Ronald Leslie Thomson v WorkCover Authority of New South Wales

Case •

[2004] NSWSC 282

•

30 June 2004

No judgment structure available for this case.
CITATION: Ronald Leslie THOMSON v WORKCOVER AUTHORITY OF NEW SOUTH WALES [2004] NSWSC 282
HEARING DATE(S): 1/4/04
JUDGMENT DATE:
30 June 2004
JUDGMENT OF: Bell J at 1
DECISION: 1. Declare that the WorkCover Guides for the Evaluation of Permanent Impairment are beyond power to the extent to which they purport to impose a requirement that a registered medical practitioner who has undertaken training in the use of the WorkCover Guides is not entitled to carry out assessments of permanent impairment under the Workers Compensation Acts, unless he or she has 'qualifications in the relevant medical speciality'; 2. The defendant is to pay the plaintiff's costs.
LEGISLATION CITED: Interpretation Act 1987
Medical Practice Act 1992
Workers Compensation Legislation Amendment Act 2001
Workplace Injury Management and Workers Compensation Act 1998
CASES CITED: Brown v West (1987-1988) 169 CLR 195
The Commonwealth and the Postmaster-General v The Progress Advertising and Press Agency Proprietary Ltd (1910) 10 CLR 457
Paull v Munday (1976) 50 ALJR 551

PARTIES :

 Ronald Leslie THOMSON (Plaintiff)
WORKCOVER AUTHORITY OF NEW SOUTH WALES (Defendant)
FILE NUMBER(S): SC 30107/03
COUNSEL: J Basten QC / S Beckett (Plaintiff)
N Williams SC / P Singleton (Defendant)
SOLICITORS: Larbalestier & Co (Plaintiff)
I V Knight (Defendant)

      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION
      ADMINISTRATIVE LAW LIST

      BELL J

      Wednesday 30 June 2004

      30107/03 Ronald Leslie THOMSON v WORKCOVER AUTHORITY OF NEW SOUTH WALES

      JUDGMENT

1 BELL J: By these proceedings the plaintiff challenges guidelines issued by the by the defendant, the WorkCover Authority of New South Wales (the Authority), as being beyond power to the extent that they purport to impose a requirement that a registered medical practitioner who has undertaken training in their use is not entitled to carry out assessments of permanent impairment under the Workers Compensation Acts unless he or she has “qualifications in the relevant medical specialty”.


      The background

2 The plaintiff is a medical practitioner employed by Tavington Pty Limited, a medical practice company of which he is the sole shareholder. He obtained his qualifications, Bachelor of Medicine, Bachelor of Surgery from the University of Queensland in 1956. In 1974 he became a fellow of the Royal Australian College of General Practitioners. He holds diplomas in obstetrics and gynaecology from the Royal College of Obstetric Obstetricians and Gynaecologists and the Royal Australian College of Obstetricians and Gynaecologists.

3 After obtaining his primary qualification the plaintiff was employed as a resident medical officer at the Royal Brisbane Hospital, Queensland. He was the Commonwealth Medical Officer, based at Mullumbimby, in the period 1958 to 1961. He held the appointment of Honorary Associate Surgeon, at the Blacktown District Hospital in the Department of General and Traumatic Surgery between 1965 and 1974. In the years between 1961 and 1986 he carried out private surgical practice in general surgery and in trauma/orthopaedics.

4 Since 1986 the plaintiff has engaged in the conduct of medico/legal assessments in personal injury cases in the areas of trauma and orthopaedics on a fulltime basis. He has performed assessments of disability under the scheme for workers compensation as in force from time to time.

5 The plaintiff estimates that seventy-five percent of the yearly practice income of Tavington Pty Limited is derived from the conduct of assessments of permanent impairment.

6 New claims procedures were inserted into the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) by the Workers Compensation Legislation Amendment Act 2001.

