In the recent case of Wright v Glencore Queensland
Limited  QSC 247, the Queensland Supreme Court was asked
to consider whether a self-insurer could withdraw its agreement for
a particular doctor to perform a second degree of permanent
impairment (DPI) assessment.
The circumstances were:
Mr Wright's ankle injury was assessed by Dr Ness for DPI
pursuant to section 179 of the Workers' Compensation and
Rehabilitation Act 2003 (WCRA). Dr Ness assessed a 3%
Unsatisfied with that assessment (and unable to pursue a common
law damages claim), Mr Wright requested a second assessment in
accordance with section 186. The self-insured employer, Glencore,
made a decision in accordance with section 186(3) to agree to a
reassessment by Dr Shaw.
Dr Shaw assessed Mr Wright as having a higher DPI than Dr Ness.
However, Glencore was dissatisfied with Dr Shaw's report
– it alleged, and Mr Wright ultimately agreed, that Dr Shaw
had not fully complied with some of the minor technical
requirements of the Guidelines to Evaluation of Permanent
Mr Wright pressed for a further assessment by Dr Shaw. However,
Glencore resisted and instead sought agreement as to a reassessment
by some other doctor. It wrote to Mr Wright's solicitor:
As you will be aware, our client decided to accept your
client's request under s 186 of [the WCRA] to have his injury
assessed again under s 179, by a doctor to be agreed between them.
In our view, the Act does not prevent our client from withdrawing
agreement to the doctor who will perform the reassessment until
such time as the reassessment has been completed. We accept, of
course, that our client's decision under s 186(3) stands and
cannot be withdrawn. It, however, is a decision limited to having
an assessment done by a doctor to be agreed. Nothing in the Act
indicates that a party cannot withdraw agreement to the identity of
the assessor prior to the assessment.
In the same letter, Glencore indicated it considered Dr Shaw was
unsuitable, given his failure to comply with the technical aspects
of GEPI, and proposed a panel of three suitably qualified
orthopaedic surgeons to conduct the reassessment.
Mr Wright refused to select another surgeon and filed a court
application seeking a declaration that Glencore's decision to
have his injury assessed by Dr Shaw remained operative.
Mr Wright argued that a section 186(3) decision was a decision
not only as to reassessment, but also as to who will conduct the
Henry J rejected that argument.
His Honour noted section 186(3) speaks only of a decision
'whether to have the worker's injury assessed
again' and, once that decision is made, arrangements must
subsequently be made to implement that decision. Making those
arrangements invariably involves reaching agreement as to who will
conduct the assessment and when and where it will occur, but those
agreements are merely made 'in consequence of the section
His Honour further noted that there are many circumstances that
legitimately give rise to a need to change the doctor to whom the
parties have agreed, for example death, incapacity or
Accordingly, Mr Wright's application was refused and he was
ordered to pay Glencore's costs. Mr Wright will now have to
select a doctor from Glencore's panel or, failing agreement, be
assessed by the Medical Assessment Tribunal.
Although it probably seems like common sense, Wright v
Glencore confirms insurers (and injured workers) can change
their minds about which doctor will undertake a DPI reassessment
before the assessment has been properly performed.
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positively benefit where an insured has limited or excluded its liability under contract.
This usually arises where the insured's contract has a limitation or exclusion of liability clause in the insured's favour.
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