SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Van Eyk v Workcover Qld [2017] QSC 253 PARTIES: FILE NO/S: DIVISION: PROCEEDING: MARK VAN EYK (applicant) v WORKCOVER QLD (respondent) BS9180/16 Trial Division Originating Application DELIVERED ON: 6 November 2017 DELIVERED AT: Brisbane HEARING DATE: 31 July 2017 JUDGE: ORDER: CATCHWORDS: Jackson J The order of the court is that: 1. The decision of the respondent made on 1 September 2016 to refuse to give the applicant a notice of assessment under s 185 of the Workers Compensation and Rehabilitation Act 2003 is set aside. 2. The respondent pay the applicant s costs of the proceeding. WORKERS COMPENSATION PROCEEDINGS TO OBTAIN COMPENSATION DETERMINATION OF CLAIMS APPEALS, JUDICIAL REVIEW AND STATED CASES QUESTION OF LAW PARTICULAR CASES where the applicant suffered right hip and groin pain as a result of a slip at work where the applicant had suffered a right hip joint fracture in a motorcycle accident where a doctor assessed the degree of permanent impairment and the respondent gave a notice of assessment under s 185(1) of the Workers Compensation and Rehabilitation Act 2003 assessing the degree of permanent impairment at zero percent where the applicant requested that the injury be assessed again by another doctor under s 186 of the Workers Compensation and Rehabilitation Act 2003 where a second doctor found that the applicant had an degree of permanent impairment of twenty percent but that it was not stable or stationary where the respondent declined to give a notice of assessment based on the second doctor s report on the basis that it did not comply with the relevant guidelines made under s 183(1) of the Workers Compensation and

2 2 COUNSEL: SOLICITORS: Rehabilitation Act 2003 where the second doctor provided a further report where the respondent maintained its refusal to issue a notice of assessment whether the respondent was obliged to give a notice of assessment having received the second doctor s reports Judicial Review Act 1991, s 20, s 30 Workers Compensation and Rehabilitation Act 2003, s 179, s 183, s 185, s 186 Wright v Glencore Queensland Limited [2016] QSC 247, cited M Black for the applicant GW Diehm QC for the respondent hd Lawyers for the applicant BT Lawyers for the respondent [1] Jackson J: This is an application for judicial review of the respondent s decision to refuse to give a notice of assessment to the applicant under s 185(1) of the Workers Compensation and Rehabilitation Act 2003 (Qld) ( WCRA ). [2] The grounds of the application are several, but the substance is that on the facts that were before the respondent, as decision maker, the respondent was obliged in law to give a notice of assessment, but refused to do so. Accordingly, the statutory ground that the decision involved an error of law 1 may be the most apt. [3] The applicant does not claim an order directing the respondent to issue a notice of assessment under either the Judicial Review Act 1991 (Qld) 2 ( JRA ) or by way of statutory mandamus 3. The relief pressed in oral argument was limited to an order setting aside the decision and, if necessary, declaring the rights of the parties in relation to the matter to which the decision relates under the JRA 4. Facts [4] On 3 August 2014, the applicant slipped on loose gravel at work. He had an immediate onset of right side hip pain and groin pain. [5] In about 1988, the applicant had suffered a right hip joint fracture dislocation in a motorcycle accident. However, he denied that he had suffered any relevant pain in the few years before the workplace incident. [6] On 27 August 2014, the respondent accepted liability under ch 3 of the WCRA for an injury described as aggravation of osteoarthritic hip. [7] On 27 August 2015, the degree of permanent impairment from the injury of the applicant was assessed by Dr Robin O Toole, Occupational and Environmental Physician. 1 Judicial Review Act 1991 (Qld), s 20(2)(f). 2 Judicial Review Act 1991 (Qld), s 30(3)(c). 3 Civil Proceedings Act 2011 (Qld), s Judicial Review Act 1991 (Qld), s 30(1)(a) (c).

