EAST METROPOLITAN HEALTH SERVICE -v- LEE [2022] WASC 54 (24 February 2022)

1. The Applicant, East Metropolitan Health Service (EMHS), oversees and manages an extensive hospital and health service network in the East Metropolitan Area of Perth in the State of Western Australia including Royal Perth Hospital (RPH).

2. The First Other party, [Ms Wilkinson] is employed by EMHS as a pharmacist working at RPH.

3. Ms Wilkinson sustained injuries to her lower back, hip and legs when she tripped over an empty pallet in the course of her employment with EMHS on 27 December 2017 (Incident).

4. Ms Wilkinson submitted a Workers' Compensation Claim Form dated 30 December 2017 with respect to the injuries sustained in the Incident.

5. The Government Insurance Division of the Insurance Commission of Western Australia (GID) on behalf of EMHS accepted liability for the payment of workers' compensation in respect of Ms Wilkinson's claim on 5 January 2018 and paid weekly payments of compensation and other statutory allowances to Ms Wilkinson in accordance with the provisions of the Workers' Compensation and Injury Management Act 1981 [Act].

6. On 17 December 2018 Ms Wilkinson was examined by occupational physician, Dr Heng Tan who provided a report and Form AMS 7 Report on Worker's Condition Not Stabilised and Form AMS 8 Certificate Where Worker's Condition Not Stabilised dated 19 December 2018 in which he advised that Ms Wilkinson's condition had not stabilised sufficiently for it to be deemed that she had reached maximum medical improvement.

7. On 21 December 2018 Ms Wilkinson's solicitors, DWL Lawyers made an application on her behalf to WorkCover WA for an extension of the Termination Day for Ms Wilkinson to elect to retain the right to claim damages at common law with respect to her injuries.

8. On 2 January 2019 the First Respondent in her role as Director of WorkCover WA (Director) extended Ms Wilkinson's Termination Day to 17 December 2019. On 12 October 2020 the Workers' Compensation and Injury Management Amendment (COVID-19 Response) Act 2020 came into effect, discontinuing the Termination Day provisions in the [Act] that had constrained workers' ability to pursue common law damages, with retrospective effect.

9. On 15 October 2020 Ms Wilkinson was examined by her treating neurosurgeon, Dr Andrew Miles who produced a report dated 15 October 2020. Dr Miles recommended Ms Wilkinson undergo surgery in the form of an open left sacroiliac joint distraction, fixation and fusion (fusion surgery).

10. On 17 November 2020 GID advised DWL Lawyers that it was seeking further medical evidence before making a decision as to whether it would fund the fusion surgery proposed by Dr Miles.

11. Ms Wilkinson was examined at the request of DWL Lawyers by occupational physician, Dr Heng Tan on 24 November 2020 who produced a report dated 3 December 2020. Dr Tan opined that Ms Wilkinson's condition had not stabilised and she had not reached maximum medical improvement. Dr Tan provided Form AMS 7 Report on Worker's Condition Not Stabilised and Form AMS 8 Certificate Where Worker's Condition Not Stabilised dated 25 November 2020 certifying that Ms Wilkinson's condition had not stabilised.

12. By letter dated 4 December 2020, DWL Lawyers requested Dr Tan to perform a [s]pecial [e]valuation of Ms Wilkinson's level of whole person impairment (WPI).

13. Dr Tan produced a medical report dated 8 December 2020 in which he concluded that Ms Wilkinson's current impairment was 7% WPI but as she was scheduled to undergo left SLJ fusion, the assessment of her permanent impairment would be more accurate if it took into account the pending surgical intervention.

14. In response to DWL Legal's request, Dr Tan produced:

(i) AMS Forms 5 Report on Evaluation of Permanent Impairment;

(ii) Form AMS 6 Certificate of Degree of Permanent Impairment;

(iii) Form AMS 7 Report on Worker's Condition Not Stabilised; and

(iv) Form AMS 8 Certificate Where Worker's Condition Not Stabilised

15. Dr Tan produced Form AMS 5 Report on Evaluation of Permanent Impairment dated 8 December 2020 in which he concluded that Ms Wilkinson had a 21% WPI. Dr Tan noted in his report that Ms Wilkinson had initially planned to have the fusion surgery prior to her review with Dr Tan in November 2020; however, she was unable to obtain prior approval for the surgery from GID. In the Calculation of the Worker's Permanent Impairment, Dr Tan reported that the assessment of her permanent impairment would be more accurate taking into account the pending surgery and provided a detailed explanation of the basis for how the spinal fusion surgery is to be assessed in accordance with the WorkCover WA Guides, 4th Edition.

16. Dr Tan produced Form AMS 6 Certificate of Degree Permanent Impairment dated 8 December 2020 in which he certified that Ms Wilkinson had a 21% WPI.

17. Dr Tan produced Form AMS 7 Report on Worker's Condition Not Stabilized dated 8 December 2020 in which he concluded that Ms Wilkinson's condition had not stabilised.

18. Dr Tan produced Form AMS 8 Certificate on Worker's Condition Not Stabilized dated 8 December 2020 in which he certified that Ms Wilkinson's condition had not stabilised.

19. In the Forms AMS 5, 6, 7 and 8 dated 8 December 2020 [sic: Forms AMS 5 and 6] Dr Tan certified Ms Wilkinson as having a WPI of 21% (Special Evaluation).

20. Ms Wilkinson completed a Form 34 Election to Retain the Right to Seek Damages on 14 December 2020 that was submitted to WorkCover WA.

21. On 21 December 2020 the Director by her Delegate (the Director's Delegate) registered an Election for Ms Wilkinson to retain the right to seek damages at common law in respect of her injuries based on the Special Evaluation provided by Dr Tan dated 8 December 2020.

22. After the Election was registered, Ms Wilkinson commenced proceedings against EMHS in the District Court of Western Australia (CIV 4700 of 2020) seeking damages with respect to her injuries sustained in the Incident.

