Written by Peter CarterOctober 27, 2021
WorkCover is required to accept or reject an application for workers compensation within 20 business days of receiving it.
That time constraint has led to a practice of approving some applications while awaiting further information in the knowledge it can revisit the approval decision and terminate benefits if it turns out the application was not one for acceptance.
That practice is likely to be turned on its head by a recent Supreme Court decision.The contest that came before Justice Peter Applegarth in September concerned a compensation application by Chang Mo Yang who had suffered a stroke at work said to be as a result of workplace stress.
WCQ rejected the application but on review, the Workers Compensation Regulator – who preferred the expert opinion of a doctor who had examined the applicant to that one who had never laid eyes on him – overturned the rejection to give acceptance to the claim.
WCQ then obtained the opinion of another medical practitioner who stated “I do not think the cerebral haemorrhage is secondary to hypertension caused by work stress”.That led to a notification two days later by the claims officer that “in light of new medical information the decision has been made to cease your claim”. The new advice was that the stroke had been due to “pre-existing untreated hypertension”.
Chang promptly filed an application under the Judicial Review Act for a review of that decision, contending that WCQ had commissioned the third report to bulldoze the Regulator’s decision.
It could not in those circumstances – he argued – rely on WCRA s 168 which allows WorkCover to “review a person’s entitlement to compensation” if it considers their “entitlement to compensation may have changed.”
The section was not intended – he asserted – to allow the insurer to have a second crack at assembling evidence to defeat the claim ab initio but rather was intended to apply only where an applicant’s work incapacity had changed for example, where he or she worker has undergone remedial surgery.
WCQ essentially agreed that it had relied on the further report not so much for evidence that his capacity for work had changed but to support its view that the initial claim should never have been accepted in the first place.
It justified its position on a broad interpretation of s 168: that it has the power to reassess as to whether an applicant ever met the statutory threshold at any time if there has been a “change in circumstances”.
His Honour noted the difficulty with that submission was that s 168 is not pre-conditioned upon a “change in circumstances”.
“Permitting an insurer to change its mind in the light of further information or further reflection” may Justice Applegarth observed, “introduce a lamentable measure of uncertainty and disturb the welfare of injured persons”.
After an intricate examination of the pros and cons of both sides of the argument, he upheld Chang’s interpretation and concluded WCQ did not have power under s 168 to revisit earlier decisions based on new evidence it receives.
The occasional acceptance of a claim that subsequently turned out to be one for rejection, he wrote “is a price that the legislature seemingly accepts in the interest of the efficient administration of the scheme for the greater good of the overwhelming majority of claimants”.
The respondent’s decision of June 2021 to terminate Chang’s entitlement to workers’ compensation was thus set aside.
Based on this decision, there will be many instances over many years of WCQ having wrongly relied upon s 168 to re-open an accepted claim terminate to workers’ compensation benefits.
The sting in the tail is the court’s clarification that s 168’s purpose is to allow WCQ to terminate benefits if it considers a worker’s entitlement has changed, regardless of whether its view is correct.
So in the case of a worker who has undergone remedial surgery, WCQ does not have to wait months for an assessment of the success or failure of the surgery but rather it can cease benefits immediately based on its expectation of a good result.
Categories: office worker injury