Wright v Glencore Queensland Limited
[2016] QSC 247
•13 October 2016
SUPREME COURT OF QUEENSLAND
CITATION:
Wright v Glencore Queensland Limited [2016] QSC 247
PARTIES:
DARREN WRIGHT
(applicant)
v
GLENCORE QUEENSLAND LIMITED(respondent)
FILE NO/S:
SC No 45 of 2016
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Mackay
DELIVERED EX TEMPORE ON:
13 October 2016
DELIVERED AT:
Mackay
HEARING DATE:
12 October 2016
JUDGE:
Henry J
ORDER:
1. Application is dismissed.
2. The applicant pay the respondent’s costs of and incidental to the application on the standard basis to be assessed if not agreed.
CATCHWORDS:
WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – ASSESSMENT BY AGREEMENT – where the applicant was injured at work – where applicant disagreed with that Degree of Permanent Impairment assessment by a nominated doctor and requested a second assessment in accordance with s 186 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – where the insurer agreed to a second assessment by an alternative agreed doctor, but was dissatisfied with aspects of the second assessment report – where the insurer withdrew its agreement for the alternative doctor to perform the reassessment as he had not performed the assessment in accordance with s 179 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and nominated alternative doctors to undertake a further assessment – where the applicant seeks a declaration that the original decision of the respondent, in accordance with s 186 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) to have the applicant’s injury assessed again pursuant to s 179 of the Act by the alternative agreed doctor remains operative – where the applicant seeks a declaration that the decision of the respondent to withdraw the agreement made pursuant to s 186 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and to refer the applicant’s injury for assessment to other alternative doctors is invalid – whether the respondent’s original decision to have the applicant’s injury reassessed by the agreed alternative doctor remains operative – whether the respondent’s decision to withdraw the agreement to the alternative doctor was invalid
Acts Interpretation Act 1954 (Qld), s 14A
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 5, s 179, s 183, s 186
Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (Qld)Minister for Immigration v Li (2013) 249 CLR 332
COUNSEL:
M Holmes for the applicant
G Diehm QC for the respondent
SOLICITORS:
RJ Taylors Solicitors for the applicant
Dibbs Barker for the respondent
HIS HONOUR: The applicant worker suffered an ankle injury in the course of his work. He seeks declaratory relief calculated at resolving a dispute between him and the respondent, his employer’s workers’ compensation insurer.
The dispute arises out of his request for a doctor’s reassessment of his injury, pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”). An initial assessment was arranged by the insurer pursuant to s 179 of the Act, which relevantly provides:
“(1) An insurer may decide, or worker who has made an application under section 132 may ask the insurer, to have the worker’s injury assessed to decide if the worker’s injury has resulted in a degree of impairment.
(2) The insurer must have the degree of permanent impairment assessed – …
(c) for another injury – by a doctor.
(3) The degree of permanent impairment must be assessed in accordance with the GEPI to decide the DPI for the injury, and a report complying with the GEPI must be given to the insurer.…”
“GEPI” stands for Guidelines for Evaluation of Permanent Impairment, which guidelines are made and published by the Regulator pursuant to s 183 of the Act. The initial assessment carried out on the worker by Dr David Ness assessed the “DPI”, which stands for Degree of Permanent Impairment, at three per cent. By notice sent by facsimile to the insurer on 24 May 2016, the worker gave notice he disagreed with that DPI assessment and requested a second assessment in accordance with s 186 of the Act to be carried out by an alternative GEPI trained doctor from the Regulator’s register of GEPI trained doctors.
Section 186, relevantly, provides:
“(1) This section applies if –
(a) the worker’s degree of permanent impairment has not been assessed by a medical assessment tribunal; and
(b) the worker does not agree with the degree of permanent impairment stated in the notice of assessment (the “original notice”).
(2) The worker must advise the insurer within 20 business days after the original notice is given (the “decision period”) that the worker –
(a) does not agree with the degree of permanent impairment; and
(b) requests –
(i) that the insurer has the worker’s injury assessed again under section 179 by an entity mentioned in section 179(2) and agreed to by the worker and the insurer, (other than the entity that gave the report to the insurer under section 179(3)); or
(ii) that the insurer refer the question of degree of permanent impairment to a tribunal for decision.
(3) If the worker makes a request mentioned in subsection (2)(b)(i), the insurer must decide, within 10 business days after receiving the request, whether to have the worker’s injury assessed again under section 179 to decide if the worker’s injury has resulted in a degree of permanent impairment.
(4) If, under subsection (3), the insurer decides to have the worker’s injury assessed again under section 179, the original notice is taken to have never been given. …”
Section 186, in its present form, was introduced in the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (Qld) with the apparent purpose of affording an injured worker an opportunity, at the agreement of the insurer, to have a second s 179 assessment and thus potentially avoid recourse to assessment by a medical assessment tribunal.
