Yes, insurers can change their mind about who performs a second DPI assessment

In the recent case of Wright v Glencore Queensland Limited [2016] QSC 247, the Queensland Supreme Court was asked to consider whether a self-insurer could withdraw its agreement for a particular doctor to perform a second degree of permanent impairment (DPI) assessment.

The circumstances were:

• Mr Wright’s ankle injury was assessed by Dr Ness for DPI pursuant to section 179 of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA). Dr Ness assessed a 3% DPI.
• Unsatisfied with that assessment (and unable to pursue a common law damages claim), Mr Wright requested a second assessment in accordance with section 186. The self-insured employer, Glencore, made a decision in accordance with section 186(3) to agree to a reassessment by Dr Shaw.
• Dr Shaw assessed Mr Wright as having a higher DPI than Dr Ness. However, Glencore was dissatisfied with Dr Shaw’s report – it alleged, and Mr Wright ultimately agreed, that Dr Shaw had not fully complied with some of the minor technical requirements of the Guidelines to Evaluation of Permanent Impairment (GEPI).
• Mr Wright pressed for a further assessment by Dr Shaw. However, Glencore resisted and instead sought agreement as to a reassessment by some other doctor. It wrote to Mr Wright’s solicitor:

As you will be aware, our client decided to accept your client’s request under s 186 of [the WCRA] to have his injury assessed again under s 179, by a doctor to be agreed between them. In our view, the Act does not prevent our client from withdrawing agreement to the doctor who will perform the reassessment until such time as the reassessment has been completed. We accept, of course, that our client’s decision under s 186(3) stands and cannot be withdrawn. It, however, is a decision limited to having an assessment done by a doctor to be agreed. Nothing in the Act indicates that a party cannot withdraw agreement to the identity of the assessor prior to the assessment.

In the same letter, Glencore indicated it considered Dr Shaw was unsuitable, given his failure to comply with the technical aspects of GEPI, and proposed a panel of three suitably qualified orthopaedic surgeons to conduct the reassessment.

• Mr Wright refused to select another surgeon and filed a court application seeking a declaration that Glencore’s decision to have his injury assessed by Dr Shaw remained operative.

Mr Wright argued that a section 186(3) decision was a decision not only as to reassessment, but also as to who will conduct the reassessment.

Henry J rejected that argument.

His Honour noted section 186(3) speaks only of a decision ‘whether to have the worker’s injury assessed again’ and, once that decision is made, arrangements must subsequently be made to implement that decision. Making those arrangements invariably involves reaching agreement as to who will conduct the assessment and when and where it will occur, but those agreements are merely made ‘in consequence of the section 186(3) decision’.

His Honour further noted that there are many circumstances that legitimately give rise to a need to change the doctor to whom the parties have agreed, for example death, incapacity or unavailability.

Accordingly, Mr Wright’s application was refused and he was ordered to pay Glencore’s costs. Mr Wright will now have to select a doctor from Glencore’s panel or, failing agreement, be assessed by the Medical Assessment Tribunal.

Although it probably seems like common sense, Wright v Glencore confirms insurers (and injured workers) can change their minds about which doctor will undertake a DPI reassessment before the assessment has been properly performed.