In Merton v Queensland Local Government Workcare Scheme [2016] QCS 176 the Court has considered the seemingly conflicting requirement in s179(2)(c) WCRA for other nonpsychological injuries to be assessed by a doctor and the referral by an insurer direct to a Medical Assessment Tribunal and assessment of DPI under section 502(3)(c).
In short, the 'insurer' in Merton was referring the worker to the General Medical Assessment Tribunal – Psychiatric in respect of his psychiatric injury and considered it convenient to also have him seen by the Orthopaedic Assessment Tribunal (OAT) on the same day, in circumstances where there was no previous assessment of his physical (hip) injury.
The worker's lawyer objected to any assessment of DPI by the OAT under s502(3)(c) on the basis that it offended the requirement in s179(2)(c) for the degree of permanent impairment to be assessed by a doctor and denied the worker the right to more than one assessment of DPI provided for in s186, in the event the worker disagreed with the degree of permanent impairment stated in the Notice of Assessment.
The apparent conflict between s179 and certain provisions allowing referral to a tribunal in Part 3 of Chapter 11 have existed for a number of years, but such conflict generated little or no heat, absent the threshold introduced in October 2013.
In reaching its view, the Court has:
- distinguished questions of, whether the worker has sustained permanent impairment with the assessment of the degree of permanent impairment;
- concluded there is no basis for an assessment of DPI under s502(3)(c) to be used as the assessment of permanent impairment for the purposes of Chapter 3, Part 10 that is – Notification of assessment of permanent impairment, which specifically references (and requires) assessment made under s179;
- adopted an equivalent argument in respect of Chapter 5, Part 2 as to a worker's entitlement to seek damages, on the basis of the need for a Notice of Assessment, found to only have a basis under s179 or by one of the provisions in Chapter 11, Part 3 such as s505 for which referral specifically in respect of a worker's permanent impairment under s179 is authorised;
- noted the 2013 amendment of s186 was put forward on the basis of providing another mechanism of review for the worker;
- found the purpose of s502(3)(c) unclear.
We query however the qualification in s186(1)(a) which seems to clearly contemplate there could be an assessment by a medical assessment tribunal, in advance of the process described in the rest of the section, for possible disagreement with the Notice of Assessment and assessment again. Otherwise not addressed is a point made during submissions, that assessment of DPI under s502(3)(c) utilises the same system and methodology (GEPI) as provided for in s179(3).
Whether there will be any attempt by the claimant's solicitors to seek reassessment of DPI in claims, where it can be identified there was an assessment of DPI under s502(3)(c) without prior assessment of permanent impairment by a doctor and the threshold not reached, is unclear. Presumably there would be a limited number of claims which fit the bill.
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