Ronald Leslie THOMSON v WORKCOVER AUTHORITY OF NEW SOUTH WALES

Ronald Leslie THOMSON v WORKCOVER AUTHORITY OF NEW SOUTH WALES - [2004] NSWSC 282 - NSWSC 2004 case summary — Zoe

[10]

11 By letter dated 20 August 2003 Mr Lennie wrote to the plaintiff as follows: "We note your inclusion on the WorkCover list of permanent impairment assessors. While we understand that you have completed the appropriate training, our legislation requires assessors within the WorkCover scheme to be relevant, recognised medical specialists as approved by the Australian Medical Council. Unfortunately, under this definition, General Practice is not a recognised speciality. Also, a Diploma in Obstetrics and Gynaecology does not make you eligible for College membership. In any case, its relevance to orthopaedic surgery would have to be demonstrated. Can you let us know if you have any other relevant specialist membership? Otherwise you would not be eligible to do assessments of permanent impairment within our scheme. In the meantime your details will have to be removed from our website. You are still, of course, entitled to do independent medical assessments within the NSW Scheme that do not involve evaluation of permanent impairment." 12 The plaintiff's name was removed from the Authority website. It has not been restored despite the plaintiff's requests that it be restored. The registration of medical practitioners and the recording of specialist qualifications 13 The New South Wales Medical Board (the Board) is constituted under the Medical Practice Act 1992 (the MPA) and its functions include the registration of medical practitioners. Andrew Dix, the Registrar of the Board is responsible for the maintenance of the Register of Medical Practitioners for New South Wales (the Register). In his affidavit that was sworn on 2 March 2004 Mr Dix states that the Register does not specifically allow for the registration of "specialist" qualifications. Provision is made for the recording of additional particulars in the Register pursuant to s 22 and cl 22(2) of Sch 1 of the MPA. 14 Mr Dix states that the usually recognised qualifications for Australian trained specialists are fellowships awarded by the relevant specialist colleges. It appears that the authoritative statement with respect to specialist colleges and fellowships was a publication of the National Specialist Qualifications Advisory Committee (NSQAC). This body is no longer in existence. It provided advice to the Health Insurance Commission in relation to the recognition of specialties until about 1997. Since that time the role of the NSQAC has been assumed by the Australian Medical Council. In the absence of any other authoritative guide the Board continues to use the 1997 NSQAC publication as a guide to the recognition of qualifications for the purposes of s 22 and cl 22(2) of Sch 1 to the MPA. 15 Orthopaedic surgery is a recognised sub-speciality of surgery. The usual qualification for an Australian trained orthopaedic surgeon is Fellowship of the Royal Australasian College of Surgeons and Membership of the Australian Orthopaedic Association.

[11]

Assessment of permanent impairment for the purposes of the Workers Compensation Acts 16 The Workers Compensation Act 1987 (the 1987 Act) and the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) (together described as the Workers Compensation Acts) provide for compensation for workplace injuries, including those that result in permanent impairment. The Workers Compensation Acts are to be read as if they were a single instrument although, to the extent of any inconsistency, the 1998 prevails: s 2A of the 1987 Act. The entitlement to various types of compensation and the modification of common law damages in respect of workplace injuries are contained in the 1987 Act. The management of claims, including the mechanism for the submission and determination of claims, is to be found in the 1998 Act. 17 Part 3 of the 1987 Act makes provision for the various forms of compensation to which an injured worker may be entitled. Division 4 of Part 3 deals with compensation for non-economic loss. Non-economic loss includes permanent impairment and psychological and psychiatric injury. It is compensable by "lump sum compensation". 18 "Permanent impairment compensation" is defined in s 4(1) of the 1998 Act to mean compensation for permanent impairment under s 66 of the 1987 Act. Section 66 makes provision for the recovery of permanent impairment compensation in accordance with the formula set out in subsection (2). The calculation arrived at by use of the formula depends upon the degree of permanent impairment expressed as a percentage. The degree of permanent impairment is to be assessed as provided by s 65 of the 1987 Act and Part 7 of Chapter 7 of the 1998 Act. 19 Under the modified common law provisions contained in Part 5 of the 1987 Act no damages may be awarded unless the degree of permanent impairment of the injured worker is at least 15%: s 151H(1). The degree of permanent impairment is to be assessed as provided by s 151H and Chapter 7 of Part 7 of the 1998 Act: s 151H(4). 20 "Work injury damages" refers to damages recoverable under the modified common law provisions: s 250 of the 1998 Act. 21 Chapter 7 of the 1998 Act deals with the new claims procedures. These require an injured worker to give notice of the injury to his or her employer as a condition for the recovery of lump sum compensation and work injury damages: s 254 of the 1998 Act.

