SUPREME COURT OF QUEENSLAND

CITATION:	Merton v Queensland Local Government Workcare Scheme [2016] QSC 17	
PARTIES:	JOHNATHON BRADEN MERTON
(applicant)
v
QUEENSLAND LOCAL GOVERNMENT
WORKCARE SCHEME
(respondent)	
FILE NO/S:	SC No 10102 of 2015	
DIVISION:	Trial Division	
PROCEEDING:	Originating Application	
ORIGINATING COURT:	Supreme Court at Brisbane 	
DELIVERED ON:	18 February 2016	
DELIVERED AT:	Brisbane	
HEARING DATE:	29 October 2015	
JUDGE:	Philip McMurdo JA	
ORDER:	Declarations that:
1.  Pursuant to s 179 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”), the respondent is obliged to have the applicant’s hip injury assessed by a doctor.
2.  Upon the reference to it of 20 August 2015 about the applicant’s hip injury, the Orthopaedic Assessment Tribunal has no power to determine the degree of permanent impairment from that injury so as to affect the operation of pt 10 of ch 3 or ch 5 of the Act.
Further Order 18 February 2016: Respondent is to pay the applicant’s costs of the proceeding.	
CATCHWORDS:	WORKERS’ COMPENSATION – PROCEEDING TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – JURISDICTION OF COURTS, TRIBUNALS, COMMISSIONS AND BOARDS – where the applicant suffered an injury to his left hip in September 2014 and applied for compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”) – where the applicant has been receiving weekly payments from the respondent insurer – where an entitlement to receive a lump sum payment requires an assessment under Part 10, Chapter 3 of the Act – where an entitlement to claim damages is dependent upon the assessed degree of impairment being greater than five per cent and a notice of assessment being issued by the insurer – where the applicant has requested his injury be assessed by a doctor under Part 10, Chapter 3 of the Act in order to claim a lump sum payment – where the respondent referred the applicant’s injury to the Orthopaedic Assessment Tribunal for assessment because it says is not obliged to have a doctor conduct the assessment – whether upon a proper interpretation of the Act the applicant is entitled to have a doctor assess his injury     
Workers’ Compensation and Rehabilitation Act 2003 (Qld), 
s 178, s 179, s 180, s 184, s 185, s 186, s 187, s 237, s 239, s 500, s 501, s502, s 505.	
COUNSEL:	G R Mullins with M Black for the applicant
C Harding for the respondent	
SOLICITORS:	Maurice Blackburn for the applicant
Kaden Boriss for the respondent	

[1]	PHILIP McMURDO JA:  The applicant injured his left hip at work in September 2014.  He applied for compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld), which I will call the Act.  He has been receiving weekly payments from the relevant insurer, which is the respondent, upon two bases.  The first, which is the relevant one for this case, is his injury to his hip.  The second, which is not presently relevant, is a psychological injury.
[2]	Where a worker suffers an injury which engages the Act, it can be relevant to determine whether that injury has resulted in a permanent impairment, as that term is defined for the Act, and if so the degree of impairment the measure of which, according to the Act, is called the DPI for the injury.  These issues are relevant both to the worker’s entitlement to compensation under the Act and the worker’s entitlement to claim damages at common law for the injury.
[3]	Part 10 of ch 3 of the Act regulates a worker’s entitlement to compensation for a permanent impairment.  If a worker is assessed under that part as having sustained a DPI, the worker is entitled to a payment, or an offer of payment, of compensation by a lump sum payment for that permanent impairment:  s 178(2).  Part 10 provides for a process by which the worker’s injury is assessed and by which the insurer gives a notice of an assessment of a permanent impairment.  For an injury such as this hip injury, the assessment is to be undertaken, in the first instance, by a doctor.  If the worker agrees with the assessment, pt 10 then governs the matter of a lump sum compensation for the injury.  The notice of assessment also affects whether the worker may seek damages for the injury, because by s 237, a worker may do so only if the worker has received a “notice of assessment” from the insurer stating that the DPI for the assessed injury is something more than 5 per cent.  The term “notice of assessment” is defined for the Act as a notice of assessment of permanent impairment issued by an insurer under s 185.
[4]	In these ways the assessment of an injury and the notice of that assessment are essential steps towards obtaining payment, or an offer of payment, of a lump sum compensation and an entitlement to seek common law damages for the injury.  The applicant wishes to have his hip injury assessed under pt 10 of the Act and has asked the respondent to appoint a doctor to do so.  But the respondent says that it is not obliged to have a doctor conduct the assessment.  Instead, the respondent argues, it is entitled to have the applicant assessed first by a tribunal under pt 3 ch 11 of the Act and to that end it has referred the applicant’s hip injury to the Orthopaedic Assessment Tribunal.
