Yarrow v Workers' Compensation Regulator
[2017] QIRC 2
•25 January 2017
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Yarrow v Workers' Compensation Regulator [2017] QIRC 002 |
PARTIES: | Alan Seymour Yarrow (as Executor of the Estate of the late William David Keith Cameron) v Workers' Compensation Regulator |
CASE NO: | WC/2016/6 |
PROCEEDING: | Appeal against a decision of the Regulator |
DELIVERED ON: | 25 January 2017 |
HEARING DATE: | 23 August 2016 |
MEMBER: | Deputy President Kaufman |
ORDERS : | 1. The Appeal is dismissed. 2. The decision of the Regulator is confirmed. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - LATENT ONSET TERMINAL INJURY - whether s 118 of the Workers' Compensation and Rehabilitation Act 2003 has been engaged - whether entitlement to payment under the Accident Compensation Act 2001 (NZ) is corresponding compensation for the purposes of s 118. WORKERS' COMPENSATION - APPEAL AGAINST DECISION - LATENT ONSET TERMINAL INJURY - STATUTORY INTERPRETATION - where s118 of the Workers' Compensation and Rehabilitation Act 2003 is engaged - whether that s 118 is in conflict with s 128C - whether s128C envisaged payments being made in more than one jurisdiction. |
| CASES: | Accident Compensation Act 2001 (NZ), s 20, s26, Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, 574 |
| APPEARANCES: | Mr M Grant-Taylor QC, with Mr M Smith of counsel, instructed by Turner Freeman Lawyers, for the appellant Mr S McLeod of counsel, instructed directly by the Workers' Compensation Regulator |
Reasons for Decision
This is an appeal from a decision of the Workers' Compensation Regulator to confirm WorkCover Queensland’s rejection of an application for compensation made by the late Mr William Cameron on 22 May 2015. Mr Alan Yarrow ('the appellant'), as the executor of Mr Cameron's estate, makes the appeal.
Background
Mr Cameron commenced his employment in 1957 with a carpentry and joinery apprenticeship in Auckland. During the course of his long employment he was exposed to asbestos in New Zealand from 1960 to 1967, 1970 to 1972 and 1974 to 1978. Mr Cameron was also exposed to asbestos in Queensland for approximately 12 months in 1973 and from 1978 to 1979. From 1979 until he stopped working after 2007 he was not exposed to asbestos.
On 25 March 2015, Mr Cameron was diagnosed with mesothelioma, an insidious disease linked to the exposure and inhalation of asbestos dust and fibres. He passed away on 4 January 2016 at 74 years of age.
Mr Cameron's two applications for compensation
On 22 May 2015, Mr Cameron applied for compensation with WorkCover Queensland for terminal benefits under Chapter 3, Part 3, Division 4 of the Workers' Compensation and Rehabilitation Act 2003 ('the Act').
On the same date he made a claim for cover (as defined in s 20 of the Accident Compensation Act 2001 (NZ)) and a specified entitlement under s 48 of the NZ Act in respect of a personal injury caused by a work-related gradual process, disease or infection as defined by s 30 of that act. By operation of s 26(2) a personal injury caused wholly or substantially by a gradual process must, relevantly, be caused by a work-related gradual process. Schedule 2 of the NZ Act is a list of occupational diseases that are, by s 30(3) included in the definition of personal injury caused by a work-related gradual process, etc., which do not require an assessment of causation. Mesothelioma diagnosed as caused by asbestos is one such disease.
The New Zealand application was accepted and NZD $133,802.28 was paid to Mr Cameron by the Accident Compensation Commission ('the ACC'). Presumably this was "lump sum compensation for permanent impairment" under s 69(1)(d) of the NZ Act.
On 13 August 2015 Mr Cameron advised WorkCover that he had received compensation from the ACC.
Mr Cameron's application to WorkCover Queensland was rejected on 28 August 2015 on the basis that s 118 of the Act precluded his application for compensation from being acted upon. No explanation has been given for the delay between the time Mr Cameron lodged his application under the Act on 22 May 2015 and its rejection by WorkCover on 28 August 2015.
An application for a review of WorkCover's decision was filed with the Workers' Compensation Regulator on 9 October 2015. Mr Cameron submitted that s 118 of the Act does not apply to his claim because the payment he had received from New Zealand was not a payment that corresponds to compensation payable under the Act. In the alternative, he further submitted that because, pursuant to ss 128B and 128C, he was able to be compensated despite having received an award from another entity, s 118 is inconsistent with ss 128B and 128C, which are specific provisions that override the general provision, s 118. On 23 November 2015 the regulator confirmed WorkCover's decision. The regulator's decision was appealed to this commission on 3 March 2016.
