Yang v Workcover Queensland[2022] QSC 56

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant suffered a stroke at work.  He applied for workers’ compensation on the basis that the stress he experienced at work was a significant contributing factor to his stroke.  After an initial refusal by WorkCover, his application was ultimately accepted by the Workers’ Compensation Regulator. WorkCover made further enquiries and obtained the opinion of a doctor who expressed the view the stroke was caused by untreated hypertension, not work stress. WorkCover then purported to make a decision under s 168 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) terminating the applicant’s entitlement to workers’ compensation.  The applicant’s application for judicial review of that decision was successful, and the decision was set aside.  The Court found that the decision was not authorised by s 168, because that section is premised upon a person in fact having an entitlement to compensation, and authorises the insurer to review that entitlement where the insurer considers the person’s entitlement may have changed.  It does not empower the insurer, in effect, to review the circumstances under which a person was found to have an entitlement to compensation in the first place.^[1]
2. [2]
   Subsequently, on 18 November 2021, the applicant requested an assessment, under s 179 of the WCRA, to decide if the applicant has sustained a degree of permanent impairment from the accepted injury.
3. [3]
   An assessment was obtained, from a Dr Cunneen, an Occupational Physician, who prepared a report dated 7 February 2022.  Dr Cunneen expressed the opinion that the applicant’s “right basal ganglion haemorrhagic stroke (CVA) causing left-sided dense hemiplegia” resulted in a 90% whole of person impairment.  He went on to say that the “figure of 90% WPI encompasses [the applicant’s] accepted physical condition from 17 August 2020 (Right Basal Ganglion Haemorrhagic Bleed) and [the applicant’s] well documented pre-existing untreated and poorly controlled Hypertension”.   Dr Cunneen apportioned 100% of the applicant’s whole of person impairment to that “chronically untreated and documented Hypertension” and 0% to the applicant’s workplace stress and pressure.  Accordingly, Dr Cunneen’s ultimate assessment was of a 0% degree of permanent impairment, from the work-place injury.
4. [4]
   On 3 March 2022, WorkCover issued a Notice of Assessment, reflecting the 0% degree of permanent impairment, and informed the applicant that this meant he was not entitled to an offer of lump sum compensation.
5. [5]
   On the same date, WorkCover also notified the applicant that, as “recent medical evidence confirms your work-related injury will not improve with further treatment, and no longer prevents you from working”, this meant his compensation payments must stop.
6. [6]
   On 7 March 2022, the applicant applied for a statutory order of review of these two decisions made by WorkCover on 3 March 2022:  first, the decision to issue a  notice of assessment and, secondly, the decision to cease his compensation payments.
7. [7]
   In so far as the first decision (the notice of assessment) is concerned, by his application the applicant sought:

   1. (a)
      an order quashing or setting aside the decision; and
   2. (b)
      an order directing the respondent to re-issue a notice of assessment stating that the degree of permanent impairment for the injury is 90%.
8. [8]
   In relation to the second decision, the applicant sought an order quashing or setting aside the decision. 
9. [9]
   On 21 March 2022, WorkCover repealed both of the decisions, under s 24AA of the Acts Interpretation Act 1954 (Qld).  Consequently, as the decisions no longer exist, the respondent submits the appropriate order is that the application is dismissed.  WorkCover accepts it is appropriate to order that it pay the applicant’s costs of the proceedings.
10. [10]
    However, the applicant presses for an order, under s 30(1)(d) of the Judicial Review Act 1991 (Qld), directing WorkCover to issue a notice of assessment stating that the degree of permanent impairment for the injury is 90%; or alternatively, simply directing WorkCover to issue a notice of assessment, on the implied basis that it would do so by reference to part of the existing assessment undertaken by Dr Cunneen.
11. [11]
    For the following reasons, I am not persuaded there is a basis to do that.  The orders proposed by the respondent are appropriate.
12. [12]
    The first reason is a short one.  Section 30(1) of the Judicial Review Act, which sets out the powers of the court in relation to applications for review, is premised on there being “an application for a statutory order of review in relation to a decision…”.   To repeal a decision means to revoke or rescind it.  The effect is that the original decision no longer exists.^[2]   As there was, by the time of the hearing of the application, no decision, the power conferred by s 30(1) is not available.  The only order to be made is one dismissing the application, with appropriate compensation for the applicant in respect of the costs of the application.
13. [13]
    However, even apart from that jurisdictional factor (and even if I am incorrect in that analysis), the order pressed for by the applicant is not one that I would be prepared to make.
14. [14]
    To explain, it is necessary to have regard to the legislative context in which this issue arises.
15. [15]
    Section 179 of the WCRA provides, relevantly:

“179 Assessment of permanent impairment

3. (1)
   An insurer may decide, or a worker who has made an application under section 132 may ask the insurer, to have the worker’s injury assessed to decide if the worker’s injury has resulted in a degree of permanent impairment.

3. (2)
   The insurer must have the degree of permanent impairment assessed–

1. (a)
   for industrial deafness – by an audiologist; or

2. (b)
   for a psychiatric or psychological injury – by a medical assessment tribunal; or

3. (c)
   for another injury – by a doctor.

3. (3)
   The degree of permanent impairment must be assessed in accordance with the GEPI^[3] to decide the DPI^[4] for the injury, and a report complying with the GEPI must be given to the insurer.

3. (4)
   …”

16. [16]
    Sections 184, 185 and 186 then provide, relevantly:

“184Application of div 3

This division applies if an assessment of permanent impairment of a worker’s injury has been made under section 179.

185Insurer to give notice of assessment of permanent impairment

3. (1)
   The insurer must, within 10 business days after receiving the assessment of the worker’s permanent impairment, give the worker a notice of assessment in the approved form.

3. (2)
   …

3. (3)
   The notice must state–

1. (a)
   whether the worker has sustained permanent impairment from the injury; and

2. (b)
   if the worker has sustained permanent impairment –

1. (i)
   the DPI for the injury; and

2. (ii)
   the amount of lump sum compensation under section 180 to which the worker is entitled for the injury; and

3. (c)
   if the worker is entitled to additional lump sum compensation under division 4 – the worker’s entitlement.

186Worker’s disagreement with assessment of permanent impairment

3. (1)
   This section applies if–

1. (a)
   the worker’s degree of permanent impairment has not been assessed by a medical assessment tribunal; and

2. (b)
   the worker does not agree with the degree of permanent impairment stated in the notice of assessment (the original notice).

3. (2)
   The worker must advise the insurer within 20 business days after the original notice is given that the worker–

1. (a)
   does not agree with the degree of permanent impairment; and

2. (b)
   requests–

1. (i)
   that the insurer has the worker’s injury assessed again under section 179 by an entity mentioned in section 179(2) and agreed to by the worker and the insurer, (other than the entity that gave the report to the insurer under section 179(3)); or

2. (ii)
   that the insurer refer the question of degree of permanent impairment to a tribunal for decision.

3. (3)
   If the worker makes a request mentioned in subsection (2)(b)(i), the insurer must decide, within 10 business days after receiving the request, whether to have the worker’s injury assessed again under section 179 to decide if the worker’s injury has resulted in a degree of permanent impairment.

3. (4)
   If, under subsection (3), the insurer decides to have the worker’s injury assessed again under section 179, the original notice is taken to have never been given.

3. (5)
   If the insurer has the worker’s injury assessed again under section 179, the worker can not make a further request mentioned in subsection (2)(b)(i).

3. (6)
   If –

1. (a)
   under subsection (3), the insurer decides not to have the worker’s injury assessed again under section 179; or

2. (b)
   the worker makes a request mentioned in subsection (2)(b)(ii);

the insurer must refer the question of degree of permanent impairment to a medical assessment tribunal for decision.

3. (7)
   The degree of permanent impairment may then be decided only by a medical assessment tribunal.”