[5]	If the applicant is assessed by a doctor, rather than at first by the tribunal, it is still possible for the ultimate assessment to be made by the tribunal.  This is because under the provisions of the Act which the applicant says must be followed, where a worker is dissatisfied with the doctor’s assessment, he may call for another assessment which must be conducted by the tribunal if either the worker or the insurer so requires.  But at this stage, the worker insists upon the assessment being undertaken by a doctor whilst the insurer insists upon it being undertaken, once and for all, by the tribunal.  The question in this case is about which of these positions, upon the proper interpretation of the Act, is correct.
Compensation for permanent impairment
[6]	Section 37 of the Act provides:
“An impairment, from injury, is a loss of, or loss of efficient use of, any part of a worker’s body.”
Section 38 provides:
“A permanent impairment, from injury, is an impairment that is stable and stationary and not likely to improve with further medical or surgical treatment.”
Schedule 6 of the Act defines the term DPI to mean:
“… for an injury of a worker … an estimate, expressed as a percentage, of the degree of the worker’s permanent impairment assessed and decided in accordance with the GEPI.”
Section 183 of the Act (within pt 10 of ch 3) provides for the making of guidelines to assess a worker’s degree of permanent impairment in order to decide the DPI for an injury.  These guidelines are to be called the Guidelines for Evaluation of Permanent Impairment (or GEPI).
[7]	Chapter 3 provides a scheme for workers’ compensation benefits.  Part 9 of ch 3 provides for weekly payments of compensation.  Part 10 of ch 3 provides for lump sum compensation and is headed “Entitlement to compensation for permanent impairment”.  Part 10 is comprised of ss 178 to 193.
[8]	Section 178 provides, in part, as follows:
“(1) 	Under this part, an insurer or a worker is entitled to ask for an assessment to decide if a worker has sustained a DPI from injury.  
  (2)	If the worker is assessed under this part as having sustained a DPI, the worker is entitled to a payment, or an offer of payment, of lump sum compensation for the permanent impairment.”
[9]	Section 179 provides, in part, as follows:
“179	Assessment of permanent impairment
(1)	An insurer may decide, or a worker who has made an application under section 132 may ask the insurer, to have the worker’s injury assessed to decide if the worker’s injury has resulted in a degree of permanent impairment.
(2)	The insurer must have the degree of permanent impairment assessed—
	(a)	for industrial deafness—by an audiologist; or
	(b)	for a psychiatric or psychological injury—by a medical assessment tribunal; or 
	(c)	for another injury—by a doctor.
(3)	The degree of permanent impairment must be assessed in accordance with the GEPI to decide the DPI for the injury, and a report complying with the GEPI must be given to the insurer.
The applicant is a person who has made an application under s 132, that being the provision under which an application for compensation is made.
[10]	By a letter from the applicant’s lawyers to the respondent dated 1 September 2015, the applicant requested the respondent to have his injury assessed by a doctor under s 179(2)(c).  This was after, on 20 August 2015, the respondent had referred, or purported to refer, the applicant’s injury to the Orthopaedic Assessment Tribunal.  On the respondent’s argument, this put paid to the applicant’s entitlement, according to s 178 and 179, to have an assessment undertaken by a doctor.  But the respondent’s argument in that respect is incorrect: the applicant is entitled to an assessment by a doctor under s 179 as he has requested.
[11]	Section 180 provides for the calculation of an amount of lump sum compensation depending upon the outcome of an assessment under s 179.  Section 180 relevantly provides:
“(1)	If, as a result of an assessment under section 179, a worker is entitled to lump sum compensation, the amount of the lump sum compensation must be calculated under a regulation having regard to the DPI.
(2)	…
(3)	The amount of lump sum compensation is to be calculated as at the day the insurer makes an offer of lump sum compensation under section 187.”
	(my emphasis)
[12]	Division 3 of pt 10 is headed “Notification of assessment of permanent impairment”.  It begins with s 184 as follows:
“184	Application of div 3
	This division applies if an assessment of permanent impairment of a worker’s injury has been made under s 179”.
	(my emphasis)
Section 185 requires the insurer to give a notice of assessment of permanent impairment, as follows:
“185	Insurer to give notice of assessment of permanent impairment 
(1)	The insurer must, within 10 business days after receiving the assessment of the worker’s permanent impairment, give the worker a notice of assessment in the approved form.
(2)	To remove any doubt, it is declared that if a worker sustains multiple injuries in an event, the insurer must give the notice only after the worker’s DPI for all injuries has been decided.
