WorkCover Queensland v Yang[2022] QCA 196

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I have had the advantage of reading the draft reasons of the other members of the Court.  Enough is said in those reasons of the factual background to this matter that I am able to express my own reasons for reaching a different conclusion in shorter form than might otherwise be the case.

Statutory framework

2. [2]
   The Workers’ Compensation and Rehabilitation Act 2003 (Qld) established a compensation scheme for Queensland, providing benefits for, inter alia, workers who sustain injury in their employment: s 5(1)(a).
3. [3]
   The term “compensation” is defined in s 9 of the Act:

“Compensation is compensation under this Act, that is, amounts for a worker’s injury payable under chapters 3, 4 and 4A 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.”

4. [4]
   Relevant to the question of compensation, some of the intentions of the Act are revealed in s 5(4):

“(4) It is intended that the scheme should—

1. (a)
   maintain a balance between—

1. (i)
   providing fair and appropriate benefits for injured workers …; and

2. (ii)
   ensuring reasonable cost levels for employers; and

2. (b)
   ensure that injured workers … are treated fairly by insurers;”

5. [5]
   Section 108 of the Act provides when compensation is payable:

“108 Compensation entitlement

3. (1)
   Compensation is payable under this Act for an injury sustained by a worker.

3. (2)
   However, if a worker’s injury is an aggravation mentioned in section 32(3)(b) or (ba), the worker is entitled to compensation for the injury only to the extent of the effects of the aggravation.”

6. [6]
   In Kelly v The Queen McHugh J said:^[1]

12. “[84]
    However, a legislative definition is not or, at all events, should not be framed as a substantive enactment. In Gibb v Federal Commissioner of Taxation, Barwick CJ, McTiernan and Taylor JJ stated:

“The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. … [Definition] clauses are … no more than an aid to the construction of the statute and do not operate in any other way. (Emphasis added).”

…

12. [103]
    As I earlier pointed out, the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better – I think the only proper – course is to read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.”

7. [7]
   That approach has been repeatedly adopted by this Court.^[2]
8. [8]
   Reading the definition of “compensation” into s 108(1), it produces this result: Amounts payable under chapters 3, 4 and 4A by an insurer for an injury sustained by a worker.
9. [9]
   The term “injury” is relevantly defined in s 32:

“32 Meaning of injury

3. (1)
   An “injury” is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.”

10. [10]
    Reading both definitions into s 108, the resulting wording of the section is: Amounts payable under chapters 3, 4 and 4A by an insurer, for a personal injury sustained by the worker, arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury sustained by a worker.
11. [11]
    Thus, in short terms, amounts are payable under the Act for a personal injury arising out of, or in the course of employment, if the employment is a significant contributing factor to the injury.  However, the significant factor is that the entitlement to compensation is defined in terms of amounts that are “payable” under the Act.  Once paid, such amounts are no doubt still referred to as payments of compensation, but the “entitlement to compensation” looks to future payments under the Act, not the past.
12. [12]
    The Act refers to an entitlement to compensation in a variety of ways.  For example:

    1. (a)
       s 141 distinguishes between an “entitlement to compensation” and an “entitlement to weekly payment of compensation”;
    2. (b)
       s 144A and s 149 refer to weekly compensation payments as an “entitlement to weekly payments”;
    3. (c)
       s 180, s 181(1), s 181(1)(a), s 187  and Div 4 of Part 10 refer to an “entitlement to lump sum compensation”; and
    4. (d)
       in Chapter 4A, to a worker being “entitled to treatment, care and support payments”.
13. [13]
    There are a series of provisions which operate to “stop” or “end” an entitlement to compensation.  One such is s 116 which relevantly provides:

“116 Effect on entitlement if compensated under corresponding laws 

3. (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 another law.

3. (2)
   The person’s entitlement to compensation under this Act for the injury stops.”

14. [14]
    Another is s 119, which provides that an entitlement to compensation “ends” if a damages claim is finalised:

“119 Entitlement to compensation ends if damages claim is finalised

3. (1)
   This section applies if, for an injury, there is—

1. (a)
   an entitlement to compensation; and

2. (b)
   an entitlement to recover damages against an employer or another person.

3. (2)
   An entitlement to compensation ends when settlement for damages is agreed or judgment for damages is given.

3. (3)
   However, an entitlement to compensation under chapter 4A for an injury ends only if—

1. (a)
   the damages include treatment, care and support damages; and

2. (b)
   the worker accepts the treatment, care and support damages within the acceptance period.”