23. Ms Wilkinson underwent the fusion surgery at the hand of Dr Miles on 20 January 2021. As a consequence of the Election, Ms Wilkinson was not entitled to payment of further medical expenses under the [Act] with respect to her workers' compensation claim so the surgery was funded by her private health insurer, HBF.

24. As a result of Ms Wilkinson making a common law election, her weekly payments of compensation were reduced to 70% for the first three months after the elections.

25. Ms Wilkinson returned to work in April 2021.

26. The common law proceedings in the District Court (being CIV No. 4700 of 2020) have progressed. A Statement of Claim was filed on 23 April 2021 and in response, a Defence was filed on 4 June 2021.

27. Mills Oakley, who act for EMHS, wrote to the Director on 28 April 2021. In the letter Mills Oakley advised that, in their view, the Director's Delegate's decision to register the Election based on Dr Tan's assessment was incorrect as the assessment was not performed in accordance with the [Act] and the WorkCover WA Guidelines for the Evaluation of Permanent Impairment. Mills Oakley, on behalf of EMHS, requested the Director rectify the error of registering Ms Wilkinson's Election by exercising the power vested in her by section 93L(8) of the [Act].

28. The Director wrote to Mills Oakley on 5 May 2021 advising she did not believe section 93L(8) or any other provisions of the [Act] gave her authority to deregister an Election.

29. In light of the Director's decision not to rectify the error of registering Ms Wilkinson's Election, the present application was commenced on behalf of EMHS seeking judicial review and a Writ of Certiorari with respect to the registration of Ms Wilkinson's Election (Application).

30. The State Solicitor's Office on behalf of the Director has filed a Notice of Intention to Abide with respect to the Application.

4 The statement of agreed facts did not refer to the fact that, in addition to registering the election, the Director also recorded the Form AMS 6 and the Form AMS 8 as assessments under s 93N of the Act. This was, however, common ground.[3] Of these, the Form AMS 6 was the form in which Dr Tan certified, in the Special Evaluation, that Ms Wilkinson had a WPI of 21%. I will refer to this form as the 'Special Evaluation Certificate'.

1. The Director acted outside her jurisdiction by the acceptance for registration of the special evaluation of Dr. Heng Tan dated 7 December 2020 and registered on 21 December 2020, which special evaluation was deficient and flawed being contrary to the provisions of the [Act], Section 146A(4) and the WorkCover Guidelines for the Evaluation of Permanent Impairment (4th Ed) in that the assessment was not based on the worker's current condition but rather on her prospective condition.

2. The [D]irector acted outside her jurisdiction by the decision made on 5 May 2021 to refuse to deregister the election recorded on 21 December 2020 on the basis that she had no authority to do so, which was contrary to the Director's powers pursuant to the [Act], Section 93L(8).

1. Was the Director required to refuse to record the Special Evaluation?

2. Did the Director have the power to rectify the alleged error of registering the election?

3. If yes to either question, should the Court nevertheless refuse to exercise its discretion to grant relief?

Legislation The Workers' Compensation and Injury Management Act 1981 (WA)

7 The relevant provisions are contained in part IV of the Act.

8 Under s 92 of the Act, an injured worker cannot recover both damages and compensation.

9 In addition, there are constraints on awards of damages. These are set out in division 2 of part IV of the Act. Subdivision 3 of division 2 of part IV deals with the '2004 scheme'. This is the scheme that applies in this case.

(4) Damages in respect of an injury can only be awarded if -

(a) the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and

(b) the Director registers the election in accordance with the regulations; and

(c) court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and

(d) the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.

(13) The court is not bound by an agreement or assessment recorded by the Director under section 93L(2), but may admit it as evidence relevant to the worker's degree of permanent whole of person impairment.

93L. Election under s. 93K to retain right to seek damages

[(1) deleted]

(2) A worker can only elect under section 93K(4) to retain the right to seek damages if -

(a) the worker and the employer agree -

(i) that the worker's degree of permanent whole of person impairment is at least 15%; and

(ii) as to whether or not the worker's degree of permanent whole of person impairment is at least 25%;

or

(b) the worker's degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%,

and the Director has, at the written request of the worker, recorded that agreement or assessment in accordance with the regulations.

(3) The Director cannot, under subsection (2), record an assessment that involves a special evaluation as defined in section 146C(4) unless the Director has been given a copy of the certificate referred to in section 93N(1) on the basis of which the special evaluation was requested.

[(4) deleted]

(5) An agreement or assessment that the Director has, at the written request of the worker, recorded in accordance with the regulations cannot be withdrawn and, after it has been recorded, another agreement or assessment as to the worker's degree of permanent whole of person impairment cannot be recorded.

(6) An election that the Director has registered in accordance with the regulations cannot be withdrawn and a subsequent election cannot be made in respect of the same injury or injuries.

(7) Subsection (5) does not prevent an agreement or assessment as to the worker's degree of permanent whole of person impairment from being made, whether before or after the commencement of court proceedings, after the Director has, at the written request of the worker, recorded an agreement or assessment in accordance with the regulations, or from being used in court proceedings.

(8) The Director may at any time rectify an error that was made in recording an agreement or assessment or registering an election.

12 As set out in s 93L(3), the Director cannot record an assessment that involves a 'special evaluation' unless the Director has been given a copy of the certificate referred to in s 93N(1). The certificate referred to in s 93N(1) is a certificate from an 'approved medical specialist' that the worker's condition has not stabilised to the extent required for a 'normal evaluation' of the worker's degree of permanent whole of person impairment. These types of certificates are contained on forms titled 'AMS 8'. I will refer to these certificates as 'AMS 8 certificates'. I will refer to an 'approved medical specialist' as an 'Assessor'. I will refer to the worker's 'degree of permanent whole of person impairment' as the 'degree of permanent impairment'.

