Blanch v Workers' Compensation Regulator [2021] QIRC 408

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Blanch v Workers' Compensation Regulator [2021] QIRC 408 PARTIES: Blanch, Terry (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO.: WC/2021/34 PROCEEDING: Appeal against decision of Workers' Compensation Regulator DELIVERED ON: 2 December 2021 HEARING DATE: 22 September 2021 MEMBER: HEARD AT: Power IC Brisbane ORDERS: 1. The appeal is allowed. 2. That the decision of the Workers' Compensation Regulator be set aside. 3. That the Appellant be paid benefits as a worker with a terminal condition pursuant to Chapter 3, Part 3, Division 4 of the Workers' Compensation and Rehabilitation Act 2003 (Qld). 4. Failing agreement on costs, to be the subject of a further application to the Commission. 5. Liberty to apply. -- 1 of 19 -- 2 CATCHWORDS: WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – entitlements of worker with terminal condition – meaning of terminal condition – whether appellant suffered a terminal condition pursuant to s 39A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – interpretation of s 39A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – appellant entitled to compensation LEGISLATION: Acts Interpretation Act 1954 (Qld), s 14B Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 5, 39A, 128A, 128B, 128C, 190 and 234 Workers' Compensation and Rehabilitation Act and Other Act Amendment Act 2005 (Qld), sch 3, s 4 Workers' Compensation and Rehabilitation and Other Acts Amendment Bill 2005 (Qld) Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2019 (Qld), ss 36 and 732 Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2019 (Qld) CASES: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Certain Lloyd's Underwriters v Cross [2012] HCA 56 Federal Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503 Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29 -- 2 of 19 -- 3 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 R v Anderson: ex parte IPEC-Air Pty Ltd [1965] HCA 27 R v Lavender [2005] HCA 37 Schipp & Anor v The Star Entertainment Qld Limited [2019] ICQ 009 SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 APPEARANCES: Mr G.W. Diehm QC of Counsel instructed by Maurice Blackburn Lawyers for the Appellant. Mr S.A. McLeod of Counsel directly instructed by the Respondent. Reasons for Decision Introduction [1] Mr Terry Blanch ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') to confirm an earlier decision of XtraCare ('the Insurer') to reject the Appellant's request for terminal latent onset lump sum compensation in accordance with the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act'). [2] On 25 May 2020, the Appellant made a request for terminal benefits pursuant to s 128B of the WCR Act. This request was rejected by the Insurer, and following an application for review, the Respondent confirmed the decision to reject the request. The Appellant subsequently filed a notice of appeal to the Queensland Industrial Relations Commission ('the Commission') appealing the decision of the Respondent. Background [3] The Appellant's submissions provide an unchallenged background to this matter. Between about 2003 and about 2013, the Appellant was exposed to respirable coal and silica dust in the course of his employment including with Glencore at the Oaky North Mine. -- 3 of 19 -- 4 [4] In about 2015, the Appellant developed a persistent cough and began to experience shortness of breath. Since this time, his cough has persisted and his shortness of breath has slowly worsened over the years. [5] The Appellant initially underwent a chest x-ray on or about 20 March 2017 and underwent a chest CT-scan on or about 4 April 2018, which demonstrated abnormalities. [6] On or about 6 July 2018, Dr James McKeon, thoracic physician, diagnosed the Appellant with chronic bronchitis, chronic obstruction pulmonary disease ('COPD') and emphysema. [7] The Appellant was previously a light smoker who commenced smoking when he was approximately 22 years of age and abstained from smoking for seven years before finally ceasing when he was approximately 60 years of age. Nature of Appeal [8] The appeal to the Commission is conducted by way of a hearing de novo in which the Appellant bears the onus of proof.1 The questions to be answered in the determination of the appeal are: (a) whether the Appellant's latent onset injury is a terminal condition certified by a doctor as being a condition that is expected to terminate the Appellant's life in accordance with s 39A(1) of the WCR Act; and (b) whether the medical diagnosis of the terminal nature of the condition should be accepted in accordance with s 39A(2) of the WCR Act. Matters not in dispute [9] The following issues are not in dispute in this matter: (a) the Appellant was a worker who sustained an injury; (b) the Appellant's injury is a 'latent onset injury' being COPD; (c) section 190 of the WCR Act does not prevent the Appellant from obtaining additional compensation by virtue of ss 128B and 128C of the WCR Act in circumstances where his personal injury meets the definition of 'terminal condition'; (d) the medical condition arose after 31 January 2015 and, by virtue of s 732(1) of the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2019 (Qld) ('the WCR Amendment Act 2019'), the current version of s 39A of the WCR Act applies to this matter; and 1 Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301. -- 4 of 