17. [17]
    In this case, the applicant initiated the process under s 179(1), by asking the respondent to have his injury assessed, to decide if his injury had resulted in a degree of permanent impairment.
18. [18]
    As required by s 179(2)(c), the respondent arranged for the degree of permanent impairment to be assessed by a doctor.  As required by s 179(3), the degree of permanent impairment was assessed by Dr Cunneen, and a report was provided to the respondent. 
19. [19]
    Acting upon the assessment by Dr Cunneen, and as required by s 185(1), the respondent gave the applicant a notice of assessment, which stated that he had not sustained permanent impairment from the relevant injury.
20. [20]
    In this case, it would have been open to the applicant to follow the procedure provided for under s 186.  As he does not agree with the degree of permanent impairment stated in the notice of assessment (0%) he could have advised the respondent of that and requested that the respondent have his injury assessed again.   He elected not to do that, but to apply for a statutory order of review of the decision to issue the notice of assessment instead.  But for the repeal of its decisions, the respondent would have argued that the present application should be dismissed under s 13 of the Judicial Review Act 1991, because the applicant was entitled to seek review of the matter under s 186 of the WCRA.  However, as counsel for the respondent aptly observed, with the decisions having been repealed, “we’ve moved on from that”.  I therefore do not propose to address this issue.
21. [21]
    Having repealed both decisions, the respondent advised the applicant’s solicitor that the applicant’s request to have his accepted injury assessed  for permanent impairment would be assessed by a new doctor, after which the respondent would issue a fresh notice of assessment and that compensation entitlements for the accepted injury would be reinstated.
22. [22]
    The applicant does not want to have his injury assessed by a new doctor.  He submits that the respondent can, and should, be compelled to issue a notice of assessment reflecting the 90% whole person impairment assessed by Dr Cunneen.  In essence, the applicant submits that the part of Dr Cunneen’s report which addresses the impairment as a result of the stroke condition should be accepted and acted upon by the respondent, with the balance of the report – in which Dr Cunneen goes on to express an opinion about the extent to which the applicant’s pre-existing condition (100%) or workplace stress (0%) caused or contributed to the stroke condition – to be disregarded.   That is said to be appropriate because, the stroke condition having been accepted as a work-related injury, it is now impermissible to revisit that threshold question.  Accordingly, the applicant submits, the content of Dr Cunneen’s report, beyond the doctor’s assessment of a whole person impairment of 90%, is irrelevant.
23. [23]
    The difficulty with that argument is that Dr Cunneen’s report must be read as a whole.  For example, after expressing the opinion that the applicant’s stroke condition has resulted in a 90% whole person impairment (on p 9 of the report), Dr Cunneen goes on to say (at p 10 of the report) that the figure of 90% “encompasses [the applicant’s] accepted physical condition from 17 August 2020 (Right Basal Ganglion Haemorrhagic Bleed) and [the applicant’s] well documented pre-existing untreated and poorly controlled Hypertension”.  It may be the applicant is right, and that Dr Cunneen has addressed matters that he ought not to have, having regard to the legislative scheme and the fact of acceptance of the applicant’s injury.  Perhaps that was the consequence of the instructions he was provided with.  But the solution to that is to have the assessment undertaken afresh, with clear instructions; not to pick one part of Dr Cunneen’s report and disregard the rest.   In my respectful view, that would be artificial and inappropriate. 
24. [24]
    Accordingly, even apart from the fact that there is, now, no “decision”, such that the powers under s 30(1) of the Judicial Review Act are not enlivened, I am not persuaded that it is appropriate to make the first of the orders sought by the applicant – requiring the respondent to issue a notice of assessment stating a degree of permanent impairment of 90%.  Nor am I persuaded that the alternative is appropriate – directing the respondent to issue a notice of assessment under s 185 – because the difficulties with Dr Cunneen’s assessment, read as a whole, means the process really has to go back to an earlier step, to have the applicant’s injury assessed.
25. [25]
    For those reasons, the application will be dismissed, with an order that the respondent pay the applicant’s costs.