13 Part VII of the Act deals with the manner in which impairment, among other things, is to be assessed.

14 Section 146C purports to define a 'normal evaluation' and a 'special evaluation'. Section 146C(3) provides that 'normal evaluation means an evaluation that is not a special evaluation as defined in subsection (4)'. Section 146C(4) purports to define a special evaluation as follows (emphasis in original):[4]

(4) If this Act provides for a special evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with this section, the evaluation (a special evaluation) is to be made, even though the worker's condition has not stabilised to the extent otherwise required for an evaluation to be made in accordance with the WorkCover Guides, in accordance with any provisions of the WorkCover Guides that apply to a special evaluation.

15 The 'WorkCover Guides' are the directions published by WorkCover WA under s 146R[5] (the Guidelines). I will say more about them later. For the moment, it is sufficient to note that they require that assessments other than special evaluations only be done when the degree of permanent impairment of the worker is unlikely to improve further. When a worker's impairment is thought to be unlikely to improve further, it is sometimes said that the worker's condition has reached 'maximum medical improvement' (MMI).[6]

16 Accordingly, a 'normal evaluation' will be one where the Assessor considers that the degree of permanent impairment of the worker is unlikely to improve further. A 'special evaluation' will be one where an Assessor considers that the worker's condition has not stabilised to the extent required in order to be satisfied that the worker is unlikely to improve further.

17 Section 93N regulates the circumstances in which a special evaluation may be made. By s 93N(1), s 93N only applies if, after the expiry of the period of 18 months after the day on which a claim for compensation by way of weekly payments is made by a worker (the 18 month period), an Assessor certifies that the worker's condition has not stabilised to the extent required for a normal evaluation of the worker's degree of permanent impairment.

18 Accordingly, the first statutory condition for a special evaluation is that, after the expiry of the 18 month period, an AMS 8 certificate has been provided.

19 If such a certificate is given after the expiry of the 18 month period (and s 93N therefore applies), the worker may then, under s 93N(2), request an Assessor to make a special evaluation of the worker's degree of permanent impairment. The Assessor asked may be the same Assessor who provided the AMS 8 certificate but need not be.[7]

20 By s 93N(5), on being requested to make a special evaluation, the Assessor is required to assess whether the worker's condition has stabilised to the extent required for a normal evaluation. If so, the Assessor is to make a normal evaluation. If not, the Assessor is to make a special evaluation in accordance with s 146A and s 146C.

21 Accordingly, the second statutory condition for a special evaluation is that the Assessor asked to conduct a special evaluation is of the opinion that the worker's condition has not stabilised to the extent required for a normal evaluation.

22 It follows that, if both conditions are met, the Assessor is to make a special evaluation in accordance with s 146A and s 146C.

23 Section 146A relevantly provides that, subject to s 146C, a worker's degree of impairment is to be evaluated, as a percentage, in accordance with the Guidelines.

24 As noted earlier, s 146C(4) provides that, if the Act provides for a special evaluation to be made in accordance with s 146C, a special evaluation is to be made, even though the worker's condition has not stabilised to the extent otherwise required. If a special evaluation is conducted under this section, then, among other things, any secondary condition is to be disregarded.[8]

25 Section 146F provides that WorkCover WA may designate a person as an approved medical specialist if the person is a medical practitioner who, in WorkCover WA's opinion, is sufficiently trained in the use of the Guidelines and otherwise satisfies criteria for designation as an approved medical specialist that WorkCover WA for the time being applies.

146H. Approved medical specialist, duties of after making assessment

(1) An approved medical specialist making an assessment for the purposes of Part III Division 2A, Part IV Division 2 Subdivision 3, Part IXA or clause 18A is required to give to each of the worker and the employer, in writing in accordance with the regulations -

(a) a report of the worker's degree of impairment, including details of the assessment and reasons justifying the assessment; and

(b) a certificate specifying the worker's degree of impairment.

(2) An approved medical specialist giving a certificate -

(a) for the purposes of Part III Division 2A or Part IXA that a worker's condition has not stabilised to the extent required for an evaluation to be made in accordance with the WorkCover Guides as described in sections 146A, 146B, and 146D; or

(b) for the purposes of Part IV Division 2 Subdivision 3 that a worker's condition has not stabilised to the extent required for a normal evaluation to be made in accordance with the WorkCover Guides as described in sections 146A and 146C,

is required to give to each of the worker and the employer, in writing in accordance with the regulations -

(c) a report of any relevant details provided by the worker; and

(d) brief reasons justifying the finding certified.

(3) A certificate for the purposes of -

(a) Part III Division 2A; or

(b) Part IV Division 2 Subdivision 3; or

(c) Part IXA; or

(d) clause 18A,

is to specify the provisions for the purposes of which it is made.

[(4) deleted]

(5) If any of the documents described in subsection (1) or (2) is produced to the Director for the purposes of Part III Division 2A, Part IV Division 2 Subdivision 3, Part IXA or clause 18A and a factual error is apparent on the face of the document, the Director may reject the document and require the approved medical specialist to replace it with a correct document given to each of the recipients of the document that contained the error.

27 Section 146J(1) provides that a 'decision of an approved medical specialist or anything done under this Act in the process of coming to a decision of an approved medical specialist is not amenable to judicial review'. Section 146J(2) defines a 'decision of an approved medical specialist' as including an assessment that is relevant to the operation of part IV division 2. Part IV division 2 includes s 93N. Therefore, special evaluations are not amenable to judicial review.

28 Ordinarily, delegated legislation made under an Act is not taken into account in interpreting the Act itself.[9] However, in this case, the Act and the regulations plainly form part of a legislative scheme. In addition, the Act specifies the scope of regulations that may be made.

93S. Regulations for this Subdivision

Regulations may provide for -

(c) the registration by the Director of elections under section 93K(4)(a) if an agreement or assessment for the purposes of section 93L(2) has been recorded, and the power of the Director to refuse to register an election if not satisfied that the worker has been properly advised of the consequences of the election;

(d) the recording by the Director of an agreement or assessment under section 93L(2) as to the worker's degree of permanent whole of person impairment.