19 -- 5 (e) on the basis that no challenge was made in the proceedings to the diagnoses, the Appellant has been diagnosed with a condition that is expected to terminate his life. Matter in dispute [10] The issue in dispute is whether the Appellant has a 'terminal condition' pursuant to s 39A of the WCR Act. The relevant section is outlined as follows: 39A Meaning of terminal condition (1) A terminal condition, of a worker, is a condition certified by a doctor as being a condition that is expected to terminate the worker’s life. (2) A condition is a terminal condition only if the insurer accepts the doctor's diagnosis of the terminal nature of the condition. Medical Evidence [11] Dr McKeon opined on 8 May 2020 in a further supplementary medicolegal report that: … In my opinion, Mr Blanche's health will deteriorate in the future due to his chronic obstructive pulmonary disease (COPD). I have enclosed a table labelled "Functional Performance Status" which sets out his dependency status. Mr Blanch is currently in a stage of low dependency which will probably last for about eight years. He will then probably move into a period of moderate dependence for about six years. He will then probably move into a period of high dependence for four years during which time he will require home oxygen therapy. He is likely to be in a period of complete dependence for the last one month of his life. Mr Blanch is predicted to live to the age of eighty four years, according to New South Wales Life Tables, 2016 to 2018. In my opinion, his chronic obstructive pulmonary disease (COPD) and emphysema are likely to reduce his life expectancy by about two years meaning that he is likely to die before the age of eighty two years. … Mr Blanch is likely to develop gradually worsening shortness of breath on exertion which will interfere with his ability to do yard work, home maintenance and heavy housework. He is also likely to suffer from recurrent lower respiratory tract infections causing acute bronchitis and pneumonia. He is likely to require hospitalisation for significant respiratory infection every couple of years. It will probably take six to eight weeks to recover from acute respiratory infections. … Yes, chronic obstructive pulmonary disease (COPD) is a divisible condition in the sense that each and every exposure to cold dust Mr Blanch experienced made a small contribution to his overall disease. … On the balance of probabilities, in my opinion, Mr Blanch will probably die of his chronic obstructive pulmonary disease (COPD). … -- 5 of 19 -- 6 Based on data provided by the Australian institute of Health and Welfare in a review published on 20 May 2010 entitled "Asthma, chronic obstructive pulmonary disease and other respiratory diseases in Australia", it is likely that Mr Blanch's chronic obstructive pulmonary disease (COPD) will reduce his life expectancy by about two years…2 [12] The 'Functional Performance Status' table as enclosed in Dr McKeon's medicolegal report which sets out the Appellant's dependency status is reproduced below:3 DEPENDENCY STAGE FUNCTIONAL PERFORMANCE STATUS SELF CARE TASKS (modified Barthel Index) TIME ESTIMATED NIL Independent with all usual self care and domestic chores. Fully independent accessing community. INDEPENDENT Not Applicable LOW DEPENDENCE At this stage the person is capable of almost all self care; most domestic tasks and is generally able to manage light property, lawn and garden maintenance. Requires assistance with heavy and exertive activities such as heavy digging, lifting and pushing in the garden, and spring cleaning. Probable assistance with transport. MINIMAL/SLIGHT DEPENDENCE 8 Years MODERATE DEPENDENCE At this stage, person requires either direct or indirect assistance with self care (and if living alone, will probably need community support) and may only manage sedentary to light domestic chores. Generally unable to manage property, lawn or garden maintenance, and car cleaning. Community participation is minimal and transport assistance is likely. MODERATE DEPENDENCE 6 Years HIGH DEPENDENCE During this period, a person requires more supervision during the day and a high level to full assistance with self care activities. They do not participate in community or domestic activities and are less able to attend medical appointments. Medical care (including nursing) is generally administered at home. SEVERE DEPENDENCE 4 Years COMPLETE DEPENDENCE Dependent on the prognosis, should a person reach palliative TOTAL DEPENDENCE 1 Month 2 Exhibit 1, pages 89-92. 3 Ibid page 93. -- 6 of 19 -- 7 care stage, it is likely that he will require 24 hour care for all self care and daily living tasks, as well as safety and medical monitoring. Nursing care is likely. [13] Dr Robert Edwards, respiratory physician, provided a further supplementary medicolegal report on 2 June 2020 stating that: … I do agree with Dr McKeon that Mr Blanch's health will most likely deteriorate as a result of his COPD. … I do agree that Mr Blanch is likely to dies as a result of his COPD. … In my opinion, during the last year or two of his life Mr Blanch is likely to require home oxygen. … I consider that as his condition deteriorates, Mr Blanch will likely require assistance with his activities of daily living. … I would agree with Dr McKeon's functional performance status that he has provided in his report (i.e. Mr Blanch will be at a low level of dependence for about eight years, a moderate level of