Trac v Fero Reinforcing Pty Ltd
[2019] WADC 115
•19 AUGUST 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: TRAC -v- FERO REINFORCING PTY LTD [2019] WADC 115
CORAM: LEMONIS DCJ
HEARD: 8 FEBRUARY 2019
DELIVERED : 19 AUGUST 2019
FILE NO/S: CIV 3905 of 2016
BETWEEN: DONG VINH TRAC
Plaintiff
AND
FERO REINFORCING PTY LTD
Defendant
Catchwords:
Trial of preliminary issues - Effect on worker's election to retain the right to damages where the assessment of worker's degree of impairment is not carried out in accordance with Workers' Compensation and Injury Management Act 1981
Legislation:
Interpretation Act 1984 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Regulations 1982 (WA)
Result:
The plaintiff is entitled to bring the proceedings
Representation:
Counsel:
| Plaintiff | : | Mr D M Bruns |
| Defendant | : | Mr G R Hancy |
Solicitors:
| Plaintiff | : | Separovic Injury Lawyers |
| Defendant | : | Kott Gunning |
Case(s) referred to in decision(s):
Australian Crime Commission v Marrapodi [2012] WASCA 103
Clone Pty Ltd v Players Pty Ltd (in Liquidation) (Receivers & Managers Appointed) [2018] HCA 12
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30
Hewitt v Benale Pty Ltd (2002) 27 WAR 91
IW v The City of Perth (1997) 191 CLR 1
Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622
Mohammadi v Bethune [2018] WASCA 98
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549
Re Monger; Ex parte Cross [2004] WASCA 176
Re Monger; Ex Parte Cross [2004] WASCA 176
Re Monger; Ex parte TNT Australia Pty Ltd [2002] WASCA 223
Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19
LEMONIS DCJ:
These proceedings came before me on 8 February 2019 for the trial of preliminary issues pursuant to the order of Registrar Kingsley made on 19 October 2018.
The plaintiff (Mr Trac) was employed by the defendant (Fero Reinforcing) as a machine operator.[1] While at work, Mr Trac sustained an injury to his left hand.[2] Mr Trac has brought these proceedings against Fero Reinforcing claiming damages caused by Fero Reinforcing's negligence and/or breach of statutory duty.
[1] Paragraphs 1 and 2.3 of statement of claim; pars 1 and 2 of amended defence.
[2] Paragraph 3 of statement of claim; Par 3 of amended defence.
The court's jurisdiction to award damages to Mr Trac is constrained by the operation of the Workers' Compensation and Injury Management Act1981 (WA) (Workers' Compensation Act). Under s 93K(4) of the Workers' Compensation Act, an injured worker can only be awarded common law damages against an employer if the worker elects to retain the right to seek the damages.[3] A worker can only make such an election where the worker's degree of impairment has been agreed with their employer, or assessed by an approved medical specialist, to be at least 15%.[4]
[3] Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19 [25].
[4] Section 93L(2) Workers' Compensation Act.
Mr Trac obtained an assessment that his degree of impairment was 42%. This assessment was undertaken by way of what is called a special evaluation. In reliance on that assessment, Mr Trac made an election to retain the right to seek damages.
In short, the questions raised by the preliminary issues are whether the process undertaken in obtaining the special evaluation relied on by Mr Trac complied with the requirements of the Workers' Compensation Act (in particular s 93N) and, if it did not, whether Mr Trac's election is therefore of no effect.
The facts relevant to the determination of the preliminary issues were admitted into evidence without any cross-examination. Their effect within the operation of the Workers' Compensation Act is in dispute.
The resolution of the preliminary issues requires the interpretation of provisions contained within div 2 of pt IV and div 2 pt VII of the Workers' Compensation Act, and div 2 of pt 3A of the Workers' Compensation and Injury Management Regulations 1982 (WA) (Workers' Compensation Regulations).
Before setting out the facts, I commence with an overview of the operation of the Workers' Compensation Act and the Workers' Compensation Regulations. It is preferable to proceed in this way as otherwise it will be difficult to appreciate the facts, and their significance.
Workers' Compensation Act and the Workers' Compensation Regulations
Section 3 of the Workers' Compensation Act identifies the purposes of the Act without making any mention of the restriction or modification of a worker's entitlement to damages at common law.[5]
[5] See also Hewitt v Benale Pty Ltd(2002) 27 WAR 91 [114] (EM Heenan J).
Division 2 of pt IV of the Workers' Compensation Act was considered by the Court of Appeal of Western Australia in Thomas Peacock & Sons Pty Ltd v Abreu.[6] I repeat and adopt what the Court of Appeal stated in Thomas Peacock & Sons as to the purpose of div 2 of pt IV of the Workers' Compensation Act:
24The evident purpose of div 2 of pt IV of the Workers' Compensation Act is to impose constraints on the award of damages in actions for common law damages against employers by employees who are injured in the course of their employment. The relevant provisions have been set out earlier. The scheme can, for present purposes, be shortly described.
25Under s 93K(4), an injured worker can only be awarded common law damages against an employer if the worker elects to retain the right to do so. The right to elect only arises if the worker and the employer agree that the degree of the worker's permanent whole of body impairment is at least 15% or the impairment has been so assessed by an approved medical specialist, and the Director has, at the worker's written request, recorded that agreement or assessment: s 93L(2). (The degree of permanent whole of body impairment is evaluated pursuant to s 146A and s 146C: s 93H.)
26If a claim for weekly compensation has been made with respect to the injury, the election to retain the right to seek damages cannot be made after the 'termination date': s 93L(4). The 'termination date' is one year after the date on which the claim for weekly compensation was made (s 93M(1)), unless the Director extends the time under s 93M(4). One of the circumstances in which the Director may extend the time is where an approved medical specialist has certified that the worker's condition has not sufficiently stabilised to allow an assessment to be made as to whether the worker's impairment is at least 15%: s 93M(4)(a). (An 'approved medical specialist' is a medical practitioner who has been designated as such by WorkCoverWA by order published in the Government Gazette: s 146F(1).)
27Once the Director gives the worker notice that the worker's election to retain the right to seek damages has been registered, the worker must commence proceedings for damages within 30 days: s 93K(4).
28The effect, therefore, of s 93K(4) is that no award of damages can be made unless by the termination date the worker has elected to retain the right to seek damages and, within the 30‑day period after notice of registration of that election, has commenced an action for damages. Section 93K(4) does not extinguish the cause of action, it prescribes a time within which an action for damages must be commenced if the court is to have the power to award damages. ….
…
30The evident purpose of div 2 of pt IV of the Workers' Compensation Act is to deter small, disproportionately costly, claims for damages being brought in respect of workplace accidents. To that end, it provides that a worker cannot recover an award of damages unless their injury meets the statutory threshold, in this instance 15% of whole of body impairment. The procedure set out in div 2 is directed to ensuring that an injury meets the statutory threshold before proceedings are commenced. The election by a worker to 'retain' his or her right to damages can only be made once it has been determined that the injury meets the threshold. Once that has been determined and the election registered, it is then incumbent upon the worker to commence any legal proceedings promptly (that is, they must be commenced within the 30‑day period after notice that the election has been registered), failing which the court will have no authority to award damages.
[6] Thomas Peacock & Sons Pty Ltd v Abreu [24] – [28], [30].
Section 93K(4) has been amended to remove the requirement that court proceedings be instituted within the specified 30 day time period, as was the case in respect of the proceedings the subject of appeal in Thomas Peacock & Sons. I do not consider this amendment has any effect on the purpose of div 2 of pt IV of the Workers' Compensation Act as explained in Thomas Peacock & Sons.
The applicable statutory scheme does not create an entitlement for a worker to obtain damages from their employer. Rather, it limits the circumstances in which existing rights that originate outside of the statutory scheme may by pursued.[7] A worker cannot be awarded damages unless their injury represents a minimum threshold of 15% degree of impairment. As is explained below, this threshold is relevant at two separate stages. First, prior to the commencement of proceedings, where it is either to be agreed with the employer, or assessed by an approved medical specialist. Second, in the proceedings, where it is to be determined by the court. The Court of Appeal stated in Thomas Peacock & Sons that the purpose of div 2 is to deter small, disproportionately costly, claims for damages being brought in respect of workplace accidents.[8] Further, the 'procedure set out in div 2 is directed to ensuring that an injury meets the statutory threshold before proceedings are commenced'.[9]
[7] See s 93K(7) of the Workers' Compensation Act. Further, the election the subject of s 93K(4)(a) is to retain the right to seek damages.
[8] Thomas Peacock & Sons Pty Ltd v Abreu [30].
[9] Thomas Peacock & Sons Pty Ltd v Abreu [30].
Provisions of the Workers' Compensation Act and the Workers' Compensation Regulations
The significant provisions of the Workers' Compensation Act relevant to the determination of the preliminary issues are as follows:
93C.Limit on powers of courts to award damages
If this Division applies a court is not to award damages to a person contrary to this Division.
…
93K.…
(4)Damages in respect of an injury can only be awarded if ‑
(a) the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and
(b) the Director registers the election in accordance with the regulations; and
(c) court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and
(d) the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.