7 The plaintiff attended a training course conducted on behalf of the Authority in accordance with its guidelines for the evaluation of permanent impairment in April 2002. He satisfactorily completed the course and a certificate of completion was forwarded to him by letter dated 29 May 2002. The Authority maintains a website and publishes on it a list of trained assessors of permanent impairment. Included with the certificate was a form to be completed by the plaintiff allowing him to register his interest in being included on the list of trained assessors of permanent impairment on the Authority’s website.

8 The plaintiff completed the form providing details of his qualifications by reference to his primary degree, his Fellowship of the Royal Australian College of General Practitioners, his two diplomas in obstetrics and gynaecology and his certificate as an independent medical examiner (CIME). The form made provision for the applicant to state his or her “medical speciality (as recognised by the Australian Medical Council).” The plaintiff recorded his medical speciality as “trauma/orthopaedics”.

9 The plaintiff’s name was entered on the Authority’s website as a trained assessor of permanent impairment.

10 Sometime in August 2003 Ian Lennie, the Authority’s team leader of Workplace Injury Management, received a telephone call from an officer of WorkCover Queensland querying the plaintiff’s eligibility to undertake assessments. Mr Lennie checked the form submitted by the plaintiff and concluded that the plaintiff’s stated qualifications did not match his stated speciality.

11 By letter dated 20 August 2003 Mr Lennie wrote to the plaintiff as follows:

          “We note your inclusion on the WorkCover list of permanent impairment assessors. While we understand that you have completed the appropriate training, our legislation requires assessors within the WorkCover scheme to be relevant, recognised medical specialists as approved by the Australian Medical Council. Unfortunately, under this definition, General Practice is not a recognised speciality. Also, a Diploma in Obstetrics and Gynaecology does not make you eligible for College membership. In any case, its relevance to orthopaedic surgery would have to be demonstrated.
          Can you let us know if you have any other relevant specialist membership? Otherwise you would not be eligible to do assessments of permanent impairment within our scheme. In the meantime your details will have to be removed from our website.
          You are still, of course, entitled to do independent medical assessments within the NSW Scheme that do not involve evaluation of permanent impairment.”

12 The plaintiff’s name was removed from the Authority website. It has not been restored despite the plaintiff’s requests that it be restored.


      The registration of medical practitioners and the recording of specialist qualifications

13 The New South Wales Medical Board (the Board) is constituted under the Medical Practice Act 1992 (the MPA) and its functions include the registration of medical practitioners. Andrew Dix, the Registrar of the Board is responsible for the maintenance of the Register of Medical Practitioners for New South Wales (the Register). In his affidavit that was sworn on 2 March 2004 Mr Dix states that the Register does not specifically allow for the registration of “specialist” qualifications. Provision is made for the recording of additional particulars in the Register pursuant to s 22 and cl 22(2) of Sch 1 of the MPA.

14 Mr Dix states that the usually recognised qualifications for Australian trained specialists are fellowships awarded by the relevant specialist colleges. It appears that the authoritative statement with respect to specialist colleges and fellowships was a publication of the National Specialist Qualifications Advisory Committee (NSQAC). This body is no longer in existence. It provided advice to the Health Insurance Commission in relation to the recognition of specialties until about 1997. Since that time the role of the NSQAC has been assumed by the Australian Medical Council. In the absence of any other authoritative guide the Board continues to use the 1997 NSQAC publication as a guide to the recognition of qualifications for the purposes of s 22 and cl 22(2) of Sch 1 to the MPA.

15 Orthopaedic surgery is a recognised sub-speciality of surgery. The usual qualification for an Australian trained orthopaedic surgeon is Fellowship of the Royal Australasian College of Surgeons and Membership of the Australian Orthopaedic Association.


      Assessment of permanent impairment for the purposes of the Workers Compensation Acts

16 The Workers Compensation Act 1987 (the 1987 Act) and the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) (together described as the Workers Compensation Acts) provide for compensation for workplace injuries, including those that result in permanent impairment. The Workers Compensation Acts are to be read as if they were a single instrument although, to the extent of any inconsistency, the 1998 prevails: s 2A of the 1987 Act. The entitlement to various types of compensation and the modification of common law damages in respect of workplace injuries are contained in the 1987 Act. The management of claims, including the mechanism for the submission and determination of claims, is to be found in the 1998 Act.

