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- Unreported Judgment
Langridge v Workers' Compensation Regulator QIRC 48
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Langridge v Workers’ Compensation Regulator  QIRC 048
Langridge, Michael Paul
Workers' Compensation Regulator
20 March 2019
11 December 2018
WORKERS' COMPENSATION – APPEAL – STATUTORY INTERPRETATION – application for assessment for degree of permanent impairment – where WorkCover and the Workers' Compensation Regulator rejected the application in accordance with s 32 and 132A of the Act – whether the correct Act was applied
Workers Compensation and Rehabilitation Act 2003 ss 32, 132, 132A, 179, 708, 709
Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013
Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015
Workers’ Compensation and Rehabilitation Regulation 2014
Mr J Greggery of Queens Counsel, instructed by Organic Legal for the Appellant.
Ms C Clarke of Counsel, directly instructed by the Respondent.
Reasons for Decision
- This appeal has not proceeded in the ordinary manner. On 14 November 2018 the Appellant’s solicitors emailed the Commission requesting a "Hearing for Statutory Construction". The email relevantly provided:
…The Appellant has contested from the outset that the decision by WorkCover and the Regulator are ultra vires, unlawful and not binding on the Appellant, and that they should be set aside. We refer to the Appellant’s statement of facts and contentions at page 4 under the subheading ‘Contentions’ paragraph 31 and 32.
The Appellant then contends, in the alternative, and it would be subject to the outcome of the statutory construction issue, that the Appellant was a ‘worker’ and suffered an ‘injury’ in accordance with the legislation. We refer to the Appellant’s statement of facts and contentions, page 6 under the subheading ‘Contentions’ paragraph 34.
If the Appellant is successful on the first contention, then there will be no requirement to pursue the alternative argument.
- The Appellant seeks a direction that WorkCover proceed under s 179 of the Act to have the Appellant assessed for the degree of permanent impairment.
- By way of background the Appellant claims he suffered a "cervical spine C5/C6/C7 compression" injury on or about August or September 2014 whilst working as a building construction labourer with the Department of Transport and Mains Roads.
- The Appellant lodged an appeal with the Industrial Registry on 23 November 2017 against a decision of the Respondent dated 15 November 2017. The Respondent had determined that the Appellant’s injury to his cervical spine did not arise out of his employment and the application for assessment of DPI (degree of permanent impairment) was rejected in accordance with sections 132A and 32 of the Act.
- The parties provided submissions and the matter was listed for a preliminary hearing on 11 December 2018.
- The Appellant’s case is that WorkCover have (and consequently the Respondent) erred in relying on legislation that took effect on 31 January 2015 (the Appellant was injured on unknown date in August or September 2014). Between 2014 and 2015 there were statutory amendments to the Workers’ Compensation and Rehabilitation Act 2003 which changed the way s 132A applications were assessed.
Background to s 132A
- Section 132A was inserted in 2013 by the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 together with a number of other changes to the Act. As at 29 October 2013, s 132A was in the following terms:
- This section applies to a worker who has not made an application under section 132.
- The worker may apply to the insurer to have the worker’s injury assessed under section 179 to decide if the worker’s injury has resulted in a DPI.
- An application under subsection (1) must be–
- (a)Lodged with the insurer; and
- (b)In the approved form; and
- (c)Accompanied by–
- A certificate in the approved form given by a doctor who attended the worker; and
- Any other evidence or particulars prescribed under a regulation.
- A registered dentist may issue the certificate mentioned in subsection (3)(c)(i) for an oral injury.
- If the worker can not complete an application because of a physical or mental incapacity, someone else may compete it on the worker’s behalf.
- Section 132A was amended by the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015 by inserting subsections (6) to (12):
- The insurer must, within 40 business days after an application under subsection (2) is made, decide to allow or reject the application.
- The insurer may reject the application only if satisfied the worker—
- (a)was not a worker when the injury was sustained; or
- (b)has not sustained an injury; or
- (c)is, or may be, entitled to compensation under chapter 4A because—
- the worker has sustained a serious personal injury that meets the chapter 4A eligibility criteria; and
- section 116 does not apply to the injury.
- The insurer must notify the worker of its decision on the application.
- If the insurer rejects the application, the insurer must also, when giving the worker notice of its decision, give the worker written reasons for the decision and the information prescribed by regulation.
- If the worker is aggrieved by the insurer’s decision on the application, the worker may have the decision reviewed under chapter 13.
- If the insurer does not decide the application within the time stated in subsection (6) —
- (a)the insurer must, within 5 business days after the end of the time stated in subsection (6), notify the worker—
- of its reasons for not deciding the application; and
- that the worker may have the insurer’s failure to decide the application reviewed under chapter 13; and
- (b)the worker may have the insurer’s failure to decide the application reviewed under chapter 13
- To remove any doubt, it is declared that a decision of the insurer to allow the application does not entitle the worker to compensation for the injury.
- Prior to the commencement of the 2013 Act, workers who had not applied for compensation could pursue a claim for common law damages by lodging a notice of claim for damages under s 275. After the introduction of s 132A, workers who had not applied for compensation could seek damages only if they obtained a notice of assessment on application under s 132A and the DPI was greater than 5%.
- It was submitted by the Respondent that a fair reading of sub-section (6) – (12) of s 132A suggest that the amendments go only to impose time limits for the decision-making; specify the limits of an existing decision-making process; impose some procedural requirements; and specify a right of review.
- In my view, the insertion of subsections (6) - (12) of s 132A go far beyond that which was submitted. The Explanatory Notes explain the purpose of the amendments in the following way:
Clause 4 amends s 132A of the Act to specify the decisions the insurer must make in determining the Application, the time the decision must be made within, and that the decisions of an insurer to accept the application does not entitle the worker to compensation for the injury.
