In Merton v Queensland Local Government Workcare
Scheme  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
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
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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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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