30 The Workers' Compensation and Injury Management Regulations 1982 (WA) (Regulations) relevantly provide:

21. Recording assessment

(1) If -

(a) the worker's degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%; and

(b) the Director has been given -

(i) a copy of the certificate given to the worker under section 146H(1)(b) of the Act; and

(ii) if the assessment involves a special evaluation as defined in section 146C(4) of the Act, a copy of the certificate referred to in section 93N(1) of the Act on the basis of which the special evaluation was requested;

and

(c) the worker, in writing, requests the Director to record the assessment,

the Director is required to record the assessment in a register kept for the purpose unless an agreement or assessment as to the worker's degree of permanent whole of person impairment has already been recorded under regulation 20 or this regulation.

...

22. Electing to retain right to seek damages

(1) An election under section 93K(4)(a) of the Act is made by completing an election form in the form of Form 34 in Appendix I and lodging it in accordance with regulation 57.

(2) Unless under subregulation (3) the Director refuses to register the election, the Director is to -

(a) register the election in a register kept for that purpose as soon as practicable after the election form is lodged; and

(b) complete the relevant section of the election form and give a copy of it to the worker and the employer.

(3) The Director may refuse to register the election if not satisfied that the worker has been properly advised of the consequences of the election.

31 The Court of Appeal in Armet v CFC Consolidated Pty Ltd observed (citations omitted):[10]

An evident purpose of div 2 of pt IV of the Act is to deter the litigation of small, disproportionately costly, claims for damages in respect of workplace accidents. On the other hand, s 93C in div 2 does not preclude the bringing or instituting of an action in circumstances where the Act does not permit the award of damages. The prohibition in s 93C is directed to the stage of the award of damages, rather than the institution of the action.

Further, another purpose of the Act is to make provision for disputes between parties involved in workers' compensation matters to be determined fairly, justly, economically, informally and quickly. Although that object has particular relevance to pt XI ('Dispute resolution'), it has broader application in the context of div 2 of pt IV of the Act, read with div 2 of pt VII of the Act, insofar as provision is made for, in effect, the resolution of disputes by medical specialists as to the worker's degree of permanent whole of person impairment in accordance with particular timeframes.

32 Although the prohibition in s 93C is directed to the stage of the award of damages, rather than the institution of the action, damages can only be awarded if court proceedings seeking damages are commenced after the Director gives the worker written notice that the Director has registered the election.[11]

33 When the provisions permitting a special evaluation to be made were first enacted, they included a provision requiring an election to be made before 'the termination day'. The 'termination day' was defined, in s 93M, to be 'the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made unless a later day is fixed by subsection (3) or under subsection (4)'. Section 93M(4) gave the Director the power to extend the termination day if particular conditions were met. The provisions that permitted a special evaluation to be made recognised that a worker's condition may not stabilise within a reasonable period or, perhaps, at all. The purpose of the provisions was plainly to ensure that such workers were not shut out from electing to retain their right to damages.[12]

34 More recently, the Act was amended to remove references to the 'termination day'.[13] The only remaining time constraint on workers commencing common law proceedings is the general limitation period that applies to common law claims for personal injury. Given this, the only remaining effect of the ability to obtain a special evaluation is to permit workers whose conditions have not stabilised within the limitation period to elect to retain their right to damages.

35 When removing the 'termination day' from the legislative regime, it would have been a simple matter to also remove the ability to seek a special evaluation. Instead, the provision that regulated special evaluations, s 93N, was amended to remove the references to s 93M and termination day.

36 Before it was amended, s 93N applied if an AMS 8 certificate was given six months after the day that would have been the termination day had there been no extension under s 93M(4). The amendment deleted this time period and replaced it with '18 months after the day on which a claim for compensation by way of weekly payments[14] is made by a worker'.

37 In retaining the ability to seek a special evaluation, the legislature plainly sought to ensure that workers whose conditions did not stabilise within the limitation period were not shut out from electing to retain their right to damages.

38 The Guidelines summarise some of the 'key principles' of permanent impairment assessments:

[1.9(a)] Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account of the claimant's relevant medical history and all available relevant medical information in order to determine:

• whether the condition has reached Maximum Medical Improvement (MMI);
• whether the claimant's compensable injury/condition has resulted in an impairment;
• whether the resultant impairment is permanent;
• the degree of permanent impairment that results from the injury; and
• the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in the WorkCover WA Guidelines.

[1.18] Assessments are only to be conducted when the AMS considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained MMI. This is considered to occur when the worker's condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.

[1.19] An evaluation of permanent impairment can only be undertaken if the worker has reached MMI, except if a special evaluation is required (see Special Evaluation below).

40 In relation to special evaluations, the Guidelines provide:

Special evaluation

1.54 It is a general principle that an assessment of permanent impairment only be done when a worker's condition has stabilised (i.e. has reached MMI).

1.55 However, in limited circumstances a special evaluation can be done for workers requesting an assessment of impairment in order to make an election by the termination day to pursue common law damages (section 93N), or for the further additional sum for medical and other expenses under clause 18A(2aa)(a) of Schedule 1 of the Act.

1.56 A special evaluation allows for an evaluation to be done even if the condition has not stabilised and overrides anything in AMA5 or the WorkCover WA Guidelines that requires the condition to be stable or to have reached MMI. These limited circumstances are outlined below

Common law

1.57 In accordance with section 93N of the Act a special evaluation can be done if the following conditions are met:

(a) the worker has already obtained an extension to the termination day on the basis that his or her condition has not stabilised (in accordance with section 93M(4)(a)(i) of the Act); and

(b) the certificate is given after the expiry of the period of 6 months after the day that would have been the termination day had there been no extension under section 93M(4) of the Act.

1.58 This can be verified by checking the date of the termination day against the date of the extension approved by the Director, Conciliation.

