Yang v WorkCover Queensland [2021] QSC 274

The applicant sought a judicial review of WorkCover’s decision to stop the applicant’s compensation benefits. The applicant made a claim for compensation under the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) after suffering a stroke at work. In the first instance, WorkCover rejected the application. The applicant reviewed the decision through the Regulator who set aside WorkCover’s decision and accepted the application. WorkCover subsequently obtained a further medical opinion which stated the stroke was not related to work. On this basis, WorkCover under s.168 of the WCRA, it ceased compensation benefits.

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.”

Applegarth J

His Honour noted that the determination of the application was premised on whether an expansive interpretation of s.168 of the WCRA applied or its ordinary meaning.

WorkCover’s interpretation was as follows:

[18] WorkCover’s preferred construction tends to interpret s 168(1) as if the power arises in respect of a claimed entitlement. WorkCover’s approach requires s 168 to be given an expansive interpretation as if certain words were read into it. In effect, WorkCover would have s 168 apply as if it read:

“If an insurer considers the circumstances which founded a claimed a person’s entitlement to compensation under this Act may have changed, the insurer may review a finding that the person’s has an entitlement to compensation under this Act.”

Justice Applegarth stated the task of statutory interpretation in this way:

[22] The task of statutory construction begins with a consideration of the text itself.[2] The language which has actually been employed in the text of legislation “is the surest guide to legislative intention”.[3] The meaning of a provision must be determined in context and by reference to the language of the Act viewed as a whole.[4] Consideration of context includes the general purpose and policy of a provision.[5] Consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.[6] The interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.[7]

After an extensive review of the WCRA and the authorities for reading wordings into a statute, his Honour was not persuaded to depart from the ordinary meaning of section:

[69] In circumstances in which the ordinary meaning of s 168 is supported by such a policy, a preference for the policy favoured by WorkCover’s interpretation is not sufficient to read into s 168 the kind of words which WorkCover’s interpretation requires. It is not sufficient that the modified construction for which WorkCover contends may be consistent with the statutory scheme.

His Honour concluded:

[71] Section 168 refers to a person’s entitlement to compensation rather than the circumstances under which a person was found to have an entitlement to compensation. It does not refer to such circumstances and it is a strong thing to interpret the section as if those words were read into it. The section does not have to be read as if additional words appeared in it about a change in circumstances in order for the section to have work to do in the case of the termination of an entitlement. I am not persuaded that the section should be interpreted as if those words appeared in it.

The application was allowed and WorkCover’s decision was set aside.

David Cormack

Brisbane Barrister and Mediator

NB: Appeal by WorkCover Queensland dismissed – WorkCover Queensland v Yang [2022] QCA 196

The respondent WorkCover Queensland was ordered to pay indemnity costs – WorkCover Queensland v Yang [No 2] [2023] QCA 38 

Per Crow J and McMurdo JA concurring:

[9] It is difficult to envisage why the issue ought not to be characterised as “novel”, as it had not been considered before, or “policy-laden” or “scheme-sensitive”, as acceptance of the appellant’s argument would have confirmed that WorkCover had a broad retrospective power to extinguish a workers existing entitlement under the WCRA. The respondent had received a favourable external review accepting that his injury was work related. The appellant could not challenge that decision as it did not have a statutory right to appeal to the Industrial Commission. The appellant then received a medical opinion (that the respondent’s injury was not work-related) and purported to extinguish the respondent’s entitlement to worker benefits. The primary judge and this Court, by majority, held that such a course of action is not open. The WCRA is complex and deals with matters of importance to all Queensland workers and employers. In my view, therefore, it is proper to characterise the appeal as an appeal involving issues of the type and of similar importance to that of AAI v Caffrey, Hall v WorkCover, and Suncorp-Metway
Insurance v Brown. In those circumstances, it is appropriate that the order made by the court on 11 October 2022 be redacted in respect of costs and the order that ought to be made is that the appellant pay the respondent’s costs of the appeal on an indemnity basis.

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