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This case concerned the proper construction of s 168 of the Workers’ Compensation and Rehabilitation Act 2003. Applegarth J held that s 168 does not authorise a decision to review the circumstances under which a person is found to have an entitlement to compensation.
22 October 2021
The applicant suffered a stroke at work. He applied for workers’ compensation on the basis that the stress he experienced at work was a significant contributing factor. WorkCover rejected his application. On review, the Workers’ Compensation Regulator set aside WorkCover’s decision and substituted a decision to accept the application. .
After obtaining a further opinion from a new doctor to the effect that the stroke was not caused by work stress, WorkCover decided to stop the applicant’s compensation payments in reliance on s 168 Workers’ Compensation and Rehabilitation Act 2003 (Act). −.
Section 168 of the Act provides:
“168 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.”
The applicant argued that s 168 of the Act only contemplates situations where, after the acceptance of a claim, there is a change in circumstances resulting in a claimant no longer having an incapacity or having an increase or reduction in the incapacity from the work-related injury. −. WorkCover argued that s 168 should be construed broadly to authorise a review of a person’s entitlement whenever there has been a change in circumstances, such as further information or a new opinion. .
Applying the ordinary principles of statutory construction, Applegarth J preferred the applicant’s interpretation of s 168. His Honour concluded that, according to its natural and ordinary meaning, s 168 “applies only to a case in which a person has an actual entitlement to compensation”. . Section 168 refers to a change to a person’s entitlement to compensation rather than a change in the circumstances under which a person was found to have an entitlement to compensation. −.
His Honour rejected WorkCover’s interpretation on the grounds that WorkCover’s interpretation required the words “change in circumstances” to be read into s 168. . It was not necessary to read the words WorkCover contended into s 168 to give it a workable operation, to avoid absurdity or to avoid some manifest contradiction of the apparent purpose of the provision. −.
Accordingly, his Honour held that WorkCover’s decision was not authorised by s 168 of the Act and set aside the decision.
S Spottiswood of Counsel