3 3 [8] On 18 September 2015, the respondent gave a notice of assessment to the applicant under s 185(1) of the WCRA stating that [t]he degree of permanent impairment (DPI) for your injury is zero percent. [9] On 14 October 2015, the applicant requested that the respondent have the injury assessed again, by another doctor, under s 186 of the Act. [10] On 19 October 2015, the respondent accepted the request. The parties agreed that Dr Gerard Kilian, Orthopaedic Surgeon, would do the assessment. [11] On 5 November 2015 Dr Kilian, assessed the applicant. [12] By report dated 9 December 2015, Dr Kilian found that the applicant had a DPI of 20 per cent from the injury, but that the impairment was not stable or stationary because it could be improved by surgical treatment. [13] By a further report dated 3 February 2016, Dr Kilian confirmed his assessment of a DPI of 20 per cent. [14] On 2 June 2016, the respondent declined to give a notice of assessment to the applicant based on Dr Kilian s assessment. The ground was that Dr Kilian s report did not comply with the guidelines for evaluation of permanent impairment ( GEPI ), made under s 183(1) of the WCRA. [15] On 28 June 2016, the respondent reiterated its view that Dr Kilian s report did not comply with the GEPI. By this point there were two grounds for the alleged noncompliance: first, that Dr Kilian opined that the impairment was not stable and stationery, because it might be improved by surgery; second, that Dr Kilian used an incorrect methodology as set out in an attached advice. The respondent continued that: Dr Kilian was approached to provide a revised report and he declined to provide a definitive assessment. Workcover is prepared to offer another second DPI assessment to Mr Van Eyk If advice is not provided of your nomination of another GEPI trained Dr (sic) within this time, Workcover will need to defer (sic) assessment of DPI to the Medical Assessment Tribunal. [16] On 18 August 2016, the respondent wrote to Dr Kilian s practice referring to paras 1.12 and 1.13 of the GEPI, and asserting that the assessment report provided by Dr Kilian was non-compliant with the GEPI because Dr Kilian s report outlined that the injury was not stable and stationary. The respondent continued: Can you please liaise with Dr Kilian to provide a revised report It would be appreciated if a revised report with consideration to the above and a definitive assessment for the work-related injuries is provided within 10 business days.

4 4 [17] On 25 August 2016, Dr Kilian provided another report ( third report ). He opined, in effect, that the injury should be taken to be stable and stationery, as the applicant had declined hip replacement surgery. He maintained his original conclusion that the DPI was 20 percent. The applicant relies on the third report, in conjunction with the earlier reports, as a report complying with the GEPI so as to trigger the respondent s obligation to give a notice of assessment. [18] On 1 September 2016, the respondent maintained its refusal to issue a notice of assessment. That is the decision challenged by this proceeding. Statutory framework [19] Among other things, the Act establishes a workers compensation scheme which provides benefits for workers who sustain injury in their employment. 5 [20] An injured worker may apply for compensation. 6 Benefits are payable in different ways and amounts in different circumstances. One circumstance is that a worker who has sustained a permanent impairment may receive compensation. 7 Section 179 of the Act provides: 179 Assessment of permanent impairment(1) An insurer may decide, or a worker who has made an application under section 132 may ask the insurer, to have the worker s injury assessed to decide if the worker s injury has resulted in a degree of permanent impairment. (2) The insurer must have the degree of permanent impairment assessed (a) for industrial deafness by an audiologist; or (b) for a psychiatric or psychological injury by a medical assessment tribunal; or (c) for another injury by a doctor. (3) The degree of permanent impairment must be assessed in accordance with the GEPI to decide the DPI for the injury, and a report complying with the GEPI must be given to the insurer. (4) If the worker sustains permanent impairment from multiple injuries sustained in 1 event (a) the degree of permanent impairment for the injuries, other than a psychiatric or psychological injury, must be assessed together to decide the DPI for the injuries; and (b) the degree of permanent impairment for the psychiatric or psychological injury must be assessed separately to decide the DPI for the injury. [21] Within the meaning of s 179: (a) a permanent impairment is an impairment that is stable and stationery and not likely to improve with further medical or surgical treatment ; 8 5 Workers Compensation and Rehabilitation Act 2003 (Qld), s 5(1). 6 Workers Compensation and Rehabilitation Act 2003 (Qld), s Workers Compensation and Rehabilitation Act 2003 (Qld), s Workers Compensation and Rehabilitation Act 2003 (Qld), s 38.