(3)	The notice must state—
(a)	whether the worker has sustained permanent impairment from the injury; and
(b)	if the worker has sustained permanent impairment—
(i)	the DPI for the injury; and 
(ii)	the amount of lump sum compensation under section 180 to which the worker is entitled for the injury; and
(c)	if the worker’s DPI is 30% or more – the worker’s entitlement to additional lump sum compensation under section 192.”
[13]	Section 186 provides for what may occur if the worker disagrees with an assessment of permanent impairment.  It is necessary to set out s 186 in full:
“186	Worker’s disagreement with assessment of permanent impairment
(1) This section applies if—
(a)	the worker’s degree of permanent impairment has not been assessed by a medical assessment tribunal; and 
(b)	the worker does not agree with the degree of permanent impairment stated in the notice of assessment (the original notice).
(2)		The worker must advise the insurer within 20 business days after the original notice is given (the decision period) that the worker—
(a)	does not agree with the degree of permanent impairment; and
(b)	requests—
(i)	that the insurer has the worker’s injury assessed again under section 179 by an entity mentioned in section 179(2) and agreed to by the worker and the insurer, (other than the entity that gave the report to the insurer under section 179(3)); or
(ii)	that the insurer refer the question of degree of permanent impairment to a tribunal for decision.
(3)		If the worker makes a request mentioned in subsection (2)(b)(i), the insurer must decide, within 10 business days after receiving the request, whether to have the worker’s injury assessed again under section 179 to decide if the worker’s injury has resulted in a degree of permanent impairment.
(4)		If, under subsection (3), the insurer decides to have the worker’s injury assessed again under section 179, the original notice is taken to have never been given.
(5)		If the insurer has the worker’s injury assessed again under section 179, the worker can not make a further request mentioned in subsection (2)(b)(i).
(6) If—
(a)	under subsection (3), the insurer decides not to have the worker’s injury assessed again under section 179; or 
(b)	the worker makes a request mentioned in subsection (2)(b)(ii);
the insurer must refer the question of degree of permanent impairment to a medical assessment tribunal for decision. 
(7)		The degree of permanent impairment may then be decided only by a medical assessment tribunal.”
It can be seen that this provision provides for a further assessment as I have noted already at [5].  Importantly, it provides for reference of the question to a medical assessment tribunal only where there has first been an assessment by a doctor and where the worker does not agree with the doctor’s assessment.
[14]	Section 187 requires an insurer to offer lump sum compensation as follows:
“187	Offer of lump sum compensation
If the worker has an entitlement to lump sum compensation under section 180, the insurer must include, in the notice of assessment, an offer of lump sum compensation to the worker (the offer).”
General law damages
[15]	Section 237 limits the entitlement of a worker to seek damages for an injury sustained by him or her by providing, relevantly, as follows:
“237	General limitation on persons entitled to seek damages
(1)	The following are the only persons entitled to seek damages for an injury sustained by a worker––
(a)	the worker, if the worker––
(i)	has received a notice of assessment from the insurer for the injury and the DPI for the assessed injury is more than 5% …
(2)	…
(3)	If a worker––
(a)	is required under section 239 to make an election to seek damages for an injury; and
(b)	has accepted an offer of payment of lump sum compensation under chapter 3, part 10, division 3 for the injury;
the worker is not entitled to seek damages.
(4)	However, subsection (3) does not prevent a worker from seeking damages under section 266.”
As already noted, the term “notice of assessment” is defined for the Act to mean a notice of assessment of permanent impairment issued by an insurer under s 185.
[16]	Section 239 applies “if a worker’s notice of assessment states that the worker’s DPI is less than 20%”.  The section then provides:
“(2)	If, in the notice of assessment, the worker is offered a payment of lump sum compensation under chapter 3, part 10, division 3 for the injury, the worker is not entitled to both—
(a) payment of lump sum compensation for the injury; and
(b) damages for the injury.”
[17]	Section 240 provides certain consequences for the costs of proceedings brought by a worker for damages according to whether “the claimant’s notice of assessment” states that the DPI is 20 per cent or more.  Again, this notice is that issued by the insurer under s 185.