15. [15]
    The object of Part 9 of Chapter 3 of the Act is to provide for weekly payments during a worker’s period of incapacity: s 145.  Then, in s 144A the Act provides when the entitlement to those weekly payments of compensation “stops”:

“144A When weekly payments of compensation stop 

3. (1)
   The entitlement of a worker to weekly payments of compensation under part 9 stops when the first of the following happens— 

1. (a)
   the incapacity because of the work related injury stops;

2. (b)
   the worker has received weekly payments for the incapacity for 5 years;

3. (c)
   compensation under this part reaches the maximum amount under part 6.

3. (2)
   If subsection (1) (b) or (c) applies, the worker’s entitlement to further compensation for the injury stops.

3. (3)
   Subsection (2) does not apply to the worker’s entitlement to compensation under chapter 4A.

3. (4)
   This section does not limit another provision of this Act that stops weekly payments.”

16. [16]
    It is notable that s 144A(4) provides that s 144A does not limit other provisions of the Act that stop weekly payments.
17. [17]
    Section 144B of the Act provides when the entitlement to payment of medical and hospitalisation expenses “stops”:

“144B When payment of medical treatment, hospitalisation and expenses stops

3. (1)
   The entitlement of a worker to the payment of medical treatment, hospitalisation and expenses under chapter 4 for an injury stops when—

1. (a)
   the entitlement of the worker to weekly payments of compensation under part 9 stops; and

2. (b)
   medical treatment by a registered person is no longer required for the management of the injury because the injury is not likely to improve with further medical treatment or hospitalisation.

3. (2)
   Subsection (1) does not apply in relation to section 220 or part 5A.”

18. [18]
    Section 190 also provides for compensation to stop, but in different terms.  It applies where a worker is entitled to a lump sum compensation as a result of an assessment of permanent impairment under s 179.  Where that is the case the insurer must make an offer of lump sum compensation: s 187.  Section 190 then provides:

“190 No further compensation after fixed time

3. (1)
   This section applies to a worker who has been given a notice of assessment.

3. (2)
   The worker is not entitled to further compensation for the injury after the first of the following happens—

1. (a)
   the worker notifies the insurer of the worker’s decision about the offer within the decision period; 

2. (b)
   20 business days have passed since the worker received the offer.”

19. [19]
    Several things are to be noted about s 190.  First, it is not triggered by a review by the insurer.  The loss of entitlement to further compensation occurs automatically.  Second, it does not operate retrospectively.  Thirdly, it is only the entitlement to further compensation that is impacted.
20. [20]
    The final provision that should be referred to is s 537, which “ends” an entitlement to compensation:

“537 Fraud and related offences end entitlement to compensation and damages

3. (1)
   This section applies if a person is convicted of any of the following offences committed against an insurer in relation to an application for compensation or a claim for damages—

1. (a)
   an offence under section 533;

2. (b)
   an offence or an attempt to commit an offence under the Criminal Code, section 123, 408C or 488.

3. (2)
   Any entitlement the person may have to compensation or damages for the injury, and any existing claim for compensation or damages, ends.”

21. [21]
    It is to be noted that the entitlement to compensation ends only when there is a conviction for the relevant offence.  The prime example is fraud: s 533.  The consequence is that unless there is a conviction the entitlement to compensation will not end even if the information upon which the claim was based was, in fact, fraudulent.
22. [22]
    By contrast, the Act also provides for an entitlement to compensation to be suspended in certain circumstances.  One is during the worker’s period of imprisonment: s 137.  Though s 137 uses the phrase “suspend compensation” rather than “suspend the entitlement to compensation”, s 138 makes it clear that it should be read that way.  During the period of suspension no compensation is payable: s 138.
23. [23]
    Another is under s 167(2), where a worker fails to give required information to the insurer.  In that case, the insurer “may suspend the worker’s or person’s entitlement to weekly payments of compensation”.
24. [24]
    Yet another is under s 232, where a worker fails or refuses to participate in rehabilitation without reasonable excuse.
25. [25]
    The Act also provides for an insurer to suspend a worker’s “entitlement to treatment, care and support payments”: s 232ZH.
26. [26]
    Section 141 of the Act distinguishes between an “entitlement to compensation” and an “entitlement to weekly payments of compensation”:

“141 Time from which compensation payable

3. (1)
   The entitlement to compensation for an injury arises on the day the worker’s injury is assessed by—

1. (a)
   a doctor; or

2. (b)
   if the injury is a minor injury —a nurse practitioner acting in accordance with the workers’ compensation certificate protocol; or

3. (c)
   if the injury is an oral injury and the worker attends a dentist—the dentist.