dependence for six years, a high level of dependence for four years and complete dependence during the last month of his life). The reason for my current assessment and the fact that I agree with Dr McKeon is that people with significant emphysema do have a slightly reduced life expectancy and I would agree that Mr Blanch's life expectancy would be reduced by approximately two years due to the COPD. There are no readily ascertainable additional facts or materials which would assist me in reaching a more reliable conclusion. The opinions stated in this report are genuinely held by me.4 Consideration [14] The decision to be made is whether the Appellant's condition satisfies the meaning of 'terminal condition' pursuant to s 39A of the WCR Act. Section 39A(1) [15] Section 39A(1) defines a 'terminal condition' as a condition certified by a doctor as one that is expected to terminate the worker's life. [16] As outlined above, Dr McKeon opined, and Dr Edwards agreed, that the Appellant is likely to die as a result of his COPD and his life expectancy would be reduced by approximately two years due to the underlying condition of COPD. The medical evidence 4 Ibid pages 95-96. -- 7 of 19 -- 8 supports the conclusion that the Appellant suffers from a condition that is expected to terminate his life. [17] In the decisions of both the Insurer and the Respondent, the diagnoses of Dr McKeon and Dr Edwards were accepted. Further, the Respondent states in its response to the Appellant's Statement of Facts and Contentions that it admits the following contentions of the Appellant:5 2.3 Here there was the necessary certification by a doctor or doctors, being: (a) On 8 May 2020, Dr McKeon, thoracic physician, opined that the Appellant will "probably die of his Chronic Obstructive Pulmonary Disease" and the Appellant's "Chronic Obstructive Pulmonary Disease will reduce his life expectancy by about two years"; (b) On 2 June 2020, Dr Robert Edwards, thoracic physician, opined that the Appellant "is likely to die as a result of his COPD" and that his "life expectancy would be reduced by approximately two years due to his COPD".6 [18] The Respondent confirmed in oral submissions that it accepts that the evidence supports a conclusion that the Appellant's latent onset injury is a condition expected to terminate the Appellant's life for the purposes of s 39A(1) of the WCR Act.7 No contrary medical evidence was obtained. [19] I am satisfied that the evidence supports a conclusion that the Appellant's latent onset injury is a terminal condition for the purposes of s 39A(1) of the WCR Act. [20] For completeness, the pre-amended form of s 39A(1) stated that the terminal condition of the worker is a condition certified by a doctor as being a condition that is expected to terminate the worker's life within two years. The section was amended under s 36 of the WCR Amendment Act 2019, with the words 'within 2 years after the terminal nature of the condition is diagnosed' removed such that the section no longer refers to a time limit. Accordingly, there are no other elements to s 39A(1) that need to be satisfied. Section 39A(2) [21] Although the Respondent accepted the Appellant's condition is one which has been certified by a doctor as expected to terminate the Appellant's life, the Respondent did not accept the doctor's diagnosis of the terminal nature of the condition pursuant to s 39A(2) of the WCR Act. [22] The Respondent confirmed that the diagnosis of Dr McKeon and Dr Edwards was accepted. There was no challenge to this medical evidence or the qualifications of either doctor to provide the prognosis. It seems that the Respondent is of the view that s 39A(2) 5 Respondent's Statement of Facts and Contentions [25]. 6 Appellant's Statement of Facts and Contentions [2.3]. 7 T1-11, ll 25-27. -- 8 of 19 -- 9 provides the Insurer with a discretion to not accept 'the doctor's diagnosis of the terminal nature of the condition' on the basis of a number of other considerations. [23] The consequence of the decision to not accept the doctor's diagnosis is that the Appellant is determined not to have a 'terminal condition' for the purposes of ss 128A and 128B of the WCR Act and so is not entitled to compensation for the latent onset injury calculated under Chapter 3, Part 3, Division 4 of the WCR Act. [24] The Appellant submits that the reason the Respondent has disputed the entitlement to the benefit is because of some normative viewpoint as to when benefits should be payable that is not consistent with the legislative definition of 'terminal condition', and the Respondent seeks to hark back to the pre-amended definition. [25] Consequently, this matter turns on the construction of s 39A(2) of the WCR Act, the plain text of which is as follows: (2) A condition is a terminal condition only if the insurer accepts the doctor's diagnosis of the terminal nature of the condition. [26] The Respondent is of the view that the construction of s 39A(2) permits an insurer to accept that the worker had a condition that is expected to terminate the worker's life as certified by a doctor, pursuant to s 39A(1), but to not accept 'the doctor's diagnosis of the terminal nature of the condition' pursuant to s 39A(2). [27] The Insurer concluded that it would be a manifestly absurd or unreasonable conclusion to interpret s 39A to deem the Appellant's injury to be a 'terminal condition'.8 The Insurer had regard to the explanatory memorandum and the first reading