WCRA: Downey wrong – ss.131 & 141 & assessment by a doctor

Blackwood v Toward [2015] ICQ 008

Martin J, President of the Industrial Court of Queensland has held that the decision of Hall Hall P in WorkCover Queensland v Downey was wrongly decided:

[9] The Commissioner had to determine whether the application for compensation was valid, that is, whether it had been lodged within the six month period prescribed by s 131. That issue requires finding an answer to this question: When does the entitlement to compensation arise?
[10] In answering that question the Commissioner applied the reasoning of Hall P in WorkCover Queensland v Downey.[1] That case dealt with the relevantly indistinguishable predecessors of s 131 and s 141 of the Act – s 158 and s 168 of the WorkCover Queensland Act 1996. In Downey, Hall P said (of the predecessor of s 141) the following:

“Because subs. (2) operates as an exception to or a limitation upon the operation of subs. (1), it seems to me that the expression “assessed by a doctor” (or for that matter “assessed by a dentist”) must be taken to mean “assessed by a doctor as resulting in total or partial incapacity for work”. I.E., where the commencement of the limitation period is said to be triggered by the activity of a doctor, it is necessary to show that a doctor has assessed the alleged injury as involving partial or total incapacity. The exception or limitation at s. 168(2) both protects the worker against a doctor retrospectively unleashing the limitation period by an assessment that the total or partial incapacity was present many months ago, and protects insurers against an assessment that total or partial incapacity has been present for a few months. The legislature must have intended that s. 168 will be used in the interpretation of s. 158. The legislature had both sections present to the mind at the same time. Section 168(4) expressly refers back to s. 158(2).” (emphasis added)

[19] It may be that a distinction should be drawn between statutes in which the later statute is merely a re-enactment of the earlier one and statutes where the later statute has a relevant history. In Electrolux Home Products Pty Ltd v Australian Workers’ Union[3] McHugh J referred to the similarity between a provision in the Industrial Relations Act 1988 which had been interpreted in Re Alcan Australia Ltd; ex parte Federation of Industrial Manufacturing and Engineering Employees[4] and the provision which was then being considered in the Workplace Relations Act 1996. He said:
“[81] The principle that the re-enactment of a rule after judicial consideration is to be regarded as an endorsement of its judicial interpretation has been criticised, and the principle may not apply to provisions re-enacted in ‘replacement’ legislation … However, industrial relations is a specialised and politically sensitive field with a designated Minister and Department of State. It is no fiction to attribute to the Minister and his or her Department and, through them, the Parliament, knowledge of court decisions – or at all events decisions of this Court – dealing with that portfolio.”[5]
[20] It would be reasonable to observe that workers compensation is, likewise, a “specialised and politically sensitive field”.
[21] I need not engage further with this discussion because a canon of interpretation such as that considered above will give way where a court forms the view that the earlier construction was incorrect and I have come to that conclusion. As was said by Dixon, Williams and Webb JJ in Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation[6]:
“… this principle affords at most a valuable presumption as to the meaning of the language employed. It should not lead the Court to perpetuate the construction of a statutory provision which it considers to be erroneous.”[7]

[23] It is also wrong, as Heydon J observed in Australian Broadcasting Corporation v O’Neill[11] to “give the effect of legislation to a decision contrary to the intention of the legislature, merely because it has happened, for some reason or other, to remain unchallenged for a certain length of time”[12].
[24] I have, for the reasons outlined above, arrived at a different conclusion as to the proper construction of s 141 than that which commended itself to Hall P in Downey. I respectfully disagree with his view and I hold that it should not be followed.

[25] So far as the doctrine of precedent is concerned, the Industrial Court is a superior court of record[13] with a limited jurisdiction. Apart from two matters[14] there is no appeal from a decision of the court. There is, though, the capacity for judicial review[15] and, from the decision of a judge of the Supreme Court on such a review, an appeal to the Court of Appeal. This Court would be bound to follow the Court of Appeal on any matter taken directly to that court and would, of course, be bound by any orders made under a judicial review. There is no precedent, in that sense, which would bind me.
[26] The Commissioner was, though, bound to follow what this Court said in Downey because the doctrine of precedent applies to members of the Commission with respect to decisions of this Court. In that sense, the Commissioner did not err, but, for the reasons I have given the construction of s 141 which was previously favoured should not be followed.
[27] Section 141 is concerned with the time from which compensation is payable for an “injury” as defined. The compensation may be in one or more of the types available under Chapter 3 or 4 of the Act. To confine the words “assessed by … a doctor” to an assessment relating only to total or partial incapacity for work as envisaged in s 141(2) is to ignore the other, possible, compensable sequelae of an injury.
[28] In s 141(2) the assessment concerns the severity of the injury and not whether a worker has suffered an injury. Elsewhere in the Act, when the word “assess” or “assessment” is used about an injury it concerns the extent or effect of the injury.
[29] Section 141(1) concerns the worker and whether, in the opinion of a doctor or other nominated medical professional, the worker has suffered a “personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury” as described in s 9. That is what is meant by “the worker is assessed by … a doctor”. To confine it as the respondent suggests is to equate assessing a worker with assessing an injury.

David Cormack – Brisbane Barrister & Mediator

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