[16]

30 The WorkCover Guidelines are defined to mean the guidelines issued under s 376 of the 1998 Act: s 4(1). Sections 40 and 41 of the Interpretation Act 1987 apply with respect to WorkCover Guidelines relating to the assessment of the degree of permanent impairment of an injured worker in the same way as those sections apply to statutory rules: s 377(3). Section 40 of the Interpretation Act requires written notice of the making of a statutory rule to be laid before each House of Parliament and s 41 makes provision for the disallowance of any statutory rule. 31 WorkCover Guidelines relating to the assessment of the degree of permanent impairment have been issued. The WorkCover Guides for the Evaluation of Permanent Impairment (the WorkCover Guides) were issued by the Authority pursuant to s 376 of the 1998 Act and published in the NSW Government Gazette (the Gazette) on 21 December 2001. An amendment to the Guides was published in the Gazette on 19 July 2002. 32 The foreword to the WorkCover Guides states: "These Guidelines, to be known as the 'WorkCover Guides', are issued under section 376 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the purpose of assessing the degree of permanent impairment that arises from a work related injury or condition in accordance with section 322(1) of the 1998 Act. The focus of the Workers Compensation legislation is injury management which aims to assist the injured worker to recover and return to work. When a worker sustains a permanent impairment, however, these Guides are intended to insure an objective, fair and consistent method for evaluating the level of permanent impairment. The Act requires that assessments of permanent impairment be made in accordance with these Guides. Medical specialists trained in the use of the WorkCover Guides are to assess the degree of permanent impairment arising from a work related injury or condition. The WorkCover Guides are based on the American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment, 5th edition. The AMA guides are the most authoritative and widely used source for the purpose of evaluating permanent impairment. However, extensive work by eminent medical specialists, representing all Medical Colleges, has gone into reviewing the AMA guides to ensure that they are aligned with Australian clinical practice." 33 Chapter 1 of the WorkCover Guides is titled "Introduction" and states that the Guides are to be used wherever there is a need to establish the level of permanent impairment that results from a work-related injury or disease. Reference is made to persons described as "medical assessors". Medical assessors are expected to be familiar with chapters 1 and 2 of the American Medical Association's Guides to the Evaluation of Permanent Impairment, 5th edition, together with the information contained in the introduction (WorkCover Guides, p 6). 34 It will be remembered that Mr Lennie asserted in his letter of 20 August 2003 that it was a requirement of the legislation that assessors of permanent impairment be recognised medical specialists approved by the Australian Medical Council. It is accepted by the Authority that there is no provision of the legislation that so provides. The source of the suggested requirement that assessors of permanent impairment be medical practitioners holding specialist qualifications is to be found in the introduction to the WorkCover Guides at p 9:

[20]

39 The plaintiff's principal submission is that the power to issue guidelines with respect to the assessment of the permanent impairment under the Workers Compensation Acts does not extend to the issue of a guideline identifying a category of medical practitioners who are qualified to conduct assessments of permanent impairment. 40 The Workers Compensation Acts make provision for a claim for lump sum compensation or work injury damages to be dealt with by the submission of a claim and acceptance of liability by the insurer with a reasonable offer of settlement within the time limits imposed by s 281 of the 1998 Act. Recourse to an assessment under Part 7 of Chapter 7 of the 1998 Act carried out by an approved medical specialist need only arise in the case of a medical dispute. In the plaintiff's submission there is a clear dichotomy between the circumstances in which an assessment of permanent impairment must be undertaken by an approved medical specialist and those in which there is no such requirement. In the absence of such a requirement there is said to be no statutory constraint on the medical practitioners who are entitled to carry out permanent impairment assessments. 41 In support of this submission Mr Basten QC, who with Mr Beckett appeared on behalf of the plaintiff, relied on the judgment of the High Court in The Commonwealth and the Postmaster-General v The Progress Advertising and Press Agency Proprietary Ltd (1910) 10 CLR 457. That case raised for consideration whether a regulation made under the Post and Telegraph Act 1901 was ultra vires. The power to make regulations was expressed to be one for "all other matters and things which may be necessary for carrying out this Act or for the efficient administration thereof". The regulation under challenge imposed a penalty on any person who, without the authority of the Postmaster-General or the Deputy Postmaster General of a State printed, published, circulated or authorised the printing, publishing or circulation of any list of all or any of the subscribers connected with any telephone exchange. O'Connor J said (at 464): "In ascertaining what was the real intention of the legislature to well-known principles of interpretation must be applied. The first is that, as every citizen is at liberty prima facie to carry on his business in his own way within the law, it will not be held that the legislature has intended by any statute to impair that liberty unless it has expressed that intention by plain words or by necessary implication from the language it has used. The second rule is that general words in a statute will ordinarily be construed with no wider meaning than is necessary to carry into effect its object and purposes."