17 Part 3 of the 1987 Act makes provision for the various forms of compensation to which an injured worker may be entitled. Division 4 of Part 3 deals with compensation for non-economic loss. Non-economic loss includes permanent impairment and psychological and psychiatric injury. It is compensable by “lump sum compensation”.

18 “Permanent impairment compensation” is defined in s 4(1) of the 1998 Act to mean compensation for permanent impairment under s 66 of the 1987 Act. Section 66 makes provision for the recovery of permanent impairment compensation in accordance with the formula set out in subsection (2). The calculation arrived at by use of the formula depends upon the degree of permanent impairment expressed as a percentage. The degree of permanent impairment is to be assessed as provided by s 65 of the 1987 Act and Part 7 of Chapter 7 of the 1998 Act.

19 Under the modified common law provisions contained in Part 5 of the 1987 Act no damages may be awarded unless the degree of permanent impairment of the injured worker is at least 15%: s 151H(1). The degree of permanent impairment is to be assessed as provided by s 151H and Chapter 7 of Part 7 of the 1998 Act: s 151H(4).

20 “Work injury damages” refers to damages recoverable under the modified common law provisions: s 250 of the 1998 Act.

21 Chapter 7 of the 1998 Act deals with the new claims procedures. These require an injured worker to give notice of the injury to his or her employer as a condition for the recovery of lump sum compensation and work injury damages: s 254 of the 1998 Act.

22 Section 281(1) of the 1998 Act requires the person upon whom a claim is made to determine the claim by accepting liability and making a reasonable offer of settlement or by disputing liability. The claim is to be determined in either of these ways within one month after the degree of permanent impairment first becomes fully ascertainable or within two months after the claimant has provided to the insurer “all relevant particulars about the claim”, whichever is the later: s 281(2).

23 The parties may agree when the degree of permanent impairment first becomes fully ascertainable or this may be determined by an “approved medical specialist”: s 281(2)(a).

24 In the event that the person on whom a claim is made disputes liability there is a “medical dispute”: s 281(1)(b). “Medical dispute” is defined in s 319 of the 1998 Act to mean a dispute between a claimant and the person on whom a claim is made about matters including the degree of permanent impairment of the worker as a result of an injury. Medical disputes are dealt with in accordance with the provisions of Part 7 of Chapter 7 of the 1998 Act.

25 Approved medical specialists determine medical disputes. Provision is made for the parties to the dispute to agree on the approved medical specialist who is to assess their dispute and in the event that they do not agree the Registrar of the Commission is given the power to choose the approved medical specialist to assess the dispute under s 321(2).

26 The powers of approved medical specialists with respect to the assessment of medical disputes are set out in s 324. The approved medical specialist to whom a medical dispute is referred is required to give a medical assessment certificate as to the matters referred for assessment: s 325(1). A medical assessment certificate is to be in a form approved by the Registrar and is to contain the matters set out in s 325(2). These include the details of the matters referred for assessment, the approved medical specialists’ assessment with respect to those matters and his or her reasons for that assessment, together with a statement of the facts on which the assessment is based.

27 An assessment that is certified in a medical assessment certificate is conclusively presumed to be correct as to the matters set out in s 326(1)(a) – (e) in any proceedings before a court or the Workers Compensation Commission of New South Wales (the Commission) with which the certificate is concerned.

28 Provision is made in Part 7 of Chapter 7 for appeals against a medical assessment on the grounds specified in s 327(3). An appeal against a medical assessment is heard by an appeal panel constituted by two approved medical specialists sitting with an arbitrator. The Registrar or a court of the Commission may refer a matter for further assessment by an approved medical specialist: s 329.

29 Medical assessments, appeals and further assessments under Part 7 of Chapter 7 are subject to the relevant provisions of the WorkCover Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments: s 331.


