Yang v WorkCover Queensland

Case [2021] QSC 274

SUPREME COURT OF QUEENSLAND

CITATION:

Yang v WorkCover Queensland [2021] QSC 274

PARTIES:

CHANG MO YANG

(applicant)

v
WORKCOVER QUEENSLAND
(ABN 40 577 162 756)

(respondent)

FILE NO/S:

BS 7710 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application for Judicial Review

ORIGINATING COURT:

Supreme Court in Brisbane

DELIVERED ON:

22 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2021

JUDGE:

Applegarth J

ORDER:

1.       The respondent’s decision made on 10 June 2021 to terminate the applicant’s entitlement to workers’ compensation be set aside.

2.       The respondent pay the applicant’s costs of and incidental to the application to be assessed if not agreed.

CATCHWORDS:

WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – DISCONTINUATION OF PAYMENTS – GENERALLY – where the applicant suffered a stroke at work – where, following a review, the Workers’ Compensation Regulator accepted the applicant’s application for workers’ compensation – where WorkCover made further inquiries and obtained another opinion – where a representative of WorkCover purported to terminate the applicant’s entitlement to workers’ compensation under s 168 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether the decision was authorised under s 168 – whether the words of s 168 should be given their ordinary or a different meaning

Acts Interpretation Act 1954 (Qld), s 14A, s 23, s 24AA
Judicial Review Act 1991(Qld), s 20
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 5, s 6, s 32, s 108, s 131, s 132, s 134, s 144, s 144A, s 144B, s 168, s 190, s 208, s 220, ss 533-537, s 540, s 541
Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2019 (Qld)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, cited
Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, cited
Carr v Western Australia (2007) 232 CLR 138, cited
Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551, cited
Export Development Grants Board v E M I (Australia) Ltd (1985) 61 ALR 115, cited
Firearm Distributors Pty Ltd v Carson [2001] 2 Qd R 26; [2000] QSC 159, cited
Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited
R v A2 (2019) 93 ALJR 1106; [2019] HCA 35, cited
Re 56 Denton Road, Twickenham [1953] 1 Ch 51, cited
Shelley v Board of Professional Engineers Queensland & Anor [2020] QSC 38, cited
SS Family Pty Ltd v WorkCover Queensland [2019] 3 Qd R 81; [2018] QCA 296, cited
Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, cited
Thompson v Goold & Co [1910] AC 409, cited
Wentworth Securities Ltd v Jones [1980] AC 74, cited

COUNSEL:

M Grant-Taylor QC and P M Nolan for the applicant

M A Eade for the respondent

SOLICITORS:

Littles Lawyers for the…

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AGLC
Yang v WorkCover Queensland [2021] QSC 274
Case
[2021] QSC 274
Decision Date

CaseChat Overview and Summary

In Yang v WorkCover Queensland, the applicant, who suffered a stroke at work, sought judicial review of a decision by WorkCover Queensland to terminate his entitlement to workers' compensation. The court was tasked with determining whether the decision to terminate the compensation was legally authorised and whether the relevant statutory provisions were correctly interpreted. The applicant argued that the decision to terminate his compensation was not supported by the statutory provisions as it was based on a finding that there had never been a work-related injury, which was inconsistent with the statutory framework.

The court examined section 168 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), which permits an insurer to review and potentially alter a person’s entitlement to compensation if there has been a change in circumstances. The applicant contended that section 168 was intended to address changes in a claimant's entitlement due to variations in their incapacity arising from a work-related injury, not to determine the existence of the injury itself. The court considered whether the termination decision was authorised by the provisions of the Act and whether the statutory words should be given their ordinary meaning.

The court found that the decision to terminate the applicant's compensation was not authorised by the relevant statutory provisions. The decision-maker had not considered a change in the applicant's entitlement to compensation as contemplated by section 168, but rather had determined the non-existence of a work-related injury. This determination was outside the scope of the powers granted by section 168, which is concerned with changes in circumstances affecting the existing entitlement to compensation. The court also noted that sections 144A and 144B, which outline when payments of compensation and medical treatment should stop, did not support the decision to terminate compensation as WorkCover had not found that the incapacity due to a work-related injury had ceased.

In light of these findings, the court set aside the decision made by WorkCover Queensland to terminate the applicant's entitlement to workers' compensation. The court also ordered that WorkCover pay the applicant’s costs of and incidental to the application, to be assessed if not agreed.

Orders

Orders of the court

1. The respondent’s decision made on 10 June 2021 to terminate the applicant’s entitlement to workers’ compensation be set aside.

2. The respondent pay the applicant’s costs of and incidental to the application to be assessed if not agreed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WorkCover made further inquiries and obtained the opinion of a new doctor who stated: “I do not think the cerebral haemorrhage is secondary to hypertension caused by work stress.” The decision Two days after the opinion was given a representative of WorkCover purported to terminate the applicant’s entitlement to workers’ compensation. The reasons for her decision stated that s 168 allows WorkCover to review the payment of compensation. She stated that ss 144A and 144B outline when: ·weekly payments of compensation stop; and·payment of medical treatment, hospitalisation and expenses stop. The reasons informed the applicant “I have reviewed your claim and in light of new medical information the decision has been made to cease your claim …”. She advised that she had accepted the medical opinion that the stroke was not related to the applicant’s employment but was due to pre-existing, untreated hypertension. She advised that WorkCover would be “ceasing” the applicant’s claim and that no further weekly payments or medical expenses would be payable by WorkCover. Oddly and inconsistently with a finding that there had not been a work-related injury, the reasons added: “After a careful review, I confirm your work-related injury will not improve with further treatment and no longer prevents you from working.” Despite the decision-maker’s purported reliance upon ss 144A and 144B, in this proceeding WorkCover acknowledges that ss 144A and 144B did not authorise the purported decision. This is because s 144A states, among other things, that the entitlement to weekly payment stops when “the incapacity because of the work-related injury stops”. Section 144B states that medical treatment only stops when the weekly payments stop and the injury is not likely to improve with further treatment or hospitalisation. WorkCover did not decide that an incapacity because of a work-related injury had stopped. On the contrary, it decided that the applicant never had a work-related injury. To resist the application for judicial review of its decision, WorkCover must succeed on an argument about the meaning of s 168.The parties’ submissions on the issue of construction Section 168 provides: “Review of compensation(1)If an insurer considers a person’s entitlement to compensation under this Act may have changed, the insurer may review the person’s entitlement to compensation under this Act.(2)On the review, the insurer may terminate, suspend, decrease or increase the person’s entitlement to compensation under this Act.” The applicant submits that s 168 only allows termination when an insurer considers a person’s “entitlement to compensation under this Act may have changed”. It is premised upon the existence of an entitlement to compensation, such as weekly payments for a certain period. The “entitlement” either exists or it does not. According to the applicant, s 168 is intended to address situations where a change in circumstances following the acceptance of a claim results in a claimant no longer having an incapacity because of a work-related injury or the incapacity from the work-related injury increases or decreases. If, for example, the incapacity “stops” then the entitlement to weekly payments of compensation stops. This is how s 144A(1)(a) operates. If an insurer considers that a person’s entitlement to compensation “may have changed” in such a way, then it may review the entitlement under s 168(1) and, on the review, exercise the powers conferred by s 168(2).

Ratio Decidendi

Legal Principle Established

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