An election to seek damages not carried out in accordance with the Act does not restrict worker’s right to proceed with damages claim

20 November 2019

The decision considers a worker's right to continue a claim for damages after non-compliance with the Workers' Compensation and Injury Management Act 1981 (the Act) relating to obtaining a special evaluation of his degree of impairment.

In issue

  • The preliminary issues was whether the process undertaken in obtaining the special evaluation relied on by the worker complied with the requirements of the Act (in particular s93N) and, if it did not, whether the worker's election is therefore of no effect.

The background

There was an extended process whereby the worker sought to elect to retain the right to seek damages. The brief summary is as follows:

  • The worker's termination day was extended to 7 November 2015.
  • The worker obtained an assessment that his degree of impairment was 42%.
  • In April 2015, the worker's solicitors attempted to lodge an election to retain the right to seek damages based on Forms AMS 5 and 6 issued by Dr Kennedy on 21 January 2015. The AMS Forms reflected that a special evaluation had been undertaken. However, a special evaluation could only be undertaken from 28 May 2015, and the forms stated that the worker 'has attained maximum medical improvement'. The reference to obtaining maximum medical improvement was inconsistent with the relevant evaluation being a special evaluation. The Director did not record the election.
  • The worker's solicitors requested Dr Kennedy issue a new AMS 5 and AMS 6. However, the letter did not constitute a request for a special evaluation under s93N(2). Dr Kennedy then issued new Forms AMS 5 and 6 (said to reflect a special evaluation).
  • Dr Kennedy reviewed the worker on 27 May 2015. Dr Kennedy then re-issued the Forms AMS 5 and 6. Both forms were dated 27 May 2015 (said to reflect a special evaluation - although they both stated that the worker had attained maximum medical improvement). The forms and an election were sent to the Director. The Director did not record the election as the forms stated that the worker 'has attained maximum medical improvement'.
  • Dr Kennedy then re-issued Forms AMS 5, 6 and 8. The re-issued forms removed the reference to the worker having attained maximum medical improvement. The worker's solicitors sent the further forms to the Director and requested that the worker's election to retain the right to seek damages now be recorded. Dr Kennedy's assessment was recorded in accordance with s93L(2) of the Act and the worker's election to retain the right to seek damages had been registered with effect from 2 November 2015.

The employer argued that the worker's election was of no effect, it having been made in reliance on a non-compliant special evaluation.

The decision

His Honour found that s.93N required two separate assessments to be undertaken. The first is the assessment required by s93N(1) (being that the worker has not reached maximum medical improvement), which activates s93N. The second is the assessment conducted in accordance with s93N(5), after the worker has requested a special evaluation in accordance with s93N(2).

His Honour found that the worker did not request Dr Kennedy to make a special evaluation, and that Dr Kennedy issued the certificate required by s93N(1) and the special evaluation the subject of s93N(2) - s93N(5) as part of the one overall process. That is, Dr Kennedy did not undertake a second later assessment as to whether a normal evaluation could be conducted prior to issuing the special evaluation. Accordingly, the special evaluation relied on by the worker was not obtained in compliance with s93N.

As to the effect of the non-compliance with s93N, His Honour held that where the Director has recorded an assessment of a degree of impairment of at least 15%, and registered a worker's election to retain the right to damages based on that assessment, the validity of the assessment cannot be challenged in the proceedings, on the basis of a failure to comply with the processes set out in the Act. It was held that the worker could continue his claim for damages.

Implications for you

The decision is subject to an appeal. However, the decision indicates that notwithstanding non-compliance by the worker in electing to seek damages, a worker can still seek damages provided the election has been registered by the Director.

Trac v Fero Reinforcing Pty Ltd [2019] WADC 115

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