Clause 18A (2aa)(a): further additional sum for medical and related expenses (exceptional circumstances)

1.59 A special evaluation must also be done if a worker is applying for a further additional sum for medical and other expenses under clause 18A(2aa)(a) of Schedule 1 of the Act, based on exceptional circumstances. An evaluation will be necessary for this purpose as one of the eligibility criteria is that the worker has at least 15% WPI. In these circumstances an AMS is to assess the degree of impairment as if the worker's condition has reached MMI

41 As set out in the extract, guideline 1.57 refers to the conditions set out in s 93M. That section was repealed in October 2020.[15]

42 As was recently said by the Court of Appeal in Mohammadi v Bethune (citation omitted),[16] '[s]tatutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context'.

43 In Australian Unity Property Ltd v City of Busselton,[17] the Court of Appeal reiterated the primacy of the legislative text in determining legislative intention. The Court emphasised that the meaning of the legislation must emerge from the statutory text, understood in its context and having regard to the statutory purpose being pursued.

44 In relation to the statutory scheme in division 2 of part IV of the Act, the Court of Appeal in Armet said (citation omitted):[18]

The statutory scheme in div 2 of pt IV of the Act is to be read consistently with the general principle that where the common law of tort gives the worker well‑established rights, they are not to be abrogated by statutory intervention in the absence of clear words or a necessary implication to that effect.

45 Further, a remedial or beneficial provision is 'to be given a liberal interpretation so as to give the fullest relief which the fair meaning of its language will allow'.[19]

46 In dealing with the application for judicial review, the court's jurisdiction does not extend to engaging in a review of the merits of the decision. The court's jurisdiction is confined to determining whether the decision-maker made a jurisdictional error in any of the challenged decisions.[21]

47 In Re Refugee Review Tribunal; Ex parte Aala,[22] Hayne J explained:

There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.

48 As was explained by the High Court in Hossain v Minister for Immigration and Border Protection,[23] determining the limits of a decision‑maker's functions and powers is a question of statutory construction.

49 First, it is necessary to identify 'the preconditions which the statute requires to exist for the decision‑maker to embark on the decision‑making process'. It is also necessary to identify the conditions which the statute requires to be observed in order for the decision‑maker to make a decision of that kind. Identifying the preconditions and conditions is a question of statutory construction.[24]

50 It is ordinarily an implied condition that the decision‑maker proceed by reference to 'correct legal principles, correctly applied'.[25] It is also ordinarily an implied condition that the decision‑maker comply with the standard of legal reasonableness.[26]

51 Second, if the decision‑maker has failed to comply with a precondition or a condition, it is necessary to determine whether the extent of the non‑compliance resulted in the purported decision 'lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it'. If so, the purported decision will involve 'jurisdictional error'; that is, the purported decision will have been made outside jurisdiction. Determining the extent of non‑compliance which will have this result is also a question of statutory construction.[27]

52 Ordinarily, statutes conferring decision-making authority are interpreted as incorporating a threshold of materiality in the event of non-compliance.[28] Therefore, to succeed, an applicant needs to prove that an error was material. That is, an applicant needs to prove that there is a realistic possibility that, if the decision-maker had not erred, a different decision could have been made.[29]

Issue 1 - Was the Director required to refuse to record the Special Evaluation?

53 The first issue is whether the Director was obliged to refuse to record the Special Evaluation. The applicant submits that she was, relying on the power in s 146H(5). It will be recalled that that provision provides that the Director may reject a document if there is a factual error apparent on its face.

54 The applicant asserts that there was a factual error in the Special Evaluation Certificate, in which Dr Tan recorded that Ms Wilkinson's 'final impairment once she undergoes the scheduled surgery [will be] 21% WPI'.

55 The applicant says this was inconsistent with paragraph 1.41 of the Guidelines. That paragraph states:

If the claimant has been offered, but has refused, additional or alternative medical treatment that the AMS considers is likely to improve the claimant's condition, the AMS should evaluate the current condition, without consideration of potential changes associated with the proposed treatment. The AMS may note the potential for improvement in the claimant's condition in the evaluation report, and the reasons for refusal by the claimant, but should not adjust the level of impairment on the basis of the claimant's decision.

56 Ms Wilkinson had not refused any treatment. Despite this, the applicant did not accept that paragraph 1.41 was irrelevant. It submitted it was 'an indicator' that assessments were not intended to be forward looking, although conceded it was 'not a clear indicator'.[30]

57 I do not accept it is an indicator. Paragraph 1.41 is directed to protecting a worker's right to refuse treatment, by limiting the consequences that can flow from a refusal. Paragraph 1.41 prevents a worker's actual level of impairment being treated as if it is lower than it is simply because the worker chose to refuse treatment. It allows only the noting of the potential for improvement and the reasons for the refusal.

58 The applicant next submits that it was an error to make an assessment based on what may happen in the future. The applicant submits that 'on a proper construction of the [Guidelines], the assessment by an Assessor must be as at the date of the examination of the worker and cannot be done on the basis of a possible prognosis'.[31]

59 During the hearing, the applicant was unable to identify any Guideline that supported this submission.[32] Despite this, I considered whether there was anything in the Guidelines that supported the submission.

60 The provisions of s 146A(1) and s 146C combine to require a special evaluation to be conducted in accordance with the Guidelines that apply to a special evaluation. The Guidelines expressly exclude from special evaluations the requirement that the degree of permanent impairment of the worker is unlikely to improve further and the worker's condition has reached MMI. The question is whether there is anything in the Guidelines that require an assessment to be made based on the worker's actual present condition and, if so, if that requirement applies to special evaluations.

61 As noted earlier, one of the 'key principles' of a permanent impairment assessment is that it involves clinical assessment of the claimant as they present on the day of assessment. During the hearing, I queried with counsel for Ms Wilkinson whether this required an assessment of the worker's condition as it was at that time, without regard to future developments. Counsel submitted that it did not.