5 5 (b) the GEPI means the Guidelines for the Evaluation of a Permanent Impairment made under s 183 ; 9 (c) DPI, for an injury of a worker, means an estimate, expressed as a percentage, of the degree of the worker s permanent impairment assessed and decided in accordance with the GEPI. 10 [22] A DPI that is assessed under s 179 is used to calculate the amount of compensation that is payable to the worker. 11 Section 185(1) of the WCRA is a critical provision. It applies if an assessment of permanent impairment of a worker s injury has been made under s Section 185(1) provides: 185 Insurer to give notice of assessment of permanent impairment (1) The insurer must, within 10 business days after receiving the assessment of the worker s permanent impairment, give the worker a notice of assessment in the approved form. [23] The notice of assessment must state a number of things including the DPI for the injury and the amount of lump compensation to which the worker is entitled. 13 [24] Section 186 of the Act applies if a worker who receives a notice of assessment disagrees with the stated DPI. It provides as follows: 186 Worker s disagreement with assessment of permanent impairment (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. 9 Workers Compensation and Rehabilitation Act 2003 (Qld), Sch 6, def GEPI. 10 Workers Compensation and Rehabilitation Act 2003 (Qld), Sch 6, def DPI. 11 Workers Compensation and Rehabilitation Act 2003 (Qld), s Workers Compensation and Rehabilitation Act 2003 (Qld), s Workers Compensation and Rehabilitation Act 2003 (Qld), s 185(3)(b).

6 6 (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. (5) If the insurer has the worker s injury assessed again under section 179, the worker cannot make a further request mentioned in subsection (2)(b)(i). (6) If (a) under subsection (3), the insurer decides not to have the worker s injury assessed again under section 179; or (b) the worker makes a request mentioned in subsection (2)(b)(ii); the insurer must refer the question of degree of permanent impairment to a medical assessment [tribunal] for decision. (7) The degree of permanent impairment may then be decided only by a medical assessment tribunal. [25] Under s 237(1) of the Act, as in force at the relevant time, a worker may only seek damages for an injury if the worker has received a notice of assessment for the injury with a DPI of more than five per cent. [26] Accordingly, the applicant s ability to bring a claim for damages for the injury is conditioned on the respondent giving a notice of assessment and that notice stating that the DPI is more than 5 per cent. Respondent s arguments [27] Despite the facts set out above, the respondent maintains that it was not obliged to give the applicant a notice of assessment at all. There are three grounds: (a) (b) (c) first, the respondent did not receive an assessment of the applicant s permanent impairment (within the meaning of s 185(1)) because the injury was not stable and stationery; second, the applicant did not receive an assessment of the applicant s permanent impairment because it withdrew from the agreement for Dr Kilian to assess the applicant before Dr Kilian s third report was given to the respondent; and third, the respondent did not receive an assessment of the applicant s permanent impairment because Dr Kilian s reports did not comply with GEPI (within the meaning of s 179(3)) due to their incorrect methodology. Stable and stationary [28] The definition of permanent impairment is critical to the entitlement of a person to seek damages for an injury sustained by a worker. The only persons entitled to seek damages are a worker or a dependant of a deceased worker. Neither may do so if the worker has not received a notice of assessment and only then if the DPI is more than five per cent. A notice of assessment must be given within 10 days after

