Dubbin v Workers' Compensation Regulator [2017] QIRC 67

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Dubbin v Workers' Compensation Regulator [2017] QIRC 067 PARTIES: Dubbin, Krestopher (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2016/207 PROCEEDING: Appeal against a decision of the Workers' Compensation Regulator DELIVERED ON: 6 July 2017 HEARING DATE: 23 June 2017 HEARD AT: Brisbane MEMBER: Deputy President Bloomfield ORDERS: 1. The decision of the Regulator dated 4 October 2016 is confirmed. 2. Mr Dubbin's appeal against that decision is dismissed. 3. Mr Dubbin is to pay the Regulator's costs of, and incidental to, the Appeal, with recourse to the Commission as presently constituted if the parties cannot agree on the costs involved. CATCHWORDS: WORKERS' COMPENSATION – APPEAL AGAINST DECISION – claim for industrial deafness – whether appellant satisfies requirements at s 125(2) of the Workers' Compensation and Rehabilitation Act 2003 – rules of statutory interpretation – s 125(2) strictly limits when an application for industrial deafness must be made – one of three requirements to be satisfied before a claim can be accepted – appellant does not meet any of the three requirements – appeal refused – costs awarded. -- 1 of 9 -- 2 CASES: Workers' Compensation and Rehabilitation Act 2003, s 11, s 113, s 125. Taxation Administration Act 1953 (Cwth), schedule 1, part 2-5. Acts Interpretation Act 1954 (Qld), s 14A, s 14B. The Metropolitan Gas Co v The Federated Gas Employees' Industrial Union [1924] 35 CLR 449. Grey v Pearson (1857) 6 HLC 61. Commonwealth v Baume (1905) 2 CLR 405. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. Andrew v The Workers' Compensation Board of Queensland (1993) 33 WCR 346. Blow v Workers' Compensation Board of Queensland (1985) 30 WCR 66. APPEARANCES: Mr A. B. Anderson, town agent, for Southside Legal for the Appellant. Mr P. B. O'Neill, Counsel directly instructed by the Workers' Compensation Regulator, with Ms S. Young. Decision [1] On 23 June 2017 I made a short announcement, at the conclusion of proceedings on that day, that because Mr Krestopher Dubbin did not meet any of the criteria specified in section 125(2) of the Workers' Compensation and Rehabilitation Act 2003 (the Act) his Appeal against an earlier decision of the Workers' Compensation Regulator, which confirmed a decision by WorkCover Queensland (WorkCover) to reject his Application for compensation for industrial deafness, had to be refused. [2] In making such announcement I indicated that I fully agreed with the written and oral submissions presented by Mr P. B. O'Neill, Counsel for the Regulator, and would issue a fully detailed decision in the near future which set out the full reasons for my decision to refuse Mr Dubbin's Appeal. [3] What follows are my reasons for refusing Mr Dubbin's Appeal. Agreed facts [4] Helpfully, the parties submitted an agreed statement of facts which is summarised below:  the Appellant was employed as a Screen Printer/Plate Maker in the printing industry in Sydney by Mason Duplex between 1970 and 1996;  he was then employed as a Compositor/Plate Maker by Bega District News in Bega (NSW) from 1996 to June 1999; -- 2 of 9 -- 3  employed by Phoenix Graphics at Ashmore (Queensland) from 4 February 2004 to 4 September 2009 as an ink and paint mixer/printer;  employed as a cleaner by Swift & Shift Cleaning Services, Molendinar (Queensland) from 21 January 2010 to 6 October 2010;  employed as an Assistant-in-Nursing at the Seabreeze Nursing Home in Pottsville (NSW) from 17 April 2011 to 12 November 2011;  employed as an Assistant-in-Nursing at the Heritage Lodge Aged Care facility in Murwillumbah (NSW) from 4 January 2012 until the present time;  the appellant lodged an application for compensation with WorkCover on 22 October 2015 for an injury identified as industrial deafness;  at the time of lodging his application for workers' compensation with WorkCover the Appellant was not employed in Queensland but is an employee (in NSW) for the purposes of assessment for PAYG withholding tax under the Taxation Administration Act 1953 (Cwth);  in a statement provided to WorkCover dated 28 October 2015 the Appellant stated he was exposed to a noisy environment whilst employed at Phoenix Graphics with the noise coming from a large compressor, guillotine and printing presses. Legislation [5] Section 125 of the Act relevantly provides: "125 Entitlements for industrial deafness (1) The worker is entitled to compensation for the industrial deafness under part 10 and sections 211(1)(a) and 219(1) and not under any other provision. (2) The application for compensation for industrial deafness must be made– (a) while the claimant is a worker under this Act; or (b) if the claimant would ordinarily be a worker under this Act but is temporarily unemployed; or (c) within 12 months after the claimant's formal retirement from employment. (3) The worker is entitled to compensation for industrial deafness that is attributable to the worker's employment in the State as a worker if the worker– (a) has been employed in an industry in the State for a period of, or for periods totaling, at least 5 years; and -- 3 of 9 -- 4 (b) the employment was at a location, or at locations, where the noise level was a significant contributing factor to the industrial deafness. …". [6] Section 11 of the Act relevantly provides: "11 Who is a worker (1) A worker is a person who– (a) works under a contract; and (b) in relation to the work, is an employee for the purposes of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cwth), schedule 1, part 2-5.". [7] Section 113 of the Act relevantly provides: "113 Employment must be connected with State (1) Compensation under this Act is only payable to employment that is connected with this State. (2) The fact that a worker is outside this State when the injury is sustained does not prevent compensation being payable under this Act in relation to employment that is connected with this State. …". Submissions on behalf of Mr Dubbin [8] Mr A. B. Anderson, who appeared for Mr Dubbin at the Hearing on 23 June 2017, largely relied upon the