Local Government Workcare ignores worker's right to have doctor assess work injury
Mr Merton sustained an injury in his work for the local Council and brought a workers’ compensation claim. His application was accepted. At the end of his workers’ compensation claim, Mr Merton was referred by the workers’ compensation insurer, the Local Government Workcare Scheme (“LGWS”), to the Medical Assessment Tribunal (“MAT”) for determination as to whether he continued to have an incapacity for work, and further, for assessment of degree of permanent impairment (“DPI”) of his work injury.
The Workers’ Compensation & Rehabilitation Act 2003
Mr Merton’s solicitors raised issue with LGWS referring Mr Merton’s injuries to the MAT for assessment of his injuries on the basis that there was no power to do so under the Workers’ Compensation & Rehabilitation Act 2003 (“WCRA”). Mr Merton required that LGWS refer his DPI assessment to a doctor in accordance with section 179 of the WCRA. The reason for LGWS’ insistence on referring Mr Merton’s DPI assessment to the MAT was to avoid Mr Merton’s rights of appealing an initial DPI assessment by a doctor under the provisions of section 186 of the WCRA.
Under section 179 of the WCRA, an injured worker’s physical injuries are to be assessed by a doctor, whilst psychiatric injuries are to be assessed by the MAT (psychiatric). Upon DPI assessment being made, a Notice of Assessment is issued to the worker, which includes a DPI assessment and a lump sum offer of compensation in accordance with the assessed DPI. Pursuant to section 186 of the WCRA, the worker has rights to appeal his initial DPI assessment for his physical injuries, and request it be re-assessed by another doctor, or the MAT. Referral directly to the MAT for initial assessment as the LGWS attempted, meant Mr Merton would lose his rights to appeal his initial DPI assessment under section 186.
LGWS try to avoid injured worker bringing Common Law claim for damages
Another reason LGWS wanted to refer Mr Merton’s DPI assessment directly to the MAT, is because the decision of the MAT is final. There is no right of appeal from the MAT’s DPI assessment. If Mr Merton is assessed by a doctor in accordance with section 179 of the WCRA, then he has rights of appeal of that DPI assessment under section 186. This provides him with more opportunity to attain a DPI assessment of at least 6% which he requires in order to gain an entitlement to pursue a Common Law claim for damages for his work injuries. Should his injuries be assessed by the MAT, it’s decision is final and there is no right of appeal, and so he is left with the MAT’s DPI assessment.
Injured worker seeks declarations from Supreme Court LGWS actions invalid
LGWS ignored Mr Merton’s claims, stating that it had the power to refer the matter to the MAT at it’s discretion. Mr Merton brought an Application for declaratory relief in the Supreme Court in order to ensure his right to seek appeal of any DPI assessment at first instance under the provisions of section 186 of the WCRA.
Court orders LGWS’ referral of work injuries to the MAT invalid
On 18 February 2016, Justice McMurdo found that:
- The legislative interpretation put forward by LGWS could not be accepted, as it would mean a significant re-writing of the provisions of section 186 of the WCRA;
- Any assessment of DPI arrived at by the MAT is not a valid DPI for the purposes of a Notice of Assessment.
Declaratory relief granted
Accordingly, Justice McMurdo found for Mr Merton, and ordered the following declaratory relief:
(a) Pursuant to s.179 of the WCRA, LGWS is obliged to have Mr Merton’s left hip injury assessed by a doctor;
(b) The LGWS’ referral to the MAT on 20 August 2015 is invalid to the extent that it asked the tribunal to decide the DPI of Mr Merton’s left hip injury and that the tribunal has no jurisdiction to decide that question; and
(c) Any decision of the MAT upon reference for DPI assessment has no consequence for the operation of Pt 10 of Chapter 5 of the WCRA.
To read a full version of the decision of the Supreme Court at Brisbane, go to the following link: Jonathon Braden Merton v Local Government Workcare Scheme  QSC 17.
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