      The WorkCover Guidelines

30 The WorkCover Guidelines are defined to mean the guidelines issued under s 376 of the 1998 Act: s 4(1). Sections 40 and 41 of the Interpretation Act 1987 apply with respect to WorkCover Guidelines relating to the assessment of the degree of permanent impairment of an injured worker in the same way as those sections apply to statutory rules: s 377(3). Section 40 of the Interpretation Act requires written notice of the making of a statutory rule to be laid before each House of Parliament and s 41 makes provision for the disallowance of any statutory rule.

31 WorkCover Guidelines relating to the assessment of the degree of permanent impairment have been issued. The WorkCover Guides for the Evaluation of Permanent Impairment (the WorkCover Guides) were issued by the Authority pursuant to s 376 of the 1998 Act and published in the NSW Government Gazette (the Gazette) on 21 December 2001. An amendment to the Guides was published in the Gazette on 19 July 2002.

32 The foreword to the WorkCover Guides states:

          “These Guidelines, to be known as the ‘WorkCover Guides’, are issued under section 376 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the purpose of assessing the degree of permanent impairment that arises from a work related injury or condition in accordance with section 322(1) of the 1998 Act. The focus of the Workers Compensation legislation is injury management which aims to assist the injured worker to recover and return to work. When a worker sustains a permanent impairment, however, these Guides are intended to insure an objective, fair and consistent method for evaluating the level of permanent impairment.
          The Act requires that assessments of permanent impairment be made in accordance with these Guides. Medical specialists trained in the use of the WorkCover Guides are to assess the degree of permanent impairment arising from a work related injury or condition.
          The WorkCover Guides are based on the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment, 5th edition. The AMA guides are the most authoritative and widely used source for the purpose of evaluating permanent impairment. However, extensive work by eminent medical specialists, representing all Medical Colleges, has gone into reviewing the AMA guides to ensure that they are aligned with Australian clinical practice.”

33 Chapter 1 of the WorkCover Guides is titled “Introduction” and states that the Guides are to be used wherever there is a need to establish the level of permanent impairment that results from a work-related injury or disease. Reference is made to persons described as “medical assessors”. Medical assessors are expected to be familiar with chapters 1 and 2 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th edition, together with the information contained in the introduction (WorkCover Guides, p 6).

34 It will be remembered that Mr Lennie asserted in his letter of 20 August 2003 that it was a requirement of the legislation that assessors of permanent impairment be recognised medical specialists approved by the Australian Medical Council. It is accepted by the Authority that there is no provision of the legislation that so provides. The source of the suggested requirement that assessors of permanent impairment be medical practitioners holding specialist qualifications is to be found in the introduction to the WorkCover Guides at p 9:

          “ Medical assessors
          An assessor will be a registered medical practitioner with qualifications in the relevant medical speciality who has undertaken the requisite training in use of the WorkCover Guides. A list of trained medical assessors may be obtained from the WorkCover website ( ).
          Assessors may be one of the claimant’s treating practitioners or an assessor engaged on behalf of the employer/insurer to conduct as assessment for the purposes of assessing the level of permanent impairment.
          Assessors of levels of permanent impairment will be required to use the current WorkCover Guides for the evaluation of permanent impairment.”

35 The remaining chapters of the WorkCover Guides deal with the method for assessing permanent impairment of various of the structures of the human body.

36 A further set of guidelines issued by the Authority in December 2001, the WorkCover Provisional Liability and Claims Guidelines, deal with the making and handling of claims including claims for permanent impairment or lump sum damages (the Claims Guidelines).

37 The Claims Guidelines were published in the Gazette and purport to be have been made pursuant to s 376(1) of the 1998 Act and apply to injuries notified after 1 January 2002 and to claims made after that date.


