WCRA: ss 179 & 186 assessment of DPI & disagreement/withdrawal of decision

O’Connor v Toll Holdings Ltd [2015] QSC 259

The claimant/applicant sought declaration that the decision of the self-insurer respondent pursuant to s 186(3) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) to have applicant’s lumbar spine injury assessed again by doctor to decide permanent impairment was valid:

(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.

The applicant further sought a declaration that respondent’s decision, which was purportedly exercised under Acts Interpretation Act 1954 (Qld) s 24AA rescinding their original acceptance and then referring the applicant’s lumbar spine injury to the Medical Assessment Tribunal was invalid.

His Honour found in favour of the applicant granting the declarations.

Applegarth J

[9] Two issues arise: the first is factual, and if is resolved in the respondent’s favour, a legal issue arises. The issues are:

  1. did the respondent on or about 11 June 2015 decide not to have the applicant’s injury assessed again under s 179, thereby repealing its decision and obliging it to refer the question of degree of permanent impairment to a medical assessment tribunal?;[4] and
  2. if so, was it empowered to repeal its earlier decision to refer the assessment to Dr Day under s 179?

[10] The terms of the respondent’s letter of 11 June 2015 do not support the respondent’s proposition that by that time it had decided “not to have the worker’s injury assessed again under s 179”.[5] The letter sought information, namely reasons from the applicant as to why he disagreed with the degree of permanent impairment assessed by Dr Salman. This was so that “due consideration can be given” to have the injury reassessed “by a doctor or referred to the Medical Assessment Tribunal for assessment”. The letter makes clear that as at 11 June 2015 the respondent had not decided against having the applicant’s assessed again by Dr Day. It was keeping an open mind about the matter and required the applicant to provide reasons by close of business on 19 June, failing which it advised that the matter of the degree of permanent impairment “will be” referred to the medical assessment tribunal.

[11] By 11 June 2015 the respondent may have decided to cancel the appointment with Dr Day and the applicant’s travel arrangements to see him. But this does not mean that it had decided not to have his injury assessed again under s 179 by a doctor, rather than referred to the medical assessment tribunal. Any decision to refer the matter to either a doctor or the medical assessment tribunal awaited the applicant’s response.

[12] I conclude that if the respondent had power by virtue of s 24AA of the Acts Interpretation Act to repeal the decision it made and communicated on 28 May 2015, it did not decide within the required 10 business days to repeal that decision. If s 24AA conferred a power to repeal, then that power was subject to the same conditions as the power to make the original decision. It had to be made within 10 business days after receiving the applicant’s request dated 27 May 2015.[6] The asserted power to repeal was not exercised within that 10 business day period. It was not exercised on or about 11 June 2015. If it had been, then the respondent would have been obliged to make a decision that day under s 186(3), and if it decided to not have the injury assessed again under s 179, it would have been obliged to refer the matter to a medical assessment tribunal. Rather than repeal its earlier decision, it awaited information which would enable it to consider whether to do this.

[13] As a consequence, the original decision of 28 May 2015 was not repealed, and the purported decision made on 24 June 2015 to refer the matter to the medical assessment tribunal was unauthorised and is invalid.

[14] My determination of the factual issue makes it unnecessary to decide the legal issue of whether the respondent possessed a power to repeal a decision made under s 186(3) of the Act to have a worker’s injury assessed again under s 179.

[15] The applicant has established his entitlement to declarations in a form similar to those sought. There is no discretionary reason as to why the declarations should not be made.

David Cormack – Brisbane Barrister & Mediator

Related Posts

Recent Comments

    Categories