3. (2)
   However, any entitlement to weekly payments of compensation for an injury starts on—

1. (a)
   if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on the day the worker stops work because of the injury —the day after the worker stops work because of the injury; or

2. (b)
   if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on a day later than the day the worker stops work because of the injury—the day the doctor, nurse practitioner or dentist assesses the injury.”

27. [27]
    The distinction is that the entitlement to compensation (i.e. amounts for a worker’s injury payable under chapters 3, 4 and 4A) arises when the worker is assessed by a relevant practitioner.  However, the entitlement to weekly payments of compensation (i.e. amounts for a worker’s injury payable under chapters 3, 4 and 4A) effectively starts when the worker stops work.
28. [28]
    Chapter 3 deals with compensation generally.  Chapter 4 deals with payment of medical and hospitalization expenses in the context of injury management.  Chapter 4A deals with the treatment, care and support for serious personal injuries.

Construction of s 168

29. [29]
    In that context one finds s 168 of the Act, which provides an insurer with a right to review an entitlement to compensation:

“168 Review of compensation

3. (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.

3. (2)
   On the review, the insurer may terminate, suspend, decrease or increase the person’s entitlement to compensation under this Act.”

30. [30]
    Reading the definition of “compensation under this Act” into s 168(1), it reads: If an insurer considers a person’s entitlement to amounts for a worker’s injury payable under chapters 3, 4 and 4A by an insurer to a worker may have changed, the insurer may review the person’s entitlement to such amounts.
31. [31]
    On its face, s 168 operates if the insurer forms the requisite view about amounts that are “payable”, not amounts that have been already paid.  The word “entitlement” is thus used in the sense a person’s right to be paid sums under the Act.
32. [32]
    Nothing in s 168(2) detracts from that.  On the review the insurer may exercise one or more of the powers under s 168(2) with respect to the person’s “entitlement to compensation”, that is to say: terminate it, suspend it, decrease it, or increase it.  None of those powers enables the insurer to retrospectively alter payments that have been made given that the entitlement is in respect of amounts that are “payable”.
33. [33]
    That sits comfortably with s 12, Div 3, dealing with persons who are not workers but who are entitled to compensation.  Section 12 deals with volunteers and provides for “entitlement to weekly payments of compensation”:

“12 Entitlements of persons mentioned in sdiv 1

3. (1)
   A person mentioned in this subdivision who is covered under a contract of insurance entered into with WorkCover for this subdivision has, subject to this subdivision—

1. (a)
   an entitlement to weekly payments of compensation under chapter 3, part 9, division 4, subdivision 3 and division 5, subdivision 1; and

2. (b)
   for all other entitlements—the same entitlements to compensation as a worker.”

34. [34]
    Reading the definition of “compensation” into s 12(1)(a), it refers to an “entitlement to weekly payments of amounts payable under” the applicable chapters of the Act.^[3]
35. [35]
    The focus on reviews concerning themselves only with future payments is evident elsewhere in the Act.  Thus, s 169(3) contemplates a person having a “future entitlement”:

“169 Review of weekly payments – worker under 18

3. (1)
   This section applies if a worker receiving weekly payments of compensation —

1. (a)
   was under 18 years when the injury was sustained; and

2. (b)
   a review takes place more than 12 months after the injury was sustained.

3. (2)
   The worker’s entitlement to weekly compensation may be increased from the date of the review.

3. (3)
   The worker’s future entitlement to weekly payment of compensation must be calculated having regard to the industrial instrument applying to the worker as if the worker were at work and the injury had not been sustained.

3. (4)
   This section does not limit another provision of this chapter that provides for a review of the worker’s entitlement.”

Workcover’s decision

36. [36]
    In my view, it is important not to lose sight of the decision that was actually made by WorkCover.  As will become apparent it is wrong to characterise it as a decision that Mr Yang never had an entitlement to compensation.
37. [37]
    The letter dated 10 June 2021 from Workcover^[4] stated that:

    1. (a)
       the review “indicates that the work-related injury will not improve with further treatment, and no longer prevents you from working”;
    2. (b)
       this means that “payments must stop”;
    3. (c)
       the “last day that wages (known as ‘weekly payments’), medical or rehabilitation will be paid is 11 June 2021”; and
    4. (d)
       “payments will stop”;
38. [38]
    The reasons attached to that letter^[5] stated:

