List member Geoffrey Diehm QC appeared for the respondent in the matter of Van Eyk v WorkCover Qld  QSC 253.
In 1998 the applicant had a motorcycle accident that resulted in a right hip joint fracture dislocation. In 2014 the applicant fell on loose gravel, which resulted in hip and groin pain. The respondent accepted liability for “aggravation of osteoarthritic hip”. The applicant was assessed by Dr Kilian, who assessed him as having a DPI of 20% but found that the injury was not stable because it could be improved by surgery. He later provided a further report, essentially confirming the first one.
The respondent refused to give an assessment notice on the grounds that Dr Kilian’s reports did not comply with the guidelines for evaluation of permanent impairment. The injury was not “stable and stationary” because it could be improved by surgery, and because he used an incorrect methodology with respect to the allowance for the pre-existing condition. Dr Kilian provided a third report, confirming the DPI and declaring the injury stable and stationary because the applicant had declined hip replacement surgery. The guidelines stated that if the person had been offered additional treatment but refused it, the assessor should note the refusal but proceed to evaluate the impairment without considering the changes that could be made with further treatment.
The respondent alleged that the third report did not comply because the respondent had withdrawn its agreement to have Dr Kilian assess the applicant by the time the third report was released, and because Dr Kilian’s methodology did not comply with the guidelines. In relation to the alleged withdrawal, Jackson J noted that a subsequent email from WorkCover had asked that Dr Kilian reconsider his assessment, and provide a report that complied with the guidelines.
There was no issue between the parties that the injury was an aggravation of a pre-existing condition. The issue was that Dr Kilian attributed the entire impairment to the work injury, declaring that the original condition was symptomless. The respondent argued that the guidelines required Dr Kilian to calculate the degree of impairment before the accident – even if symptomless – that already existed, and make a deduction for it.
Chapter 1, s 1.51 of the guidelines provided that:
“The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairments if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of impairment that pre-existed the injury.”
Section 3.19 of the guidelines provided that:
“Impairment due to arthritis (AMA5 section 17.2n, pp 544-545) following a work-related injury is uncommon, but may occur in isolated cases. The presence of arthritis may indicate a pre-existing condition and this should be assessed and an appropriate deduction made (see Chapter 1).”
Jackson J found that s 1.51 did not require a reduction since the pre-existing impairment did not cause any loss of use and impairment was a measure of “loss of use”. Any loss of use was related to the gravel incident, even if in part caused by his pre-existing impairment. Jackson J decided the word ‘condition’ in 3.19 should be construed to mean ‘impairment’ and would then operate consistently with 1.51. Proceeding on that ground, Jackson J ordered the respondent’s decision to refuse to issue the applicant with a notice of assessment be set aside.
See judgment here: https://www.sclqld.org.au/caselaw/QSC/2017/253