By Partner, Mark Civitella and Associate, Shaun Daniells

In East Metropolitan Health Service v Lee [2022] WASCA 54, the Applicant, EMHS was unsuccessful in an Application for Judicial Review and Writ of Certiorari relating to a decision made by the Director of WorkCover WA to register the common election of an injured worker, Ms Wilkinson.

Background Facts

Ms Wilkinson, a pharmacist working at Royal Perth Hospital, claimed workers’ compensation claim for injuries sustained as a result of tripping over an empty pallet on 5 January 2018.

After the failure of non-operative treatment, her treating neurosurgeon suggested she undergo surgery in the form of an SI joint fusion.

Prior to undergoing the surgery, her solicitors arranged for an assessment of her level of whole person impairment (WPI) to be performed by a consultant occupational physician, Dr Heng Tan, for common law purposes. Dr Tan produced a report advising that Ms Wilkinson’s condition had yet to stabilise sufficiently to assess her final level of WPI but he was able to make a Special Evaluation. A Special Evaluation allows an Approved Medical Specialist to assess a worker’s level of whole person impairment prior to their condition reaching maximum medical improvement.

Dr Tan advised that at the time of the examination Ms Wilkinson has a 7% WPI.  However, he noted that Ms Wilkinson intended to undergo fusion surgery and this would result in her impairment significantly increasing. Taking the effects of the surgery into account, Dr Tan arrived at his Special Evaluation of a 21% WPI.

On 21 December 2020 WorkCover WA registered an Election to Retain the Right to Seek Damages on behalf of Ms Wilkinson based on Dr Tan’s Special Evaluation of a 21% WPI. Having elected to retain the right to seek damages, Ms Wilkinson subsequently commenced proceedings in the District Court against EMHS seeking damages with respect to her injury.

On 28 April 2021 EMHS invited the Director of WorkCover WA to exercise the powers conveyed on her by section 93L(8) of the Workers’ Compensation & Injury Management Act 1981 to deregister the election, on the basis that Dr Tan’s assessment was incorrect, however the Director refused to do so.

Following the Director’s refusal to deregister the election, the Application for Judicial Review was made by EMHS seeking a review of the Director’s decision to register the election.

Basis of the Application

EMHS contended that Dr Tan’s assessment was incorrect as his assessment was not conducted in accordance with the Guidelines. In support of this position, EMHS relied on the following paragraphs of the WorkCover WA Guidelines for the Evaluation of Permanent Impairment (Guidelines):

1. Paragraph 1.9(a) which requires that a permanent impairment assessment involves “clinical assessment of the claimant as they present on the day of the assessment taking into account of the claimant’s relevant medical history and all available relevant medical information………”.
2. Paragraph 1.39 which makes provision for a situation where long-term treatment reduces a worker’s level of impairment but if that treatment were removed the permanent impairment would likely revert back to the original state.
3. Paragraph 1.41 which requires an AMS to evaluate the worker’s current condition and even if a worker refuses reasonable treatment the AMS should not adjust the level of impairment on the basis of the worker’s decision.

EMHS submitted that the Guidelines demonstrated the intent of legislature that a worker’s condition should be considered and assessed as at the day of the examination and that it was contrary to the Guidelines to factor in the impact that future surgery might have.

Representatives of Ms Wilkinson argued that no error was made by Dr Tan but even if there was an error the Director of WorkCover WA did not have the power to refuse to record the assessment, or alternatively her actions did not amount to a jurisdictional error.

Decision

In a decision handed down on 24 February 2022, Her Honour Justice Archer dismissed the employer’s application.

Her Honour came to the conclusion that there was no error in Dr Tan’s assessment on the basis that there were no strict provisions in the Guidelines requiring that a Special Evaluation only assess a worker’s condition as at the day of examination. At paragraph 63 of the reasons Archer J stated:

“…….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.”

Unlike standard impairment assessments where the assessment must be performed based on how the worker presents to the Approved Medical Specialist on the day of the assessment, Her Honour did not consider this to be a requirement that applies to special evaluations.

Justice Archer concluded that as there was no error in Dr Tan’s Special Evaluation there was no error made by the Director in registering Ms Wilkinson’s common law election.

This case is of some importance to the common law damages exposure faced by employers in the WA workers’ compensation scheme. Workers who are facing the prospect of future surgery may be assessed with a higher than current level of WPI and gain access to common law damages if the effects of future surgery are factored into the assessment.