Legislation
The relevant sections of the Act are set out below.
"9 Meaning of compensation
Compensation is compensation under this Act, that is, amounts for a workers' injury payable under chapters 3 and 4 by an insurer to a worker, a dependent of a deceased worker or anyone else, and includes compensation paid or payable under a former Act."
"10 Meaning of damages
(1) Damages is damages for injury sustained by a worker in circumstances ncreating, independently of this Act, a legal liability in the worker's nemployer to pay damages to—
(a) the worker; or
(b) if the injury results in the worker's death—a dependant of the deceased worker.
(2) A reference in subsection (1) to the liability of an employer does not include a liability against which the employer is required to provide under—
(a) another Act; or
(b) a law of another State, the Commonwealth or of another country.
(3) Also, a reference in subsection (1) to the liability of an employer does not include a liability to pay damages for loss of consortium resulting from injury sustained by a worker.
Chapter 3, Part 2 of the Act provides for compensation entitlements of workers generally.
"108 Compensation entitlement
(1) Compensation is payable under this Act for an injury sustained by a worker.
…"
[Section 108 is contained in Chapter 3, Part 2, Division 1 which is headed "General statement of entitlement"]
"131 Time for applying
(1) An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises.
….."
[Section 131 is contained in Chapter 3, Part 5, which is headed "Compensation application and other procedures"]
"116 Entitlement ends if compensated under corresponding laws
(1) This section applies if, for an injury, payment (by whatever name called) that corresponds to compensation under this Act is made to, or on account of, a person under an entitlement under a law of the Commonwealth or of a place other than Queensland.
(2) The person's entitlement to compensation under this Act for the injury stops."
"117 Compensation recoverable if later paid under corresponding laws
(1) This section applies if, for an injury—
(a)an insurer had paid compensation under this Act to, or on account of, a person; and
(b)subsequently payment (by whatever name called) that corresponds to compensation under this Act is made to, or on account of, the person under an entitlement under a law of the Commonwealth or of a place other than Queensland for the injury.
(2) The insurer may recover the amount paid as compensation under this Act from the person to whom, or on whose account, it was paid."
"118 Condition on compensation application if compensation available under this Act and corresponding law
(1) This section applies if, for an injury, a person is entitled to—
(a) payment of compensation under this Act; and
(b) payment that corresponds to compensation payable under this Act under an entitlement under a law of the Commonwealth or of a place other than Queensland.
(2) An application for compensation under this Act is duly made, and is to be acted on, only if the claimant gives the insurer the claimant’s statutory declaration that—
(a) a claim for payment for the injury under the entitlement under the law of the Commonwealth or of the place other than Queensland has not been made; and
(b) a claim mentioned in paragraph (a) will not be made."
"119 Entitlement to compensation ends if damages claim is finalised
(1) This section applies if, for an injury, there is—
(a)an entitlement to compensation; and
(b)an entitlement to recover damages against an employer or another person.
(2) An entitlement to compensation ends when settlement for damages is agreed or judgment for damages is given.
(3) In this section—
Damages includes damages under a legal liability existing independently of this Act, whether or not within the meaning of section 10."
[Sections 116, 117, 118 and 119 are contained in Chapter 3, Part 2, Division 4, which is headed "Relationship of entitlement to other compensation".]
Chapter 3, Part 3 of the Act deals with compensation entitlements of particular workers. Division 4 of that part deals with workers with latent onset injuries that are terminal injuries.
"128A Application of div 4
128A This division applies to a worker if a latent onset injury sustained by the worker is a terminal condition.""128B Entitlements of worker with terminal condition
(3) The worker is entitled to compensation for the latent onset injury calculated only under this division.
(4) The worker is entitled to lump sum compensation equal to the sum of the following amounts—
(a)$200,000;
(b) additional lump sum compensation for care of 10% of the namount payable under paragraph (a);
(c) additional lump sum compensation of up to $200,000 payable naccording to a graduated scale prescribed under a regulation, nhaving regard to the age of the worker when the worker lodges nan application for compensation for the latent onset injury.
(5) However, the amount payable under subsection (2)(a) is subject to any reduction made under section 128C.
(6) The worker is also entitled to compensation under chapter 4, part 2, but only until the worker receives lump sum compensation under subsection (2)."
"128C Reduction of amount payable
(1) This section applies if any of the following payments have been made in relation to the worker's latent onset injury—
(a) a weekly payment of compensation;
(b) a redemption payment;
(c) a payment of lump sum compensation;
(d) a payment of compensation or damages under a law of Queensland, another State or of the Commonwealth.