[18]	Section 266 permits a worker to ask an insurer to consider fresh medical evidence where the worker contends that the worker’s DPI has increased by a deterioration in his or her condition.  That reconsideration by the insurer is required only where certain circumstances exist, including that “when the worker’s DPI was decided under section 179, there was no reason to believe that there would be a material deterioration of the worker’s injury …”
Tribunals
[19]	Chapter 11 of the Act provides for medical assessment tribunals.  Pt 3 of ch 11 is headed “Jurisdiction of tribunals” and by s 500 it provides that certain matters may be referred by an insurer to the appropriate tribunal for decision on the medical matters involved.  Section 500(1) provides as follows:
“(1)	An insurer may refer the following matters in relation to an injury under this Act to the appropriate tribunal for decision on the medical matters involved—
(a)	a worker’s application for compensation for an alleged injury;
(b)	a worker’s capacity for work;
(d)	a worker’s permanent impairment under section 160;
(e)	a worker’s permanent impairment under section 179;
(f)	a worker’s level of dependency under section 193;
(g)	a worker’s permanent impairment reviewable under section 266.”
[20]	Section 501 applies to a reference under s 500(1)(a).  This is not the provision under which the respondent has acted in this case.  Section 504 applies to a reference to a tribunal under s 500(1)(d), i.e. where the matter to be determined is a worker’s permanent impairment “under section 160”.  That has no present relevance because the question of permanent impairment under s 160 falls to be decided (in some circumstances) for the purpose of calculating a weekly payment of compensation.  Section 160(2) provides that in that context, the degree of permanent impairment that could result from the injury is to be decided only by a medical assessment tribunal.
[21]	Section 505 applies on a reference to a tribunal under s 500(1)(e), which is the decision of “a worker’s permanent impairment under section 179”.  Section 505 is as follows:
“505	Reference about worker’s permanent impairment
(1)		This section applies on a reference to a tribunal under section 500(1)(e).
(2)		The tribunal must decide—
(a)	whether the worker has sustained a degree of permanent impairment; and
(b)	if the worker has sustained a degree of permanent impairment—
(i)	the degree of permanent impairment resulting from the injury; and
(ii)	the DPI for the injury.”
As I have discussed, there is a path by which the DPI for the injury could fall to be determined by a medical assessment tribunal in the operation of pt 10 of ch 3.  In such a case, the tribunal would have a jurisdiction under s 500(1)(e) which it would exercise according to s 505.  Importantly, it is not s 500(1)(e) which the respondent says is the relevant source of the tribunal’s jurisdiction which it seeks to invoke.  Instead the respondent’s case is that the tribunal has a jurisdiction here under s 500(1)(b) and which is to be exercised according to s 502.
[22]	Section 502 provides as follows:
“502	Reference about worker’s capacity for work
(1)		This section applies on a reference to a tribunal under section 500(1)(b).
(2)		A reference under section 500(1)(b) may be made at any time and from time to time.
(3)		The tribunal must decide—
(a)	whether, when it makes its decision, there exists in the worker an incapacity for work resulting from the injury for which the application for compensation was made; and
(b)	whether the incapacity—
(i)	is total or partial; and
(ii)	is permanent or temporary; and
(c)	if the worker has sustained an injury resulting in permanent impairment and the insurer asks—the DPI for the injury.”
[23]	The respondent’s argument is that if there is a reference to a tribunal under s 500(1)(b), the tribunal is to decide the matters specified in s 502(3).  In this case, the respondent referred to the Orthopaedic Assessment Tribunal the question of the applicant’s capacity for work.  In that respect the applicant does not challenge the validity of the referral.  But in the same document, the respondent also purported to refer to the tribunal an assessment of the applicant’s permanent impairment.  Against the question “Why is this injury being referred to the MAT?”, the respondent completed the standard form of the referral by the words “Ongoing incapacity and PI assessment.”  It is clear from the respondent’s correspondence and its argument here that it contends that it has duly referred to the tribunal a question under s 502(3)(c), namely “the DPI for the injury”.  
[24]	The first difficulty with the respondent’s argument is from the terms of s 502 itself, even before consideration is given to other parts of the Act.  Section 502(3)(c) requires a tribunal to decide the DPI for the injury if the worker has sustained an injury resulting in permanent impairment.  The matter for the tribunal’s decision is the assessment of the DPI or, in other words, the assessment of the degree of permanent impairment.  Section 502 does not require or empower a tribunal to determine whether there has been some permanent impairment.  That they are distinct questions is illustrated by, for example, s 505(2) by which the tribunal is required to decide (a) whether the worker has sustained a degree of permanent impairment and (b) if so, the degree of permanent impairment and the DPI for the injury.  That is where the tribunal has referred to it the matter of “a worker’s permanent impairment under section 179”.  In the present case, it does not appear that the respondent has decided that there is a degree of permanent impairment.  Therefore it is far from clear that a factual premise for the operation of s 502(3)(c), namely that the worker has sustained an injury resulting in some permanent impairment, is accepted by the respondent and for that reason at least, the respondent’s referral in this case is of doubtful effect.