Section 186(3) requires the insurer to make a decision within 10 business days of the worker’s request for a second assessment. That decision, which I will for convenience refer to as the “s 186(3) decision”, is, in the section’s words, “whether to have the worker’s injury assessed again under section 179 to decide if the worker’s injury has resulted in a degree of permanent impairment.”
In what is likely a drafting oversight, a s 186(2)(b)(i) request contemplates mutual agreement as to the entity – in this instance, a doctor – who will carry out the second assessment. Yet, s 186(3) contemplates the second assessment is to be carried out, “again, under section 179”, and s 179 contains no requirement that the assessing entity engaged by the insurer must be an entity agreed to by the worker.
The parties are at common ground, and I find, that such a requirement ought be inferred by reading s 186(3) in the context of s 186 and, for that matter, the broader context of chapter 3 of the Act. Such an interpretation is also consistent with the Act’s purpose (see, for example, s 5(4)(b)) and it ought be adopted consistently with s 14A(1) Acts Interpretation Act 1954 (Qld).
Thus, a s 186(3) decision is, “a decision whether to have the worker’s injury assessed again under s 179 by an entity mentioned in s 179(2), and agreed to by the worker and the insurer, to decide if the worker’s injury has resulted in a degree of permanent impairment.”
The parties are also at common ground that once a s 186(3) decision has been made by the insurer, the insurer cannot change its decision to have the second assessment. I need reach no final conclusion on that point for the purposes of this decision.
The interpretation issue on which the parties disagree is whether the insurer can, after agreeing with the worker upon the entity who will perform the second assessment, retract that agreement. That issue arises here because of the following chain of events.
The insurer decided to have the worker’s injury assessed again. Dr Mark Shaw was agreed on and he performed and reported on his assessment of the worker. He assessed a higher DPI than Dr Ness. The insurer was dissatisfied with some aspects of his report. This culminated in two disputes between the parties. The first was whether Dr Shaw’s assessment had been a s 179 assessment, that is, an assessment in accordance with the GEPI. The evidence shows Dr Shaw acknowledged he had not complied in some technical respects with the GEPI, although he was of the view this was inconsequential and that the same result would have been arrived at had he complied.
The worker filed an application in Rockhampton Supreme Court on 5 August 2016 seeking a declaration he was entitled to a notice of assessment on the basis of Dr Shaw’s assessment. To succeed, he would have to have shown the assessment met the requirements of s 179, that is, that it was in accordance with the GEPI. The point was not litigated in the end result, the application being dismissed by consent. The worker evidently came to accept, inconsequential as Dr Shaw may have thought it was, that the assessment was not in accordance with the GEPI. Predictably, the worker pressed for a further assessment by Dr Shaw and the insurer resisted, seeking agreement instead on some other doctor to perform the assessment.
So it is the second dispute developed. On 23 August 2016, the insurer wrote to the worker’s solicitor, relevantly stating:
“As you will be aware, our client decided to accept your client’s request under s 186 of the Workers’ Compensation and Rehabilitation Act 2003… to have his injury assessed again under s 179, by a doctor to be agreed between them. In our view, the Act does not prevent our client from withdrawing agreement to the doctor who will perform the reassessment until such time as the reassessment has been completed. We accept, of course, that our client’s decision under s 186(3) stands and cannot be withdrawn. It, however, is a decision limited to having an assessment done by a doctor to be agreed. Nothing in the Act indicates that a party cannot withdraw agreement to the identity of the assessor prior to the assessment. Indeed, there are many conceivable circumstances where such a construction would make the process unworkable, including if the doctor became unable or unwilling to perform the assessment.
Our client considers that Dr Shaw is not suitable to perform the reassessment because… he has demonstrated an inability to perform an assessment in accordance with the AMA5 and GEPI... . Accordingly, our client withdraws its agreement to Dr Shaw performing the reassessment. It is necessary, then, for the parties to agree on another doctor.”
…Our client proposes that the reassessment be performed by one of the following suitable trained orthopaedic specialists with experience in lower limb injuries:
(1) Dr Jeffrey Peereboom;
(2) Dr Peter Steadman; or
(3) Dr Peter McMenimanPlease advise which of the proposed doctors your client chooses to perform the assessment.” … (I have not included, because it is irrelevant, a second reason given as to why the insurer asserted Dr Shaw was not suitable to perform the reassessment.)
The worker subsequently filed the present application. The substantive orders sought are:
“(1) A declaration that the decision of the respondent on 13 June 2016, in accordance with s 186(3) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”) to have the applicant’s foot injury assessed again pursuant to s 179 of the Act by Dr Mark Shaw remains operative (“the decision”).
(2) A declaration that the decision of the respondent on 23 August 2016 to withdraw the agreement made pursuant to s 186(3) of the Act and to refer the applicant’s foot injury for assessment to either Dr Jeffrey Peereboom, Dr Peter Steadman or Dr Peter McMeniman is invalid.”
