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Toll tries to renege on reassessment of work injury DPI by worker's doctor

For those Queensland workers having to deal with workers' compensation insurers when trying to achieve the required 6% DPI assessment for work injuries occurring during the period 15 October 2013 to 30 January 2015, this case may give them a reason to take heart.  

In the decision of Shane William O'Connor v Toll Holdings Ltd [2015] QSC 259, the Supreme Court of Queensland looked at a case involving an appeal against a degree of permanent impairment (DPI) assessment by a workers' compensation self-insurer, namely Toll Holdings Ltd and found for the worker.

In that case, the worker, Mr O'Connor, was injured at work and at the end of his workers' compensation claim, sought to have his injury assessed for DPI so he could proceed with his Common Law claim for damages for proper compensation for his work injury.  When Mr O’Connor's Notice of Assessment of DPI was issued by Toll Holdings Ltd (his employer and the workers' compensation self-insurer), it was less than the 6% DPI required for him to pursue a claim for Common Law damages.

In accordance with the Workers' Compensation & Rehabilitation Act 2003, Mr O'Connor sought to appeal the DPI assessment. Under section 186 of this legislation, he advised of his disagreement with the DPI assessment and pursuant to section 179 of the Act, asked Toll to have his work injury reassessed by another GEPI (Guide to Evaluation of Permanent Impairment) accredited doctor, namely Dr Day. Toll responded to the request within the required 10 business days under the Act, and agreed to the worker's injury being reassessed by Dr Day, an Orthopaedic Surgeon who is GEPI accredited.  

Within 14 days of the worker's request for a reassessment of his DPI, Toll wrote to the solicitors for Mr O'Connor advising that they were reconsidering their position. They requested information from the worker as to why he did not agree with the initial assessment of his injury. They also advised that they had cancelled the reassessment appointment with Dr Day and should they not receive the reasons requested within the next eight days, they would be referring the work injury for reassessment to the MAT.  

The worker's solicitors responded stating that there was no obligation on the worker to advise of his reasons for his disagreement with the initial assessment under the Workers' Compensation & Rehabilitation Act 2003, and that Toll had no right whatsoever to resile from its original decision agreeing to the reassessment.  Toll however, responded by advising that it was not altering its position and the reassessment of DPI for the work injury would be referred to the Medical Assessment Tribunal (MAT) for its reassessment.

The worker's solicitors brought an Application in the Supreme Court seeking declarations that the actions of Toll in reneging on the agreement for reassessment by Dr Day and referring the matter to the MAT for reassessment were invalid, and accordingly, Toll’s original decision agreeing to the reassessment by Dr Day was still operative and valid.

In defence to the Application, the Respondent, Toll, argued that it was entitled to renege on its initial decision pursuant to section 24AA of the Acts Interpretation Act (Qld) 1954 which permitted a party to repeal its decision provided it exercised the repeal in the same way and subject to the same conditions as the initial decision.

Despite the arguments of Toll, the Court agreed with the declarations sought by the worker, Mr O'Connor, and made the orders accordingly.  In coming to its determination, the Court considered the wording of the relevant workers' compensation legislation and in particular, pointed out that Toll, as the self-insurer, was to respond to the worker's disagreement with the DPI assessment and reassessment request within 10 business days. The Court found that in referring the matter to the MAT outside that 10 business days that Toll had not repealed the decision "in the same way and subject to the same conditions" as it was required to do for the initial decision. Hence, its argument that they had complied with its right to repeal under section 24AA of the Acts Interpretation Act (Qld) 1954 could not be upheld. 

If you have been injured at work, whether or not your claim is subject to the 6% DPI threshold, contact us at The Personal Injury Lawyers who may be able to assist with any claims or enquiries. 

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