speech of the Minister to determine that the legislative intention was to provide immediacy of lump sum compensation to those with a life expectancy of greater than two years but with some imminence during which time the workers may require palliative care to plan and attend to financial needs and spend time with family.9 Pursuant to s 39A(2), the Insurer determined that the Appellant did not suffer from a terminal condition. [28] The Appellant submits that s 39A(2) does not permit the Insurer to insert an arbitrary criteria relating to 'imminence' of death in order to reject the doctor's diagnosis. [29] The Respondent has provided no evidence challenging the doctor's diagnosis that the Appellant's latent onset injury will cause his death. The contention appears to be that the diagnosis of the 'terminal nature' of the condition is not accepted on other grounds including the Appellant's life expectancy and palliative care needs. [30] In making the decision as to whether to accept 'the doctor's diagnosis of the terminal nature of the condition' pursuant to section 39A(2), the Insurer must act reasonably.10 In 8 Exhibit 1, page 124. 9 Ibid. 10 Minister for Immigration v Li (2013) 249 CLR 332, 364 [66] (Hayne, Kiefel and Bell JJ). -- 9 of 19 -- 10 circumstances where more persuasive evidence exists, the Insurer could determine to not accept the doctor's diagnosis. However, there is no evidence to the contrary in this matter. Both the Respondent and the Insurer have accepted the two doctors' diagnosis of the Appellant's condition. [31] I consider the Respondent's decision that s 39A(2) allows for the doctor's diagnoses to not be accepted on the basis of external considerations to lead to a result that is unreasonable. Such an interpretation is not only inconsistent with the plain meaning of s 39A(2), but may lead to an effective veto over terminal condition compensation based on arbitrary considerations by insurers that are not outlined in the legislation. [32] A consideration of the construction of s 39A is required to determine the correct interpretation of this section. Principles of statutory construction [33] The modern approach to statutory construction as outlined by the High Court in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection11 is as follows: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.12 [footnotes omitted] [34] In Project Blue Sky Inc v Australian Broadcasting Authority,13 the High Court found that it was a court's duty 'to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have'.14 The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of relevant provision.15 [35] General principles of statutory interpretation have been outlined in a number of authorities. The High Court said in Federal Commissioner of Taxation v Consolidated Media Holdings Limited:16 "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text". So must the task of statutory construction end. The statutory 11 [2017] HCA 34. 12 Ibid [14] (Kiefel CJ, Nettle and Gordon JJ). 13 [1998] HCA 28. 14 Ibid [78] (Mchugh, Gummow, Kirby and Hayne JJ). 15 Certain Lloyd's Underwriters v Cross [2012] HCA 56 [26] (French CJ and Hayne J). 16 (2012) 250 CLR 503. -- 10 of 19 -- 11 text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is there examination an end in itself.17 [footnotes omitted] [36] As outlined by Deputy President Merrell in Schipp & Anor v The Star Entertainment Qld Limited,18 the following: A consideration of the context of statutory text includes the legislative history and extrinsic materials. The context should be considered at the first instance not at some later stage and context includes things such as the existing state of the law and the mischief the statute intended to remedy. Therefore it is permissible to have regard to extrinsic materials in order to identify the context and purpose of a statutory provision, including the identification of any mischief to which the legislative amendment was directed.19 [footnotes omitted] Legislative history of s 39A [37] In order to consider the context and purpose of a statutory provision, including the identification of any mischief to which the legislative amendment was directed, I will examine the legislative history of the section. [38] As considered in R v Lavender,20 it is permissible when determining the meaning of a continuing provision to refer to its legislative history. [39] Chapter 3, Part 3, Division 4 of the WCR Act was initially introduced to the WCR Act pursuant to the Workers' Compensation and Rehabilitation Act and Other Acts Amendment Act 2005 (Qld) ('the WCR Amendment Act 2005'). The Explanatory Note to the Workers' Compensation and Rehabilitation and Other Acts Amendment Bill 2005 (Qld) provide that: The proposed Bill will achieve its objectives for the workers' compensation scheme primarily by: … • providing greater certainty on the payment of workers' compensation for latent onset injuries and aligning the calculation of these benefits with the method used by the Courts;21 … [40] Section 732 of the WCR Amendment Act 2019 provides that 'terminal conditions' under s 36 of the WCR Act arising after 31 January 2015 are defined as 'a condition certified by a doctor as being a condition that is expected to terminate the worker's life'. 17 Ibid [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). 18 [2019] ICQ 009. 19 Ibid [25]. 20 [2005] HCA 37. 