[25]	When the respondent’s argument is considered by reference to provisions beyond s 502, more substantial difficulties for the argument appear.  The first of them is in the absence of any provision which would give effect to a decision of the tribunal which assessed the DPI, acting under s 502, for the purposes of either the applicant’s entitlements to lump sum compensation or to bring proceedings for damages.
[26]	The entitlement to lump sum compensation is regulated by the steps set out in pt 10 of ch 3.  There must be an assessment of the DPI of the worker:  but more particularly, that must be an assessment “under” pt 10:  s 178(2).  The calculation of lump sum compensation is in consequence of a certain assessment “under section 179”:  s 180(1).  Division 3 of pt 10 is engaged where there has been an assessment made under s 179:  s 184.  Only in that circumstance will an insurer be obliged to give a notice of assessment of permanent impairment under s 185.  And only a notice given under s 185 is a “notice of assessment” as defined for the Act.
[27]	The determination of the tribunal, as the respondent seeks, has no apparent place in the scheme provided by pt 10 of ch 3.  In particular, there is no provision by which an assessment by the tribunal, as the respondent seeks, is treated as a relevant assessment for the operation of pt 10.  For example there is nothing which provides that such an assessment is to be treated as an assessment made under s 179 or under s 186(7).  The respondent’s argument would require that by a series of implications, there should be qualifications to provisions within pt 10 in order to bring about the result which the respondent seems to have in mind.
[28]	Essentially the same difficulty applies with the use of such a decision of the tribunal for the purpose of pt 2 of ch 5 of the Act, governing the worker’s entitlement to seek damages.  The general limitation on an entitlement to damages, as prescribed by s 237, is according to the existence and content of a “notice of assessment”.  That is a notice to be given under s 185.  So unless by some means it could be said that s 185 requires such a notice to be given not only after an assessment under s 179, but alternatively under an assessment from a purported referral under s 502, the worker would not be able to establish an entitlement to seek damages consistently with s 237.  And other provisions with respect to damages claims, such as s 239, s 240 and s 266 are again dependent upon the existence of a notice of assessment under s 185.
[29]	The consequences of the respondent’s argument, if accepted, would not be insignificant.  There is uncontradicted evidence here that an assessment by the tribunal is likely to be more expensive and less expeditious than one by a doctor.  Further, s 186 provides some safeguard against an erroneous assessment by enabling the worker to call for an assessment by another doctor or the tribunal.  Until October 2013, s 186 provided that if the worker was dissatisfied with the (original) doctor’s assessment, he or she could ask for the question to be decided instead by a medical assessment tribunal.  During the debate about the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill, the then Attorney‑General moved an amendment to replace s 186 with the provision which is now the current section.  The Attorney‑General when moving the amendment to the bill described this as:
“A sensible amendment to give the worker an additional avenue...[it being] another mechanism of review for the worker”.  
A decision of the tribunal is final and cannot be questioned on the merits.
[30]	It is s 505, not s 502, which is expressed to apply on a reference to a tribunal on a matter of “a worker’s permanent impairment under s 179”.  This adds to the respondent’s difficulty in establishing that the scheme of pt 10 of ch 3 can be engaged instead by a decision of the tribunal under s 502.
[31]	It must be said that the purpose which is to be served by s 502(3)(c) is far from clear.  There appears to be no corresponding provision by which the insurer is able to refer this question to the tribunal in the context of seeking a decision about the worker’s incapacity for work.  In the case of s 505, there are corresponding provisions by which the insurer is able to refer that matter, as there are for s 504, s 506, and s 507.  It is preferable to avoid, if possible, an interpretation which would leave s 502(3)(c) with no operation.
[32]	However the alternative interpretation, which is that argued for the respondent, would require an extensive intrusion upon the operation of the many provisions which I have discussed, and in each case by an implication.  In particular it would require effectively a rewriting of s 186.  The respondent’s argument cannot be accepted.
Relief
[33]	The originating application seeks two declarations.  The first is that pursuant to s 179 of the Act, the respondent is obliged to have the applicant’s “left hip injury” assessed by a doctor.  It follows from these reasons that the applicant should have that declaration.  The second is a declaration that the respondent’s referral to the medical assessment tribunal on 20 August 2015 is invalid to the extent that it asked the tribunal to decide the degree of permanent impairment for the applicant’s “left hip injury” and that the tribunal has no jurisdiction to decide that question.  It follows from this judgment that any decision of the tribunal upon that reference would have no consequence for the operation of pt 10 of ch 3 or ch 5 and it is preferable that a declaration be framed in those terms.