Yang v Workcover Queensland - [2022] QSC 56

SUPREME COURT OF QUEENSLAND

CITATION:

Yang v Workcover Queensland [2022] QSC 56

PARTIES:

CHANG MO YANG

(Applicant)

v

WORKCOVER QUEENSLAND (ABN 40 577 162 756)

(Respondent)

FILE NO/S:

BS 2485 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

13 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2022

JUDGE:

Bowskill CJ

ORDERS:

1. The application is dismissed.

2. The respondent pay the applicant’s costs of the application.

CATCHWORDS:

WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – DISCONTINUATION OF PAYMENTS – GENERALLY – where the applicant requested an assessment under s 179 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) to decide if he had sustained a degree of permanent impairment from an accepted injury – where a doctor assessed the applicant as having a whole of person impairment of 90%, but found that was 100% attributable to a pre-existing untreated condition, and 0% attributable to workplace factors, and accordingly assessed the applicant as having 0% degree of permanent impairment – where the respondent issued a Notice of Assessment reflecting the 0% degree of permanent impairment and decided to cease compensation payments – where, in response to the applicant’s application for a statutory order of review of those decisions, the respondent repealed the decisions – where the applicant presses, notwithstanding the repeal of the decisions, for an order directing the respondent to issue a Notice of Assessment reflecting that part of the doctor’s report which assessed the applicant as having a 90% whole of person impairment, and to disregard the balance of the report – whether the court has power to make such an order, following the repeal of the decisions – whether it would be appropriate, in any event, to do so

Renwick v Parole Board Queensland [2018] QSC 169
Yang v WorkCover Queensland [2021] QSC 274

Acts Interpretation Act 1954 (Qld), s 24AA
Judicial Review Act 1991 (Qld), ss 30(1), 30(1)(d)
Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 168, 179, 184, 185, 186

COUNSEL:
M Grant-Taylor QC and M Black, for the applicant

S McLeod QC, for the respondent

SOLICITORS:
Littles, for the applicant

Hall & Willcox, for the respondent

The applicant suffered a stroke at work. He applied for workers’ compensation on the basis that the stress he experienced at work was a significant contributing factor to his stroke. After an initial refusal by WorkCover, his application was ultimately accepted by the Workers’ Compensation Regulator. WorkCover made further enquiries and obtained the opinion of a doctor who expressed the view the stroke was caused by untreated hypertension, not work stress. WorkCover then purported to make a decision under s 168 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) terminating the applicant’s entitlement to workers’ compensation. The applicant’s application for judicial review of that decision was successful, and the decision was set aside. The Court found that the decision was not authorised by s 168, because that section is premised upon a person in fact having an entitlement to compensation,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yang v Workcover Queensland

Details

AGLC: Yang v Workcover Queensland [2022] QSC 56
Case: [2022] QSC 56
Decision Date: 13 April 2022

CaseChat Overview and Summary

In the case of Yang v Workcover Queensland, the applicant sought to challenge a decision by Workcover Queensland to cease compensation payments based on an assessment that he had no degree of permanent impairment resulting from his workplace injury. The applicant argued that the assessment should reflect only the part of the doctor's report that assessed him as having a 90% whole of person impairment, and disregard the rest. The Queensland Civil and Administrative Tribunal was tasked with determining whether it had the power to make such an order after the decisions had been repealed, and if it would be appropriate to do so.

The tribunal found that the power to make such an order was premised on the existence of a decision, which had been repealed. The tribunal also noted that even if it had the power, the order sought by the applicant was not one that it would be prepared to make. The tribunal examined the legislative context and found that the applicant's request was contrary to the statutory scheme, which required a medical assessment tribunal to make the final determination of the degree of permanent impairment.

Ultimately, the tribunal dismissed the application and ordered Workcover Queensland to pay the applicant's costs of the application. The tribunal held that it did not have the power to make the order sought by the applicant, as the decisions had been repealed, and that even if it did, it would not be appropriate to do so given the legislative context. The tribunal's decision underscores the importance of adhering to the statutory scheme and the limitations of judicial review in cases such as this.