21 Explanatory Note, Workers' Compensation and Rehabilitation and Other Acts Amendment Bill 2005 (Qld) 2-3. -- 11 of 19 -- 12 [41] The meaning of 'terminal condition' was previously provided for under s 234, however, was reallocated and renumbered as s 39A as a result of schedule 3, s 14 of the WCR Amendment Act 2005. Section 234 of the WCR Act, prior to the section being reallocated and renumbered, provided the following: 234 Meaning of terminal condition (1) A terminal condition, of a worker, is a condition certified by a doctor as being a condition that is expected to terminate the worker’s life within 2 years after the terminal nature of the condition is diagnosed. (2) A condition is a terminal condition only if the insurer accepts the doctor's diagnosis of the terminal nature of the condition [42] The amendment to section 39A(1) of the WCR Act, introduced pursuant to the WCR Amendment Act 2019, was as follows: A terminal condition, of a worker, is a condition certified by a doctor as being a condition that is expected to terminate the workers life within two years after the terminal nature of the condition is diagnosed. [43] Section 39A(2) remained unchanged. Extrinsic materials [44] As permitted in matters where an interpretation may lead to a result that is unreasonable, I will consider extrinsic material pursuant to s 14B of the Acts Interpretation Act 1954 (Qld). [45] Section 14B of the Acts Interpretation Act 1954 (Qld) provides: 14B Use of extrinsic material in interpretation (1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation— (a) if the provision is ambiguous or obscure—to provide an interpretation of it; or (b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable—to provide an interpretation that avoids such a result; or (c) in any other case—to confirm the interpretation conveyed by the ordinary meaning of the provision. (2) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to— (a) the desirability of a provision being interpreted as having its ordinary meaning; and (b) the undesirability of prolonging proceedings without compensating advantage; and (c) other relevant matters. (3) In this section— -- 12 of 19 -- 13 extrinsic material means relevant material not forming part of the Act concerned, including, for example— (a) material set out in an official copy of the Act; and (b) a report of a royal commission, law reform commission, commission or committee of inquiry, or a similar body, that was laid before the Legislative Assembly before the provision concerned was enacted; and (c) a report of a committee of the Legislative Assembly that was made to the Legislative Assembly before the provision was enacted; and (d) a treaty or other international agreement that is mentioned in the Act; and (e) an explanatory note or memorandum relating to the Bill that contained the provision, or any other relevant document, that was laid before, or given to the members of, the Legislative Assembly by the member bringing in the Bill before the provision was enacted; and (f) the speech made to the Legislative Assembly by the member when introducing the Bill; and Note— See section 53 in relation to Bills introduced before the commencement of that section. (g) material in an official record of proceedings in the Legislative Assembly; and (h) a document that is declared by an Act to be a relevant document for the purposes of this section. ordinary meaning means the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act. [46] The overarching purpose of the WCR Act, as provided at s 5 of the WCR Act, is to maintain a balance between providing fair and appropriate benefits to injured workers, dependents, and other persons, and ensuring reasonable cost levels for employers. [47] As outlined above, s 39A was amended by the WCR Amendment Act 2019. The Explanatory Note to the Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2019 (Qld) ('the WCR Amendment Bill 2019') provide the following reference to the amendment resulting in the current s 39A: (d) Life expectancy to qualify for terminal condition lump sum A worker with a terminal condition has an entitlement to the latent onset terminal lump sum compensation of up to $743,041 under the WCR Act. The WCR Act currently defines a terminal condition as a condition that is expected to terminate the workers life within two (2) years after the terminal nature of the condition is diagnosed (section 39A). However, some workers are diagnosed with a terminal work-related condition with a life expectancy greater than 2 years (for example 3 or 5 years) which means they are excluded from accessing this payment. The Bill amends the WCR Act to extend entitlement to the latent onset terminal entitlements by removing the reference to two years and replacing it with an assessment that the insurer is satisfied that the worker has a latent onset condition that is terminal.22 [48] The Explanatory Note states that the amendment is intended to 'extend entitlement to the latent onset terminal entitlements by removing the reference to two years'. This statement confirms that the intention was to extend, not restrict, the entitlement. The Explanatory Note continues that the reference to two years is to be removed and replaced 22 Explanatory Note, Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2019 (Qld) 9. -- 13 of 19 -- 14 'with an assessment that the insurer is satisfied that the worker has a latent onset condition that is terminal'. This appears to be erroneous in that, whilst the reference to two years was removed, it was not 'replaced' with