The Defendant’s Application to Dismiss the Plaintiff Due to an Invalid Election Considered by the District Court

The Wainohu v Odeum Produce [2017] 146 District Court decision involved the Defendant’s challenge of the validity of the decision of the Director of WorkCover WA to record the plaintiff’s election.

The Plaintiff in the case had been assessed to have a whole person impairment (WPI) attributable to both psychiatric and physical injuries.

The psychiatric injuries were assessed by Dr Ng, psychiatrist, who performed a special evaluation as the worker’s psychiatric condition had not stabilised sufficiently to merit a normal evaluation.

Dr Beinart, an occupational physician, subsequently undertook a special evaluation of the plaintiff’s physical injuries and then combined the WPI assessment of Dr Ng with that of his own to calculate the plaintiff’s total WPI, which was used to record the plaintiff’s election at WorkCover WA.

The Plaintiff subsequently sued the Defendant on the back of this election.

The Defendant disputed the validity of the plaintiff’s election based on Section 93L(3) of the Workers’ Compensation Act (WA) 1981 which states that  the Director cannot record  an assessment that involves a special evaluation unless the Director has been given a copy of the certificate referred to in Section  93N(1) on the basis of which the special evaluation was requested. The certificate is commonly known as AMS 8.

The Plaintiff’s lawyers had provided the AMS 8 relating to Dr Beinart’s assessment but not that relating to the special evaluation of Dr Ng.

The matter became before McCann DCJ who found that the District Court could not open the decision of Dr Beinart relating to the assessment of the Plaintiff’s psychiatric injury due to Section 146J(1) of the Act which precludes the decision of authorised medical specialists from judicial review.

His Honour also found that the difficulty with requiring that both AMS 8 forms ought to be provided to the Director if a worker’s total WPI consists of more than one injury is that the Act does not mention complex evaluations. His Honour found that Dr Beinart had undertaken a complex evaluation of the plaintiff’s condition which consisted of both a psychiatric and physical component, and therefore the AMS 8 relating to this assessment was sufficient for the purposes of Section 93L(2). His Honour stated [at para 47]: “[Dr Beinart] assessed the psychiatric impairment at 18% by adopting Dr Ng’s assessment…”

Further, His Honour said that if the Defendant wanted to challenge the decision of the Director in recording the assessment pursuant to Section 93L(3), the proper remedy would be by of a judicial review of the Director’s decision.

His Honour’s finding that Dr Beinart “assessed” the plaintiff’s psychiatric impairment by adopting Dr Ng’s assessment is interesting.  Pursuant to Section 146H(1), an AMS undertaking a WPI assessment must provide a report including details of the assessment and the reasons for justifying the assessment but Dr Beinart did not provide a further report relating to the Plaintiff’s psychiatric condition in addition to the one issued by Dr Ng earlier.


The significance of the decision is unclear, although it may signal the reluctance of the Court to disentitle workers to common law damages due to a technical breach of Part IV of the Act. The comments made by McCann DCJ regarding the proper remedy for the defendant being a judicial review vary somewhat from the approach taken by the Court in Reale v Wesfarmers Kleenheat Gas Pty Ltd (No 2) [2016] WADC 153

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