Supreme Court considers when an insurer can properly terminate a worker's statutory claim
- The Supreme Court of Queensland recently considered the proper interpretation of section 168 of the Workers’ Compensation and Rehabilitation Act 2003, and whether it allows an insurer to reconsider the circumstances under which an injured worker’s application for statutory compensation was accepted.
The applicant suffered a stroke at work and lodged an application for compensation under the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) which was rejected by WorkCover Queensland (WorkCover). The applicant sought review of WorkCover’s rejection, with the Workers’ Compensation Regulator (the Regulator) overturning the original decision and determining that the applicant’s application was one for acceptance. In accepting the application, the Regulator preferred the medical evidence of a doctor who had examined the applicant on two occasions over the evidence of a doctor who had not performed a physical examination. WorkCover then sought further evidence from another doctor who provided the opinion that the applicant’s stroke was not secondary to work-related stress.
Two days after receiving the further medical evidence, WorkCover issued reasons for decision to the applicant, in which it was stated that section 168 of the WCRA allowed it to end the applicant’s entitlement to compensation. In that regard, section 168 provides:
- 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.
- On review, the insurer may terminate, suspend, decrease or increase the person’s entitlement to compensation under this Act.
In issuing its reasons, WorkCover also relied on sections 144A and 144B of the WCRA, although it was conceded at the hearing of the application that those provisions could not be properly relied on. At the application, the court was only concerned with the proper construction of section 168 of the WCRA.
WorkCover argued that section 168 allowed it to rely on further evidence (factual, medical or otherwise) following the claim being accepted in order to make a finding that the applicant did not have an entitlement to compensation under the WCRA at all. Conversely, the applicant submitted that section 168 only allows termination of compensation when an insurer considers a person’s entitlement to compensation has changed, and is therefore premised on the person actually having an entitlement in the first place. Applegarth J succinctly summarised the argument of the applicant as follows:
According to the applicant, s168 is intended to address situations where a change in circumstances following the acceptance of a claim results in a claimant no longer having an incapacity because of a work-related injury or the incapacity from the work-related injury increases or decreases.
Ultimately, the court found that section 168 did not allow WorkCover to terminate the applicant’s statutory claim on the basis that he had no entitlement to compensation at all.
In reaching this decision, Applegarth J relied on the plain text of section 168 and the ordinary principles of statutory interpretation. Applegarth J’s reasoning is summarised by the following passage from the judgment:
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.
Accordingly, WorkCover’s decision to terminate the applicant’s statutory claim was set aside.
Implications for you
The decision applies equally to self-insurers under Queensland’s workers’ compensation scheme. It shows that obtaining further evidence to show that there was no entitlement to compensation after the claim has been accepted will not allow an insurer to cease the claim.