(2) The amount of compensation payable under section 128B(2)(a) must be reduced by the total of all payments mentioned in subsection (1)."
Section 128D provides for an entitlement for a worker's dependants and s 128E sets out to whom payments are to made if the worker dies because of the latent onset injury.
Whether section 118 applies
Mr Grant-Taylor QC, who appeared with Mr M Smith of counsel for the appellant, in answer to a question from me, accepted that the deceased had not provided a statutory declaration pursuant to s 118(2) of the Act. He submitted that no statutory declaration was made because it could not have been made; s 118 was simply not engaged. The deceased had not been entitled to payment under a law of the Commonwealth or of a place other than Queensland, which payment corresponds to compensation payable under the Act.
To make good this submission on the non-applicability of s 118 of the Act Mr Grant-Taylor contrasted the provisions and nature of the NZ Act with those of the Act. In the written submissions for the appellant the contention was put as follows:
There is a clear pre-condition to the engagement of s 118 inasmuch as, by its terms, the section has application only in the event that, for an injury as defined under the 2003 Act, the person concerned is entitled to both payment of compensation as defined under the 2003 Act and payment that corresponds to compensation payable under the 2003 Act under an entitlement under a law of, inter alia, a place other than Queensland. If the person concerned is not entitled to a payment of the latter kind, the section is simply not engaged.
This immediately calls into question the nature of the payment which the deceased received from the ACC and, more particularly, whether that payment "corresponds to compensation payable under [the 2003] Act."
The New Shorter Oxford English Dictionary relevantly defines "correspond" as follows:
1. Be congruous or in harmony (with), be agreeable or conformable (to).
2. Have a similar or analogous character, form or function; agree in position, amount, etc.
What is therefore brought sharply into focus is the definition of "compensation" in and for the purposes of the 2003 Act. Section 9 of the 2003 Act is in these terms:
"9 Meaning of compensation
Compensation is compensation under this Act, that is, amounts for a worker’s injury payable under chapters 3 and 4 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.
…"
The Macquarie Dictionary (Fifth Edition) relevantly defines "correspond" as: "to be in agreement or conformity [with or to]…to be similar or analogous; be equivalent in function, position, amount, etc. [to]".
Mr Grant-Taylor contrasted the provisions of the two acts, particularly emphasizing that the Act provides for a scheme of insurance to provide compensation to workers for work related injuries, whereas the NZ Act generally provides for accident compensation for a personal injury suffered by a person in New Zealand. There is no insurance scheme or other reference to insurance in the NZ Act. However, in respect of an injury such as mesothelioma, the injury needs to have been work-related in order that the person be covered, albeit self-employed people also appear to be covered.
After comprehensively differentiating between the Queensland and New Zealand schemes, Mr Grant-Taylor again emphasized that the Act is based upon a scheme of insurance whereas the concept of insurance is conspicuously absent from the scheme of the NZ Act. His written submission on this aspect of the appeal concluded:
Finally, useful reference can be made to the end of the ACA and Part 3, dealing with lump sum compensation, which is what Mr Cameron received. Put shortly, the [Accident Compensation] Corporation is liable to pay the compensation if a personal injury has been suffered. There are no other restrictions or requirements. Under Part 3 the Corporation does the determination, there being no mention whatsoever of an insurer.
In summary, the payment received by Mr Cameron from the ACC in New Zealand did not "correspond" to compensation payable under the 2003 Act "under an entitlement under a law … of a place other than Queensland". That is because the monies paid to Mr Cameron by the ACC were not paid "by an insurer to a worker" within the meaning of the definition of “compensation” in s 9 of the 2003 Act."
In response to that submission, Mr S A McLeod of counsel, who appeared for the respondent, submitted that the legislative intent of s 118 is clear; it requires a worker to elect whether or not to invoke the Queensland jurisdiction as the jurisdiction in which he or she ultimately seeks compensation.
He referred to the explanatory memorandum when s 143 of the Workcover Queensland Act 1996 was passed. Section 143 is the predecessor to s 118 of the Act and is in relevantly identical terms. The explanatory memorandum recites:
[Section 143] applies to a person, who because of an injury, lodges an application for compensation and has an entitlement to a payment that corresponds to compensation under a law of the Commonwealth or a place other than Queensland. This clause requires a worker to choose between receiving compensation under this legislation or under another arrangement. The worker must give an undertaking that they have not applied, and will not apply, under that other arrangement if they choose to be paid under this legislation.
