WorkCover Queensland v Yang

Case [2022] QCA 196

SUPREME COURT OF QUEENSLAND

CITATION:

WorkCover Queensland v Yang [2022] QCA 196

PARTIES:

WORKCOVER QUEENSLAND
ABN 40 577 162 756
(appellant)
v
CHANG MO YANG
(respondent)

FILE NO/S:

Appeal No 13747 of 2021
SC No 7710 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2021] QSC 274 (Applegarth J)

DELIVERED ON:

11 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2022

JUDGES:

Morrison and McMurdo JJA and Crow J

ORDERS:

1.   The appeal is dismissed.

2.   Appellant to pay the respondent’s costs of the appeal.

CATCHWORDS:

INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – GENERAL MATTERS – where the respondent applied to the appellant for workers’ compensation – where the appellant rejected the application – where, through an external review, the Workers’ Compensation Regulator set aside the appellants decision and substituted a new decision to accept the respondent’s application for workers’ compensation – where the appellant then, after obtaining further medical records terminated the respondent’s entitlement to workers’ compensation – where the appellant relies on s 168 of the Workers’ Compensation and Rehabilitation Act 2003 (the WCRA) – where the appellant argues that the primary judge erred in holding that on the proper construction of s 168 of the WCRA the appellant was not authorised to terminate the respondent’s entitlement to workers’ compensation – whether s 168 of the WCRA allows for the appellant to terminate the respondent’s entitlement

Workers’ Compensation and Rehabilitation Act2003 (Qld), s 6, s 9, s 12, s 32, s 108, s 116, s 119, s 134, s 141, s 144A, s 144B, s 168, s 169, s 170, s 190, s 537, s 549

Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12, cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited

COUNSEL:

S A McLeod KC, with M A Eade, for the appellant
M Grant-Taylor KC, with P M Nolan, for the respondent

SOLICITORS:

Hall & Wilcox for the appellant
Littles Lawyers for the respondent

  1. MORRISON JA:  I have had the advantage of reading the draft reasons of the other members of the Court.  Enough is said in those reasons of the factual background to this matter that I am able to express my own reasons for reaching a different conclusion in shorter form than might otherwise be the case.

    Statutory framework

  2. The Workers’ Compensation and Rehabilitation Act 2003 (Qld) established a compensation scheme for Queensland, providing benefits for, inter alia, workers who sustain injury in their employment: s 5(1)(a).

  3. The term “compensation” is defined in s 9 of the Act:

    “Compensation is compensation under this Act, that is, amounts for a worker’s injury payable under chapters 3, 4 and 4A by an insurer to a worker, a dependant of a deceased worker or anyone else, and includes compensation paid or payable under a former Act.”

  4. Relevant to the question of compensation, some of the intentions of…

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Details
AGLC
WorkCover Queensland v Yang [2022] QCA 196
Case
[2022] QCA 196
Decision Date

CaseChat Overview and Summary

WorkCover Queensland was the appellant in this case against Yang, the respondent. Yang applied for workers' compensation after suffering a stroke, which WorkCover initially rejected. Following an external review, the Workers' Compensation Regulator overturned WorkCover's decision and ordered it to accept Yang's application. WorkCover then terminated Yang's entitlement to compensation, claiming authority to do so under section 168 of the Workers' Compensation and Rehabilitation Act 2003. The primary judge had ruled that WorkCover was not authorised to terminate Yang's entitlement under section 168. WorkCover appealed, arguing that the primary judge's interpretation of section 168 was incorrect.

The court needed to decide whether WorkCover was authorised to terminate Yang's entitlement to compensation under section 168 of the Act. WorkCover argued that section 168 empowered it to terminate Yang's entitlement because it had considered that Yang's entitlement to compensation may have changed. This change in entitlement was based on medical evidence suggesting that Yang's stroke was caused by untreated hypertension, rather than work-related stress, which would mean that his stroke was not an injury arising out of or in the course of his employment. The court had to determine whether this interpretation of section 168 was correct, and whether WorkCover had the authority to terminate Yang's entitlement to compensation under these circumstances.

The court held that WorkCover was not authorised to terminate Yang's entitlement to compensation under section 168. The court found that the only section in the Act that gave the insurer the power to terminate a person's entitlement to compensation was section 168, and that if this power did not exist in the circumstances presented, it was unclear what purpose section 168 served. The court further held that Yang's stroke was not an injury as defined by the Act, because it was not an injury arising out of or in the course of his employment. As a result, Yang had never suffered an injury, and therefore had no entitlement to compensation. The court concluded that the primary judge's interpretation of section 168 was correct, and that WorkCover did not have the authority to terminate Yang's entitlement to compensation under these circumstances.

The court dismissed WorkCover's appeal and ordered it to pay Yang's costs of the appeal. The court held that WorkCover was not authorised to terminate Yang's entitlement to compensation under section 168 of the Act, and that Yang's stroke was not an injury as defined by the Act. The court's decision reinforced the importance of correctly interpreting statutory provisions and emphasised the need for insurers to follow the proper procedures when terminating a person's entitlement to compensation.

Orders

Orders of the court

1. The appeal is dismissed.

2. Appellant to pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, such a result demonstrates that s 168 could not have been intended to be construed as it was below. There is only one section in the Act giving power to the insurer to terminate a person’s entitlement to compensation, and that is in s 168. If that power does not exist in the scenario given above, or in the present case, one wonders what work it has to do.Conclusion For the reasons expressed above the appeal should be allowed, with costs. McMURDO JA: The facts of this case and the relevant provisions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) are set out in the judgment of Crow J. WorkCover purported to terminate Mr Yang’s entitlement to workers’ compensation by a decision said to be empowered by s 168 of the Act. According to sub-section (1), the insurer’s power under that provision is enlivened when the insurer considers that a person’s entitlement to compensation under the Act may have changed. That circumstance could exist only where there had been an entitlement to compensation. The effect of the medical opinion upon which WorkCover made this decision was that Mr Yang’s stroke was caused by untreated hypertension rather than work-related stress. If that was so, Mr Yang’s stroke was never an “injury” as defined by s 32(1), because it was not an injury arising out of, or in the course of, his employment and his employment was not a contributing factor to it. Section 108 is headed “Compensation entitlement”. Section 108 is within Part 2 which is headed “Compensation entitlements of workers generally” and within Division 1 of Part 2 which is headed “General statement of entitlement”. Section 108(1) provides that:“Compensation is payable under this Act for an injury sustained by a worker.” If Mr Yang’s stroke was not an injury as defined, compensation was not payable. If it was an injury as defined, it was by s 108 that Mr Yang was entitled to the payment of compensation. The effect of Dr Hossack’s opinion was not that Mr Yang’s entitlement to compensation may have changed; it was that Mr Yang, not having suffered an injury, had at no stage enjoyed an entitlement to compensation. WorkCover’s argument is that a person’s entitlement to compensation under the Act derives not from an injury being sustained by that person as a worker (s 108), but from a person’s application for the payment of compensation being allowed, either in the first instance by the insurer (under s 134(1)) or by a decision by the regulator (under s 545(1)(c)). Therefore, WorkCover argues, Mr Yang did have an entitlement to compensation immediately prior to WorkCover’s purported decision to terminate that entitlement. WorkCover’s submission cannot be accepted. It is by s 108 that a person is entitled to compensation. An application for the payment of compensation is not determined in a vacuum: it is decided by an assessment of whether the claimant is entitled to compensation. The compensation becomes due and payable only when the application is allowed. But the entitlement to compensation derives from the worker suffering an injury as defined.

Ratio Decidendi

Legal Principle Established

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