an assessment that the insurer is satisfied that the worker has a latent onset condition that is terminal. Section 234(2) of the WCR Act, prior to the relevant amendment, already contained the requirement that the condition only be considered terminal if the insurer accepts the doctor's diagnosis. The section remains exactly the same, with the only amendment being the removal of the reference to two years under s 39A(1). [49] The rationale for the amendment would seem to be that the time period of two years was operating to exclude some workers from accessing compensation despite suffering from a terminal condition, and hence the removal of the reference to a time limit. [50] The Respondent submits that the legislature was quite deliberate in the wording of s 39A(2) in that it does not say that the insurer must accept the doctor's diagnosis. The Respondent submits that the second subsection should not be read as if once the certification in (1) is in existence, then it must then follow that effectively (2) applies. [51] The Respondent submits that the discretion provided by s 39A(2) as to whether to accept the doctor's diagnosis allows for reasonable considerations to be taken into account when exercising the discretion. These considerations in determining whether to accept the diagnosis may include the nature of ongoing medical treatment and palliative care and the worker's reduction of life expectancy. [52] The Respondent submits that when one has regard to the particular circumstances of the Appellant's position, this claim has respectfully been made too early having regard to the intent of what s 39A is intended to achieve. [53] The Respondent referred to the example in the Explanatory Note of the example given of '3 or 5 years' as being in the range of compensable timeframes intended by the legislature: However, some workers are diagnosed with a terminal work-related condition with a life expectancy greater than 2 years (for example 3 or 5 years) which means they are excluded from accessing this payment.23 [54] With respect to the use of explanatory notes and examples, I note Justice Edelman's comments in the Commonwealth context in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union:24 Having regard to their provenance and to the circumstances of their creation, explanatory memoranda for Government Bills introduced into the Commonwealth Parliament can ordinarily be taken by courts to be reliable guides to the policy intentions underlying Government sponsored legislation. They can ordinarily be relied on by courts to explain the overall legislative design and the intended practical operation of provisions and combinations of provisions. Their use of examples of the contemplated operation of provisions can inform in both those respects. They can sometimes 23 Ibid. 24 [2020] HCA 29. -- 14 of 19 -- 15 even yield insight into the precise grammatical sense in which words appear in the texts of provisions. Lacking both the force of law and the precision of parliamentary drafting, however, an explanatory memorandum cannot be taken to be an infallible and exhaustive guide to the legal operation of a provision. Notoriously, explanatory memoranda sometimes get the law wrong. The potential for error and examples of the contemplated operation of provisions set out in explanatory memoranda is highlighted by the acknowledgement of the Parliament in s 15AD(b) of the Acts Interpretation Act that even an enacted example of the operation of a provision might get the legal operation of the provision wrong: "if the example is inconsistent with the provision, the provision prevails".25 [footnotes omitted] [55] Although '3 or 5' years is given as an example of timeframes in which workers with a diagnosis of life expectancy greater than two years had been excluded from benefits, it is not an example, in my view, of the timeframe intended to apply to the amended section. [56] The Appellant disputes the Respondent's view that other considerations may be taken into account, submitting that the words of s 39A do not provide for a consideration as to how the condition will play out between the time of diagnosis and date of death. Rather, it is simply a diagnosis of the terminal nature of the condition, with the plain words of the statute not calling for some other inquiry. The Appellant contends that the only test is whether there is a diagnosis that the condition is expected to terminate the worker's life under s 39A(2), and if the insurer accepts that medical diagnosis, the definition is satisfied. [57] In the first reading speech for the WCR Amendment Bill 2019 by the Honourable Grace Grace MP stated the following: The bill also makes some further amendments for regulatory simplification and clarification. I make particular note of the amendment to extend access to the latent onset terminal payment entitlements under the Workers' Compensation and Rehabilitation Act. The act currently provides that a worker who has a terminal condition as a result of their employment, for example dust lung diseases such as asbestosis, silicosis and coal workers' pneumoconiosis, or a work related cancer such as a specified cancer sustained by a firefighter, has an entitlement to a statutory payment of up to $743,041. The payment of this lump sum allows the worker to be provided with palliative care and support and ensures that the worker can plan and attend to the financial needs of their family and dependants. The worker