      The parties’ contentions

38 By his summons filed on 10 December 2003 the plaintiff sought interlocutory relief in paragraphs (e) to (h) which it is not necessary to refer. Paragraphs (a) to (d) claim declaratory and injunctive relief. On the hearing of his summons the plaintiff did not press for the latter. The claims for the declarations set out in (a), (b) and (c) were abandoned and in lieu thereof the plaintiff invited the Court to make a declaration in the following terms:


          “A declaration that the WorkCover Guides for the Evaluation of Permanent Impairment are beyond power to the extent to which they purport to impose a requirement that a registered medical practitioner who has undertaken training in the use of the WorkCover Guides is not entitled to carry out assessments of permanent impairment under the Workers Compensation Acts , unless he or she has ‘qualifications in the relevant medical speciality’”.

39 The plaintiff’s principal submission is that the power to issue guidelines with respect to the assessment of the permanent impairment under the Workers Compensation Acts does not extend to the issue of a guideline identifying a category of medical practitioners who are qualified to conduct assessments of permanent impairment.

40 The Workers Compensation Acts make provision for a claim for lump sum compensation or work injury damages to be dealt with by the submission of a claim and acceptance of liability by the insurer with a reasonable offer of settlement within the time limits imposed by s 281 of the 1998 Act. Recourse to an assessment under Part 7 of Chapter 7 of the 1998 Act carried out by an approved medical specialist need only arise in the case of a medical dispute. In the plaintiff’s submission there is a clear dichotomy between the circumstances in which an assessment of permanent impairment must be undertaken by an approved medical specialist and those in which there is no such requirement. In the absence of such a requirement there is said to be no statutory constraint on the medical practitioners who are entitled to carry out permanent impairment assessments.

41 In support of this submission Mr Basten QC, who with Mr Beckett appeared on behalf of the plaintiff, relied on the judgment of the High Court in The Commonwealth and the Postmaster-General v The Progress Advertising and Press Agency Proprietary Ltd (1910) 10 CLR 457. That case raised for consideration whether a regulation made under the Post and Telegraph Act 1901 was ultra vires. The power to make regulations was expressed to be one for “all other matters and things which may be necessary for carrying out this Act or for the efficient administration thereof”. The regulation under challenge imposed a penalty on any person who, without the authority of the Postmaster-General or the Deputy Postmaster General of a State printed, published, circulated or authorised the printing, publishing or circulation of any list of all or any of the subscribers connected with any telephone exchange. O’Connor J said (at 464):

          “In ascertaining what was the real intention of the legislature to well-known principles of interpretation must be applied. The first is that, as every citizen is at liberty prima facie to carry on his business in his own way within the law, it will not be held that the legislature has intended by any statute to impair that liberty unless it has expressed that intention by plain words or by necessary implication from the language it has used. The second rule is that general words in a statute will ordinarily be construed with no wider meaning than is necessary to carry into effect its object and purposes.”

      The regulation making power conferred by the Act was held not to authorise a regulation such as that the subject of challenge.

42 Section 322(1) of the 1998 Act provides that the assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with the WorkCover Guidelines issued for that purpose. This provision is contained in Part 7 of Chapter 7 of the 1998 Act. In the plaintiff’s submission it is not clear that s 322(1), (2) and (3) are at large. In his submission on one view these provisions are only of application to the assessment of permanent impairment made by approved medical specialists in accordance with the scheme of Part 7 of Chapter 7.

43 Notwithstanding that s 322 is to be found in Part 7 of Chapter 7 of the 1998 Act and that this Part otherwise deals with medical assessments carried out by approved medical specialists, I consider that the provisions of s 322(1), (2) and (3) apply to the assessment of permanent impairment at the point of the submission of a claim for the purposes of Division 4 of Part 3 of Chapter 7 as well as to an assessment made by an approved medical specialist for the purposes of Part 7 of Chapter 7. The plain terms of these provisions seem to me to favour of such a construction. The new claims procedures are designed to encourage employers and their insurers to determine claims promptly by accepting liability and making a reasonable offer of settlement (or by disputing liability). It is reasonable to consider that the legislature intended the same principles to govern the assessment of permanent impairment at the stage of the submission of the relevant particulars about the claim as at any assessment by an approved medical specialist under Part 7 of Chapter 7. Mr Basten acknowledged so much.