    1. (a)
       “the decision has been made to cease your claim as your st[r]oke is considered to be caused by untreated hypertension that is pre-existing, rather than work”;
    2. (b)
       echoing what was in the letter: “the work-related injury will not improve with further treatment, and does not prevent you from working.  Therefore, payment for treatment and expenses must stop”;
    3. (c)
       “I have reviewed your claim and in light of new medical information the decision has been made to cease your claim”;
    4. (d)
       “no further medical treatment can be supported under this claim”;
    5. (e)
       “WorkCover will be ceasing your claim, no further weekly payments or medical expenses will be payable by WorkCover”.
39. [39]
    I have added the emphasis in each of the previous paragraphs because, in my view, it makes plain that the decision was one that would only affect the entitlement to compensation prospectively, not retrospectively.
40. [40]
    Further, a retrospective approach was unavailable here, where the worker’s entitlement was established by a decision of the Regulator.  There is no right of appeal (at least on the insurer’s part) against the Regulator’s decision.^[6]  That means, in my view, that the insurer cannot revisit the Regulator’s decision to allow a worker’s claim to compensation and effectively overturn it.  But, as I have endeavoured to show, that is not what the decision in question here was doing.
41. [41]
    In my respectful view, failure to properly characterise the nature of the decision is apt to lead to error in framing the issues on the appeal.  For example, it is erroneous to say that the entitlement “either always existed, or never existed”.^[7]  Further, it is simply wrong to suggest that decision by the insurer had the effect that “the decision made by the Regulator on review [was able] to be revisited by the Appellant in the unqualified re-exercise of the same statutory power already re-exercised by the Regulator”.^[8]
42. [42]
    In my respectful view, the failure to properly characterise the insurer’s decision lead the learned primary judge into error.  His Honour’s reasons show the focus on the insurer’s decision as negating, altering or revoking the Regulator’s decision to accept the claim for compensation.^[9]  The insurer’s decision said nothing about acceptance of the claim for compensation, nor anything about compensation that had been paid up to that point.  It determined that the claimed injury did not ground payments in the future.
43. [43]
    The issue is starkly highlighted if one considers the impact of the construction reached by the learned primary judge to a claim caught by s 129.  That section provides that:

“Compensation is not payable for an injury sustained by a worker if the injury is intentionally self-inflicted”.

44. [44]
    Assume a worker claims compensation for an injury which is self-inflicted.  Also assume that the insurer rejects the claim, but it is allowed by the Regulator.  Because the Regulator has allowed the claim the insurer cannot challenge that conclusion by appeal: s 549.  Let it also be assumed that the insurer later discovers that the injury was, in fact, intentionally self-inflicted.
45. [45]
    Section 144A would not be engaged to stop the weekly payments until five years had passed, or the compensation reached the maximum under part 6: s 144A(1).  Section 144B would not be engaged until the same time, or until medical treatment was no longer required because the injury was not likely to improve: s 144B(1).  Further, the insurer could be obliged to take reasonable steps to secure the worker’s rehabilitation under s 220(1).
46. [46]
    Yet, on the approach taken by the learned primary judge, and the respondent here, that worker would have an entitlement that could not be reviewed.  In my view, that result hardly fits within the objects of the statute, nor the intention for the compensation scheme which includes ensuring “fair and appropriate benefits for injured workers” and that “injured workers … are treated fairly by insurers”.  There is nothing fair or appropriate about the scenario above.
47. [47]
    In my view, such a result demonstrates that s 168 could not have been intended to be construed as it was below.  There is only one section in the Act giving power to the insurer to terminate a person’s entitlement to compensation, and that is in s 168.  If that power does not exist in the scenario given above, or in the present case, one wonders what work it has to do.

Conclusion

48. [48]
    For the reasons expressed above the appeal should be allowed, with costs.

49. [49]
    McMURDO JA:  The facts of this case and the relevant provisions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) are set out in the judgment of Crow J.
50. [50]
    WorkCover purported to terminate Mr Yang’s entitlement to workers’ compensation by a decision said to be empowered by s 168 of the Act.  According to sub-section (1), the insurer’s power under that provision is enlivened when the insurer considers that a person’s entitlement to compensation under the Act may have changed.  That circumstance could exist only where there had been an entitlement to compensation.
51. [51]
    The effect of the medical opinion upon which WorkCover made this decision was that Mr Yang’s stroke was caused by untreated hypertension rather than work-related stress.  If that was so, Mr Yang’s stroke was never an “injury” as defined by s 32(1), because it was not an injury arising out of, or in the course of, his employment and his employment was not a contributing factor to it.
52. [52]
    Section 108 is headed “Compensation entitlement”.  Section 108 is within Part 2 which is headed “Compensation entitlements of workers generally” and within Division 1 of Part 2 which is headed “General statement of entitlement”.  Section 108(1) provides that:

“Compensation is payable under this Act for an injury sustained by a worker.”