[27]

51 The expression "approved medical specialist" is defined by ss 4(1) and 319 of the 1998 Act as meaning a medical practitioner appointed under Part 7 of Chapter 7 of that Act. The power of appointment of approved medical specialists is conferred on the President of the Commission and is required to be exercised in accordance with criteria developed by the Minister in consultation with the Workers Compensation and Workplace Occupational Health and Safety Council of New South Wales. Provision is made in s 320(2) for the terms of the appointment of an approved medical specialist to be restricted to the determination of medical disputes of a specified kind. 52 It is relevant to note the terms of s 73 of the 1987 Act, which is to be found in Division 4 of Part 3 of that Act dealing with compensation for non-economic loss. This is a provision that is concerned with reimbursement of the costs of obtaining a permanent impairment medical certificate and any examination required for the certificate. It does not appear that the expression permanent impairment medical certificate is used elsewhere in the Workers Compensation Acts. It is to be noted that under s 73(1)(a) the obtaining of the permanent impairment medical certificate is to be taken to be "medical or related treatment" for the purposes of Division 3 of Part 3 (which deals with compensation for medical expenses) if: "the medical practitioner has completed such training as the Authority may require in respect of the assessment of the degree of permanent impairment as provided by this Act." 53 Section 73 of the 1987 Act contemplates that only the costs associated with obtaining a permanent impairment certificate from a medical practitioner who has undergone such training as the Authority requires in respect of the assessment of permanent impairment will be recoverable as medical or related treatment expenses. It suggests that the legislature contemplated that the Authority might prescribe training with respect to the assessment of the degree of permanent impairment of an injured worker. It does not provide support for the contention that the power to issue guidelines with respect to the assessment of the degree of permanent impairment extended to a guideline describing a class of medical assessors limited to medical practitioners holding qualifications in a relevant medical speciality. 54 At the time the Workers Compensation Legislation Amendment Act 2001 introduced the new claims procedures into the 1998 Act the plaintiff was medical practitioner who had been carrying assessments with respect to impairment in the field of orthopaedics and trauma for many years. If the legislature intended that only medical practitioners holding specialist qualifications were to be qualified to carry out assessments of permanent impairment (other than assessments conducted under Part 7 of Chapter 7 of the 1998 Act) it is to be expected that the power would have been conferred in clear terms. 55 Notwithstanding the broad terms of s 376(1)(a), it seems to me that the power to issue guidelines with respect to the assessment of permanent impairment cannot be held to extend to limiting the class of medical practitioners qualified to carry out assessments of permanent impairment to those recorded on the Register as holding a fellowship awarded by the specialist college relevant to the nature of the impairment or who otherwise answer the description of having qualifications in the relevant medical specialty. Although approved medical assessors have functions conferred on them under Part 7 of Chapter 7 that include the determination of medical disputes, and in this respect are to be distinguished from those medical practitioners conducting an assessment of impairment at the initial claim stage, I consider that the provisions of s 320 of the 1998 Act dealing with their appointment support this conclusion. The Authority's contentions with respect to the alternative source of power

[30]

60 The WorkCover Guidelines may make provision for or with respect to the information that a claim is to contain: s 260(2)(d). It will be recalled that a claim is to include the relevant particulars about a claim. Section 282(1)(g) provides that these include "such other matters as the WorkCover Guidelines may require". The Claims Guidelines provide in paragraph 6.11 for the material that is to be provided by a claimant in support of a claim for permanent impairment or lump sum damages. Paragraphs 6.11.2-6.11.6 the Claims Guidelines mirror the provisions of s 282(1)(b)-(f). Paragraph 6.11.7 requires the submission of "a medical report completed as described in WorkCover Guidelines on assessment of permanent impairment". 61 In Mr Williams' submission ss 260(2)(d), 282(1)(f) and 376(1)(c) provide ample power for the issue of a guideline requiring that a person claiming lump sum compensation or work injury damages provide an assessment of permanent impairment with his or her claim prepared by a medical practitioner who has undertaken the requisite training in the use of the WorkCover Guides and who possesses qualifications in the medical speciality relevant to the impairment that is the subject of the claim. 62 The WorkCover Guides do not purport to be issued pursuant to s 260. They recite the source of power as ss 376 and 322(1) of the 1998 Act. Mr Williams submitted, and I accept, that the validity of the Guidelines is not to be determined by consideration that the Authority may have mistaken the source of its power: Brown v West (1987-1988) 169 CLR 195 at 203. 63 Mr Williams referred in support of this submission to the objects of the new claims procedures, which appear to be designed to promote the early and inexpensive resolution of claims. Such an objective was submitted to be advanced by the requirement for specialist assessment at the stage of the provision of relevant particulars about the claim. The present scheme addresses the concept of whole person impairment. Non specialist medical practitioners may have carried out assessments of claims for compensation for non-economic loss under earlier schemes. These assessments were based upon the statutory table of disabilities. In Mr Williams' submission the new scheme may be thought to require somewhat greater sophistication in the assessment of impairment. It was said to be consistent with the provisions of the empowering Act to make provision for guidelines requiring that the information submitted as part of the relevant particulars of the claim include the report of a specialist medical practitioner.

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