62 I accept this submission. I consider that a special evaluation can be forward looking. A special evaluation is only done when a worker's condition has not stabilised. The purpose of permitting special evaluations to be done is to ensure that workers whose conditions do not stabilise within the three-year limitation period are not shut out from electing to retain their right to pursue a damages claim.

63 If a 'clinical assessment of the claimant as they present on the day of assessment' prevents the Assessor from having regard to matters that may occur in the future, I consider that it is not a requirement that applies to special evaluations.

64 First, a contrary construction is not compelled by the words in s 146A and s 146C, or by the Guidelines themselves.

65 Second, if a contrary construction was adopted, the effect would be to prevent those workers whose conditions do not stabilise within the three year limitation period from electing to retain their right to pursue a claim in damages.[33] This would be an arbitrary denial of what would otherwise be a common law right. Such a right is not to be abrogated by statutory intervention in the absence of clear words or a necessary implication to that effect.

66 Third, the legislative purpose is to prevent small claims being brought, not to deny the right to damages simply because a worker's condition has not stabilised within the limitation period.[34]

67 Fourth, the provisions permitting special evaluations are plainly beneficial provisions, and should be given a liberal interpretation so as to give the fullest relief which the fair meaning of its language will allow.

68 Accordingly, I am not satisfied that there was an error on the face of the Special Evaluation Certificate. I am therefore not satisfied that the Director had the power under s 146H(5) to reject it. It follows that I am not satisfied that the Director's decision to record Dr Tan's assessment was erroneous.

If there was an error in the certificate, was it a jurisdictional error not to reject it?

69 In case I am wrong about that, I will discuss whether, if there was an error on the face of the certificate, the Director fell into jurisdictional error in not rejecting it.

70 If there was an error on the face of the certificate, three questions would arise.

1. First, was the error a factual error? If not, the Director would not have the power under s 146H(5) to refuse to record the assessment.

2. If it was a factual error, the second question would be whether it was 'apparent on the face of the certificate'. If not, the Director would not have the power under s 146H(5) to refuse to record the assessment.

3. If it was a factual error apparent on the face of the certificate, the third question would be whether the Director's failure to reject the assessment in the certificate was a jurisdictional error.

71 In relation to the first question, the alleged error is that the AMS 6 certificate recorded what Ms Wilkinson's degree of impairment would be after her surgery. This was a factually accurate statement of the Assessor's opinion. The alleged error is that the Assessor considered he was able to assess her degree of impairment in a special evaluation by reference to future matters. If this was an error, it could be described as an error in the proper construction of the Act. Such an error would be an error of law, not fact.

72 If, however, it was an error of fact, it would have been apparent on the face of the document, at least in one sense. It is apparent on the face of the certificate that the assessment was of what Ms Wilkinson's degree of impairment would be after her surgery.

73 The third question is whether, if it was an error of fact apparent on the face of the document, the Director's failure to reject the assessment in the certificate was a jurisdictional error. The applicant alleges that it was. In essence, the applicant alleges that, the error being on the face of the certificate, the Director was required to reject the certificate under s 146H(5).[35]

74 Section 146H(5) uses the word 'may'. By s 56(1) of the Interpretation Act 1984 (WA), 'may' is to be interpreted to imply that the power may be exercised or not, at discretion.

75 Section 56(1) applies to a statute unless express provision is made to the contrary or the intent and object of the statute or something in the subject or context of the statute is inconsistent with such application.[36]

76 There is no express provision to the contrary in the Act. Nor is the intent and object of the Act or anything in the subject or context of the Act inconsistent with the power being discretionary. If the Director accepts a flawed certificate, this does not mean that the worker would be able to obtain damages even if his or her degree of permanent impairment was less than 15%. The court must be satisfied that the impairment is at least 15% before damages can be awarded.[37] Further, while the court has the power to admit an assessment recorded by the Director into evidence, it is not bound by such an assessment.[38]

77 In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[39] Gleeson CJ, Gaudron and Hayne JJ explained (quotations and citations omitted):

'Discretion' is a notion that signifies a number of different legal concepts. In general terms, it refers to a decision‐making process in which no one consideration and no combination of considerations is necessarily determinative of the result. Rather, the decision‐maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision‐maker is required to make a particular decision if he or she forms a particular opinion or value judgement.

78 The applicant's argument was limited to an assertion to the effect that, the error being on the face of the certificate, the Director was required to reject the certificate under s 146H(5).[40]

79 The applicant did not acknowledge in its written submissions that the power was discretionary.[41] When I raised the discretionary nature of the power with the applicant during the hearing, counsel submitted that the Director 'ought' to have exercised the power. Counsel submitted that this was because the error was obvious and, unless the Director requires proper compliance with the Act and the Guidelines, the system will fail.[42] I do not accept this. The Director is given a power in relation to factual errors apparent on the face of documents. Such errors are inherently 'obvious' errors. Nevertheless, the legislature elected to confer a discretionary power.

80 Counsel for the applicant did not assert that the Director's failure to exercise the discretion was unreasonable in the required sense.[43] This makes it unnecessary to consider whether it was. Nevertheless, I will briefly explain why I do not consider it to have been unreasonable.

81 Ordinarily, a discretion must be exercised reasonably.[44] In some circumstances, a failure to exercise a discretionary power will be unreasonable.[45]

82 The discretion given by s 146H(5) is at large, constrained only by the general scope and objects of the Act.

83 Having regard to the provisions of the Act as a whole, I consider that the Director's role is intended to be administrative and mechanical. I do not consider that it is intended that the Director would discharge any supervisory role over the assessments made by Assessors or review the assessments to ensure that they have been done in accordance with the Act and the Guidelines.[46] Given the general scope and objects of the Act, I consider that the Director is entitled to reject a certificate where there is an error apparent on its face, but is not compelled by s 146H(4)[47] to do so, at least where the error is in the application of the Act or Guidelines. It is unnecessary to consider whether the Director would be compelled to correct a more obvious error.

