Industrial Court of Queensland s8

[Extract from Queensland Government Industrial Gazette, dated 18 May, 2007, Vol. 185, No. 3, pages 9-12]

INDUSTRIAL COURT OF QUEENSLAND

Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial magistrate

Q-COMP AND Veronica Coutts (C/2007/13)

PRESIDENT HALL 9 May 2007

DECISION

By an application for compensation dated 1 November 2004 and received by WorkCover on 4 November 2004, Ms Veronica Coutts sought compensation for a psychological injury attributed to "work pressure, bullying and harassment from my Supervisor while performing my normal duties.". In answer to the question, "Was there any object or any other person involved in the event that caused your injury?" Ms Coutts responded, "Unfair, unjust treatment by the Principal Mr Hobbs". WorkCover rejected the application for compensation on the ground that Ms Coutts' condition fell within the exclusion to the definition "injury" contained in the Workers' Compensation and Rehabilitation Act 2003 (the Act), s. 32(5).

On 11 March 2005, Ms Coutts sought a Review of WorkCover's decision. By a letter dated 1 July 2005, Q-COMP informed Ms Coutts that it had set aside the decision of WorkCover. The decision of Q-COMP was that "Ms Coutts' application for compensation is one for acceptance under s. 32(1) of the Workers' Compensation and Rehabilitation Act 2003 (the Act)". Thereafter, WorkCover turned its mind to the determination of what sums of monies should be paid to Ms Coutts pursuant to Chapter 3 of the Act and to the determination of what medical expenses should be met pursuant to Chapter 4. The issues relating to Chapter 3 are of no moment on this Appeal. The Appeal is about medical expenses and in particular, is about the costs associated with counselling by a psychologist. In short form, for a period, WorkCover met the cost of medical expenses and in particular the cost of counselling sessions (including the cost of medical expenses incurred during the period of the receipt of the application for compensation and the review decision accepting that Ms Coutts had suffered an "injury" for the purposes of the Act). However, as from a period commencing on or about 12 October 2005, and expiring on or about 22 November 2005, WorkCover declined to meet any further requests for the payment of accounts associated with psychological counselling. I acknowledge that to say that a decision was taken "over a period" is unusual but, on the materials before this Court and before the Industrial Magistrate below, one can not be more precise. Counsel are content to argue the matter on the basis that the decision was made over a period commencing on or about 12 October 2005 and expiring on 22 November 2005.

Ms Coutts is minded to challenge the decision of WorkCover. Her solicitors initially sought reasons from WorkCover in order that Ms Coutts might seek a Statutory Review. The response of WorkCover was that their decision was not a Reviewable Decision. Mindful of the need to protect Ms Coutts' interests on 27 January 2006 the solicitors filed a Notice of Appeal against the refusal of WorkCover to provide written reasons for its decision to cease payment for psychological counselling and against that decision itself with the Industrial Magistrate at Townsville. Subsequently, on 14 February 2006, Ms Coutts' solicitors filed an Application for Review dated 13 February 2006 with Q-COMP. The substance of Q-COMP's response, contained in a letter of 2 March 2006 was:

"Your client [sic] application for review related to the WorkCover Queensland decision of 22 November 2005, refusing the worker for both medical and psychological treatment expenses. This does not constitute a decision included under s. 540 of the Act as a 'reviewable decision'. The decision is appealable but the right to appeals [sic] lays in the provision of s. 548 and I refer you to the insurer.".

On 14 March 2006, Ms Coutts' solicitors filed a Notice of Appeal against Q-COMP's decision of 2 March 2006 with the Industrial Magistrates Court at Brisbane. The Appeal was successful. On 5 January 2007, an Industrial Magistrate at Brisbane allowed Ms Coutts' Appeal, set aside the decision of Q-COMP dated 2 March 2006 and returned the matter to Q-COMP in order that the decision of WorkCover might "be reviewed according to law". Certain orders about costs were also made. By an Application to Appeal dated 24 January 2007 and filed the same day, Q-COMP brings an appeal to this Court against the decision of the Industrial Magistrate.

Central to the Appeal is the construction properly to be placed upon sections 209 and 210 of the Act. It is, therefore, useful to reproduce those sections.

"209 Application of part 2

This part applies if medical treatment or hospitalisation of a worker is required for the management of an injury sustained by the worker. 2

210 Insurer's liability for medical treatment, hospitalisation and expenses

(1) The insurer must pay the cost of the medical treatment or hospitalisation that the insurer considers reasonable, having regard to the worker's injury.

(2) Under the table of costs, the Authority may impose conditions on the provision of the medical treatment.". [Emphasis added]

It is useful to record also that sections 209 and 210 are located within Chapter 4, Part 2, Division 1 of the Act. Chapter 4 is headed "Injury Management". By Part 1, which is headed "Application", the Chapter is to apply if a worker sustains an injury for which compensation is payable, s. 208(1).

In short form, it is the contention of the Respondent that where for the purposes of s. 208(1) a worker has sustained an injury for which compensation is payable, s. 209 operates to give that worker an entitlement to such medical treatment or hospitalisation as is required for the management of the injury. Section 210 is said to be directed to the quantification of the sums to be paid by the insurer (here WorkCover) in satisfying the entitlement vested by s. 209. It is then contended that the only authority to bring to an end the s. 209 entitlement, is that vested by s. 168 which provides:

"168 Review of compensation and associated payments

(1) An insurer may, from time to time, review a person's entitlement to compensation.