Given the issues upon which the worker’s arguments turn, the seeking of the latter declaration is predicated upon success in seeking the former. If the applicant cannot succeed in obtaining the first declaration, he must inevitably fail in the second.
Importantly, the application does not call for any consideration of the merits of Dr Shaw’s assessment or the reasonableness of the insurer’s conduct. As to the latter, a worker may have legal redress in the event an insurer does not exercise its discretionary power conferred by the statute reasonably (see, for example, Minister for Immigration v Li (2013) 249 CLR 332, 362-367). But such redress is not sought here.
This application turns upon the merits of an argument that the agreement as to who will conduct the second assessment is itself part of the s 186(3) decision and that once such agreement is reached the party cannot withdraw its agreement and remains bound to use the doctor it agreed to.
Through the language of the first declaration sought, the worker asserts the s 186(3) decision was made on 13 June 2016. That is incorrect. That the insurer decided to have the worker’s injury assessed again was made evident in the terms of an email by the insurer to the worker’s solicitor of 3 June 2016, that is, the s 186(3) decision was made on or before that day. This was, as required by s 186(3), within 10 business days of the section 186(2) request.
By letter of 8 June 2016 to the insurer, the worker’s solicitor nominated the names of three doctors as candidates to perform the assessment.
By letter of 13 June 2016 to the worker’s solicitor, the insurer advised the assessment would be performed by one of those doctors, namely Dr Shaw. The declaration sought would involve quite wrongly declaring this to be the date of the section 186(3) decision. At best this was merely the date on which agreement was reached as to who would perform the second assessment. It is difficult to see how it could on that date have ever been a s 186(3) decision because it was more than 10 business days after the request.
The timing of that agreement is actually of no moment here, however, because it is the s 186(3) decision, not agreement on the arrangements flowing from it, which must occur within 10 business days of the s 186(2) request. This exposes a fundamental flaw in the worker’s argument.
Section 186(3) only speaks of a decision, “whether to have the worker’s injury assessed again” (emphasis added). Once that decision is made, arrangements must be made in order to implement the decision. This includes the representatives of the insurer and worker communicating and reaching agreement about the doctor who will conduct the assessment as well as arrangements being made for when and where the assessment will occur. It may be accepted these arrangements and any agreements reached in making them involve decisions, but such decisions are merely made in consequence of the s 186(3) decision “whether” to have the worker’s injury assessed, and only in the event that decision is to have the worker’s injury assessed again. Plainly they would not even arise at all if the decision was not to have the worker’s injury assessed again. The first declaration sought conflates the decision to agree on which doctor will perform the second assessment with the insurer’s decision under s 186(3) whether or not there will even be a second assessment. They are clearly not one and the same decision. The decision of 13 June 2016 alleged in the terms of the first declaration sought was at best a decision as to whom the insurer agreed ought conduct the assessment and was not a s 186(3) decision.
I am conscious in so reasoning that I was earlier in this decision prepared to infer from the language and purpose of the statute and s 186(2)(b)(i)’s reference to “agreement” that if the insurer decides a second assessment will occur, it must be by a doctor whom both the insurer and worker agree to. The same considerations, however, do not justify the inference effectively sought by the worker that the insurer’s decision to be made within only 10 working days of the request includes the consequential decision-making as to who will carry out the assessment.
It is inevitable circumstances might legitimately and reasonably occur giving rise to a need to change the doctor to whom the parties have agreed. The doctor may die, become incapacitated or be unavailable for an unacceptably long time. Further, information might come to light after the agreement but before the assessment, which, had it been known of, would have given reasonable cause to one or both parties to withhold agreement to that doctor conducting the assessment. The worker’s argument here would, if accepted, mean even where there exists good reason to do so the parties cannot withdraw their agreement as to the identity of the assessing doctor prior to the assessment. It is hardly surprising the statute’s words do not support such an argument, either on their literal terms or on a contextual or purposive consideration of their terms.
It follows from these reasons that the first declaration should not be made. It follows in turn that the second declaration should not be made.
The reasons I have given are sufficient to dispense with this application. It is therefore unnecessary to purport to articulate what considerations should guide a permissible decision to withdraw an agreement on which doctor will perform an assessment. For the reasons given the application must fail.
My order is (1) application dismissed.
I will hear the parties as to costs.
…
HIS HONOUR: The applicant acknowledges that in the ordinary course costs ought follow the event, but submits the case involves an exceptional circumstance in that a novel point was raised, a point which, now determined, will be of assistance to the position of litigants in this field other than the immediately involved litigants. That is as may be. In my view, however, the application was plainly calculated at advancing what, on a rational assessment, was always going to be a difficult argument, because it was so very obviously in the interests of the worker’s position to succeed. That is, this was an argument with relatively remote prospects which presented as worth chancing because of the very beneficial consequences of the application succeeding.
In the circumstances I am unpersuaded that costs ought do other than follow the event.
My second order then is (2) the applicant pay the respondent’s costs of and incidental to the application on the standard basis to be assessed if not agreed.
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