53. [53]
    If Mr Yang’s stroke was not an injury as defined, compensation was not payable.  If it was an injury as defined, it was by s 108 that Mr Yang was entitled to the payment of compensation.  The effect of Dr Hossack’s opinion was not that Mr Yang’s entitlement to compensation may have changed; it was that Mr Yang, not having suffered an injury, had at no stage enjoyed an entitlement to compensation.
54. [54]
    WorkCover’s argument is that a person’s entitlement to compensation under the Act derives not from an injury being sustained by that person as a worker (s 108), but from a person’s application for the payment of compensation being allowed, either in the first instance by the insurer (under s 134(1)) or by a decision by the regulator (under s 545(1)(c)).  Therefore, WorkCover argues, Mr Yang did have an entitlement to compensation immediately prior to WorkCover’s purported decision to terminate that entitlement.
55. [55]
    WorkCover’s submission cannot be accepted.  It is by s 108 that a person is entitled to compensation.  An application for the payment of compensation is not determined in a vacuum: it is decided by an assessment of whether the claimant is entitled to compensation.  The compensation becomes due and payable only when the application is allowed.  But the entitlement to compensation derives from the worker suffering an injury as defined.
56. [56]
    In any event, if a person’s entitlement to compensation derives not from suffering an injury, but from their application for compensation being allowed, how might that entitlement change so as to enliven the power of review under s 168?  In this case, the regulator’s decision still stood.
57. [57]
    As Crow J has explained, the statutory context of s 168 is against WorkCover’s argument that in a case such as this one, s 168 permits WorkCover to override a regulator’s decision once in receipt of a different medical opinion.  The primary judge was correct to set aside WorkCover’s decision.  The appeal should be dismissed with costs.
58. [58]
    CROW J:  On 17 August 2020, the respondent, Mr Yang, then aged 49 years, suffered a heart attack at work.
59. [59]
    Mr Yang’s employer, Yang & Choi Pty Ltd, was a company that carried on the business of painting and decorating.  The sole director of the company was Ms Choi, the wife of Mr Yang.  Mr Yang was employed as a painter and manager of the business.  Mr Yang normally worked between 48 and 60 hours every week.
60. [60]
    Prior to 17 August 2020, Mr Yang was required to work additional hours beyond his normal 48-60 hours per week.  It is unsurprising that Ms Choi observed that Mr Yang was “exhausted, stressed, lethargic and emotional”.^[10]  Mr Yang was working extended hours and in this condition when he fell when he went to a toilet at work on 17 August 2020.  An ambulance was called, and Mr Yang was taken to the Royal Brisbane and Women’s Hospital where he was diagnosed with hypertension causing a right basal ganglia haemorrhage.
61. [61]
    On 26 August 2020, Ms Choi lodged an application for compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the WCRA) over the telephone.  On 22 September 2020, WorkCover referred the claim to Dr O'Toole, occupational physician, for an opinion.
62. [62]
    In his two-page report dated 24 September 2020,^[11] Dr O'Toole opined:

“Based on the information provided, Mr Yang’s haemorrhagic stroke was caused by hypertension, and the likely cause of his hypertension is primary (previously asymptomatic). There is insufficient information regarding his medical history to consider the stress (as reported from collateral history) he experienced from his employment specifically was a significant contributing factor in sustaining the haemorrhagic stroke.”

63. [63]
    It is important to note that Dr O'Toole did not examine Mr Yang, was provided with limited information, and couched his opinion with those significant impediments in mind.  On 28 September 2020, WorkCover “in the first instance”^[12] rejected Mr Yang’s claim.^[13]
64. [64]
    The decision notice, as is required,^[14] advised Mr Yang of his right to external review (under Ch 13) by a review officer and then, if dissatisfied with the external review, the availability of an appeal to the Queensland Industrial Relations Commission.  Mr Yang filed an application for external review on 14 December 2020.^[15]
65. [65]
    In the application for review, Mr Yang provided detailed written submissions in support of his application and a report from Dr Diaz, a rehabilitation and medical physician.
66. [66]
    Dr Diaz recorded that, at a clinical examination on 17 December 2020, Mr Yang attended the appointment in a wheelchair pushed by his wife and required the assistance of a Korean-English interpreter in order to provide Dr Diaz with information.^[16]  Dr Diaz was incorrectly informed that Mr Yang had not previously suffered hypertension.^[17]
67. [67]
    After referring to Mr Yang’s prior medical history, medical results, details provided of the work being undertaken by Mr Yang, and with reference to medical literature, Dr Diaz concluded “I think it is not unreasonable to say that in this case, a secondary stroke risk factor such as psychosocial stress played a major role as a stroke trigger and therefore his employment was a significant contributing factor to his illness”.^[18]
68. [68]
    On 7 May 2021, the external review officer accepted Dr Diaz’s opinion and set aside WorkCover’s decision to reject Mr Yang’s application for compensation, concluding that Mr Yang had suffered a work-related condition and substituted a new decision to accept the application.^[19]
69. [69]
    On 20 May 2021, WorkCover sought an opinion from Dr Hossack, a cardiologist, upon Mr Yang’s condition and whether Mr Yang had suffered from a work-related condition.
70. [70]
    Dr Hossack examined Mr Yang on 8 June 2021 and observed that Mr Yang had left hemiplegia involving his arm and leg and was able to walk with the aid of a walking stick and an appliance to prevent foot drop.  Dr Hossack opined “I do not think the cerebral haemorrhage is secondary to hypertension caused by work stress”.^[20]
71. [71]
    On 10 June 2021, WorkCover wrote to Mr Yang stating:^[21]