(2) On a review, the insurer may terminate, suspend, decrease or increase an entitlement.".

Finally, it is submitted that a decision to terminate payment of compensation is expressly declared to be a Reviewable Decision by s. 540(1)(a)(ix).

Every statute must be read as a whole and statutory words given their meaning in the entire context, compare Pearce and Geddes, Statutory Interpretation Australia, 5th Edition at 4.23 and 4.18. On its face s. 209 is about the application of Part 2 of Chapter 4. The heading to the section, which is part of the Act, see s. 35C(1) of the Acts Interpretation Act 1954, confirms that interpretation. An entitlement to such medical treatment and/or hospitalisation as is "required" for the management of an injury" sits ill with the object of Chapter 4 which by s. 208(2) is "...to provide for appropriate medical treatment, hospitalisation and rehabilitation of the worker.". It seems to me to be more likely that the words "...that the insurer considers reasonable" at s. 210(1) relate not to "costs" but to the "medical treatment or hospitalisation" that is to be made available. Such a construction sits comfortably with the heading to the section "Insurer's liability for medical treatment, hospitalisation and expenses". There is the further consideration that the provisions of Chapter 4, Part 2, Division 2, which is headed "Medical Treatment Costs", descends to some detail in describing the quantum of the costs to be borne by WorkCover and, in doing so, draws considerably on the concept of "reasonableness". In my view, s. 209 does not vest an entitlement and, since all that WorkCover did was decline to accept liability for psychological counselling pursuant to s. 210, there was no termination of an entitlement. (This was a case in which prior to the period 12 October 2005 to 22 November 2005, WorkCover had accepted requests for payment when made. The case in which WorkCover approves a course of treatment and reverses that decision prior to the completion of the period of treatment may be dealt with when it arises and is argued.) It follows that s. 540(1)(a) (ix) has no application.

The conclusion to which I have come is consistent with the decision in Q-COMP v Jennifer Anne Whittaker (2006) 182 QGIG at 313 which dealt with the counter-part provisions of the Workers' Compensation and Rehabilitation Act 2003 which applies to self-insurers. It is submitted by Counsel for the Respondent that on the material facts in Whittaker's case, ibid, the matter might have been resolved on the basis that s. 209 did not create an entitlement because the treatment was not required for the management of the s. 32 "injury". But the matter was not dealt with on that basis. It was dealt with on the basis of the reasoning articulated above. (Further, if Whittaker's case, op cit., had been dealt with on the basis that s. 209 did not create an entitlement, the issue would have arisen whether a failure by a self- insurer to recognise and/or give effect to a statutory entitlement is a Reviewable Decision.)

I have been taken to each of the earlier enactments of the Workers' Compensation Act 1990 and WorkCover Queensland Act 1996. Given that the Explanatory Notes to the WorkCover Queensland Bill 1996 describes the Bill that became the WorkCover Queensland Act 1996 as a Bill to "introduce a wide range of reform measures to the Queensland Workers' Compensation system", I am less than confident that reference to the Workers' Compensation Act 1990 is legitimate. In any event, so far from contributing to the establishment of a legislative history suggesting that s. 209 is about entitlement and s. 210 is about quantification of that entitlement, the Workers' Compensation Act 1990 indicates that the same problem of construction was then alive and well. Section 8.20 provided: 3

"8.20 Board's liability for treatment. If hospitalisation or medical treatment of a worker is necessary for an injury in respect of which compensation otherwise payable under this Act, the cost of such hospitalisation or treatment as is reasonable in the General Manager's opinion, having regard to the injury in question, in accordance with the provisions of this Division.".

And I note that when one goes to the objects of the Workers' Compensation Act 1990 at s. 1.4, the reference is not to "necessary medical treatment" but, as at s. 208 of the current Act, to "appropriate medical treatment". Without descending to the detail, the WorkCover Queensland Act 1996 simply carried the problem forward.

One may accept that the statutory scheme under which a worker is entitled to seek expeditious and inexpensive relief against a decision of WorkCover by way of a Review before resorting to an Appeal to an Industrial Magistrate, is entirely beneficial in nature. But the Legislature plainly did not intend all decisions of WorkCover (or of self-insurers) to be reviewable. In my view, this Court should give full effect to the painstaking selection of cases suitable for a Review at s. 540(1)(a).

I allow the Appeal. I set aside the decision of the Industrial Magistrate. I reinstate and confirm the decision of Q- COMP given by the letter of 2 March 2006 (set out above).

I reserve all questions as to costs on the Appeal to this Court and on the Appeal to the Industrial Magistrate. If the need arises, my Associate will arrange for the exchange of written submissions about costs.

Dated 9 May 2007.

D. R. HALL, President. Appearances: Mr G. Long SC, directly instructed by the Appellant. Released: 9 May 2007 Mr J. Merrell, instructed by Ms R. Drew, Macrossans Lawyers, for the Respondent.

Government Printer, Queensland The State of Queensland 2007.