…
(13)The court is not bound by an agreement or assessment recorded by the Director under section 93L(2), but may admit it as evidence relevant to the worker's degree of permanent whole of person impairment.
93L.…
(2) A worker can only elect under section 93K(4) to retain the right to seek damages if -
(a) the worker and the employer agree -
(i) that the worker's degree of permanent whole of person impairment is at least 15%; and
(ii) as to whether or not the worker's degree of permanent whole of person impairment is at least 25%; or
(b) the worker's degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%,
and the Director has, at the written request of the worker, recorded that agreement or assessment in accordance with the regulations.
(3) The Director cannot, under subsection (2), record an assessment that involves a special evaluation as defined in section 146C(4) unless the Director has been given a copy of the certificate referred to in section 93N(1) on the basis of which the special evaluation was requested.
(4) If a claim for compensation by way of weekly payments has been made wholly or partially with respect to the injury or injuries concerned, an election cannot be made after the termination day.
(5) An agreement or assessment that the Director has, at the written request of the worker, recorded in accordance with the regulations cannot be withdrawn and, after it has been recorded, another agreement or assessment as to the worker's degree of permanent whole of person impairment cannot be recorded.
(6) An election that the Director has registered in accordance with the regulations cannot be withdrawn and a subsequent election cannot be made in respect of the same injury or injuries.
….
(8) The Director may at any time rectify an error that was made in recording an agreement or assessment or registering an election.
93M.Termination day defined
(1)If a claim for compensation by way of weekly payments has been made wholly or partially with respect to an injury, the termination day for an election to retain the right to seek damages in respect of that injury is the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made unless a later day is fixed by subsection (3) or under subsection (4).
…
(4)The Director may, in accordance with the regulations, from time to time extend the termination day, but only if -
(a)before the termination day, an approved medical specialist, in writing -
(i)certifies that the worker's condition has not stabilised to the extent required for a normal evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with the WorkCover Guides as described in sections 146A and 146C; and
(ii)recommends a day until which the termination day be extended;
or
(b)the Director is satisfied that the employer has failed to comply with section 93O; or
(c)the Director is satisfied that the extension should be given because an approved medical specialist requires or required more than the time described in section 93O(1)(d) before being able to give the worker the documents required by section 146H; or
(d)the Director is satisfied that -
(i)the worker has, in accordance with the regulations, requested an approved medical specialist to assess the worker's degree of permanent whole of person impairment other than as described in subparagraph (ii), allowing at least the time described in section 93O(1)(d) for the approved medical specialist to give the worker the documents required by section 146H at least 7 days before the termination day, but the worker was not given, or it would be impracticable to give, those documents at least 7 days before the termination day; or
(ii)the worker has, in accordance with the regulations, requested an approved medical specialist to make an assessment that involves a special evaluation of the worker's degree of permanent whole of person impairment, allowing at least 7 weeks for the approved medical specialist to make the assessment and give the worker the documents required by section 146H at least 7 days before the termination day, but the worker was not given, or it would be impracticable to give, those documents at least 7 days before the termination day.
93N.Special evaluation if worker's condition has not stabilised sufficiently
(1) This section applies if, after the expiry of the period of 6 months after the day that would have been the termination day had there been no extension under section 93M(4), an approved medical specialist certifies that the worker's condition has not stabilised to the extent required for a normal evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with sections 146A and 146C.
(2) The worker may request an approved medical specialist to make a special evaluation of the worker's degree of permanent whole of person impairment in accordance with sections 146A and 146C.
(3) The approved medical specialist requested to make a special evaluation may be the approved medical specialist who certified as described in subsection (1).
(4) The request is to be made in accordance with the regulations not later than 8 weeks before the termination day and is to be accompanied by a copy of the certificate referred to in subsection (1).
(5) The approved medical specialist is to make the special evaluation in accordance with sections 146A and 146C unless the worker's condition is found to have stabilised to the extent required for a normal evaluation, in which case the approved medical specialist is to make a normal evaluation in accordance with those sections.
(6) In this section -
normal evaluation has the meaning given to that term in section 146C.
146C.Evaluating degree of impairment for Part IV Div. 2 Subdiv. 3
(1) This section applies to an evaluation of a worker's degree of permanent whole of person impairment for the purposes of Part IV Division 2 Subdivision 3.
(2) Section 146A(2) does not prevent a finding that the worker's condition has not stabilised to the extent required for a normal evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with the WorkCover Guides.
(3) In subsection (2) -
normal evaluation means an evaluation that is not a special evaluation as defined in subsection (4).
(4) If this Act provides for a special evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with this section, the evaluation (a special evaluation) is to be made, even though the worker's condition has not stabilised to the extent otherwise required for an evaluation to be made in accordance with the WorkCover Guides, in accordance with any provisions of the WorkCover Guides that apply to a special evaluation.
(5) If the evaluation of a worker's degree of permanent whole of person impairment for the purposes of Part IV Division 2 Subdivision 3 is assessed on the basis that the worker's condition has not stabilised to the extent otherwise required for an evaluation to be made in accordance with the WorkCover Guides, the evaluation has to be a special evaluation made in accordance with this section.
(6) In evaluating the degree of permanent whole of person impairment of the worker, any secondary condition is to be disregarded.
(7) Subsection (6) does not prevent a secondary condition from contributing in the assessment of damages by a court.
146H.Approved medical specialist, duties of after making assessment
(1) An approved medical specialist making an assessment for the purposes of Part III Division 2A, Part IV Division 2 Subdivision 3, Part IXA or clause 18A is required to give to each of the worker and the employer, in writing in accordance with the regulations -
(a) a report of the worker's degree of impairment, including details of the assessment and reasons justifying the assessment; and
(b) a certificate specifying the worker's degree of impairment.
(2) An approved medical specialist giving a certificate -
(a) for the purposes of Part III Division 2A or Part IXA that a worker's condition has not stabilised to the extent required for an evaluation to be made in accordance with the WorkCover Guides as described in sections 146A, 146B, and 146D; or
(b) for the purposes of Part IV Division 2 Subdivision 3 that a worker's condition has not stabilised to the extent required for a normal evaluation to be made in accordance with the WorkCover Guides as described in sections 146A and 146C,
is required to give to each of the worker and the employer, in writing in accordance with the regulations ‑
(c) a report of any relevant details provided by the worker; and
(d) brief reasons justifying the finding certified.
(3) A certificate for the purposes of -
(a) Part III Division 2A; or
(b) Part IV Division 2 Subdivision 3; or
(c) Part IXA; or
(d) clause 18A,
is to specify the provisions for the purposes of which it is made.
…
(5)If any of the documents described in subsection (1) or (2) is produced to the Director for the purposes of Part III Division 2A, Part IV Division 2 Subdivision 3, Part IXA or clause 18A and a factual error is apparent on the face of the document, the Director may reject the document and require the approved medical specialist to replace it with a correct document given to each of the recipients of the document that contained the error.
146J. Decisions of approved medical specialist not reviewable
(1) A decision of an approved medical specialist or anything done under this Act in the process of coming to a decision of an approved medical specialist is not amenable to judicial review.
(2) In subsection (1) -
decision of an approved medical specialist means an opinion, assessment, or other decision of an approved medical specialist that is relevant to the operation of Part III Division 2A, Part IV Division 2, Part IXA or clause 18A.
Further, the significant provisions of the Workers' Compensation Regulations relevant to the determination of the preliminary issues are:
18M.Request for assessment by approved medical specialist of worker's degree of impairment
For the purposes of section 146A(3) of the Act, a request for a worker's degree of impairment to be assessed by an approved medical specialist has to be given in writing to the approved medical specialist, specifying -
(a)the prescribed details in relation to the worker; and
(b)the approved medical specialist's name; and
(c)the relevant provisions of the Act for the purposes of which the assessment is to be made; and
(d)the date of the request for the assessment.
21.Recording assessment
(1) If -
(a) the worker's degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%; and
(b) the Director has been given -
(i) a copy of the certificate given to the worker under section 146H(1)(b) of the Act; and
(ii) if the assessment involves a special evaluation as defined in section 146C(4) of the Act, a copy of the certificate referred to in section 93N(1) of the Act on the basis of which the special evaluation was requested;
and
(c) the worker, in writing, requests the Director to record the assessment,
the Director is required to record the assessment in a register kept for the purpose unless an agreement or assessment as to the worker's degree of permanent whole of person impairment has already been recorded under regulation 20 or this regulation.
(2) The Director's record in the register is to be in the form of Form 33 in Appendix I, and the Director is required to give a copy of the record to each of the worker and the employer.
22. Electing to retain right to seek damages
(1) An election under section 93K(4)(a) of the Act is made by completing an election form in the form of Form 34 in Appendix I and lodging it with the Director.
(2) Unless under subregulation (3) the Director refuses to register the election, the Director is to -
(a) register the election in a register kept for that purpose on the day on which the Director receives the election form; and
(b) complete the relevant section of the election form and give a copy of it to the worker and the employer.
(3) The Director may refuse to register the election if not satisfied that the worker has been properly advised of the consequences of the election.