“A recent review of this claim indicates that the work-related injury will not improve with further treatment, and no longer prevents you from working. This means that payments must stop, even though you may not be working in the same role as you were previously.”

72. [72]
    Dr Hossack’s report in no way opines that Mr Yang could return to work as a painter or any other occupation.  It is difficult to accept that it could be reasonable to conclude that a person who needed an interpreter to communicate in English, and has a left hemiplegia, could work as a painter or in some other role.
73. [73]
    WorkCover’s letter of 10 June 2021 attached two pages of reasons that concluded that the claim ought not to have been accepted at all as the stroke was not a work-related injury.^[22]  WorkCover submits it is entitled to rely on s 168 of the WCRA and internally review (overturn) the decision of the external regulator.  The outcome of the appeal depends upon the interpretation of s 168.  Section 168 provides:

“168 Review of compensation

1. (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. (2)
   On the review, the insurer may terminate, suspend, decrease or increase the person’s entitlement to compensation under this Act.”

74. [74]
    In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71], the plurality said:

12. “[71]
    Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.”

(footnotes omitted)

75. [75]
    In reading the WCRA as a whole and thereby properly interpreting s 168, it is necessary to have regard to numerous provisions.  Section 6 of the WCRA, which is a “main object” of the WCRA and is to be used as an aid in the interpretation of the WCRA,^[23] provides:

“This Act provides for the efficient administration of the scheme and of this Act through the establishment of the office of the Workers’ Compensation Regulator and WorkCover.”

76. [76]
    Section 6 underlines the efficiency in administration of the scheme of the WCRA as a paramount consideration to be used in interpreting the WCRA.  Section 6 also promotes the independence of the office of the Workers’ Compensation Regulator and WorkCover.
77. [77]
    The meaning of compensation is defined in s 9 as:

“9 Meaning of compensation

Compensation is compensation under this Act, that is, amounts for a worker’s injury payable under chapters 3, 4 and 4A 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.”

78. [78]
    Chapter 4, ss 208 to 232G, make provision for a worker’s entitlement to medical treatment, hospital and other treatment expenses required for the management of an injury sustained by a worker for all cases other than serious personal injuries.
79. [79]
    Chapter 4A, ss 232H to 232ZI, makes provision for entitlements to workers who have suffered serious personal injuries for medical treatment, care and support needs.
80. [80]
    Chapter 3 contains many entitlements that may be received by injured workers.  These include entitlements for industrial deafness (s 125), entitlements for latent onset injuries (s 128A), entitlements for pneumoconiosis (s 128G), entitlements to weekly payments (s 149), entitlements for permanent impairment (s 178), and entitlements for death (s 196).
81. [81]
    The general entitlement for compensation is set out in paragraph 108(1) of the WCRA as follows:

“108 Compensation entitlement

1. (1)
   Compensation is payable under this Act for an injury sustained by a worker.”

82. [82]
    Section 108 is a key provision of the WCRA which contains a number of specifically defined terms, namely compensation (defined in s 9), injury (defined in s 32) and a worker (defined in s 11).  Section 32(1) defines injury as follows:

“32 Meaning of injury

3. (1)
   An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

[…]”

83. [83]
    Once an entitlement is established it cannot be relinquished by a worker.^[24]
84. [84]
    Part 5 of Ch 3 sets out compensation applications and other procedures.  A claimant must make an application for compensation with proof (s 132) within 6 months after the entitlement for compensation for injury arises (s 131(1)).  The application is lodged with the insurer (s 132(2)) together with medical evidence and other evidence prescribed under regulations (s 132(3)).  The importance of efficiency in administration of the WCRA is then made plain by s 134 which provides:

“134 Decision about application for compensation

3. (1)
   A claimant’s application for compensation must be allowed or rejected in the first instance by the insurer.