7 7 receiving the assessment of the worker s permanent impairment. The assessment of the degree of permanent impairment must be done in accordance with the GEPI. [29] The impairment, from injury, is a loss of, or loss of use of, any part of a worker s body. A permanent impairment, from injury, is an impairment that is stable and stationary and not likely to improve with further medical or surgical treatment. [30] When Dr Kilian assessed and reported upon the applicant s impairment the applicant in his first report, he concluded that there was no permanent impairment because it could not be said that the impairment, the loss of use of the applicant s hip, was not likely to improve with further surgical treatment. [31] However, while the GEPI provided that an assessment should be deferred if the medical assessor considered that the injured person s treatment had been inadequate, 14 it further provided that: If the injured person has been offered, but refused, additional or alternative medical treatment that the assessor considers is likely to improve the injured person s condition the medical assessor should evaluate the current condition without consideration of potential changes associated with the proposed treatment. The assessor may note the potential for improvement in the injured person s condition in the evaluation report and the reasons for refusal by the injured person, but should not adjust the degree of impairment on the basis of the injured person s decision. 15 [32] In effect, in the third report, Dr Kilian altered the view that the applicant s injury was not stable and stationary, because the applicant did not intend to have a surgical hip replacement as treatment. [33] The respondent submitted that before the third report was given to the respondent the applicant s permanent injury had not been assessed, because his impairment was not assessed and reported upon as being stable and stationary and was therefore not assessable as a permanent impairment. The applicant did not dispute this contention. [34] Conversely, the applicant submitted that, by the third report, the applicant s impairment was assessed and reported upon as a permanent impairment. The respondent did not dispute this contention. [35] Instead, the respondent submitted that the third report was not a report upon the assessment of the applicant s permanent impairment because by that time the respondent had withdrawn its agreement to have Dr Kilian carry out the assessment and report and because the assessment and Dr Kilian s reports did not comply with the GEPI in their methodology. Withdrawal from the assessment process [36] By agreeing to the appointment of and appointing Dr Kilian to carry out a second assessment, the respondent decided, that is, elected under s 186(3) to have the 14 GEPI, s GEPI, s 1.14.

8 8 applicant s injury assessed again under s 179. In effect, that was an appointment of Dr Kilian to make an assessment under s 179(2)(c). [37] The respondent submits that by the sent to the applicant on 28 June 2016, as set out above, it withdrew its agreement, under s 186(2)(b) of the WCRA, to the appointment of Dr Kilian as the assessor. That requested the applicant to nominate another doctor for the assessment, but it was not suggested that the applicant did so, or that the respondent sought the agreement of the applicant to the appointment of another doctor nominated by the respondent, or that the respondent purported to appoint another doctor. [38] Instead, by the of 25 August 2016 set out above, the respondent requested that Dr Kilian review his original assessment and provide a further report that complied with the GEPI. Nothing in the WCRA prohibited the respondent from doing so if it had received a non-complying report within the meaning of s 179(3). [39] In my view, assuming that the respondent has the power to unilaterally terminate its agreement to the appointment of an assessing doctor under s 186(2)(b)(i), 16 the respondent did not do so as a matter of fact. Dr Kilian was still the assessing doctor appointed under s 179(2)(c) when the respondent asked that he provide a further report on 25 August [40] Accordingly, if the third report was a report complying with the GEPI within the meaning of s 179(3), nothing in the WCRPA permitted the respondent to refuse to act on the assessment as received, so as to avoid the statutory duty to give a notice of assessment under s 185(1) of the WCRA. Report not complying with the GEPI [41] The remaining question is whether the respondent did not receive an assessment within the meaning of s 185(1) of the WCRA, because no report complying with the GEPI was given to the respondent within the meaning of s 179(3). [42] It was common ground between the parties that the injury for the purpose of the WCRA was an aggravation of arthritis of the right hip. [43] Beginning with the terms of the WCRA, Dr Kilian was appointed to assess the degree of permanent assessment under s 179(2), and he had to assess that in accordance with the GEPI to decide the DPI for the injury and make a report complying with the GEPI under s 179(3). Doing those things, and giving the report to the respondent, would engage the respondent s obligation to give a notice of assessment of the applicant s permanent impairment. [44] In every one of those steps, the relevant impairment was from injury, a loss of efficient use of any part of the [applicant] s body. The assessment required was of the loss of use from the injury, not of the injury itself. [45] Section 183(1) requires the regulator to make guidelines for assessing a worker s degree of permanent impairment for an injury to decide the DPI for the injury. Section 183(2) provides that they are to be called the Guidelines for the Evaluation of a Permanent Impairment. 16 Wright v Glencore Queensland Limited [2016] QSC 247, [25].