retains their rights to seek common law damages for negligence contributing to the workers terminal condition, however, for some workers the prompt assessment and payment of this statutory entitlement may alleviate the need of the worker to seek common law damages and allow the worker to spend more time with their family. Under the act currently, a terminal condition is defined as a condition certified by a doctor as being a condition, that is expected to end the workers life within two years after the terminal nature of the condition is diagnosed. However, some workers are diagnosed with a terminal work related condition with a life expectancy greater than two years which means they have been excluded from accessing this payment. The amendment addresses this by removing the reference to the time period restriction of two years. This is an important amendment for those who need it most and a great step forward in that area.26 25 Ibid [71]-[72]. 26 Hansard Record of proceedings First Session of the Fifty-Sixth Parliament 2019, p 2478; Exhibit 1, page 203. -- 15 of 19 -- 16 [58] The intention of the legislature, as evidenced by the first reading speech, is to ensure that those workers who have been diagnosed with a work related condition are not excluded from accessing this compensation because of an arbitrary timeframe regarding life expectancy. [59] The legislature removed the reference to 'two years' and did not replace it with another timeframe, thereby dispensing with the temporal requirement altogether. In my view, to interpret s 39A(2) in such a way as to allow an arbitrary time limit to be inserted by the Insurer would be contrary to the legislative intention. [60] In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,27 the plurality said: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.28 [footnotes omitted; emphasis added] [61] The Appellant submits that the mischief s 39A(1) was directed to is obvious without recourse to secondary materials. The Appellant submits that once a worker's injury is terminal, as diagnosed by a doctor, with the Insurer accepting 'the doctor's diagnosis', the worker has a terminal condition within the meaning of the WCR Act. There is no additional requirement that the Insurer or the Respondent considers it right or just that terminal condition benefits be payable to that worker. [62] The Appellant submits that in removing the term 'within 2 years after the terminal nature of the condition is diagnosed' at the end of section 39A(1), the purpose of the amendment was to remove the limitation of any prognosticated time for workers with terminal conditions until death, making the criteria less arbitrary and resulting in terminal condition benefits being more accessible by workers. [63] If the intention of the legislature had been to maintain a timeframe for workers to be eligible for terminal condition benefits, one would expect the reference to 'two years' in s 39A(1) would have simply been replaced with 'three years', 'five years', 'ten years' or any other timeframe determined by the legislature. The fact that any reference to a timeframe was removed entirely suggests that the legislature did not consider it to be an appropriate consideration in determining the meaning of 'terminal condition'. [64] The Insurer stated that the legislative intention referable to the amendment to the definition of 'terminal condition' in the WCR Amendment Act 2019 is to provide compensation to those with a terminal condition with a life expectancy of greater than 27 (2009) 239 CLR 27. 28 Ibid [47] (Hayne, Heydon, Crennan and Kiefel JJ). -- 16 of 19 -- 17 two years, but with 'some imminency', such as three to five years.29 I am not persuaded that the explanatory memorandum and the first reading speech of the Minister indicates that 'some imminence' is to be read into the section. The secondary materials in this matter confirm the ordinary meaning of the provision of s 39A. The materials refer to the lack of fairness in having an arbitrary two-year time limit, and rather than the legislature imposing a new time period, it elected not to do so. To allow the Insurer to effectively insert an arbitrary time frame would be to usurp the role of the legislature in making a policy decision as to the appropriate time period within which compensation may be paid for terminal conditions. [65] The Respondent has not indicated that it disagrees with the medical evidence nor identified any medical reasons as to why the doctor's diagnoses of the terminal nature of the condition is not accepted. As the decision maker, the Respondent is required to act reasonably and not capriciously or irrationally in coming to their conclusion. In circumstances in which there is medical evidence to the contrary which is more persuasive than that provided by an injured worker, it may be reasonable for an insurer to reject or not accept the doctor's diagnosis. In other circumstances, an insurer may determine not to accept the doctor's diagnosis if they do not accept that the doctor is suitably qualified to offer the opinion. In this matter, however, there is no dispute as to qualifications of the doctors nor was other evidence called challenging the reliability of the diagnosis. [66] The Respondent appears to have accepted the medical diagnoses of the terminal nature of the condition, however they have then imposed a policy judgement over it to determine that the worker should not receive the benefits in these