Statutory construction
The principles applicable to the process of statutory construction have recently been summarised by the Court of Appeal of Western Australia in Mohammadi v Bethune.[10] I adopt that summary.
[10] Mohammadi v Bethune [2018] WASCA 98 [31] - [36].
Statutory construction requires attention to the text, context and purpose of the Act. As their Honours noted in Mohammadi v Bethune at [32] and [33]:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions. (footnotes omitted)
Of particular importance in this case is what was stated at [34]:
Discernment of statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural'. In such a case, the choice 'turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies'.
Further, statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.[11] The rights of a worker to claim for personal injury caused by negligence are important common law rights.[12]
[11] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 [11], [43], [111], [132].
[12] Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 [21], [85]; Re Monger; Ex Parte Cross [2004] WASCA 176 [73], [74], [163].
In addition, while as a general rule it is impermissible to call in aid in the construction of an Act the delegated legislation made under that Act, it is useful here to refer to the Workers' Compensation Regulations for the purposes of ascertaining what the legislative scheme is.[13]
[13] DC Peers and RS Geddes, Statutory Interpretation in Australia (8th ed, 2014) [3.41].
Application of the scheme
In this case, it is important to explain the statutory and regulatory regime applicable to these subject matters:
(a)the constraint on the court's jurisdiction to award damages to an injured worker;
(b)the process for assessing a worker's degree of impairment;
(c)the process by which the Director records an assessment;
(d)how a worker may elect to retain the right to seek damages and the process by which the Director registers an election; and
(f)the consequences which flow from the Director recording an assessment, and registering an election.
The Director is the person designated by the Chief Executive Officer of WorkCover WA as the Director, Conciliation.[14] The person so designated must be an officer of WorkCover WA. The designated Director has the functions conferred on the Director by the Workers' Compensation Act.[15]
[14] Section 5(1) of the Workers' Compensation Act (definition of Director) and s 182A(1).
[15] Section 182A(2).
I will address separately the interpretation of s 93N. It is of particular importance in this case. It authorises the obtaining of a special evaluation. Fero Reinforcing says the special evaluation relied on by Mr Trac was not obtained in accordance with s 93N. As a consequence, Fero Reinforcing says Mr Trac's election is of no effect, it having been made in reliance on a non-compliant special evaluation.
Constraint on the worker's right to claim damages
Subdivision 3 of div 2, pt IV of the Workers' Compensation Act applies to Mr Trac's claims, the pleaded causes of action arising on or after 14 November 2005.[16]
[16] Section 93I(1); s 79 of the Workers' Compensation Reform Act2004 came into operation on 14 November 2005.
The constraints on the award of damages to a worker for a workplace injury are provided for by a combination of s 93C, s 93K and s 93L, all of which appear within div 2.
Section 93C provides that a court is not to award damages to a person contrary to div 2.
Section 93K(4) provides that damages in respect of an injury can only be awarded if all of the identified criteria at s 93K(4)(a) ‑ s 93K(4)(d) are met. Subparagraph (a) specifies that the worker elects, in the manner provided for in the Workers' Compensation Regulations, to retain the right to seek damages. Subparagraph (b) specifies that the Director has registered the election in accordance with the Workers' Compensation Regulations. Subparagraph (c) specifies that the relevant court proceedings are commenced after the Director gives the worker written notice that the Director has registered the election. Subparagraph (d) relates to the outcome of the court proceedings, specifying that the court is to be satisfied the worker's degree of permanent whole of person impairment is at least 15%.
The criteria set out in s 93K(4) commence with the worker making the requisite election to retain the right to seek damages.[17]
[17] Section 93K(4)(a).
Section 93L(2) sets out the circumstances in which the worker can make such an election.
Section 93L(2) provides that a worker can only make the requisite election where the worker's degree of impairment has been agreed with their employer, or assessed by an approved medical specialist, to be a percentage that is not less than 15% and, at the written request of the worker, the Director has recorded that agreement or assessment in accordance with the Workers' Compensation Regulations.
Assessment of degree of impairment
The process governing the assessment of a worker's degree of impairment is set out in div 2 of pt VII of the Workers' Compensation Act. The degree of impairment applicable to div 2, subdivision 3 of pt IV (which applies to Mr Trac's claims) is the 'worker's degree of permanent whole of person impairment'.[18] For simplicity, I will use the phrase 'degree of impairment'.
[18] Section 146, definition (b).
A worker's degree of impairment is to be evaluated as a percentage in accordance with the WorkCover Guides, subject (relevantly) to s 146C.[19] The WorkCover Guides are directions issued by WorkCover WA, which directions are to be developed in consultation with an advisory committee.[20] The advisory committee is to include at least one member of WorkCover WA's governing body,[21] medical practitioners and other persons appointed after consultation with the Australian Medical Association (WA) Incorporated (AMA).[22] WorkCover WA appoints the members. The Minister responsible for the Workers' Compensation Act must approve the appointment of all members, except for the appointees who are members of WorkCover WA's governing body.
[19] Section 146A(1).
[20] See the definition of WorkCover Guides in s 5 and also s 146R.
[21] The governing body is to consist of the persons described in s 95(1).
[22] Section 100A(7).
The directions constituting the WorkCover Guides are not regulations,[23] however s 41, s 42, s 43 and s 44 of the Interpretation Act 1984 (WA) apply to the directions as if they were regulations.[24] These sections, broadly speaking, are directed to the commencement, disallowance, making and interpretation of subsidiary legislation. Section 47 of the Interpretation Act is not expressed to apply to the directions. Accordingly, an act done under the directions is not deemed to be done under the Workers' Compensation Act.
[23] Pursuant to s 292, the Governor may make regulations.
[24] Section 146R(4).
In my view, the classification of the applicable directions as 'Guides', reflects that they are not intended in their entirety to have a rule like quality. I am reinforced in this view given the directions are developed in consultation with an advisory panel whose members include medical practitioners and other persons identified after consultation with the AMA, none of whom are required to have any legal training.
Where the worker and the employer do not agree about the evaluation of the worker's degree of impairment, it is to be assessed by an approved medical specialist.[25] An approved medical specialist is a medical practitioner designated by WorkCover, who meets the criteria in s 146F(1). One of the criteria for designation is that the medical practitioner is 'sufficiently trained in the use of the WorkCover Guides'.
[25] Section 146A(2); the reference to a medical specialist panel is not applicable here. Section 146K sets out the circumstances where a medical specialist panel is to make an assessment.
Depending on the applicable circumstances, the evaluation by the approved medical specialist can be either a 'normal evaluation' or a 'special evaluation'.[26]
[26] Section 93L, s 93M and s 93N; s 146C.
Section 93N provides for a process whereby a special evaluation may be made if after a specified period of time, the worker's condition has not stabilised to the extent required for a normal evaluation to be made. In essence, a special evaluation is to be made where the worker's condition has not stabilised to the extent otherwise required for a normal evaluation to be made in accordance with the WorkCover Guides.[27]
[27] See the definition of special evaluation in s 146C(4).
Somewhat circuitously, a 'normal evaluation' is an evaluation which is not a special evaluation.[28]
[28] Section 146C(3) which definition applies to s 93M and s 93N: s 93M(5) and s 93N(6).
The important difference between the two is the feature of whether the worker's condition has stabilised to such an extent that an evaluation can be made in accordance with the WorkCover Guides. Such stabilisation is described in the WorkCover Guides as 'maximum medical improvement'. If the worker's condition has stabilised, a normal evaluation is to be carried out. If the worker's condition has not stabilised, a special evaluation is to be carried out. A special evaluation must be made in accordance with any provisions of the WorkCover Guides that apply to a special evaluation.[29]
[29] Section 146C(4).
It needs to be kept in mind that the relevant degree of impairment is 'the worker's degree of permanent whole of person impairment' (italics added).[30] As a special evaluation is made in circumstances where the worker's condition has not stabilised, by its very nature it is likely to have a reduced degree of certainty comparable to a normal evaluation. Accordingly, it is preferable that a normal evaluation be conducted. However, the Workers' Compensation Act recognises this may not always be possible. Accordingly, the Workers' Compensation Act provides for a limited regime in which a special evaluation can be undertaken. Section 93N sets out this regime. The proper interpretation of s 93N is addressed below.
[30] Section 146(b).
Recording the assessment required by s 93(L)(2)
The process by which the Director is to record an assessment the subject of s 93(L)(2) is addressed by s 146H and reg 21. It works in this way.
Pursuant to s 146H(1), the approved medical specialist making an assessment is required to give to the worker and the employee a report of the worker's degree of impairment and a certificate specifying the worker's degree of impairment.
Regulation 21(1) sets out how the assessment is to be recorded. First, the Director must be given a copy of the certificate specifying the worker's degree of impairment as not less than 15% and any further certificate necessary to activate the special evaluation procedure in s 93N.[31] Once the Director has these documents, upon written request by the worker, the Director is required to record the assessment in a register kept for that purpose unless an agreement or assessment as to the worker's degree of impairment has already been recorded.[32] The Director's record of the register is to be in the form of Form 33 in Appendix I of the Workers' Compensation Regulations.[33]
[31] Regulation 21(1)(a) and reg (1)(b); see also s 93L(3).