9 9 [46] Chapter 1, s 1.51 of the GEPI provided that: The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairments if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of impairment that pre-existed the injury. [47] Section 3.19 of the GEPI provided that: Impairment due to arthritis (AMA5 section 17.2n, pp ) following a work-related injury is uncommon, but may occur in isolated cases. The presence of arthritis may indicate a pre-existing condition and this should be assessed and an appropriate deduction made (see Chapter 1). [48] Dr Kilian assessed the applicant s degree of permanent impairment from the injury comprising an aggravation of arthritis of the right hip as 20 per cent. The basis was that prior to the injury, the applicant s pre-existing arthritic hip condition was symptomless. Following the injury, the pre-existing pathology caused the symptoms and loss of use of the applicant s body or part of the applicant s body that constituted the impairment. Dr Kilian attributed all of the degree of that impairment to the compensable injury. [49] The respondent submits, in effect, that Dr Kilian did not comply with s 1.51 of the GEPI. It submits that the applicant s pre-existing condition of a severely arthritic hip, even if it was symptomless, was an impairment not related to the compensable injury and that Dr Kilian needed to calculate the degree of impairment that preexisted the injury. That such an assessment was required and a deduction was required to be made was confirmed by s 3.19 of the GEPI. [50] These submissions elide the distinction between injury and impairment, as defined. Under the WCRA, the function of assessment of a degree of permanent impairment is to determine a worker s rights to payment of compensation and to seek damages. Those rights are made to turn on the loss of use of the worker s body or part of the worker s body from injury. Workers who are injured will have differing losses of use depending on many things, including their pre-existing abilities to use their bodies or parts of their bodies. [51] But that is not the same thing as saying that a worker who is injured who has a preexisting susceptibility to sustain a degree of loss of use to his or her body or parts of his or her body from a particular injury, because of a pre-existing condition or injury, only suffers part of or none of the loss of use from the injury in question. [52] In my view, given the factual assumptions that the applicant s pre-existing arthritic condition was symptomless and the applicant did not have a loss of use from it, s 1.51 of the GEPI did not require a reduction of the assessed DPI. The applicant s impairment, ie loss of use, was related to the compensable injury, notwithstanding that it was caused as well (even almost entirely caused) by his underlying arthritic hip. There was at least some evidence that he was not suffering an impairment in the form of loss of use of his body or part of his body that pre-existed the injury.

10 10 [53] However, it must be accepted that s 3.19 of the GEPI appears to operate in a way that suggests Dr Kilian should have made a deduction for a pre-existing arthritic condition. On balance, however, in my view, s 3.19 should be construed so that it operates consistently with s 1.51 of the GEPI and both provisions of the GEPI should be construed having regard to the operation of the provisions of the Act under which they were made, so that word condition in s 3.19 is construed to mean impairment. [54] In that way, ss 3.19, 1.51 and the sections of the WCRA under which they were made can be seen to operate harmoniously, and consistently with the wider purposes of the WCRA. It follows that Dr Kilian s reports did comply with the GEPI and that having received the third report the respondent was obliged to give the notice of assessment. Conclusion [55] The respondent s decision to refuse to issue the notice of assessment should be set aside. [56] The respondent should be ordered to pay the applicant s costs of the proceeding.