84 I would therefore not be satisfied that, if there was a factual error apparent on the face of the certificate, it was unreasonable for the Director not to exercise her power to reject the certificate. Therefore, even if I had found such an error, I would not have found that the Director's failure to refuse to record the assessment involved jurisdictional error.

Issue 2 - Did the Director have the power to rectify the alleged error of registering the election?

85 The second issue is whether the Director had the power to rectify the alleged error of registering the election. In essence, the applicant contends that the Director's power to 'rectify' was a power to undo the registration of an election.

86 As noted earlier, I am not satisfied that there was an error in recording the Special Evaluation. I am therefore not satisfied that there was an error in registering the election. However, in case I am wrong about that, I will consider issue 2.

87 As set out in the summary of the legislation, s 93L(8) provides:

The Director may at any time rectify an error that was made in recording an agreement or assessment or registering an election.

88 In Trac v Fero Reinforcing Pty Ltd,[48] Lemonis DCJ said:

In my view, this section provides to the Director the ability to correct administrative errors made in recording an agreement or assessment or registering an election. For example, where the record of an assessment incorrectly records the percentage recorded in the assessment. In my view, this section does not provide to the Director a general supervisory power. As has been explained, the Director's ability to refuse to record an assessment, or to register an election, is limited.

90 In my view, the power to rectify would not authorise the removal or invalidation of the recording of an assessment or the registration of an election. I have reached this conclusion for the following reasons.

91 First, the words of s 93L(8) refer to rectifying an error that was made in recording an agreement or assessment or registering an election. While 'in' can mean the same as 'of' depending on the context, the word does not of itself compel a construction that errors of recording or registration can be rectified such that a recording or registration could be cancelled.

92 Second, s 93L(5) expressly provides that an assessment recorded in accordance with the regulations cannot be withdrawn. Section 93L(6) makes a similar provision in relation to elections registered in accordance with the regulations. These provisions are likely aimed at preventing workers from withdrawing assessments or elections. However, they are not expressed so as to limit the prohibition to workers.

93 Third, s 93L(8) is a power that may be exercised 'at any time'. It would be odd if an election could be invalidated by the Director after District Court proceedings were commenced.

94 In its written submissions, the applicant conceded that an election could not be invalidated after District Court proceedings were commenced,[49] but did not explain why, on its construction, the words 'at any time' would not have their ordinary meaning. In essence, the applicant's construction would have required the words 'up until any civil proceedings for damages are commenced' to be read into s 93L(8) after the words 'at any time'. I do not accept that this is the proper construction of s 93L(8).

95 During the hearing, counsel for the applicant could not recall why he had made that concession in the written submissions.[50] He subsequently withdrew it. In the exchange that followed, counsel conceded that an election could not be invalidated after judgment had been delivered, but submitted that it could be invalidated at any point prior to that.[51] This construction would require the words 'up until any judgment in civil proceedings for damages is delivered' to be read into s 93L(8) after the words 'at any time'. I do not accept that this is the proper construction of s 93L(8).

96 For these reasons, I consider that the Director's power to rectify an error did not extend to a power to cancel or invalidate or otherwise undo the registration of the election.

Issue 3 - If jurisdictional error, should the Court nevertheless refuse to exercise its discretion to grant relief? Ms Wilkinson's submissions

97 Ms Wilkinson submits that, even if there was a jurisdictional error, relief should be refused. Ms Wilkinson advances four reasons for this.

98 First, Ms Wilkinson relies on delay.[52] Ms Wilkinson submits that the applicant did not seek to stay proceedings in the District Court pending the determination of these proceedings. Ms Wilkinson says '[a]ccordingly, the Applicant acquiesced in the District Court proceedings by filing a Defence and encouraging the Other Party to progress the action and incur legal costs and Court time in doing so'.

99 There is no evidence of any of this from Ms Wilkinson. The height of the evidence from Ms Wilkinson is her evidence that the writ that was filed in the District Court was dated 21 December 2020 and that the District Court proceedings 'have progressed'.[53]

100 An affidavit of a Mr Daniels filed on behalf of the applicant[54] (Daniels Affidavit) adds some details. It shows that, in addition to the writ, a statement of claim was filed on 23 April 2021 and a defence filed on 4 June 2021.

101 The Daniels Affidavit also shows that, after receiving the statement of claim, but before filing the defence, the applicant wrote to the Director asking that the register be rectified. This was on 28 April 2021, five days after the statement of claim was filed. The Director wrote back on 5 May 2021, saying she could not.[55]

102 The application for judicial review was filed on 17 June 2021. It sought review of the decision to register the election (made on 21 December 2020). In the alternative, it sought judicial review of the decision to refuse to rectify the alleged error. This second decision was made on 5 May 2021, a mere six weeks before the application for judicial review was filed.

103 There is no evidence that, between the date on which the defence was filed (4 June 2021) and the date the application for judicial review was filed, Ms Wilkinson incurred any costs in the District Court proceedings. Indeed, there is no evidence of any costs being incurred after the filing of the writ with the exception of the costs that may be inferred would have been incurred by the filing of the statement of claim.

104 I would not refuse to grant relief on the ground of delay.

105 Second, Ms Wilkinson relies on prejudice,[56] in two respects.

106 Ms Wilkinson first submits that, as a result of the election, the costs of the fusion surgery were not paid by the applicant and her weekly payments of compensation were reduced.

107 I accept this. However, if the decision was quashed, it would ordinarily be regarded as no decision at all.[57] Ms Wilkinson did not adduce any evidence, or make any submissions, to suggest that, if the decision was quashed, she would be unable to recover the lost amounts retrospectively. Accordingly, I would not exercise my discretion to refuse to grant relief on this basis.

108 Ms Wilkinson next submits that she will not be able to pursue her common law claim for damages if the Director's decision is quashed.