Orders

Orders of the court

1. The application is dismissed.

2. The respondent pay the applicant’s costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The first reason is a short one. Section 30(1) of the Judicial Review Act, which sets out the powers of the court in relation to applications for review, is premised on there being “an application for a statutory order of review in relation to a decision…”. To repeal a decision means to revoke or rescind it. The effect is that the original decision no longer exists.[2] As there was, by the time of the hearing of the application, no decision, the power conferred by s 30(1) is not available. The only order to be made is one dismissing the application, with appropriate compensation for the applicant in respect of the costs of the application.[2]See Renwick v Parole Board Queensland [2018] QSC 169 at [18]. However, even apart from that jurisdictional factor (and even if I am incorrect in that analysis), the order pressed for by the applicant is not one that I would be prepared to make. To explain, it is necessary to have regard to the legislative context in which this issue arises. Section 179 of the WCRA provides, relevantly:“179 Assessment of permanent impairment(1) An insurer may decide, or a worker who has made an application under section 132 may ask the insurer, to have the worker’s injury assessed to decide if the worker’s injury has resulted in a degree of permanent impairment.(2) The insurer must have the degree of permanent impairment assessed–(a) for industrial deafness – by an audiologist; or(b) for a psychiatric or psychological injury – by a medical assessment tribunal; or(c) for another injury – by a doctor.(3) The degree of permanent impairment must be assessed in accordance with the GEPI[3] to decide the DPI[4] for the injury, and a report complying with the GEPI must be given to the insurer.(4) …”[3]“GEPI” is defined, in schedule 5 to the WCRA, as the Guidelines for the Evaluation of Permanent Impairment made under section 183.[4]“DPI” is defined, in schedule 6 to the WCRA, for an injury of a worker, to mean “an estimate, expressed as a percentage, of the degree of the worker’s permanent impairment assessed and decided in accordance with the GEPI”. Sections 184, 185 and 186 then provide, relevantly:“184 Application of div 3This division applies if an assessment of permanent impairment of a worker’s injury has been made under section 179.185Insurer to give notice of assessment of permanent impairment(1) The insurer must, within 10 business days after receiving the assessment of the worker’s permanent impairment, give the worker a notice of assessment in the approved form.(2) …(3) The notice must state–(a) whether the worker has sustained permanent impairment from the injury; and(b) if the worker has sustained permanent impairment –(i)the DPI for the injury; and(ii) the amount of lump sum compensation under section 180 to which the worker is entitled for the injury; and(c) if the worker is entitled to additional lump sum compensation under division 4 – the worker’s entitlement.186Worker’s disagreement with assessment of permanent impairment(1) This section applies if–(a) the worker’s degree of permanent impairment has not been assessed by a medical assessment tribunal; and(b) the worker does not agree with the degree of permanent impairment stated in the notice of assessment (the original notice).(2)The worker must advise the insurer within 20 business days after the original notice is given that the worker–(a) does not agree with the degree of permanent impairment; and(b) requests–(i) that the insurer has the worker’s injury assessed again under section 179 by an entity mentioned in section 179(2) and agreed to by the worker and the insurer, (other than the entity that gave the report to the insurer under section 179(3)); or(ii) that the insurer refer the question of degree of permanent impairment to a tribunal for decision.(3)If the worker makes a request mentioned in subsection (2)(b)(i), the insurer must decide, within 10 business days after receiving the request, whether to have the worker’s injury assessed again under section 179 to decide if the worker’s injury has resulted in a degree of permanent impairment.(4) If, under subsection (3), the insurer decides to have the worker’s injury assessed again under section 179, the original notice is taken to have never been given.(5) If the insurer has the worker’s injury assessed again under section 179, the worker can not make a further request mentioned in subsection (2)(b)(i).(6) If –(a) under subsection (3), the insurer decides not to have the worker’s injury assessed again under section 179; or(b) the worker makes a request mentioned in subsection (2)(b)(ii);the insurer must refer the question of degree of permanent impairment to a medical assessment tribunal for decision.(7) The degree of permanent impairment may then be decided only by a medical assessment tribunal.”

Ratio Decidendi

Legal Principle Established

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CITATION:	Yang v Workcover Queensland [2022] QSC 56
PARTIES:	CHANG MO YANG (Applicant) v WORKCOVER QUEENSLAND (ABN 40 577 162 756) (Respondent)
FILE NO/S:	BS 2485 of 2022
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	13 April 2022
DELIVERED AT:	Brisbane
HEARING DATE:	24 March 2022
JUDGE:	Bowskill CJ
ORDERS:	1. The application is dismissed. 2. The respondent pay the applicant’s costs of the application.
CATCHWORDS:	WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – DISCONTINUATION OF PAYMENTS – GENERALLY – where the applicant requested an assessment under s 179 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) to decide if he had sustained a degree of permanent impairment from an accepted injury – where a doctor assessed the applicant as having a whole of person impairment of 90%, but found that was 100% attributable to a pre-existing untreated condition, and 0% attributable to workplace factors, and accordingly assessed the applicant as having 0% degree of permanent impairment – where the respondent issued a Notice of Assessment reflecting the 0% degree of permanent impairment and decided to cease compensation payments – where, in response to the applicant’s application for a statutory order of review of those decisions, the respondent repealed the decisions – where the applicant presses, notwithstanding the repeal of the decisions, for an order directing the respondent to issue a Notice of Assessment reflecting that part of the doctor’s report which assessed the applicant as having a 90% whole of person impairment, and to disregard the balance of the report – whether the court has power to make such an order, following the repeal of the decisions – whether it would be appropriate, in any event, to do so Renwick v Parole Board Queensland [2018] QSC 169 Yang v WorkCover Queensland [2021] QSC 274 Acts Interpretation Act 1954 (Qld), s 24AA Judicial Review Act 1991 (Qld), ss 30(1), 30(1)(d) Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 168, 179, 184, 185, 186
COUNSEL:	M Grant-Taylor QC and M Black, for the applicant S McLeod QC, for the respondent
SOLICITORS:	Littles, for the applicant Hall & Willcox, for the respondent