He pointed out that s 118 of the Act is contained within Division 4, Part 2, Chapter 3. Chapter 3 is headed "Compensation". Part 2 is headed "Compensation entitlements of workers generally" and Division 4 is headed "Relationship of entitlement to other compensation". Sections 116, 117, 118 and 119 are contained in Division 4.
He summarized the interrelationship of s 116 and s 117 with s 118, noting that each of those sections, which are contained in Chapter 3, Part 2, Division 4, deal with the effect that compensation from another jurisdiction will have on a claim, having regard to the stage of the claim itself. He submitted that s 118 is a precondition that allows a claim to be acted upon only if a claimant provides to an insurer a statutory declaration that a claim for payment in respect of the injury under a law of a place other than Queensland has not been [and will not be] made. In other words, s 118 mandates that for an application under the Act to be duly made and able to be acted upon the requirements of that section must be satisfied.
Section 118 prevents an application for compensation under the Act from proceeding in circumstances where the applicant has an entitlement to payment, that corresponds to compensation under the Act, under a law of the Commonwealth or of a place other than Queensland unless the claimant declares that no such claim for payment for the injury has been, or will be, made.
Mr Cameron made no such declaration. He claimed, and received, compensation under the New Zealand legislation.
The trigger for the activation of s 118 is the entitlement to payment of compensation in Queensland and like payment elsewhere. The section prevents a claim being made under the Act in such circumstances unless the statutory declaration is made. The entitlement to the two payments is the trigger for its operation. It is clear that Mr Cameron had an entitlement to payment in both Queensland and New Zealand. In those circumstance s 118 was triggered and Mr Cameron was required to make his election to pursue it only under the Act in order that his claim under the Act could be duly made and able to be acted on. He was obliged to confirm his election by the making of his statutory declaration. He not having done so, s 118 appears to deem his claim not to have been duly made and it is not able to be acted upon.
In fact he made a claim, in New Zealand, for payment that corresponds to compensation payable under the Act as well as making a claim under the Act. The entitlement in both jurisdictions was to payment of compensation for the injury he suffered as a result of being exposed to asbestos in each country. His claim in New Zealand was finalized and he received lump sum compensation. Mr Grant-Taylor put his submission on the basis that the payments under both jurisdictions are corresponding. The relevant question is whether there were corresponding entitlements to compensation, rather than whether the payments were corresponding. I doubt that anything turns on the distinction.
Returning to Mr Grant-Taylor’s submissions, it seems to me that it matters not that the monies "were not paid 'by an insurer to a worker' within the meaning of the definition of 'compensation' in s 9 of the 2003 Act." It is the character of the payment that is at issue, not the means by which, the nature of the scheme under which, or by whom, it is paid. The compensation payment made under the New Zealand scheme was clearly compensation that corresponds to compensation under the Act. More accurately, the entitlement to the payment of compensation under the New Zealand scheme was an entitlement that corresponds to an entitlement to compensation payable under the Act.
I do not accept the appellant's submission that having regard to the differences between the Queensland and New Zealand acts s 118 is not engaged. In my opinion the provisions of s 118 were triggered.
Inconsistency between s 118 and s 128C
The second limb of this case is essentially one of statutory interpretation. Some principles relating to this topic are particularly relevant, and in the following paragraphs I refer to those to which I have particular regard in reaching my conclusion.
Approaches to Interpretation
I accept Mr Grant-Taylor's submissions on the approach to be taken in interpreting workers' compensation legislation. They are remedial provisions and should be given a liberal interpretation. I also accept that a purposive approach to statutory interpretation must be adopted: the interpretation which will best achieve the purpose of an Act is to be preferred to any other interpretation.[1]
[1] Section 14A, Acts Interpretation Act 1954.
I also accept that Acts are to be read to be read in their totality as that is the only way to properly assess the intention of the legislature.[2]
[2] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (the Engineers Case) (1920) 28 CLR 129, 161-2.
Every section in an act of parliament is presumed to have work to do. It is "improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result."[3] As a general principle courts are not at liberty to consider any word or sentence as superfluous or insignificant. All words must prima facie be given some meaning and effect. This principle is more compelling if the word or phrase in question has been added by amendment. However, these matters are subject to the overriding consideration that it may be impossible to give a full and accurate meaning to every word. In such cases the duty of the court is to give the words the construction that produces the greatest harmony and the least inconsistency.[4]
[3] Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, 574.
[4] D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011) 49.