[32] Regulation 21(1)(c).
[33] Regulation 21(2).
Pursuant to s 146H(5), the Director may reject the report or certificate as to the worker's degree of impairment produced to the Director for the purposes of div 2 sub-div 3 of pt IV (which includes s 93L), on the basis that 'a factual error is apparent on the face of the document'.
Accordingly, there appear to be three bases upon which the Director may refuse to record an assessment. They are – where a prior assessment (or agreement) as to the degree of impairment has already been recorded (reg 21(3)); where any necessary certificate under s 93N(1) has not been provided (reg 21(2) and s 93L(3)); or where there is a factual error apparent on the face of the certificate specifying the degree of impairment (s 146H(5)).
Finally, in relation to the assessment, s 146J provides that a decision of an approved medical specialist is not amenable to judicial review. The definition of 'decision' at s 146J(2) includes an assessment for the purposes of div 2 of pt IV. Accordingly, it includes a special evaluation. The matters precluded from judicial review include the decision itself and anything done under the Workers' Compensation Act in the process of coming to the decision.
Making of an election and registration by the Director
Where the worker has made a claim for compensation by way of weekly payments, the election to retain the right to seek damages cannot be made after the 'termination date': s 93L(4). The requirement for an election to be made by the termination date promotes the employer being made aware in a relatively prompt manner of the claims it may face.
Section 93M(1) provides that the termination date is one year after the claim for weekly compensation payments has been made, unless extended under s 93M(3) or s 93M(4). Section 93M(3) does not apply here. One of the circumstances in which the Director may extend the termination date is where an approved medical specialist has certified that the worker's condition has not sufficiently stabilised to allow an assessment to be made as to whether the worker's impairment is at least 15%: s 93M(4)(a).[34]
[34] Thomas Peacock and Sons Pty Ltd v Abreu [26].
The other circumstances where the termination day may be extended are:
(a)where the Director is satisfied the employer has not complied with its obligations under s 93O to notify the worker of the matters there described, which include the significance of the termination day for the worker's ability to seek damages;[35]
(b)where the Director is satisfied the approved medical specialist requires more time to provide the worker with the report and certificate as to their degree of impairment;[36]
(c)where the Director is satisfied the worker, having requested an approved medical specialist assess the worker's degree of impairment, was not given, or it would be impracticable to give the worker, the report and certificate of their degree of impairment at least seven days before the termination day.[37] This applies to a request for either a normal evaluation[38] or a special evaluation.[39] For an extension to be granted, the worker must have made the request for an assessment allowing a prescribed minimum timeframe for the approved medical specialist to give the worker the required documents at least seven days before the termination day.
[35] Section 93M(4)(b).
[36] Section 93M(4)(c).
[37] Section 93M(4)(d).
[38] Section 93M(4)(d)(i).
[39] Section 93M(4)(d)(ii).
An extension must not be more than one year after the original termination day, except in the circumstances set out at (c) immediately above.[40] An extension may be given after the termination day has passed.[41] The circumstances in which an extension can be given do not envisage the correction of errors in assessments already obtained.
[40] Section 93M(6).
[41] Section 93M(8).
The making of an election by the worker to retain the right to seek damages is governed by s 93K(4)(a) and reg 22. As explained above, s 93K(4) provides that, amongst other matters, damages in respect to an injury can only be awarded if the worker elects in the manner prescribed in the Workers' Compensation Regulations to retain the right to seek damages and the Director registers the election in accordance with the regulations.
Pursuant to reg 22(1), an election under s 93K(4)(a) is made by the worker completing Form 34 in Appendix I to the Regulations and lodging it with the Director. The Director is to register the election in a register kept for that purpose and such registration is to take place on the day on which the Director receives the form.[42] The Director is also to complete the relevant section of the form, which provides for the Director to sign confirming the form was lodged under reg 22 and registered on the day inserted next to the Director's signature.[43] Form 34 finally provides for a person (presumably from WorkCover WA) to sign confirming that the completed form has been sent to both the worker and the employer.
[42] Regulation 22(2)(a).
[43] Regulation 22(2)(b).
The Director may refuse to register the election if the Director is not satisfied that the worker has been properly advised of the consequences of the election.[44] These consequences are explained below at [56] and [57].
[44] Regulation 22(3).
Effect of recording an assessment of registering an election
The Workers' Compensation Regulations do not identify what the effect is of recording an assessment pursuant to reg 21, or of registering an election pursuant to reg 22. This is to be contrasted with pt 4 of the Workers' Compensation Regulations, which applies to registered agents. Regulation 35 requires WorkCover to keep a register of each registered agent. Regulation 42 provides for certain evidentiary presumptions in respect of matters recorded on that register. There is no similar provision in respect of the recording of an assessment under reg 21 or the registration of an election under reg 22.
However, that being said, the requirement for the Director to record an assessment or agreement as to a worker's degree of impairment, and register an election, conveys there is a presumed validity to the assessment and to the election. If it were otherwise, there would be no need for those requirements and the legislation could have proceeded on the premise that the worker can commence proceedings upon having obtained the relevant assessment, and upon having made the subsequent election.
Consequences of recording of assessment
Pursuant to s 93L(5), an assessment that the Director has recorded in accordance with the regulations at the written request of the worker cannot be withdrawn and a further assessment cannot be recorded.
Consequences of registration of election
Pursuant to s 93L(6), where the Director registers the worker's election to retain the right to seek damages in accordance with the Workers' Compensation Regulations, the election cannot be withdrawn and a subsequent election cannot be made.
Further, pursuant to s 93P, if the worker's degree of impairment has been assessed at less than 25% and a worker elects under s 93K to retain the right to seek damages, the worker's entitlement to weekly payments and other compensation is constrained. The entitlement is reduced to 70% of the weekly payment entitlement for the first three months after registration of the election, 50% of the weekly payment entitlement for the next three months and nil thereafter.[45] This reduction and then cessation in the weekly payments is an exception to the prohibition contained in s 61 that weekly payments shall not be discontinued or reduced except in the circumstances outlined in s 61(1) and s 61(2).[46] In addition, the worker's entitlement to compensation under the Workers' Compensation Act in addition to weekly payments is limited, compared to the scenario where an election was not made.[47]
[45] Section 93P(2)(a) and s 93P(2)(b); s 93P(4).
[46] Section 61(7)(ba).
[47] Section 93P(2)(c).
The Form 34 which constitutes the election contains a warning to the effect that the election cannot be withdrawn and that its registration may affect the worker's entitlement to statutory compensation. The Form 34 requires the worker to sign acknowledging they have been properly advised of the consequences of making the election.
Accordingly, the registration by the Director of the worker's election to retain the right to seek damages has the following consequences:
(a)it satisfies one of the four criteria prescribed by s 93K(4);
(b)it is irrevocable and cannot be substituted (s 93L(6)); and
(c)where the degree of impairment has been assessed at less than 25%, it constrains the right of the worker to compensation under the Workers' Compensation Act (s 93P).
Rectifying the recording of assessment or registration of election
Section 93L(8) provides:
(8)The Director may at any time rectify an error that was made in recording an agreement or assessment or registering an election.
In my view, this section provides to the Director the ability to correct administrative errors made in recording an agreement or assessment or registering an election. For example, where the record of an assessment incorrectly records the percentage recorded in the assessment. In my view, this section does not provide to the Director a general supervisory power. As has been explained, the Director's ability to refuse to record an assessment, or to register an election, is limited.
Fero Reinforcing has not sought to have the Director set aside the recording of the assessment, or the registration of the election, which Mr Trac relies on in this case. Whether the Director acting under s 93L(8) could do so after the commencement of these proceedings (or at all) was not argued in any substantive detail before me and I express no view on it.
Summary of requisite steps
In summary, the prescribed steps prior to a worker commencing court proceedings for common law damages are:
(a)the worker's degree of impairment has been agreed with their employer, or assessed by an approved medical specialist, to be at least 15%;[48]
(b)the Director has, at the written request of the worker, recorded that agreement or assessment in accordance with the regulations;[49]
(c)the worker elects in the manner prescribed in the regulations to retain the right to seek damages;[50]
(d)where the worker has made a claim for compensation by way of weekly payments, such election is not made after the termination day;[51]
(e)the Director registers the election in accordance with the regulations;[52] and
(f)the Director gives the worker written notice that the Director has registered the election.[53]
[48] Section 93L(2).
[49] Section 93L(2).
[50] Section 93K(4)(a).
[51] Section 93L(4).
[52] Section 93K(4)(b).
[53] Section 93K(4)(c).
Section 93N
Section 93N authorises the obtaining of a special evaluation in the manner prescribed by the section.
The starting point is s 93N(1). It sets out the circumstances where the section as a whole applies. There are two criteria. First, a minimum period of time must have expired. Second, after that period has expired, an approved medical specialist certifies that the worker's condition has not stabilised to the extent required for a normal evaluation to be undertaken.
The applicable time frame is after the expiry of six months after 'the day that would have been the termination day had there been no extension under s 93M(4)'. Therefore, the section proceeds on the premise that the initial termination day has expired and an extension has been granted.
