VICTORIAN WORKCOVER AUTHORITY and Another v WILSON

10 VR 298·Winneke P, Callaway and Nettle JJA
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10 VR 298
10 VR 298
VICTORIAN WORKCOVER AUTHORITY and Another v WILSONCourt of AppealWinneke P, Callaway and Nettle JJA17 June, 10 September 2004[2004] VSCA 161Accident compensation — Workers compensation — Spinal injury — Whole person permanent impairment — Assessment — Table of maims injury — Total loss determination — Victorian WorkCover Authority — Obligation to advise worker “of the assessments and the entitlement to compensation” — Independent medical examination — Purpose — Statutory specification — To “obtain assessment … and … determination” — Medical examiner’s assessment that worker had total impairment — Whether examiner’s determination binding on authority — Worker entitled to be advised only of relevant assessment — Accident Compensation Act 1985 (No 10191) ss 39, 52, 98C, 98E, 104B..Section 98C(1) of the Accident Compensation Act 1985 provided that a worker who suffered a compensable injury was entitled, in respect of an injury resulting in permanent impairment as assessed in accordance with s 91, to compensation for non-economic loss calculated in accordance with s 98C.Section 98E of the Act contained a table specifying various injuries and the minimum compensation payable for total loss in relation to each such injury. Section 98E(1) provided that, if a worker suffered a compensable injury and the injury was a total loss mentioned in the table and the amount of s 98C compensation was less than the amount payable for total loss specified in the table for that injury, the worker was entitled to compensation equal to the amount specified in the table instead of the amount of the s 98C impairment benefit.Following amendments enacted in 1997 and 2000:• Section 104B(4) provided that, where the Victorian WorkCover Authority accepted liability in relation to a claim under s 98C or 98E, it was required to request the worker to attend an independent medical examination the purpose of which, pursuant to s 104B(5), was to obtain (a) permanent impairment assessments in accordance with s 91 so as to determine the entitlement of the worker, if any, to s 98C compensation and for other purposes, and (b) a determination as to whether the worker had a total loss mentioned in the s 98E(1) table;• Section 104B(6) provided as follows:

“The Authority … must within 14 days of obtaining the assessments and determination advise the worker of the assessments and the entitlement to compensation, if any, under section 98C or 98E and of the consequences … of confirming in writing that he or she wishes to receive any compensation to which he or she is entitled”;

• Section 104B(7) provided that a worker was required, in turn, to advise the authority as to whether he or she accepted or disputed “each of the assessments” and, if the worker accepted “both of the assessments”, whether or not he or she accepted or disputed the entitlement to compensation under ss 98C or 98E and, if the worker accepted the entitlement to compensation, whether or not the worker wished to receive that entitlement;• Section 104B(9) provided that the authority was required within 14 days of being advised by the worker that the worker disputed either of the assessments to refer the

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