Opinion
Willis v State of Queensland: the MAT and the the Newman Amendments
8th Jul 2016
Willis v State of Queensland: Is the decision of the Medical Assessment Tribunal the end of the road for those parties falling subject to the Newman Amendments?
The recent Supreme Court of Queensland decision in Willis v State of Queensland [2016] QSC 080, relating to an application for a statutory order of review, may not initially appear noteworthy.
However, when one considers the matter in the context of those claims falling between 15 October 2013 and 30 January 2015, which remain subject to the Newman Amendments to the Workers Compensation and Rehabilitation Act (2003) (Qld) (the Act), the case takes on much greater significance.
These amendments required the permanent impairment (DPI) assessment of the subject physical or psychological injuries to exceed 5 per cent before an injured person was entitled to pursue a common law damages action against their employer.
Mr Simon Willis was physically injured in the course of his employment on 15 December 2013, when he fell off a ladder and landed on another person. He suffered injuries to his shoulder and his Achilles tendon, and later developed a secondary psychological injury.
Mr Willis, following assessment by a WorkCover appointed psychiatrist, was diagnosed as suffering from an ‘adjustment disorder with depressed moods’. The major contributing factor to this condition was identified as the work related physical injury and subsequent symptoms and loss of function.
Mr Willis was then subsequently referred by WorkCover for assessment, pursuant to s502 of the Act to the General Medical Assessment Tribunal – Psychiatric (the Tribunal). They were to determine, inter alia, whether he had sustained an injury resulting in a permanent impairment and the level of any such impairment.
The Tribunal, following assessment of Mr Willis, issued a report on 11 March 2015 recording its determination and attributing a 5 per cent DPI relating to Mr. Willis’s psychological injury. Based on an assessment at this level he would have been precluded from proceeding with a common law damages claim, due to failing to exceed the statutory threshold, unless his physical injuries were assessed at over this level of impairment.
Mr Willis subsequently applied to the Queensland Supreme Court for a statutory order of review, pursuant to s20 of the Judicial Review Act 1991 (Qld) (the JRA), in respect of the Tribunal’s decision. The applicant’s case argued that the Tribunal had failed to comply with the procedures required by the Act and the Guidelines for Evaluation of Permanent Impairment (the Guides) in reaching its determination as to the assessed level of impairment, and that this amounted to an error of law.
The Court, constituted by Bond J, in considering Mr Willis’s application first confirmed that the relevant sections of the Act provided no impediment to Mr Willis’s ability to have the decision reviewed under the JRA. The Court then went onto detail that the Act requires the question of DPI to be assessed in accordance with the Guides and requires the Tribunal to express reasons for its decision.
In this respect, the Court drew reference to the decision in Mentink v Minister for Home Affairs [2013] FCAFC 113, which surmised:
‘...where a decision-maker has provided reasons for a decision and the decision-maker is obliged to have regard to mandatory criteria (or, in some cases, a submission or representation), the relevant question is whether or not there has been an active intellectual engagement with the mandatory criteria (or the submission or representation).’
In light of Mr Willis’s injury for assessment being psychological in nature, the Guides required the use and application of the Psychiatric Impairment Rating Scale (PIRS) when assessing an injury. This requires an assessment of six areas of functional impairment by scoring each area of a scale of 1 to 5 and placing the individual into a class.
The Court on reviewing the determination of the Tribunal in Mr Willis’s case concluded that the Tribunal had not met the required standard in respect of its reasons.
His Honour went onto surmise that one cannot discern from the Tribunals decision the actual path of reasoning by which the Tribunal arrived at the classification decision in relation to numerous PIRS categories, as the reasons did not reveal any active engagement with the evidence which was apparently significant to the decision.
It was held that the Tribunal’s failure in this regard must be regarded as an error of law, which justified setting aside the decision. In turn the Court ordered that the matter be remitted to a differently constituted tribunal to assess Mr Willis’s DPI.
This case further demonstrates that close attention should be paid to the reasons offered in any Medical Assessment Tribunal, to ensure that the Tribunal has fully complied with their obligations in assessing and reporting their decision on an injury.
As in the event the Tribunal fails to fulfil their obligations in this respect, hope may remain for those subject to the Newman Amendments who would have otherwise reached the end of the road as a result of not exceeding the 5 per cent threshold, through mounting an application similar to Mr Willis.
Kaine Shanahan is an Associate at Gouldson Legal, a Queensland personal injury plaintiff litigation firm. Since admittance in 2007 Kaine has practised in New South Wales, London and Queensland and during this time he has practised predominately in personal injury law.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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