The second requirement for s 93N to apply is that after the applicable qualifying period has expired, an approved medical specialist certifies that the worker's condition has not stabilised to the extent required for a normal evaluation to be undertaken.
In my view, the requisite certificate must not only be issued after the qualifying period has expired, it must also speak to the state of the worker's condition after the expiry of that qualifying period. This is because the application of s 93N depends upon the workers' condition not having stabilised after the expiry of the qualifying period. Whether a certificate meets these requirements where it is based on an examination of the worker conducted prior to the expiry of the qualifying period will depend upon the circumstances of the case in question. In my view, while it is preferable the examination of the worker takes place after the expiry of the qualifying period, this is not determinative of the question whether the certificate speaks to the worker's condition after the expiry of that period. That is, a certificate reliant on an examination of the worker conducted prior to the expiry of the qualifying period may still, depending on the overall circumstances, speak to the worker's condition post expiry of that period.
The following applies once the criteria set out in s 93N(1) are met. The worker may request an approved medical specialist to make a special evaluation (s 93N(2)). That specialist may be the same specialist who gave the requisite certification provided for in s 93N(1).[54]
[54] Section 93N(3).
The request is to be made in accordance with the Workers' Compensation Regulations not later than eight weeks before the termination day, and is to be accompanied by a copy of the certificate that the worker's condition has not stabilised to the extent required for a normal evaluation.[55] (The only purpose I can discern for the eight‑week period referred to in s 93N(4) is it reflects the total period prescribed by s 93M(4)(d)(ii) such as to allow the Director to grant the worker an extension of the termination date.)
[55] Section 93N(4).
The relevant regulation is reg 18M. It requires the request to be in writing and to include, amongst other matters, the prescribed details in respect of the worker. The prescribed details are defined in reg 18L and include nine separate identified items. The request is also to include the provisions of the Workers' Compensation Act for the purposes of which the assessment is to be made.[56]
[56] Regulation 18M(c).
Section 93N(5) then sets out what the approved medical specialist is to do upon receiving such request. This subsection is of particular importance in this case. Accordingly, I set it out in full again:
The approved medical specialist is to make the special evaluation in accordance with s 146A and s 146C unless the worker's condition is found to have stabilised to the extent required for a normal evaluation, in which case the approved medical specialist is to make a normal evaluation in accordance with those sections.
In my view, this requires the approved medical specialist:
(a)to assess whether the worker's condition has stabilised to the extent required for a normal evaluation and if so to undertake a normal evaluation;
(b)if the worker's condition has not stabilised, to undertake a special evaluation.
Thus, before proceeding to make a special evaluation, there is a 'second check' as to whether the worker's condition has stabilised to the extent required. In my view, this interpretation is plain from the use of the words in the subsection 'unless the worker's condition is found to have stabilised to the extent required for a normal evaluation'. It is also consistent with the intention of the Workers' Compensation Act being that the preferred position is for a normal evaluation to be undertaken.
Further, I consider this 'two step' process is plain from the following matters:
(a)once s 93N has been activated, it is a matter for the worker whether they wish to request a special evaluation;
(b)the approved medical specialist requested to make the special evaluation may be the same or different to the medical specialist who provided the certificate the subject of s 93N(1). This envisages more than one assessment is to be undertaken; and
(c)the request for the special evaluation must be accompanied by the information prescribed by reg 18M and by the certificate required under s 93N(1) that the worker's condition has not stabilised to the extent required for a normal evaluation. This makes clear that the assessment referred to in s 93N(5) takes place after the assessment referred to in s 93N(1).
Accordingly, in my view, s 93N as a whole requires two separate assessments to be undertaken of the worker's condition. The first is the assessment required by s 93N(1), which activates s 93N. The second is the assessment conducted in accordance with s 93N(5), being after the worker has requested a special evaluation.
Mr Trac submits that the use of the word may in s 93N(2) means that a request by the worker is not mandatory and a special evaluation can be undertaken even though there is no such request. However, the purpose of s 93N(2) is to give to the worker the option of obtaining a special evaluation. The word may is used in this context. It is not used by way of suggesting a request is not required for a special evaluation to be undertaken. Further, by s 93N(4), the request must comply with the regulations and be accompanied by the certificate required by s 93N(1). These requirements envisage that by the making of the request, the worker will provide certain information to the approved medical specialist for the purpose of making the special evaluation. For these reasons, I do not accept the submission that the use of the word may has the effect contended for by Mr Trac.
Mr Trac also submits that s 93N is a beneficial provision. I accept this submission. Generally speaking, a beneficial provision is a provision that gives a benefit to a person and thereby remedies an injustice.[57] Section 93N is directed to overcoming unfairness to the worker where their condition has not stabilised and thus a normal evaluation is incapable of being obtained.
[57] See DC Peers and RS Geddes, Statutory Interpretation in Australia (8th ed, 2014) [3.41].
As a beneficial provision, s 93N is to be given a liberal interpretation. However, the liberal interpretation of a beneficial provision still requires that the interpretation adopted is fairly open on the words of the statute.[58] As Brennan CJ and McHugh J stated in IW v City of Perth:[59] 'a court or tribunal is not at liberty to give [a provision] a construction that is unreasonable or unnatural'.
[58] DC Peers and RS Geddes, Statutory Interpretation in Australia (8th ed, 2014) [3.41] [9.2]; see also Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622, 638.
[59] IW v The City of Perth (1997) 191 CLR 1 [11].
As I understand the argument, Mr Trac submits that a liberal interpretation of s 93N results in an interpretation that the special evaluation to be conducted pursuant to s 93N(5) can be undertaken at the same time that the certification process required by s 93N(1) is undertaken, without any request from the worker for this to occur.
In my view, such an interpretation is not fairly open on the words used in s 93N.
As I have explained above, the language of the section plainly envisages a two-step process. Section 93N(1) sets out the criteria which must exist before the section applies. Section 93N(2) to s 93N(5) then set out what may occur once that criteria has been established. Also, the provision envisages that by the making of the request, the worker will provide certain information to the approved medical specialist for the purposes of the specialist making the special evaluation.
For these reasons, I do not accept Mr Trac's submission.
Evidence
The evidence in respect of the trial of the preliminary issues was adduced by way of exhibits admitted into evidence by consent.
The exhibits comprised:
1.exhibit 1: common trial bundle of documents;
2.exhibit 2: proof of evidence of Aimee Tamara Schmidt; and
3.exhibit 3: proof of evidence of Dr David Kennedy.
Ms Schmidt is Mr Trac's solicitor. Dr Kennedy provided the special evaluation relied on by Mr Trac. The proofs of evidence were admitted as evidence of the named witness without any cross‑examination. A correction was made by consent to Ms Schmidt's proof of evidence to replace '2016' appearing in line three of par 6 with '2015'.
By par 10 of the amended defence and par 3 of the amended reply, it is admitted that on 27 November 2013 Mr Trac completed and provided to Fero Reinforcing a worker's compensation claim form. It is also admitted that the termination day for the purposes of the Workers' Compensation Act was 27 November 2014. On this basis, the qualifying period the subject of s 93N(1) expired on 27 May 2015.
As the recitation below reveals, unfortunately the process by which Mr Trac sought to obtain a special evaluation, and to make an election to retain the right to damages, was affected by repeated error.
Analysis of exhibits
By way of explanation for what I say below:
(a)a Form AMS 5 is a report of the worker's degree of impairment specified in s 146H(1)(a);
(b)a Form AMS 6 is a certificate specifying the worker's degree of impairment referred to in s 146H(1)(b). Relevantly, in this case, the Form AMS 6 constitutes a special evaluation of the worker's degree of impairment;
(c)a Form AMS 8 is the certificate required by s 93N(1) of the Act.
The following matters arise from the Exhibits:
1.By letter of 31 October 2014 from the Director, Conciliation of WorkCover WA to Mr Trac's solicitors, Mr Trac's termination day was extended to 7 November 2015.[60]
[60] Document 6C page 27 of exhibit 1.
2.By letter of 4 April 2015 from Mr Trac's solicitors to the Director, Mr Trac's solicitors enclosed Forms AMS 5 and AMS 6 issued by Dr Kennedy dated 21 January 2015 and a Form 34 election to retain the right to seek damages.[61]
[61] Document 8, page 38 of exhibit 1. The Forms AMS 5 and 6 appear at document 7A, pages 28 - 34 and document 7B, pages 35 - 37 of exhibit 1 respectively. The election is at document 9, pages 39 and 40 of exhibit 1.
3.The Forms AMS 5 and AMS 6 reflected that a special evaluation had been undertaken. There were two immediate difficulties with this approach. First, the forms were dated 21 January 2015, yet the relevant period after which a special evaluation could be undertaken did not commence until 28 May 2015. Second, the Form AMS 5 stated that Mr Trac 'has attained maximum medical improvement as defined on page 3 of the WorkCover WA Guide'.[62] The reference to obtaining maximum medical improvement is inconsistent with the relevant evaluation being a special evaluation. The same difficulty arose in respect of the Form AMS 6.[63]
[62] Page 33 of exhibit 1.
