WorkCover Queensland v Yang

The Court of Appeal upheld by majority (Justice Morrison dissenting) the primary judge’s decision that s 168 Workers’ Compensation and Rehabilitation Act 2003 provides WorkCover with a power to terminate a person’s entitlement to workers’ 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. The Court held that s 168 does not authorise the insurer to vacate a regulator’s decision once it receives a different medical opinion.

Morrison and McMurdo JJA and Crow J

11 October 2022

After suffering a heart attack at work the respondent applied to the appellant for workers’ compensation which was rejected. [61]–[63]. Following an external review, the appellant’s decision was set aside and the Workers’ Compensation Regulator decided to accept the respondent’s application for workers’ compensation. [68]. WorkCover then sought a further medical opinion about the respondent’s condition and whether he had suffered from a work-related condition. [69]. The respondent was notified that his entitlement to workers’ compensation was terminated, on the basis:

“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.” [71].

At first instance, the primary judge set aside that decision. [57].

On appeal the appellant argued that the primary judge erred in holding that on the proper construction of s 168 Workers’ Compensation and Rehabilitation Act 2003 the appellant was unable to cease the respondent’s entitlement to workers’ compensation.

The relevant provision

Section 168 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.”

Did s 168 allow for the appellant to terminate the respondent’s entitlement?

By majority (Crow J and McMurdo JA; Morrison JA dissenting) the Court held that the appellant’s purported termination of the respondent’s entitlement to workers’ compensation was a decision which was not empowered by s 168 of the Act. As Justice Crow explained:

“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.” [97].

In addition to the above, McMurdo JA confirmed that entitlement to compensation is derived from s 108 and noted that an application for compensation is not decided in a vacuum and the entitlement to same comes about from a worker sustaining an injury as defined. [55]. In any case his Honour noted that even if a person’s entitlement to compensation derives from their application for compensation being allowed, it would not follow that that would enliven the power of review under s 168: in the current matter, the regulator’s decision still stood. [56].

The Court held that the statutory context did not support the appellant’s case that it was able to override a regulator’s decision in circumstances where it received an alternative medical opinion, and that the primary judge had been correct in setting aside WorkCover’s decision. [57].

Disposition 

The appeal was dismissed with costs. [98].

A Jarro