3. (2)
   The insurer must make a decision on the application within 20 business days after the application is made.

3. (3)
   The insurer must notify the claimant of its decision on the application.

3. (4)
   If the insurer rejects the application, the insurer must also, when giving the claimant notice of its decision, give the claimant written reasons for the decision and the information prescribed under a regulation.

3. (5)
   Subsection (6) applies if the insurer does not make a decision on the application within the time stated in subsection (2).

3. (6)
   The insurer must, within 5 business days after the end of the time stated in subsection (2), notify the claimant of its reasons for not making the decision and that the claimant may have the claimant’s application reviewed under chapter 13.”

85. [85]
    Section 134 sets out a statutory scheme that upon lodgement of an application for compensation, the insurer either allows or rejects the application “in the first instance”.  If allowed in the first instance, the worker has established an entitlement to compensation at that point.  It can be seen from s 134(4) and (6) that if the insurer rejects the application, then the worker does not have, at that point, any entitlement to compensation, however, the insurer is required to give written reasons for its decision, information prescribed under regulation, and of the claimant’s right to undertake a review and an appeal under Ch 13 of the WCRA.
86. [86]
    If the claimant succeeds upon the external (regulator) review, the claimant then establishes an entitlement to compensation at that point (in the second instance)^[25] and the insurer has no right of appeal in respect of this decision under s 549(2).  If a claimant fails upon external review, then the claimant has a further right of appeal to the industrial commission under s 549.
87. [87]
    In my view it is important to observe that s 549(2) provides the insurer a right of appeal only in relation to decisions of the regulator concerning premiums (as set out in s 540(1)(a)(i) to (vi)).  Parliament’s deliberate decision to prevent an insurer appealing a regulator’s decision to accept a claim can only be interpreted to mean that once a claim is accepted, an entitlement exists and that entitlement cannot thereafter (even in the case of fraud, as discussed below) be found not to exist.
88. [88]
    Once the claim is accepted, it cannot be unaccepted, however, the WCRA does not provide for open-ended benefits in favour of a claimant, that is, the scheme is not a long-tailed or infinite type scheme, but rather a short-tailed or finite scheme.  Four provisions of the WCRA which place finite limits on benefits that a worker is entitled to are: ss 144A, 144B, 168 and 190 which provide:

“144A When weekly payments of compensation stop

3. (1)
   The entitlement of a worker to weekly payments of compensation under part 9 stops when the first of the following happens—

1. (a)
   the incapacity because of the work related injury stops;

2. (b)
   the worker has received weekly payments for the incapacity for 5 years;

3. (c)
   compensation under this part reaches the maximum amount under part 6.

3. (2)
   If subsection (1)(b) or (c) applies, the worker’s entitlement to further compensation for the injury stops.

3. (3)
   Subsection (2) does not apply to the worker’s entitlement to compensation under chapter 4A.

3. (4)
   This section does not limit another provision of this Act that stops weekly payments.

144B When payment of medical treatment, hospitalisation and expenses stops

1. (1)
   The entitlement of a worker to the payment of medical treatment, hospitalisation and expenses under chapter 4 for an injury stops when—

1. (a)
   the entitlement of the worker to weekly payments of compensation under part 9 stops; and
2. (b)
   medical treatment by a registered person is no longer required for the management of the injury because the injury is not likely to improve with further medical treatment or hospitalisation.

2. (2)
   Subsection (1) does not apply in relation to section 220 or part 5A.

…

168 Review of compensation

3. (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.

3. (2)
   On the review, the insurer may terminate, suspend, decrease or increase the person’s entitlement to compensation under this Act.

Note—See also chapter 4A, part 4 for reviews of entitlement to compensation under that chapter.

…

190 No further compensation after fixed time

3. (1)
   This section applies to a worker who has been given a notice of assessment.

3. (2)
   The worker is not entitled to further compensation for the injury after the first of the following happens—

1. (a)
   the worker notifies the insurer of the worker’s decision about the offer within the decision period;

2. (b)
   20 business days have passed since the worker received the offer.

3. (3)
   This section does not limit the worker’s entitlement to payment of—

1. (a)
   lump sum compensation, if any, under part 3, division 5; or

2. (b)
   lump sum compensation under section 188(4) or 189(5); or

3. (c)
   additional compensation, if any, under division 4; or

4. (d)
   compensation under chapter 4A.”

89. [89]
    It can be observed that in respect of most WorkCover claims, the entitlements will cease when the incapacity for work related injury stops or other statutory limits are met under s 144A and 144B or alternatively, subsequent to the provision of a notice of assessment under s 190.
90. [90]
    Section 170 provides:

“170 Recovery of compensation overpaid

3. (1)
   This section applies if, for an application for compensation, payment has been made to a worker or another person of an amount that is more than the amount to which the worker or person is entitled.