[63] Page 36 of exhibit 1.
4.By letter of 9 April 2015 from the Director to Mr Trac's solicitor, the Director pointed out that a special evaluation could only be performed where an approved medical specialist certifies that the worker's condition has not stabilised after 27 May 2015. Accordingly, the Director stated that she was unable to record the special evaluation and register Mr Trac's election to retain the right to seek damages.[64]
[64] Document 10, pages 41 and 42 of exhibit 1.
5.Mr Trac's solicitors then arranged for him to meet with Dr Kennedy on 27 May 2015.[65] On 27 May 2015, Dr Kennedy sent a facsimile to Mr Trac's solicitors asking for reports of Mr Wong (Mr Trac's surgeon) in respect of surgery conducted on Mr Trac's injured hand on 20 April 2015.[66]
[65] Document 11, page 43 of exhibit 1, par 2 of Dr Kennedy's proof.
[66] Document 12, page 44 of exhibit 1.
6.By letter of 31 July 2015 from Mr Trac's solicitor to Dr Kennedy, Mr Trac's solicitors requested Dr Kennedy to issue a new AMS 5 and AMS 6.[67] Mr Trac accepts that the letter of 31 July 2015 to Dr Kennedy does not constitute a request for a special evaluation in accordance with s 93N(2) of the Act. Having regard to the terms of reg 18L and 18M, it plainly does not.
[67] Document 13, page 45 of exhibit 1.
7.Mr Trac's solicitor's letter of 31 July 2015 to Dr Kennedy also attached Dr Wong's reports dated 5 May 2015 and 1 July 2015.[68] Dr Kennedy received these reports.[69]
8.Dr Kennedy then issued new Forms AMS 5 and AMS 6.[70] Both forms were dated 21 January 2015,[71] they referred to Dr Kennedy's examination of Mr Trac on 8 January 2015[72] and stated Mr Trac had attained maximum medical improvement.[73] Both forms were said to reflect a special evaluation.[74]
9.Dr Kennedy also issued a Form AMS 8, being the certificate that Mr Trac's condition had not stabilised.[75] The Form AMS 8 referred to Dr Kennedy's examination of Mr Trac on 8 January 2015 and was dated 21 January 2015.[76]
10.By letter of 1 September 2015 to Dr Kennedy, Mr Trac's solicitors requested updated Forms AMS 5 and AMS 6 following Dr Kennedy's attendance with Mr Trac on 27 May 2015.[77]
11.Dr Kennedy then re-issued the Forms AMS 5 and AMS 6.[78] Both forms were dated 27 May 2015.[79] Both forms reflected a special evaluation, although they both stated that Mr Trac had attained maximum medical improvement.[80]
12.Mr Trac's solicitors sent the new Forms AMS 5 and AMS 6 dated 27 May 2015 together with a Form 34 election to retain the right to seek damages to the Director by letter of 12 October 2015.[81] Mr Trac's solicitors did not forward to the Director a Form AMS 8 as required by s 93N(1). By their letter, Mr Trac's solicitors requested the assessment and election be recorded and a Form 33 be issued.
13.The Director responded to Mr Trac's solicitors by letter of 14 October 2015, sent on behalf of the Director by the Senior Registration Officer.[82] The letter pointed out that the Forms AMS 5 and AMS 6 stated that Mr Trac 'has attained maximum medical improvement' and, if this is the case, a special evaluation is not applicable. The letter also pointed out that a Form AMS 8 had not been provided and suggested Mr Trac's solicitors seek clarification from Dr Kennedy.
14.Dr Kennedy then re-issued Forms AMS 5, AMS 6 and AMS 8.[83] The re-issued Forms AMS 5 and AMS 6 removed the reference to Mr Trac having attained maximum medical improvement.
15.By letter of 28 October 2015 from Mr Trac's solicitors to the Director, Mr Trac's solicitors sent to the Director the further Forms AMS 5, AMS 6 and AMS 8 and requested that Mr Trac's election to retain the right to seek damages now be recorded.[84]
16.The Director responded by letter of 2 November 2015 to Mr Trac's solicitors.[85] The Director acknowledged receipt of the Forms AMS 5,[86] AMS 6[87] and AMS 8,[88] and Form 34.[89] The Director's letter stated that Dr Kennedy's assessment had been recorded in accordance with s 93L(2) of the Act and Mr Trac's election to retain the right to seek damages had been registered with effect from 2 November 2015. The Director's letter attached a Form 33 (being the Director's record in the register of the assessment).[90] The Director's letter also attached the Form 34 election to retain the right to seek damages signed by the Director and stating that on 2 November 2015 it was lodged under reg 22 and registered.[91] This is the notification required by s 93K(4)(c).
[68] The letter refers to two reports from Dr Wong dated 1 July 2015. I do not know whether this is an error. In any event, nothing turns on it.
[69] Paragraph 4 of Dr Kennedy's proof.
[70] Document 13A, pages 46 – 55 of exhibit 1.
[71] Pages 52 and 55 of exhibit 1.
[72] Pages 47 and 54 of exhibit 1.
[73] Pages 51 and 54 of exhibit 1 respectively.
[74] Pages 46, 51 and 54 of exhibit 1.
[75] Document 13A, pages 56 – 57 of exhibit 1.
[76] Page 57 of exhibit 1.
[77] Document 14, page 58 of exhibit 1.
[78] Document 15A and 15B, pages 62 - 71 of exhibit 1.
[79] Pages 68 and 71 of exhibit 1 respectively.
[80] Pages 67 and 70 of exhibit 1 respectively.
[81] Document 16, page 72 of exhibit 1.
[82] Document 18, pages 75 and 76 of exhibit 1.
[83] Document 20A, pages 78 – 84, document 20B, pages 85 – 87 and document 20C, pages 88 - 89 of exhibit 1 respectively.
[84] Document 21, page 90 of exhibit 1.
[85] Document 22, pages 91 - 92 of exhibit 1.
[86] Document 20A at pages 78 – 84 of exhibit 1.
[87] Document 20B at pages 85 – 87 of exhibit 1.
[88] Document 20C at pages 88 - 89 of exhibit 1.
[89] Document 17 at pages 73 – 74 of exhibit 1.
[90] Document 23, page 93 – 94 of exhibit 1.
[91] Document 24 in exhibit 1.
This concludes the rather protracted documentary pathway culminating in the Director registering Mr Trac's election to retain the right to seek damages.
Two factual issues arise. First, whether the certificate required by s 93N(1) was issued on or after 28 May 2015. Second, as to the manner in which the special evaluation relied on by Mr Trac was initiated and undertaken. In respect of this second issue, an aspect of Fero Reinforcing's overall contention is the special evaluation was in effect a restatement of the assessment that was done on 21 January 2015.[92] This is not raised directly on the pleadings and Dr Kennedy was not required for cross examination on it. In any event, for the reasons set out below, I do not accept Fero Reinforcing's contention that the special evaluation was in effect a restatement of the 21 January 2015 assessment.
[92] ts 75.
In respect of the steps taken by Dr Kennedy in assessing Mr Trac, he says in his proof of evidence at pars 2 ‑ 5:
2.I assessed Mr Dong Trac for his solicitor on 20 October 2014, 21 January 2015 and 27 May 2015.
3.I did not on 27 May 2015 issue any certificates since I was awaiting reports from Dr Wong and advice as to specifically what was required of me.
4.I subsequently received a letter dated 31 July 2015 enclosing Dr Wong's reports and requesting AMS Forms 5 and 6.
5.I decided that, there being no maximal medical improvement, I would need to issue an AMS Form 8 as well so I completed and sent the three forms in early August 2015. However, I dated them 21 January 2015 as I thought that was what was required.
The reports from Dr Wong were dated 5 May 2015 and 1 July 2015.[93] By reason of what is said at par 4 of Dr Kennedy's proof, I find he received those reports on or after 31 July 2015.
[93] Page 45 of exhibit 1.
Dr Kennedy's proof does not expressly say that he had regard to Dr Wong's further reports. The Form AMS 5 provides for the reports and documents provided to be described in a box on page 2 of the form. The final Form AMS 5 relied on by Mr Trac only refers to a report from Dr Wong dated 30 April 2014 and makes no reference to the reports dated 5 May 2015 and 1 July 2015.[94] This box is in the same terms as that included in the Form AMS 5 issued in April 2015.[95]
[94] Page 79 of exhibit 1.
[95] Page 29 of exhibit 1.
Notwithstanding that the final Form AMS 5 does not refer to Dr Wong's reports received by Dr Kennedy on or after 31 July 2015, I am satisfied on the balance of probabilities, and find, that Dr Kennedy had regard to those reports before issuing the final Forms AMS 5, AMS 6 and AMS 8.[96]
[96] Documents 20A, 20B, and 20C in exhibit 1.