109 I would not refuse to grant relief on this basis. The applicant seeks to quash the Director's decision because it contends that, under the Act, Ms Wilkinson was to be assessed without regard to future events. If that had been done, Ms Wilkinson would have been assessed at 7% WPI and would, therefore, have been unable to make an election. If the applicant was right that Ms Wilkinson was not entitled to make an election as a matter of law, I would not exercise my discretion to refuse to grant relief simply because Ms Wilkinson would otherwise be prevented from continuing with a claim she was not entitled to bring.

110 Third, Ms Wilkinson asserted there is an alternative remedy. Ms Wilkinson submitted that the applicant could seek a preliminary determination of the issue of the validity of the assessment. In short, Ms Wilkinson submitted that the District Court could evaluate whether the AMS certificate was valid and, if it finds it was not, 'invalidate' the proceedings.[58]

111 During the hearing, counsel for Ms Wilkinson withdrew this submission, accepting that the District Court would not have such power.[59] In any event, even if the District Court did have this power, it would not have been an adequate alternative remedy. Even if Ms Wilkinson consented to an application that a question be determined prior to the substantive hearing, the District Court may refuse to accede to such an application.

112 Fourth, Ms Wilkinson alleges that granting relief would 'involve disproportionate inconvenience and injustice'.[60] No explanation or evidence was offered in support of this. Given that, I would not refuse relief on this basis.

113 During the hearing, I asked counsel for the applicant to explain the value of the relief (certiorari) that was sought in relation to the Director's refusal to rectify the register. I noted that the application did not seek mandamus to compel the Director to rectify the register. Counsel for the applicant acknowledged that the relief sought 'would have to go further'.[61] Despite this, the applicant did not apply to amend the relief sought. In those circumstances, even if I had found that the refusal to rectify the alleged error was a jurisdictional error, it would be futile to grant the relief sought. There would be no point in quashing the refusal in circumstances where relief by way of mandamus had not been sought.[62]

114 This point was not raised by Ms Wilkinson. Nevertheless, if I had found the refusal to have involved jurisdictional error, I would have declined to grant certiorari in relation to the refusal to rectify the register on the ground of futility.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] Statement of Agreed Facts for Hearing filed 27 October 2021.

[3] ts 46 ‑ 47. See also the affidavit of Belinda Wilkinson filed 10 August 2021 (Wilkinson Affidavit) page 68.

[5] See the definition in s 5 of the Act.

[6] Guidelines [1.18] - [1.19], [1.54].

[9] See Pearce D and Geddes R, Statutory Interpretation in Australia (9th ed, 2019) [3.48].

[10] Armet v CFC Consolidated Pty Ltd [2019] WASCA 165 [105] - [106].

[12] See Trac v Fero Reinforcing Pty Ltd [2019] WADC 115 [39] and [78]. See also the second reading speech in the Legislative Assembly page 6 and the Explanatory Memorandum to the Workers' Compensation Reform Bill 2004 [147].

[13] Workers' Compensation and Injury Management Amendment (COVID‑19 Response) Act 2020. The provisions that repealed s 93M (and amended s 93N) became operative in October 2020.

[14] And defined what that meant in s 93N(1A).

[15] See the discussion in the previous section.

[16] Mohammadi v Bethune [2018] WASCA 98 [31]. See also [32] ‑ [36].

[17] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [77] ‑ [85].

[19] Prisoners Review Board v Freeman [2010] WASCA 166 [150] (Murphy JA, with whom Pullin and Newnes JJA agreed).

[20] This section draws upon and reproduces what I have written in earlier judgments.

[21] The applicant did not allege errors of law on the face of the record.

[22] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]. This statement was applied in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [86] ‑ [88].

[23] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123.

[24] Hossain [23], [27] (Kiefel CJ, Gageler and Keane JJ).

[25] Hossain [29] (Kiefel CJ, Gageler and Keane JJ) quoting Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 [78]

[26] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [4] (Kiefel CJ), [53] (Gageler J), [89] (Nettle and Gordon JJ), and [134] (Edelman J). See also ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 [19] (Kiefel CJ, Bell, Gageler and Keane JJ).

[27] Hossain [24], [27] (Kiefel CJ, Gageler and Keane JJ).

[28]Hossain [29] - [30] (Kiefel CJ, Gageler and Keane JJ). See also Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421 [44] and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 [31] - [33] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

[29] MZAPC [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

[31] Applicant's Outline of Written Submissions filed 11 November 2021 (Applicant's Submissions) [12] ‑ [13].

[33] This was accepted by the applicant - see ts 38 - 39.

[34] This was accepted by the applicant - see ts 45.

[36] Section 3 of the Interpretation Act 1984 (WA).

[39] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [19] (Gleeson CJ, Gaudron and Hayne JJ). See also Water and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492, 505 (Dixon J).

[41] See the Applicant's Submissions [5] - [13]

[44] Engwirda v Owners of Queens Riverside Strata Plan 55728 [2019] WASCA 190 [32].

[45] See, for example, ABT17 [29] - [30].

[46] And see the Explanatory Memorandum to the Workers' Compensation Reform Bill 2004 [152].

[47] Other provisions impose mandatory obligations on the Director. See, for example, s 93L(3).

[49] See the Applicant's Submissions [16].

[52] First Other Party's Outline of Written Submissions filed 18 November 2021 (Ms Wilkinson's Submissions) [22] - [23].

[53] Wilkinson Affidavit [39] - [40] and [48].

[54] Affidavit of Shaun Geoffrey Daniels filed 17 June 2021 (Daniels Affidavit).

[56] Ms Wilkinson's Submissions [24] ‑ [26]. See also Sanders v City of South Perth [2019] WASC 226 [307] - [314].

[58] Ms Wilkinson's Submissions [27] - [30] and ts 60 ‑ 64.

[60] Ms Wilkinson's Submissions [32].

[62] See, for example, Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 [48] (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ), [100] (Gaudron and Kirby JJ).