44 The Authority contended that the power to issue a guideline in the terms of the challenged provision of the WorkCover Guides may be found in s 376(1)(a) read with s 322(1) of the 1998 Act. The breadth of the guideline-making power conferred by s 376(1)(a), was noted. It provides:

          “(1) The Authority may issue guidelines with respect to the following:
              (a) the assessment of the degree of permanent impairment of an injured worker as a result of an injury.” (emphasis added).

45 In Paull v Munday (1976) 50 ALJR 551 Gibbs J, as he then was, said at 555:

          “On behalf of the respondent reliance was placed on the fact that under s 94c the power is to regulations not only “for”, but also “with respect to”, the matters specified. The words “with respect to” are wider than the word “for” and a regulation would no doubt be valid if it substantially related to the prohibition of the emission of smoke or gas from an open fire.”

46 The power to issue guidelines with respect to the assessment of the degree of permanent impairment of an injured worker conferred by s 376(1)(a) is broadly stated. It is to be contrasted with the power conferred by subsection (2) on the Minister to issue guidelines. This is confined to the issue of guidelines with respect to “the procedure for assessment” under Part 7. The power conferred by s 331 is likewise confined to the procedures for the referral of matters for assessment or appeal and the procedure on appeal and for assessments. The scope of the power conferred by s 376(1)(a) may be taken to include the criteria for the assessment as well as the procedure to be followed.

47 Section 377(2) makes provision for the WorkCover Guidelines relating to impairment to be developed in consultation with relevant medical colleges, including the Royal Australasian College of Physicians, the Royal Australasian College of Surgeons, the Australian Orthopaedic Association and other relevant colleges and associations. The Guidelines are expressed to be based upon the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th edition reviewed by medical specialists representing all medical colleges in order to ensure that they are aligned with Australian clinical practice (p 5, foreword, WorkCover Guides). In the Authority’s submission the terms of s 377(2) support the view that the scope of the guideline-making power extends to the requirement that assessments of permanent impairment be carried out by medical practitioners with qualifications in the relevant medical specialty. I see no reason to draw this inference from the fact that legislature made provision for the relevant medical colleges to be consulted in developing the guidelines.

48 In the Authority’s submission the challenged provision of the WorkCover Guides is not to be characterised as creating a class of specialist assessors of permanent impairment. Nor does it operate to deprive the plaintiff or other non-specialist medical practitioners of their livelihood. It serves merely to specify the nature of the evidence required to support a claim for lump sum compensation or work injury damages.


      Conclusion – the scope of the power with respect to the assessment of permanent impairment under s 376(1)(a)

49 The WorkCover Guides use the expression “medical assessors”. Medical assessors are defined for the purposes of the guides to be medical practitioners who have undergone training in the use of the WorkCover Guides and who hold qualifications in the relevant medical specialty.

50 The Workers Compensation Acts do not use the expression “medical assessors” nor do they discriminate between medical practitioners on the basis of fellowship of a specialist college or otherwise save to the extent that it is contemplated that medical practitioners may be appointed as “approved medical specialists” for the purposes of Part 7 of Chapter 7 of the 1998 Act. Approved medical specialists are also provided for in s 121 of the 1998 Act, which applies in respect of existing claims. For the purposes of s 121 an “approved medical specialist” means a medical practitioner who is on a list of medical practitioners approved from time to time by the Authority as approved medical specialists.

51 The expression “approved medical specialist” is defined by ss 4(1) and 319 of the 1998 Act as meaning a medical practitioner appointed under Part 7 of Chapter 7 of that Act. The power of appointment of approved medical specialists is conferred on the President of the Commission and is required to be exercised in accordance with criteria developed by the Minister in consultation with the Workers Compensation and Workplace Occupational Health and Safety Council of New South Wales. Provision is made in s 320(2) for the terms of the appointment of an approved medical specialist to be restricted to the determination of medical disputes of a specified kind.