The generalia specialibus non derogat principle (where there is a conflict between general and specific provisions, the specific provisions prevail) is a principle to which regard must be had in construing the parts of the Act with which this appeal is concerned. Of particular relevance is the observation of O'Connor J that "where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply."[5]
[5] Goodwin v Phillips (1908) 7 CLR 1, 14.
As Pearce and Geddes observe, an Act may well contain provisions of a general nature and also provisions relating to a particular subject matter. It is common sense that a drafter will have intended the general provisions to give way should they be applicable to the same subject matter as is dealt with specifically.[6] This is more telling when the provision relating to the particular subject matter was inserted into the Act at a time later than the enactment of the general provision.
[6] Pearce and Geddes, above n 4, 147; Refrigerated Express Lines (A'Asia) Pty Ltd v Australian Meat and Live-stock Corp (1980) 29 ALR 333, 347.
The Scheme of the Act
Section 108 creates an entitlement by providing that compensation is payable for an injury sustained by a worker; "compensation", "worker" and "injury" are defined in the Act. I have earlier set out the definition of "compensation" in s 9 of the Act but it is not necessary to turn to the other definitions.
The word "entitlement" is not defined in the Act. The Oxford English Dictionary defines the noun as a "legal right or just claim to do, receive, or possess something".
Section 131, which is in Chapter 3, Part 5 "Compensation application and other procedures", requires that an application for compensation, in order that it be valid and enforceable, must be lodged within six months after the entitlement to compensation arises.
Section 116 provides that a person's entitlement to compensation under the Act stops if that person receives payment (however called) under an entitlement under a law of the Commonwealth or of a place other than Queensland that corresponds to compensation under the Act.
Section 117 empowers the insurer to recover compensation paid by it if, subsequently, payment of the nature referred to in s 116 is made to the person.
Section 118 imposes a condition on an application for compensation in circumstances where compensation is also available under a corresponding law. A claim for compensation is duly made, and is to be acted on, only if the claimant provides the required statutory declaration.
Section 119 provides an entitlement to compensation ends when, if there is an entitlement to compensation and an entitlement to recover damages, settlement for damages is agreed or judgment for damages is given.
It is arguable that there is no entitlement to compensation unless the conditions of ss 131 and 118 have been met. However, the case was not conducted on that basis.
The concepts “valid and enforceable" and "duly made and is to be acted on, only if” appear to me to connote a similar notion – that the conditions specified need to be satisfied in order that a claim for compensation may proceed. It is not clear to me why different terminology has been used in the two sections.
Chapter 3, Part 3 deals with compensation entitlements of particular workers. Division 1 limits the compensation payable to workers on ships in certain circumstances. Division 2 does likewise for miners, as does Division 3 for workers with industrial deafness. Division 4 deals with workers with latent onset injuries that are terminal conditions. It is that division that is of importance in this appeal.
Section 128B(1) provides that the worker is entitled to compensation for the latent onset injury calculated only under that division.
Section 128B(2) sets out the formula for the calculation of the worker's lump sum compensation, but, subsection (3) provides for a reduction of the amount in certain circumstances as set out in s 128C. Subsection (4) provides the worker with an entitlement to the costs of medical treatment, etc. until he or she receives lump sum compensation.
For completeness, I note that s 10 excludes from the definition of damages a liability against which the employer is required to provide under another Act or a law of another State, the Commonwealth or of another country. It is not clear to me that there is a difference, for the purposes of the Act, between "another State, the Commonwealth or of another country" and "a place other than Queensland".
Inconsistency between section 118 and sections 128B and 128C of the Act?
Given my finding that s 118 is engaged it is necessary to determine whether there is an inconsistency between s 118 and ss 128B and 128C and, if so, what is the effect thereof.
In a nutshell, it is submitted that there is an inconsistency between s 118 and s 128C because s 128C(1)(d) envisages that a claimant is able to have received "a payment of compensation or damages under a law of the Queensland, another State or of the Commonwealth" (otherwise such a sum could not be deducted from the s 128B lump sum), whereas under s 118 an application for compensation under the Act would not have been duly made or able to be acted on because no statutory declaration, as required by sub-section 2, was, or could properly have been, made.
The two sections seem to me to deal with different concepts. Section 118 is concerned with entitlements, whereas sections 128B and 128C are concerned with how a payment is to be calculated.
Mr Grant-Taylor's submissions on this aspect of the appeal are succinct and I set them out in full:
The following submissions are advanced in the event that, contrary to what is submitted above, the ruling is that the ACC payment does “correspond” with the payment of compensation under the 2003 Act.