- The insertion, in particular, of s 132A(7) gives WorkCover the ability to reject an application only if the insurer was satisfied that the applicant was not a worker when the injury was sustained; or that the worker had not sustained an injury; or that the worker may be entitled to compensation in specific circumstances under Chapter 4A.
- It was submitted by the Respondent that if the Appellant’s submission were accepted that WorkCover had no power to make a decision regarding the issue of "injury", then it seems implausible that Regulation 105 of the Workers’ Compensation and Rehabilitation Regulation 2014 would be promulgated to accompany a s 132A application. Section 132A(3)(c)(ii) provides that an application must be accompanied by "any other evidence or particulars prescribed under a regulation". Regulation 105 provides:
105 Application for compensation for assessment of DPI – Act, s 132A(3)(c)(ii)
For section 132A(3)(c)(ii) of the Act, the following evidence or particulars are prescribed-
- (a)proof of the injury and its cause;
- (b)proof of the nature, extent and duration of incapacity resulting from the injury.
- Regulation 105 performs a simple function. It is to ensure that an application for a DPI is accompanied by sufficient "evidence or particulars" to assist, in this case a doctor, to make the necessary assessment of permanent impairment in accordance with the Guidelines for Evaluation of Permanent Impairment and to decide the DPI for the injury.
- It was submitted by the Respondent that the Appellant’s application of 7 June 2016 was an application for compensation. In support of that submission, reference was made to the definition of "compensation" in s 9 of the Act which defines "compensation" to mean "amounts for a worker's injury payable under Chapters 3, 4 and 4A…". It is contended that an application for assessment of permanent impairment falls within the provisions of Part 10, Division 2 of Chapter 3 of the Act and therefore the application made by the Appellant is an "application for compensation". As a consequence, s 134 gives the insurer, in this case, WorkCover the power to decide whether to allow or reject an application for compensation.
- The submission of the Respondent ignores the express wording of s 132A. Section 132A only has application in circumstances where a worker has not made an application for compensation under s 132. Reference to s 134 would, in my view, only have application in circumstances where an application for compensation was made in accordance with s 132 of the Act. No such application has been made. If such an application had of been made then the Appellant could not have relied on s 132A.
The right of review
- The pre-amended Act made no provision for a review under Chapter 13 of the Act of a decision by the insurer under s 132A. The Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015 amended section 540 by inserting s 540 (viiia) which relevantly provides:
540 Application of pt 2
- (1)This part applies to the following-
- (a)A decision by WorkCover-
(viiia)to allow or reject an application under section 132A or 132B;
- The Explanatory Memorandum sets out the purpose of the amendment to s 540 of the Act in the following terms:
Clause 10 amends section 540 of the Act to specify that a decision by an insurer to allow or reject an application made under section 132A, section 132B or section 239A of the Act is a reviewable decision under the Act. This supports amendments made by clause 6 of the bill to reinstate an injured workers’ entitlement to seek damages.
- The amendment to s 540 to insert subsection (viiia) made the allowance or a rejection by WorkCover of an application under s 132A, a reviewable decision.
Dealing with the s 132A application
- The Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015 relevantly inserted into the 2003 Act the following two transitional provisions.
- Section 708 provides:
708Definitions for pt 2
In this part—
pre-amended Act means this Act as in force before 31 January 2015.
transitional period means the period starting on 31 January 2015 and ending on the date of assent of the amendment Act.
- Section 709 provides:
709Injuries sustained before 31 January 2015
- (1)This section applies if a worker sustained an injury before 31 January 2015.
- (2)The pre-amended Act continues to apply in relation to the injury as if the amendment Act had not been enacted.
- (3)Without limiting subsection (2)—
- (a)the amount of compensation payable in relation to the injury must be worked out under the pre-amended Act; and
- (b)chapter 5 of the pre-amended Act applies in relation to damages, or a proceeding for damages, for the injury.
- (4)Also, if an insurer made a decision on an application in relation to the injury under former section 132A during the transitional period, a worker aggrieved by the decision may apply to have the decision reviewed under chapter 13.
- For present purposes, the alleged injury is said to have occurred sometime in August or September 2014. Section 709 of the Act applies to the s 132A application as the Appellant sustained an injury before 31 January 2015. Accordingly, the pre-amended Act, that being the Act in force before 31 January 2015, continued to apply in relation to the injury as if the amendment Act had not been enacted.
- WorkCover and, in turn, the Respondent should have applied s 132A of the pre-amended Act. They did not. It was properly conceded by the regulator that the review decision of 15 November 2017 incorrectly applied s 132A as amended by the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015 and not as the section stood as at the date of injury, namely, August or September 2014. Equally, the decision of WorkCover dated 21 June 2017 also fell into error in misapplying the appropriate version of s 132A.
- It is evident that the legislature intended that a worker would be given a right of review on an application in relation to an injury under the former s 132A of the Act. This is clearly reflected in s 709(4) where, even during the transitional period, a worker aggrieved by the decision of the insurer under the former s 132A was given the ability to apply to have the decision reviewed under chapter 13.
- For the reasons advanced above, the decision of the regulator of 15 November 2017 ought to be set-aside.
- I will hear from the parties in relation to the form of the order and as to costs.
 T3-12 Ll 15-26.
- Published Case Name:
Langridge v Workers' Compensation Regulator
- Shortened Case Name:
Langridge v Workers' Compensation Regulator
 QIRC 48
20 Mar 2019