52 It is relevant to note the terms of s 73 of the 1987 Act, which is to be found in Division 4 of Part 3 of that Act dealing with compensation for non-economic loss. This is a provision that is concerned with reimbursement of the costs of obtaining a permanent impairment medical certificate and any examination required for the certificate. It does not appear that the expression permanent impairment medical certificate is used elsewhere in the Workers Compensation Acts. It is to be noted that under s 73(1)(a) the obtaining of the permanent impairment medical certificate is to be taken to be “medical or related treatment” for the purposes of Division 3 of Part 3 (which deals with compensation for medical expenses) if:

          “the medical practitioner has completed such training as the Authority may require in respect of the assessment of the degree of permanent impairment as provided by this Act.”

53 Section 73 of the 1987 Act contemplates that only the costs associated with obtaining a permanent impairment certificate from a medical practitioner who has undergone such training as the Authority requires in respect of the assessment of permanent impairment will be recoverable as medical or related treatment expenses. It suggests that the legislature contemplated that the Authority might prescribe training with respect to the assessment of the degree of permanent impairment of an injured worker. It does not provide support for the contention that the power to issue guidelines with respect to the assessment of the degree of permanent impairment extended to a guideline describing a class of medical assessors limited to medical practitioners holding qualifications in a relevant medical speciality.

54 At the time the Workers Compensation Legislation Amendment Act 2001 introduced the new claims procedures into the 1998 Act the plaintiff was medical practitioner who had been carrying assessments with respect to impairment in the field of orthopaedics and trauma for many years. If the legislature intended that only medical practitioners holding specialist qualifications were to be qualified to carry out assessments of permanent impairment (other than assessments conducted under Part 7 of Chapter 7 of the 1998 Act) it is to be expected that the power would have been conferred in clear terms.

55 Notwithstanding the broad terms of s 376(1)(a), it seems to me that the power to issue guidelines with respect to the assessment of permanent impairment cannot be held to extend to limiting the class of medical practitioners qualified to carry out assessments of permanent impairment to those recorded on the Register as holding a fellowship awarded by the specialist college relevant to the nature of the impairment or who otherwise answer the description of having qualifications in the relevant medical specialty. Although approved medical assessors have functions conferred on them under Part 7 of Chapter 7 that include the determination of medical disputes, and in this respect are to be distinguished from those medical practitioners conducting an assessment of impairment at the initial claim stage, I consider that the provisions of s 320 of the 1998 Act dealing with their appointment support this conclusion.


      The Authority’s contentions with respect to the alternative source of power

56 In the course of the hearing Mr Williams SC, who with Mr Singleton appeared on behalf of the Authority, developed a submission based on the provisions of ss 260 and 282 of the 1998 Act in conjunction with


s 376(1)(c) of the 1998 Act as an alternative source of power.

57 Section 376(1)(c) confers power on the Authority to issue guidelines with respect to “such other matters as a provision of the Workers Compensation Acts provides may be the subject of WorkCover Guidelines.”

58 Section 260 relevantly provides:

          “ 260. How a claim is made
          (1) A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines.
          (2) The WorkCover Guidelines may make provision for or with respect to the following matters in connection with the making of a claim:
              (a) The form in which a claim is to be made,
              (b) the manner in which a claim is to be made,
              (c) the means by which a claim may be made,
              (d) the information that a claim is to contain,
              (e) requiring specified documents and other material to accompany or form part of a claim,
              (f) such other matters as may be prescribed the regulations.

59 The relevant provisions of s 282 provide:


          “ 282. Relevant particulars about a claim
          (1) The relevant particulars about a claim are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim:
              (a) the injury received by the claimant,
              (b) all impairments arising from the injury,
              (c) any previous injury, or any pre-existing condition or abnormality, to which any proportion of an impairment is or may be due (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act),
              (d) in the case of a claim for work injury damages, details of the economic losses that are being claimed as damages and details of the alleged negligence or other tort of the employer,
              (e) information relevant to a determination as to whether or not the degree of permanent impairment resulting from the injury will change,
              (f) in addition, in the case of a claim for lump sum compensation, details of all previous employment to the nature of which the injury is or may be due,
              (g) such other matters as the WorkCover Guidelines may require.”