In any event, s 118 does not apply to Mr Cameron’s claim. Section 118 is found in Chapter 2, Part 2, Division 4 of the Act.
[I note that s 118 is found in Chapter 3, not Chapter 2]
Part 2 is entitled “Entitlements to Compensation and Workers Generally” [it is actually entitled "Compensation entitlements of workers generally"] and Division 4 is entitled “Relationship of Entitlement to Other compensation.
Given that Mr Cameron suffered from mesothelioma, which is a terminal latent onset injury, his entitlements are governed by Chapter 3, Part 3, Division 4. Chapter 3, Part 3 is entitled “Compensation Entitlements [of] Particular Workers” and Division 4 is entitled “Workers with Latent Onset Injuries that are Terminal Condition[s].
Pursuant to s 128A, Division 4 applies to a worker if a latent onset injury sustained by the worker is a terminal condition. These are specific sections inserted in the legislation and are the applicable sections to consider whilst s 118 is a general section which must give way to the meaning of a specific section.
Section 118 cannot apply to claims involving terminal benefits. Claims for workers with terminal latent onset injuries [are] found in their own part of the Act. Chapter 3, compensation, is broken up into different parts for this reason.
The main reason for this however is that there is an inconsistency between s 128B/128C and s 118. Section 128B(3) expressly allows for an amount payable under s128B(2)(a) to be reduced pursuant to s 128C.
The Act specifically allows a worker to be compensated under the Act when they have already been compensated for the same condition. There cannot be any other logical analysis of how s 128C applies: it clearly does not work with s 118 and the statutory declaration required under s 118(2).
If s 128B(3) allows for an amount payable under the Act to be reduced by an amount that an applicant has already received for the same condition, then how can an applicant ever provide the required statutory declaration that is foreshadowed in s 118(2)? This would never work.
An example of this is that a worker pursued a common law claim for damages and recovers, say, $400,000.00, then this amount would have to be offset against any entitlements available under the Act. That being said, if this occurs, the worker would not be able to provide the s 118 statutory declaration. [This is not correct because payment of damages is not payment of compensation corresponding etc.]
As a general proposition, ss 118 and 128C are inconsistent. They cannot operate together, underscoring the proposition that s 128C and the entitlements in Chapter 3, Part 3, Division 4, are to be analysed separately to the other general provisions in the Act.
If s 118 does not apply to claims for terminal benefits, the next question then is, what amount is payable under the Act?
The two theories are that either the amount payable under the Act is offset by the amount that Mr Cameron has already recovered, or alternatively, there should be no reduction and he is still entitled to full benefits available under the Act.
Section 128B(3) provides that the amount payable under subsection 2(a) is subject to any reduction made under s 128C. Section 128C only allows a reduction to be made if a weekly payment of compensation, a redemption payment, a payment of lump sum compensation or a payment of compensation or damages under a l[a]w of Queensland, another State or of the Commonwealth is made.
In response Mr McLeod submitted that there is no inconsistency between s 118 and s 128C. He referred to s 143 of the WorkCover Queensland Act 1996, which is the predecessor to s 118 of the Act and is in relevantly identical terms. He took me to the explanatory notes relating to the introduction of s 143 to which I have earlier referred.
This extract tends to support Mr McLeod's submission that s 118 of the Act is designed to avoid "double dipping". He submitted that ss 116, 117 and 118 operate together to deal with what happens in the event that a worker receives payment from another jurisdiction; each section operating depending to what procedural stage a particular claim has progressed.
Mr McLeod also noted that s 116 provides that a person's entitlement to compensation under the Act stops if payment that corresponds to payment under the Act is made under a law of the Commonwealth or a place other than Queensland and that s 117 enables an insurer to seek recovery of payments made under the Act in circumstances where, subsequently, payment that corresponds to compensation under the Act is made under an entitlement under a law of the Commonwealth or a place other than Queensland.
It follows from Mr McLeod's submissions that s 116 appears to contemplate a situation where, despite the bar in s 118, a claim has been made under the Act, whether or not payments of compensation have been made, and s 117 appears to contemplate a situation where, despite the bar in s 118, compensation has been paid under the Act and payment that corresponds to it has been made under an entitlement elsewhere. Section 128C appears to operate in a similar manner, albeit that section is found in Division 4 – Workers with latent onset injuries that are terminal conditions - of Part 3 – Compensation entitlements of particular workers.
