry out the assessment.

[25] It is inevitable circumstances might legitimately and reasonably occur giving rise to a need to change the doctor to whom the parties have agreed. The doctor may die, become incapacitated or be unavailable for an unacceptably long time. Further, information might come to light after the agreement but before the assessment, which, had it been known of, would have given reasonable cause to one or both parties to withhold agreement to that doctor conducting the assessment. The worker’s argument here would, if accepted, mean even where there exists good reason to do so the parties cannot withdraw their agreement as to the identity of the assessing doctor prior to the assessment. It is hardly surprising the statute’s words do not support such an argument, either on their literal terms or on a contextual or purposive consideration of their terms.

 

His Honour found in favour of the respondent, and the applicant was ordered to pay costs.

David Cormack – Brisbane Barrister & Mediator

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