What if I don't receive a 6% DPI in my Notice of Assessment but I want to sue my employer for my work injuries?
Due to recent repealing legislation enacted by the Labor Government in October 2015, the 6% DPI threshold for entitlement to seek Common Law damages for a work injury, introduced by Campbell Newman in October 2013, was thankfully repealed. The repeal takes effect from 31 January 2015, being the date the Labor Party were elected to govern Queensland.
What this means is that if you sustained an injury before or after the period from 15 October 2013 (when the 6% threshold was introduced by Newman) to 30 January 2015 (when it was repealed by Labor), then the 6% DPI threshold does not apply to you and you can sue for damages at Common Law, whether you achieve a 0% DPI or an 80% DPI - it does not matter.
However, if you have unfortunately sustained your work injury during the period of the Newman legislation, that is between 15 October 2013 to 30 January 2015, then you are still subject to the 6% DPI threshold when it comes to bringing a Common Law damages claim for your work injuries.
What happens if my work injury is subject to the 6% DPI threshold legislation?
If you wish to sue your employer for your work injury in Queensland, you can only do so if you have received a Notice of Assessment from Workcover Queensland or the workers' compensation self-insurer, stating that you have achieved a total Degree of Permanent Impairment for your injury, assessed under the Guide for Evaluation of Permanent Impairment (GEPI), at greater than 5%.
What this means is that you must be assessed as having a total Degree of Permanent Impairment of at least 6% to be able to bring a Common Law claim for damages for your work injury (sue your employer for damages). And it is important to note that physical injuries and psychiatric injuries are not combined. The Degree of Permanent Impairment for your physical injuries will be totalled separately to your psychiatric injuries. They cannot be added together to provide you with a total of 6%.
However, if you achieve a total Degree of Permanent Impairment for your physical injuries of 6% but you do not achieve a total of 6% for your psychiatric injuries, you can still bring a Common Law claim for all of your injuries, both physical and psychiatric and vice versa - you only need to achieve a total Degree of Permanent Impairment of 6% for either your physical or psychiatric injuries to achieve entitlement to sue for compensation and damages.
If you receive your Notice of Assessment and you do not achieve a total Degree of Permanent Impairment for your physical or psychiatric injury of 6%, then you have no entitlement whatsoever to pursue a Common Law claim against your employer. You can however seek to have your Degree of Permanent impairment reviewed in an attempt to achieve a DPI of 6%. Your avenues of review are as follows:
- If you wish to disagree with your assessment of impairment for your psychiatric injury, then your avenues of appeal are quite limited. Degree of Permanent Impairment for Psychiatric injury can only be assessed by a Medical Assessment Tribunal (MAT). Pursuant to the provisions of the Workers' Compensation & Rehabilitation Act 2003, the determination of the Degree of Permanent Impairment by the MAT is final, from which there is no appeal. What this means is that, if you receive an assessment of your Degree of Permanent Impairment at less than 6% in your Notice of Assessment, then your only means of appeal from that assessment is by way of Judicial Review under the Judicial Review Act 1991.
- Judicial Review involves an application to the Supreme Court of Queensland for review of the decision of the Medical Assessment Tribunal in their assessment of your psychiatric injury. To be successful in such an appeal, you will need to show that:
- a breach of the rules of natural justice happened in relation to the making of the decision;
- procedures that were required by law to be observed in relation to the making of the decision were not observed;
- the person who purported to make the decision did not have jurisdiction to make the decision;
- the decision was not authorised by the enactment under which it was purported to be made;
- the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;
- the decision involved an error of law (whether or not the error appears on the record of the decision);
- the decision was induced or affected by fraud;
- there was no evidence or other material to justify the making of the decision;
- the decision was otherwise contrary to law.
- Where you have sustained physical injury and your Degree of Permanent Impairment has been assessed in your Notice of Assessment at less than 6%, then as long as your injuries were not assessed by a Medical Assessment Tribunal, your avenues of appeal are as follows:
- You can ask Workcover Queensland or the self-insurer to have your injury re-assessed by another doctor, however, it is in Workcover's or the self-insurer's discretion as to whether they agree to this review. If there is agreement to the assessment by another doctor, then Workcover or the self-insurer has to agree to the doctor who will be reassessing your injuries. The doctor will need to be qualified in assessing injuries in accordance with the GEPI. Once there is agreement for re-assessment by another doctor, then the initial Notice of Assessment is taken to have never issued or existed. If Workcover or the self-insurer does not agree to having your injuries reassessed by another Doctor, then they will refer the review of your injuries to a Medical Assessment Tribunal for its assessment.