Although s 116 refers to "stops" whereas s 119 refers to "ends", I am unable to discern a different effect wrought by the two words. This observation leads me to further observe that the Act refers to the making of a payment, that corresponds to compensation under the Act, made under an entitlement under a law of the Commonwealth or of a place other than Queensland, in sections 116, 117 and 118, but to a payment of compensation or damages under a law of Queensland, another State or of the Commonwealth in s 128C(1)(d). It is a fair assumption that the legislature used the different terminology for a reason. On their face they have different meanings.
As I have noted, s 128, which was introduced some two years after the enactment of that part of the Act containing s 118, requires the reduction of the lump sum only in circumstances where there has been payment of compensation under a law of Queensland, another State or of the Commonwealth; in other words a law of Australia.
Two observations may be made:
· Payments of compensation or damages made under the law of another country or under the law of a place other than Queensland are not to be taken into account in calculating any reduction of the lump sum payable under s 128B(2);
· Section 128C(1)(d) requires the reduction of the lump sum by the amount of the payment of compensation or damages made under the law of Queensland, another State or of the Commonwealth. It does not require a reduction of the lump sum by the amount of a payment that corresponds to compensation under the Act, made under an entitlement under a law of the Commonwealth or of a place other than Queensland. The s 128B(2) lump sum is reduced by the amount of compensation.
Presumably the legislature used the different terminology for a reason. Perhaps it was to differentiate the nature of the payment referred to in s 128C(1)(d) from that referred to in s 118.
In any event, a payment, however characterized, that is made under the New Zealand Act is not caught by s 128C.
Mr McLeod further submitted that there are no express words in s 128C, nor is there any necessary implication that the sections in Chapter 3, Part 3, Division 4 seek to exclude the provisions contained in Chapter 3, Part 2, Division 4. There is force in that submission.
I observe that the words such as "Notwithstanding the provisions of s 118" or "Notwithstanding the provisions of Division 4 of Part 2" are nowhere to be found in Division 4 of Part 3. That would have evidenced a clear intention that any inconsistency between the two Parts would have been resolved in favour of Division 4 of Part 3. Similarly, the introduction of similar words at the beginning of s 118 would have clarified the position.
As I have set out above, sections 128A to 128C, contained in Chapter 3, Part 3, Division 4 "Compensation entitlements of particular workers" are provisions relating to specific classes of workers, whereas ss 116, 117, 118 and 119 contained in Chapter 3, Part 2, Division 4 "Compensation entitlements of workers generally" are provisions of general application which set out the prerequisites for making a claim under the Act. Section 118 was included in the Act when it first commenced on 1 July, 2003, whereas s 128A to s 128C, inclusive, were inserted into the Act with the commencement of the Workers' Compensation and Rehabilitation and Other Acts Amendment Act 2005. They are contained in Chapter 3, Part 3 which deals with the mechanics of how payments for different classes of worker are to be treated.
The first observation that should be made is that under s 118 a claimant must have an entitlement to compensation under the Act as well as an entitlement to a payment that corresponds to compensation payable under the Act and under an entitlement under the law of "the Commonwealth or of a place other than Queensland." On the facts of this matter, s 116 has the result that Mr Cameron lost his entitlement to compensation under the Act when he received the New Zealand payment as that payment was a corresponding payment. Section 128C provides that a payment may be reduced in circumstances where a payment of compensation or damages under a law of Queensland, another State or of the Commonwealth has been made; in other words, under an Australian law. Pursuant to the provisions of the Acts Interpretation Act 1954, "State" includes a Territory.[7]
[7] Acts Interpretation Act 1954, s7.
Although s 118 sits somewhat uneasily after sections 116 and 117, it operates with similar effect. It renders Mr Cameron’s claim not to have been duly made and it is unable to be acted on.
The narrow result of the differences between the wording of the two sections, which I have highlighted, is that in this case there can be no inconsistency between the sections because s 128C does not contemplate a payment having been made under a law of a place other than Australia because it does not require that the s 128B(2) payment to be reduced in that eventuality.
However, s 128C should be looked as a whole, as well as in the context of the Act as a whole.
Would there be an inconsistency if payment had been made in Australia rather than in New Zealand?
Section 128C the section that is said to create the inconsistency with s 118, recites the circumstances in which the lump sum calculated in accordance with s 128B(2) is to be reduced:
· Where there has been a weekly payment of compensation; [s 128C(1)(a)]
· Where there has been a redemption payment; [s 128C(1)(b)]
· Where there has been a payment of lump sum compensation; [s 128C(1)(c)]
· Where there has been a payment of compensation or damages under a law of Queensland, another State or of the Commonwealth. [s 128C(1)(d)]
As stated above, "Compensation" is defined by s 9 as meaning "compensation under this Act that is, amounts for a worker's injury payable under chapters 3 and 4 by an insurer to a worker … and includes compensation payable under a former Act."