In my view, reading pars 2, 3, 4 and 5 of Dr Kennedy's proof as a whole, Dr Kennedy had regard to Dr Wong's reports received by him on or after 31 July 2015. Dr Kennedy's proof says at par 3 that he did not issue any certificates on 27 May 2015 as he was waiting for Dr Wong's reports and advice as to what was specifically required of him. Dr Kennedy then says at par 4 he received a letter dated 31 July 2015 enclosing Dr Wong's reports. He then says at par 5 that he decided there being no maximal (which I read as maximum) medical improvement, he would need to issue a Form AMS 8 as well, so completed and sent the three forms in early August 2015. In my view, the clear implication from these paragraphs is Dr Kennedy had regard to Dr Wong's further reports received on or after 31 July 2015 in coming to the conclusions expressed in each of the Forms AMS 5, AMS 6 and AMS 8 he prepared after receipt of those reports.
As for there being no mention of Dr Wong's further reports in the numerous forms prepared by Dr Kennedy, I think all that can be said is the recitation of events detailed above reveals the record keeping precision to be expected was not applied in the preparation of the required reports for Mr Trac.
I make the following additional findings of fact:
1.Dr Kennedy examined Mr Trac on 27 May 2015. Dr Kennedy states to this effect in par 2 of his proof of evidence. Further, the Forms AMS 5 and AMS 6 ultimately relied on by Mr Trac stated to the effect that Mr Trac was examined on 27 May 2015.[97]
2.Dr Kennedy took account of his examination of Mr Trac on 27 May 2015 in making the special evaluation which is relied on by Mr Trac. In my view, this is clear from pars 2 and 3 of his proof of evidence and from the Forms AMS 5 and AMS 6 ultimately relied on by Mr Trac, which respectively refer to an examination or assessment on 27 May 2015.[98]
3.Dr Kennedy's final examination of Mr Trac was on 27 May 2015.
4.That on or about 28 October 2015, as part of the one overall process, Dr Kennedy created and certified the Forms AMS 5, AMS 6 and AMS 8 which ultimately formed the basis for the Director's recording of the assessment and registration of the election;[99] and
5.Mr Trac did not request Dr Kennedy to undertake a special evaluation.[100]
[97] Page 79 and 86 of exhibit 1.
[98] Pages 79 and 86 of exhibit 1.
[99] Paragraph 9 of Dr Kennedy's proof of evidence.
[100] Paragraph 9 of Ms Schmidt's proof of evidence; ts 11 - 12; ts 73.
Issues between the parties
The following issues initially arose in respect of the determination of preliminary issues:
1.Whether Dr Kennedy's final certificate under s 93N(1)[101] was issued on 27 May 2015, thus the day before the commencement of the period pursuant to which such a certificate may be issued under s 93N(1) of the Act;
2.Did Mr Trac request that a special evaluation be undertaken in accordance with s 93N(2) of the Act;
3.Was the special evaluation made by Dr Kennedy undertaken in accordance with the process set out in s93N; and
4.If the answer to either or both of issues 2 and 3 is no, is Mr Trac's election to retain the right to damages invalid and thus the proceedings incompetent.
Issue 1 – date of issue of section 93N certificate
[101] Exhibit 20C; page 88 of exhibit 1.
I have found the Form AMS 8 constituting the certificate required by s 93N(1) was issued by Dr Kennedy on or about 28 October 2015.[102] It was based on an examination conducted by Dr Kennedy of Mr Trac on 27 May 2015, which was the last day of the applicable period before the process afforded by s 93N(1) commenced. Fero Reinforcing does not contend this invalidates the certificate,[103] nor does it contend that if the certificate was issued on or about 28 October 2015,[104] it did not speak to Mr Trac's condition from 28 May 2015 onwards.
[102] This is the Form AMS 8 at pages 88 - 89 of exhibit 1.
[103] Amended defence pars 13 and 14; see also ts 59 and ts 71.
[104] As pleaded by Mr Trac at par 4 of the amended reply.
In any event, I have also found Dr Kennedy issued the certificate taking account of his examination of Mr Trac on 27 May 2015 and of the reports he received from Dr Wong on or after 31 July 2015. I am satisfied on this basis that the certificate was both issued, and spoke to Mr Trac's condition, after the commencement of the applicable period referred to in s 93N. Therefore, I am satisfied the Form AMS 8 constituted a certificate in compliance with s 93N(1).
In fairness to Fero Reinforcing, its contest to the s 93N(1) certificate initially arose on the pleadings because the certificate was dated 27 May 2015. Once Dr Kennedy's and Ms Schmidt's proof of evidence were provided stating to the effect the certificate was issued on or about 28 October 2015, Fero Reinforcing did not forcefully maintain its objection in respect of this certificate.[105] Instead, its contentions were directed to the process by which the special evaluation was obtained.
Issues 2 and 3 - was there compliance with s 93N?
[105] ts 59 and ts 68 - 71.
Fero Reinforcing contends the special evaluation was not undertaken in accordance with s 93N essentially for these reasons - there was no request as required by s 93N(2), the special evaluation did not follow a further assessment done on or after 28 May 2015 and the special evaluation appears to be a restatement of the assessment that was done on 21 January 2015.[106] I have held at [92] – [99] that I do not accept the third of these reasons.
[106] ts 75.
As I have explained, in my view s 93N requires two separate assessments to be undertaken of the worker's condition. The first is the assessment required by s 93N(1), which activates s 93N. The second is the assessment conducted in accordance with s 93N(5), after the worker has requested a special evaluation in accordance with section 93N(2).
I have found that Mr Trac did not request Dr Kennedy to make a special evaluation. I have also found that Dr Kennedy issued the certificate required by s 93N(1) and the special evaluation the subject of s 93N(2) ‑ s 93N(5) as part of the one overall process. That is, Dr Kennedy did not undertake a second later assessment as to whether a normal evaluation could be conducted prior to issuing the special evaluation.
Accordingly, having regard to my view as to the proper interpretation of s 93N, the special evaluation relied on by Mr Trac was not obtained in compliance with s 93N. This is for two reasons. First, Mr Trac did not request Dr Kennedy to make a special evaluation. As a result, Dr Kennedy's assessment constituting the special evaluation did not occur upon the receipt of such request, with the information it was to provide. Second, Dr Kennedy issued the certificate required by s 93N(1) and the special evaluation the subject of s 93N(2) ‑ s 93N(5) as part of the one overall process.
I therefore accept Fero Reinforcing's contention that the special evaluation was not undertaken in accordance with s 93N.
Issue 4 – the effect of non-compliance with s 93N
Fero Reinforcing contends that because the process by which the special evaluation was obtained did not comply with s 93N, Mr Trac's right to make the election did not arise and therefore the election is invalid.
The parties' competing contentions regarding the effect of non‑compliance with s 93N are to the effect:
1.Fero Reinforcing says the word elects where used in s 93K(4)(a) means an election that conforms with the requirements for an election under the Workers' Compensation Act.[107] Therefore, it is said, compliance with the process for obtaining the anterior assessment relied on is a pre-condition to the worker's right to make the election. Thus, if the process is not complied with, there is no assessment within the terms of s 93L(2). Fero Reinforcing says it follows Mr Trac was not entitled to make an election and his election is therefore invalid. Or, put another way, the election is of no effect.
2.Mr Trac contends that where the steps set out in s 93K(4) have occurred - the worker makes the requisite election and the Director registers it – the intention of the legislative scheme is that the court hearing the proceedings brought by the worker is not to go behind acts of the Director apparently valid on their face. Thus, the election cannot be challenged in court proceedings brought by the worker in reliance on the election and its registration.
[107] ts 67.
The essential difference between the two positions is whether the legislative scheme intended that where the Director's recording of an assessment and registration of an election are apparently valid on their face, the validity of the assessment can be challenged in court proceedings brought by the worker so as to demonstrate that the preconditions to the bringing of those proceedings have not been met and, therefore, the proceedings are incompetent.
Whether the Director's decision to record the assessment or register the election is amenable to judicial review was not argued before me, although during argument Mr Trac's counsel accepted it was arguable those decisions were amenable to judicial review.[108] In any event, Fero Reinforcing has not brought any proceedings for judicial review and they could not be brought before me.
[108] ts 35 - 36.
During the course of argument, Fero Reinforcing's counsel referred to ReLawrence; Ex ParteGoldbar Holdings Pty Ltd[109] and Australian Crime Commission v Marrapodi[110] in support of the proposition that as a general rule the court will allow the issue of invalidity to be raised in any proceedings where it is relevant. However, as I raised with Fero Reinforcing's counsel, ultimately, whether the issue of invalidity can be raised is a matter of statutory construction.[111]
[109] Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549, 560 - 561.
[110] Australian Crime Commission v Marrapodi [2012] WASCA 103 [127] - [128].
[111] ts 76 - 78.
It is not in dispute that the Director recorded the assessment of Mr Trac's degree of impairment as 42%, registered Mr Trac's election to retain the right to damages and gave Mr Trac written notice of such registration. Thus, on its face, the requirements of s 93K(4)(a), s 93K(4)(b) and s 93K(4)(c) are met.
In my view, in determining Fero Reinforcing's contention, I must assess what consequences the legislative scheme intended where, on its face, a worker has validly made an election and the Director has registered that election, yet, the requisite assessment of the worker's degree of impairment anterior to the making of the election was not undertaken in accordance with the processes set out in the Workers' Compensation Act and the Workers' Compensation Regulations.