60 The WorkCover Guidelines may make provision for or with respect to the information that a claim is to contain: s 260(2)(d). It will be recalled that a claim is to include the relevant particulars about a claim. Section 282(1)(g) provides that these include “such other matters as the WorkCover Guidelines may require”. The Claims Guidelines provide in paragraph 6.11 for the material that is to be provided by a claimant in support of a claim for permanent impairment or lump sum damages. Paragraphs 6.11.2–6.11.6 the Claims Guidelines mirror the provisions of s 282(1)(b)–(f). Paragraph 6.11.7 requires the submission of “a medical report completed as described in WorkCover Guidelines on assessment of permanent impairment”.

61 In Mr Williams’ submission ss 260(2)(d), 282(1)(f) and 376(1)(c) provide ample power for the issue of a guideline requiring that a person claiming lump sum compensation or work injury damages provide an assessment of permanent impairment with his or her claim prepared by a medical practitioner who has undertaken the requisite training in the use of the WorkCover Guides and who possesses qualifications in the medical speciality relevant to the impairment that is the subject of the claim.

62 The WorkCover Guides do not purport to be issued pursuant to s 260. They recite the source of power as ss 376 and 322(1) of the 1998 Act. Mr Williams submitted, and I accept, that the validity of the Guidelines is not to be determined by consideration that the Authority may have mistaken the source of its power: Brown v West (1987-1988) 169 CLR 195 at 203.

63 Mr Williams referred in support of this submission to the objects of the new claims procedures, which appear to be designed to promote the early and inexpensive resolution of claims. Such an objective was submitted to be advanced by the requirement for specialist assessment at the stage of the provision of relevant particulars about the claim. The present scheme addresses the concept of whole person impairment. Non specialist medical practitioners may have carried out assessments of claims for compensation for non-economic loss under earlier schemes. These assessments were based upon the statutory table of disabilities. In Mr Williams’ submission the new scheme may be thought to require somewhat greater sophistication in the assessment of impairment. It was said to be consistent with the provisions of the empowering Act to make provision for guidelines requiring that the information submitted as part of the relevant particulars of the claim include the report of a specialist medical practitioner.


      Conclusion – the alternative source of power

64 It is not in issue that the Authority may require that a claim for lump sum compensation or work injury damages be supported by medical evidence. Mr Basten conceded that this must be so. Section 282(2) provides that a claimant will not be considered to have provided all relevant particulars about the claim until he or she has complied with any request made by the employer that he or she submit to a medical examination.

65 I am not persuaded that ss 260 and 282 in combination with s 376(1)(c) provide the power to require that medical practitioners who have undergone training in the WorkCover Guides be persons with qualifications in the relevant medical speciality. The provisions of


s 260(2)(a) to (e) are detailed and specific. Provision is made for the regulations to prescribe further matters that the WorkCover Guidelines may deal with. I do not consider that a provision conferring power to make a WorkCover Guideline on the subject of “the information that a claim is to contain” when viewed in the context of the subject matters set out in subparagraphs (a) to (e) is to be seen as authorising a guideline prescribing the qualifications of the medical practitioner providing a report or permanent impairment certificate.

66 For these reasons I have concluded that the plaintiff has made good his principal contention and is entitled to relief in the form of the amended declaration to which I have referred.


      ORDERS

          1. Declare that the WorkCover Guides for the Evaluation of Permanent Impairment are beyond power to the extent to which they purport to impose a requirement that a registered medical practitioner who has undertaken training in the use of the WorkCover Guides is not entitled to carry out assessments of permanent impairment under the Workers Compensation Acts , unless he or she has ‘qualifications in the relevant medical speciality’.
      2. The defendant is to pay the plaintiff’s costs.
******

Last Modified: 07/02/2004