3. (2)
   The insurer may—

1. (a)
   recover from the worker or person the difference between the payment and the entitlement; or

2. (b)
   from time to time deduct from weekly payments of compensation that become payable to the worker, whether for that application or a subsequent application for compensation, the difference between the payment and the entitlement, or any part of the difference.

3. (3)
   If the overpayment has been made because of incorrect information given by a worker’s employer, WorkCover may recover the overpaid amount from the employer.”

91. [91]
    It is also important to read s 168 and s 170, the allied provision for recovery of over-paid compensation, together with s 537.  Section 537 provides:

“537 Fraud and related offences end entitlement to compensation and damages

3. (1)
   This section applies if a person is convicted of any of the following offences committed against an insurer in relation to an application for compensation or a claim for damages—

1. (a)
   an offence under section 533;

2. (b)
   an offence or an attempt to commit an offence under the Criminal Code, section 123, 408C or 488.

3. (2)
   Any entitlement the person may have to compensation or damages for the injury, and any existing claim for compensation or damages, ends.

3. (3)
   If, in the proceeding for the offence, the prosecution proves the person obtained payment of compensation or damages by the insurer, by conduct that is the offence, then, whether or not a penalty is imposed, the court must, on application by the insurer, order the person to repay the insurer all amounts of compensation or damages paid to or on account of the person as a result of the commission of the offence.

3. (4)
   The Regulator may represent WorkCover or the self-insurer for subsection (3).

3. (5)
   An order made by a court under subsection (3) may be enforced as if it were an order made by a court in civil proceedings for a debt.

3. (6)
   Any costs incurred by an insurer in relation to a proceeding for damages to which subsection (3) applies are to be recovered on a solicitor and own client basis from the person convicted under section 533.

3. (7)
   Subsection (2) does not apply to a person only because the person is taken under section 535 to have—

1. (a)
   attempted to defraud an insurer; or

2. (b)
   defrauded an insurer of an amount not more than the equivalent of 1 week of the person’s normal weekly earnings.”

[emphasis added]

92. [92]
    It is important to note that compensation may be recovered under s 537(3) only for an offence of fraud (s 533) or offences or attempted offences under ss 123, 408C, or 488 of the Criminal Code.^[26]  Recovery is not permitted in cases where entitlements are paid on the basis of false or misleading information or documents.^[27]  Importantly, s 537(2) provides that, even in cases of fraud, an existing entitlement “ends”, not that it never existed.
93. [93]
    Furthermore, s 537(7) does not cause an entitlement to end where a person is convicted of either attempting to defraud the insurer or actually defrauding the insurer for a little amount (that is not more than the equivalent of one week of the person’s normal weekly earnings).  Sections 537(2) and (7) underline an important structural feature of the WCRA, namely, that when a compensation claim is accepted, an entitlement arises from the point at which the claim is accepted, namely by the insurer at first instance, the regulator at second instance, or the industrial court at third instance.
94. [94]
    The entitlement which exists from the point of acceptance forward may be brought to an end or terminated in limited circumstances provided by ss 144A, 144B, or 190.  Section 168(2) provides a power to terminate (or end) an entitlement to compensation upon the basis that a person’s entitlement to compensation may have changed but not on the basis that a person never had an entitlement to compensation.
95. [95]
    If meaning is to be given to every word in s 168, as it must, then the trigger required in s 168(1) to commence a review is alteration in a person’s existing entitlement and not a change of view based on any new or other information that could lead an insurer to consider that a person’s entitlement to compensation, that has been accepted, in fact never existed.  The broad construction urged by the appellant in the present case which, it submits, allows an insurer to reassess a person’s entitlement at any time, deprives s 549(2) and s 537 of any real effect.
96. [96]
    WorkCover’s argument, that s 168 provides it with a broad avenue of review to overturn a regulator’s decision, which it plainly does not have under Ch 13 Pt 3, cannot, when the WCRA is read as a whole, be accepted.
97. [97]
    In striving to provide meaning to the word “entitlement” in s 168, the correct interpretation is that s 168 does not provide an insurer with an ability to question the existence of a claimant’s entitlement, as opposed to its right to question the quantum or continuance of the entitlement on grounds unrelated to its existence.  The existence of an entitlement to compensation is something which is the subject firstly of the insurer’s own decision to accept or reject, and then the subject of regulator review under Ch 13 and the subsequent appeal procedure.
98. [98]
    The appeal ought to be dismissed, with costs.