During the course of argument, I asked the parties whether the decision of the Court of Appeal in Re Monger;Ex parteCross[112] was of any assistance.
[112] Re Monger; Ex parte Cross [2004] WASCA 176.
This decision was decided under different provisions of the Workers' Compensation Act. It is accepted by the parties that it is not an authority that binds the outcome in this case. As Fero Reinforcing's counsel explained in his written supplementary submissions:
1.3Ex parte Cross concerned a different issue – namely, whether under the previous scheme that came into force on 5 October 1999, a requirement under s93E(6)(a) that a worker produce medical evidence to the Director together with a Form 22 by a specified date could be waived by the employer. A majority (Malcolm CJ, Wheeler J and EM Heenan J) held that the requirement could be waived. A differently constituted majority (Malcolm CJ, Wheeler J and Pullin J) held that the employer did not waive its right to argue that the worker's election was invalid.
I have read both Re Monger; Ex parte Cross and also Re Monger (ex parte) TNT Australia Pty Ltd[113] referred to in it. Given those decisions are in respect of provisions of the Workers' Compensation Act prior to it being substantially amended, I am of the view that I should not draw any support from the respective judgments. In this respect, in my view, I must approach the question of statutory interpretation by having regard to the legislative scheme as a whole as now enacted. Therefore, it is unwise to draw support from those decisions when they were directed to different provisions and issues.
[113] Re Monger; Ex parte TNT Australia Pty Ltd [2002] WASCA 223.
I have explained earlier the applicable principles of statutory interpretation. I have also set out the various aspects of the Workers' Compensation Act and the Workers' Compensation Regulations applicable to the making of an election by a worker to retain the right to damages. They include matters of varying degrees of precision, detail and finality.
I consider the following matters to be of particular significance in undertaking the required task of statutory interpretation.
The assessment of the worker's degree of impairment is to be evaluated by reference to the WorkCover Guides. I have found the Guides are not intended in their entirety to have a rule like quality.[114] Further, the use of the word evaluated reflects that the process is not a precise one. While I appreciate the WorkCover Guides are also to be used as the basis for the court's assessment of the degree of impairment for the purposes of s 93K(4)(d) and s 93K(5), the court's assessment there arises in the context of adversarial proceedings between the worker and the employer. The court makes the requisite assessment after hearing from the parties and, in all likelihood, expert evidence. In contrast, the worker and the employee have no entitlement to make any submission as to an assessment by an approved medical specialist.
[114] See for example Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 [94] – [96], in comparison to Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 [63].
Further, the court in making its assessment of the degree of impairment is not bound by an approved medical specialist's assessment recorded by the Director under s 93L(2).[115] Also, the court has a discretion whether to admit that assessment as evidence relevant to the worker's degree of impairment.[116] Thus, where an employer contends an approved medical specialist's assessment does not comply with the Workers' Compensation Act, it is open to the employer to raise those matters in objecting to the admission into evidence of the assessment, or as going to the reliability of the assessment if admitted.
[115] Section 93K(13).
[116] Section 93K(13).
Section 146J provides that an assessment of an approved medical specialist and anything done in the process of coming to that assessment is not amenable to judicial review.
The Workers' Compensation Act prescribes that the request for an assessment must be made in accordance with the Workers' Compensation Regulations.[117] The relevant regulations are s 18L and s 18M. I appreciate as a general rule I cannot take account of the detail prescribed by those regulations in construing the Workers' Compensation Act under which they are made. However, in my view the Workers' Compensation Act envisages the request will be accompanied by some detail, which will be spelt out by the regulations. This necessity for detail gives rise to the potential for errors.
[117] Section 93N; s 146A(3).
The Workers' Compensation Act provides for finality upon the recording of an assessment, and the registering of an election. Both cannot be withdrawn.[118] Further, where the degree of impairment is assessed at less than 25%, the worker's election immediately impacts on the worker's rights to compensation.[119]
[118] Section 93L(5) and s 93L(6).
[119] Section 93P.
Where a worker has made a claim for weekly compensation payments, the worker's right to make an election must not be made after the specified termination day. This can only be extended in limited circumstances, none of which appear to apply where errors have been made in the application of the processes set out in s 93N.
Furthermore, the requirement for the Director to record an assessment or agreement as to a worker's degree of impairment, and register an election, conveys there is a presumed validity to the assessment and the election.
This analysis reveals the following:
(a)the evaluative and preliminary nature of the assessment process;
(b)the assessment and anything done in coming to it is not subject to judicial review;
(c)the potential for error in providing the requisite details as part of the assessment process; and
(d)the finality of the recording of an assessment, and the registration of an election.
In my view, the combination of these factors points in favour of an interpretation that in court proceedings brought by a worker in reliance on the Director's recording of an assessment and registration of an election which are apparently valid on their face, the validity of the assessment cannot be challenged, on the basis of a failure to comply with the processes set out in the Workers' Compensation Act, so as to establish that the preconditions to the bringing of the proceedings have not been met.
As stated in Thomas Peacock & Sons Pty Ltd v Abreu,[120] the scheme the subject of div 2 is put in place to deter small, disproportionately costly, claims for damages. At its base level, this requires an assessment, or agreement, that a worker has suffered a minimum degree of harm, being a degree of impairment of at least 15%. This purpose is unlikely to be frustrated where an assessment of impairment beyond the 15% threshold is obtained, yet the processes behind that assessment have not been undertaken in accordance with the Workers' Compensation Act.
[120] Thomas Peacock and Sons Pty Ltd v Abreu [24] – [28], [30].
Furthermore, if in court proceedings brought by the worker to pursue their right to damages, an employer is able to test the process by which an assessment was obtained, the worker would appear to have a limited ability (if any) to remedy any errors that occurred. These errors could themselves be caused by matters outside the worker's control, for example by reason of matters undertaken by the approved medical specialist, or by the Director.
I appreciate the result of such an interpretation is that it precludes an employer from testing in the court proceedings whether the processes prescribed by the Workers' Compensation Act have been complied with. However, in my view, there are a number of factors which mitigate the prejudice caused by this.
The process by which an assessment is recorded by the Director still requires the Director to be satisfied that the worker's degree of impairment has been assessed to be at least 15%.[121] Further, the Director may reject an assessment where there are factual errors in the documents recording that assessment.[122]
[121] Regulation 21(1) of the Workers' Compensation Regulations.
[122] Section 146H(5) of the Workers' Compensation Act.
The approved medical specialist conducting the assessment must be approved by WorkCover WA, which must be satisfied that the approved medical specialist is sufficiently trained in the use of the WorkCover Guides.[123] Therefore, it is an approved sufficiently trained and independent person who conducts the assessment.
[123] Section 146F of the Workers' Compensation Act.
Also, an election under s 93K(4) does not create an entitlement to damages – the election is to retain the right to seek damages.[124] Accordingly, s 93K(4) allows for the worker to pursue an existing cause of action by way of court proceedings. Where the worker seeks to rely in court proceedings on the assessment as evidence relevant to the worker's degree of impairment, the court has a discretion whether or not to admit it into evidence.
[124] See also s 93K(7) of the Workers' Compensation Act.
It also needs to be kept in mind that pursuant to s 146F(5), WorkCover WA is to monitor assessments for consistency and monitor compliance with the Workers' Compensation Act and, pursuant to s 146F(4), WorkCover WA may cancel the designation of a person as an approved medical specialist. Accordingly, there are consequences for non‑compliance with the requisite processes, albeit not ones that are available to be pursued by the employer.
Ultimately, the question is where the balance must be struck.[125] In my view, bearing all of these matters in mind, the preferred interpretation is that where:
•the Director has recorded an assessment of a degree of impairment of at least 15% and registered a worker's election to retain the right to damages based on that assessment;
•the recording and registration is apparently valid on its face; and
•court proceedings have been brought by the worker against the employer consequent upon the worker being notified by the Director of the registration of that election;
the validity of the assessment cannot be challenged in those proceedings, on the basis of a failure to comply with the processes set out in the Workers' Compensation Act, so as to establish that the preconditions to the bringing of the proceedings have not been met.
[125] To use the phrase from Thomas Peacock & Sons Pty Ltd v Abreu at [34].
In my view, this interpretation has a greater coherence with the statutory purpose sought to be achieved by the legislative scheme.
Accordingly, in my view, for the purposes of these proceedings, Mr Trac has made the requisite election, which the Director has registered. Mr Trac has therefore satisfied the requirements in s 93K(4)(a) to s 93K(4)(c) and is able to bring the proceedings.
In expressing this view, I am not saying there will never be any circumstances where an employer can dispute the validity of an assessment or an election. Instances of actual fraud may be one scenario where an employer might be able to do so.[126]
[126] See by way of analogy Clone Pty Ltd v Players Pty Ltd (in Liquidation) (Receivers & Managers Appointed) [2018] HCA 12 [2], where the High Court held the power to set aside a perfected judgment requires actual fraud.
I will hear from the parties as to what orders should be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ED
Associate to Judge Lemonis16 AUGUST 2019
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