By Schedule 6, "redemption payment" means a payment under 171, 172, or 173. It is not necessary to turn to those sections.
Having regard to these definitions it is apparent that the lump sum payable under s 128B(2) is to be reduced where payments of compensation or redemption have been made under the Act in circumstances where s 128C(1)(a), (b), or (c) applies. These sub-sections do not create any possible inconsistency with s 118 because they do not deal with an entitlement under a law of the Commonwealth or a place other than Queensland.
The position under s 128C(1)(d) is not so clear. Applying the s 9 definition of "compensation" to the opening words; "a payment of compensation" leads to the conclusion that they refer to a payment of compensation under the Act.
Although sub-sections (1)(a) and (b) provide for weekly and lump sum payments of compensation to be deducted, there are other types of compensation payable under the Act. For example, Part 1A of Chapter 3 is headed "Entitlements to compensation under industrial instruments". In certain circumstances, workers may be entitled to compensation prescribed by industrial instruments of jurisdictions other than the Queensland Industrial Relations Commission.
Accordingly, the "compensation" referred to in s 128C(1)(d) is the s 9 definition – compensation under the Act. The sub-section must be read disjunctively, as is the usual approach to the word 'or'.[8] The s 128B payment is to be reduced by the amount of compensation paid under the Act [in addition to any payments referred to in sub-sections (a) or (c)] as well as by the amount of damages paid under a law of Queensland, another State or the Commonwealth.
[8] Pearce and Geddes, above n 4, 52.
If I am wrong in my understanding of the meaning of "compensation" in s 128C(1)(d), I am nevertheless of the view that the insertion of that one word in the compound phrase in s 128C(1)(d), having regard to the context in which it is contained in s 128C as a whole, does not evince an intention to override s 118. The Explanatory Memorandum provides little assistance as there is nothing in it relating to the introduction of these provisions to suggest that s 116 or s 118 were to be overridden. The second reading speech recites: "The payment of statutory benefits to workers with long latency diseases, such as those associated with asbestos, are now formalized in the bill to align the calculation of these benefits with the method used by the courts." This seems to me to further confirm that s 128B is only concerned with the method of calculation of the compensation.
Properly construed, s 128C is not inconsistent with s 118. It does not contemplate a worker having received a payment that "corresponds to compensation payable" under this Act under an entitlement under a law of the Commonwealth or of a place other than Queensland.
Subsection (d) contemplates that the worker may have received a payment of compensation (as defined), or of damages under an Australian law and that the amount of his or her entitlement to lump sum compensation under s 128B will be reduced by the amounts thereof.
To comply with s 118 the worker is required to declare that a claim for payment under an entitlement under a law of the Commonwealth or a place other than Queensland corresponding to compensation payable under the Act has not been made and will not be made. Absent such a declaration the claim for compensation under the Act is not duly made and is not to be acted on.
The manner in which I have interpreted the provisions in the Act seems to best achieve the purpose of Chapter 3, Part 2, Division 4. Division 4 is designed to prevent a person claiming in another jurisdiction as well as in Queensland. It is somewhat of a "gatekeeper" provision designed to achieve that end. Indeed, the parties accepted that it is designed to prevent "double dipping". Interpreting s 128C in the manner in which I have allows that section and ss 116 and 118 to all operate with full effect, and gives meaning and effect to each of them.
Section 128C is in Chapter 3, Part 3, that Part deals with some specific vocations and specific industrial injuries and sets out how claims are to be dealt with in certain circumstances. It does not seem to me to be intended to operate in isolation from Chapter 2, Part 2. Giving the words in s 128C the construction that I have, seems to me to produce the greatest harmony and the least inconsistency. Although I accept that in the circumstances of this case Mr Cameron's estate is barred from claiming what amounts to a significant sum, an election was made to claim in New Zealand where a smaller, but nevertheless substantial, award was made.
I have also had regarded to the main objects of the Act, which are contained in s 5. As an aid to the interpretation of the Act I have had particular regard to s 5(1)(a) and s 5(4)(a).
It follows that the appeal should be dismissed.
The parties accept that the provisions of the Act are difficult to construe. I agree. I have highlighted some of the areas where inconsistent drafting is used to express what appears to me to be the same concept in the hope that the Parliament might consider appropriate amendments to the Act.
In the circumstances I am not inclined to award costs. I will however, entertain such an application should the regulator be minded to apply for costs within seven days of the date of these reasons.
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