- Alternatively, you can decide not to go down the path of seeking to have your injuries assessed by another doctor, and simply ask Workcover or the self-insurer to have your injuries referred to a Medical Assessment Tribunal for reassessment. The decision of the Tribunal will then be final and the only means of appeal from the decision of the Medical Assessment Tribunal will be by way of Judicial Review on the grounds set out above.
- In the case where you do seek review of your DPI assessment via review by another doctor at the agreement of Workcover or self-insurer, and you are still not satisfied with the assessment of Degree of Permanent Impairment, then as the initial Notice of Assessment is deemed to have never issued where this takes place, you can seek further review of your DPI assessment. However, you cannot have your injuries reviewed again by another doctor - your only avenue for further review is for your injuries to be assessed by a Medical Assessment Tribunal.
- Once your injuries have been assessed by a Medical Assessment Tribunal then, as indicated above, under the Workers' Compensation & Rehabilitation Act 2003 the impairment assessment is final. The only review of the Tribunal's decision is by way of Judicial Review under the Judicial Review Act 1991.
If a worker is successful in their application for Judicial Review to the Supreme Court of Queensland, then the Court does not determine the Degree of Permanent Impairment at the time of Judicial Review, but refers the matter back to the Medical Assessment Tribunal for re-assessment. The Court can however place conditions upon the MAT in relation to its re-assessment.
Given that a Medical Assessment Tribunal is made up of medical experts in the relevant speciality appropriate to the injury to be assessed, in most cases, it will be very difficult to successfully overturn a decision of a Medical Assessment Tribunal on the appropriate Degree of Permanent Impairment of an injury by way of Judicial Review. This would seem to be supported by the recent decision in Stagg v North & Ors (2014) QSC 14 handed down by His Honour Justice McMurdo in the Supreme Court at Brisbane in February 2014.
In that case it was argued that the Medical Assessment Tribunal had failed to take relevant matters into consideration when applying the AAMI Guides for assessment of injury, including a medical specialist report and submissions by the worker on this issue. The worker failed in his application for Review as the Court held that on Judicial Review, it was not for the Court to consider the merits of the decision of the Tribunal or the merits of how the Medical Tribunal applied the AAMI Guides in its assessment of the work injury.
Time limits for seeking review
If you wish to have your Degree of Permanent Impairment stipulated in your Notice of Assessment reviewed, you need to seek such review within 20 business days of receiving the Notice of Assessment. If you are seeking Judicial Review of a decision on your Degree of Permanent Impairment by a Medical Assessment Tribunal, then you will need to apply to the Supreme Court of Queensland within 28 days of receiving the decision of the Tribunal.
Common Law Claims
It is important to point out that if you achieve a Degree of Permanent Impairment in your Notice of Assessment above 0%, then you will also be made an offer of Lump Sum Statutory Compensation in your Notice of Assessment. If the total Degree of Permanent Impairment for your injuries is less than 20%, then you need to decide if you wish to take the Lump Sum Offer or pursue a Common Law Claim, as you cannot do both. Your physical and psychiatric injury impairments are taken separately when calculating your total Degree of Permanent Impairment - they cannot be added together.
If you take the lump sum offer for either your physical injuries or your psychiatric injuries or both, when either or both are less than 20%, then you cannot pursue a Common Law claim for those injuries with a total Degree of Impairment at less than 20% for which you have accepted a lump sum offer, and your decision is irrevocable. It is very important that you seek legal advice as soon as possible upon receiving a Notice of Assessment to ensure that you do not lose rights to significant compensation by an incorrect response to the Notice of Assessment.
Of course, to make a Common Law claim against your employer worthwhile to pursue, you must be able to show there has been some negligence on the part of your employer that has caused your injuries. You will need to show that your injury resulted from your employer failing to take reasonable care for your safety whilst you were undertaking your work.
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