particular circumstances. This was not a judgement for them to make. [67] The Insurer determined that the Appellant was not entitled to compensation on the grounds that the intention of the section was not to provide such payments to 'a worker of 64 years of age with minimal current symptoms, with a slowly progressive condition, who is expected to live for a further 20 years with a slightly reduced life expectancy of only 2 years'.30 In my view, this characterisation minimises the Appellant's condition, with the report of Dr McKeon outlining the slow decline the Appellant is facing in the coming years along with increasing dependence. [68] The Appellant submits that the Respondent used a normative judgement to determine that the outcome sought by the Appellant was absurd, stating: To which one might say why is it absurd? A person, a worker, suffers an injury in the workplace that as it emerges over time, being a latent onset injury, is going to take their life earlier than what it would and put them through a whole bunch of pain and suffering as their condition deteriorates over time, that it is something that occurs over a more prolonged period of time, and it might do with mesothelioma or some other such condition like that, isn't – doesn't make it absurd that the 29 Exhibit 1, page 124. 30 Ibid. -- 17 of 19 -- 18 worker should receive such a benefit in those circumstances. It makes it perfectly understandable that they would.31 [69] The medical prognosis is not that the Appellant will live a healthy life until the work- related injury causes his death. The Functional Performance Status table produced by Dr McKeon outlines the projected dependency stages and self care tasks for the Appellant over the coming years. This assessment indicates that the Appellant will have low dependence for eight years; moderate dependence for the following six years; high dependence for the following four years and complete dependence in the final month of his life. This does not include the pain and suffering associated with the increase in dependency. [70] A consideration of the extrinsic materials confirm the meaning of s 39A(2) that provides that a condition is only a 'terminal condition' if the insurer accepts a doctor's diagnosis of the terminal nature of the condition. Insurers, therefore, have the option to not accept a doctor's diagnosis if they disagree with the terminal nature of the condition. The other grounds upon which the Insurer decided not to accept the doctor's diagnosis in this matter, including the Appellant's age, life expectancy and palliative care needs, are simply not relevant to the decision required under this section. To interpret subsection (2) as allowing insurers to not accept the diagnosis on the basis of arbitrary considerations may also lead to inconsistent criteria being applied between insurers, contrary to the stated objective of providing greater certainty. Allowing insurers the prerogative to reject any claim on grounds not mentioned in the section is entirely inconsistent with the context and purpose of s 39A. To interpret the section in such a way is inconsistent with the purpose of maintaining a balance between providing compensation to workers and ensuring reasonable costs for employers. It is also inconsistent with the beneficial character of the legislation. Conclusion [71] Where a statute provides an unconfined discretion, that discretion ought not be exercised capriciously, arbitrarily of inflexibly.32 In my view, the Insurer has exercised the discretion to not accept the doctor's diagnosis of the terminal nature of the Appellant's condition arbitrarily by importing a criteria that is beyond the scope of the legislative provision. I do not accept that these arbitrary considerations are consistent with the meaning of s 39A(2). The section refers to 'the doctor's diagnosis' and whether this is accepted by the Insurer. There may be circumstances in which evidence is obtained that challenges a doctor's diagnosis as put forward by the Appellant. A contest between medical expert evidence is not uncommon within the workers' compensation jurisdiction. However, to insert a criteria in addition to the doctor's diagnosis, and in this case a criterion of 'imminence' of death in direct contrast to the amendment removing the time limit in s 39A(1), is contrary to both the legislature's intention and the plain meaning of the words in the section. In this matter, the legislature has removed the time limit in s 39A(1) only to have the Insurer insert an arbitrary time limit in s 39A(2). 31 T 1-9, ll 7-14. 32 R v Anderson: ex parte IPEC-Air Pty Ltd [1965] HCA 27. -- 18 of 19 -- 19 [72] The Respondent has not disputed the diagnosis of Dr McKeon which clearly states that the Appellant is likely to die from his COPD condition. Once the Respondent accepts the doctor's diagnosis of the terminal nature of the Appellant's condition, on the proper reading of s 39A of the WCR Act, there are no other grounds upon which the Insurer can reject the claim. Order [73] I make the following orders: 1. The appeal is allowed. 2. That the decision of the Workers' Compensation Regulator be set aside. 3. That the Appellant be paid benefits as a worker with a terminal condition pursuant to Chapter 3, Part 3, Division 4 of the Workers' Compensation and Rehabilitation Act 2003 (Qld). 4. Failing agreement on costs, to be the subject of a further application to the Commission. 5. Liberty to apply. -- 19 of 19 --