Statement of Facts and Contentions filed on his client's behalf on 14 December 2016. Relevantly, this document contained the following points:  the Appellant was a Queensland resident working in a Queensland place of work when he sustained the work conditions that led to him developing "industrial deafness" at a later point in time;  when the "industrial deafness" was diagnosed, the Appellant had moved to New South Wales to reside, but his condition was as a consequence of his work conditions at an earlier time in Queensland;  while the Appellant is now a resident of New South Wales he is also an employee in that State for the purposes of assessment of PAYG withholding tax under the Taxation Administration Act 1953 (Cwth) schedule 1, part 2-5;  as a PAYG employee, the Appellant satisfies the definition of "worker" under the Act; -- 4 of 9 -- 5  there is no jurisdictional limitation to the operation of section 125(2)(a) which requires that the worker must "be a worker to whom the whole of the Act applies" at the time of lodging an Application under that section. This is because there is no jurisdictional limitation to section 11;  the Appellant satisfies the requirements of section 125(3) on the basis he worked for a Queensland employer for in excess of five years where the noise level was a significant contributing factor to his industrial deafness;  the wording of section 125(3), where it refers to the industrial deafness "that is attributable to the worker's employment in the State as a worker" suggests, and understandably anticipates, that not all of a worker's employment may be within the State of Queensland and that they may work interstate;  in the alternative, Mr Dubbin's "injury" occurred while he was a worker in Queensland. The fact that he left the employment that caused his industrial deafness, and moved to New South Wales, should not preclude him for being able to obtain compensation for the injury sustained whilst in a Queensland workplace. Submissions on behalf of the Regulator [9] Mr O'Neill submitted that this Appeal involved issues of statutory interpretation and how, in particular, section 125(2) of the Act is to be interpreted and applied. On behalf of the Regulator he said:  section 125(2) involves three qualification factors, one of which must be satisfied to enable Mr Dubbin's application for compensation to be made;  from the agreed facts it is clear that at the time of making his application for workers' compensation Mr Dubbin was in paid employment in Murwillumbah, New South Wales.  as such, neither sections 125(2)(b) or (c) of the Act apply.  consequently, in order to succeed in his appeal, Mr Dubbin must satisfy section 125(2)(a) and establish that, at the time of making the application for compensation for industrial deafness, he "is a worker under this Act".  there is no ambiguity about what section 125(2)(a) means or requires. At the time of making their application for industrial deafness a claimant must be employed and must be a Queensland worker subject to Queensland workers' compensation legislation. Mr Dubbin did not meet that requirement on the basis he was not employed in Queensland.  section 14A of the Acts Interpretation Act 1954 (Qld) records that in the interpretation of a provision in an Act, the interpretation that will best achieve the purpose of the Act is preferred to any other interpretation. The purposes of the Act are identified in section 5, where subclause 4 relevantly provides: -- 5 of 9 -- 6 "(4) It is intended that the scheme should– (a) maintain a balance between– (i) providing fair and appropriate benefits for injured workers or dependents and persons other than workers; and (ii) ensuring reasonable cost levels for employers; and ..."  section 125(2) is clearly a provision which seeks to limit the scope of compensation that is available for an industrial deafness injury and, to that extent, the provision is clearly not a beneficial provision. It should be viewed by the Commission as a provision which has been enacted to try and address the balance between "fair and appropriate benefits" and "ensuring reasonable cost levels for employers".  section 14B of the Acts Interpretation Act 1954 (Qld) permits the use of extrinsic materials to assist in the interpretation of an Act in circumstances where the provision is ambiguous or where the plain and ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable. In the present case, the meaning of section 125(2) is not ambiguous and nor does the plain and ordinary meaning of the provision lead to a result that is manifestly absurd. Consequently, there is no need to look at any extrinsic material.  notwithstanding that situation, Counsel for the Regulator has undertaken a thorough search of the Explanatory Memorandum for each of the Workers' Compensation and Rehabilitation Bill 2003, the WorkCover Queensland Bill 1996 and the Workers' Compensation Bill 1990 and there is nothing in any of those documents relevant to the interpretation of section 125(2) of the Act.  a search of Hansard in relation to the Parliamentary debates about the abovementioned Bills provides nothing that assists in the interpretation of the section.  the starting point for any exercise of statutory interpretation is that the Act must be read as a whole or, alternatively, that words must be read in their context: see for example The Metropolitan Gas Co v The Federated Gas Employees' Industrial Union1.  in the present case where "worker" has been used throughout the Act, it is clear that the reference is in relation to a worker whose employment is within Queensland (subject to the exceptions identified in section 113 of the Act).  in considering section 125(2) in its context, it appears to be clear that the effect of sections 125(2)(b) and (c) is to deny a claim for compensation by a person who has been unemployed for an extended period of time or who has been retired for more than 12 months (despite them otherwise satisfying the requirements of the section for the period of time that they had worked in Queensland). 1 The Metropolitan Gas Co v The Federated Gas Employees' Industrial Union [1924] 35 CLR 449. -- 6 of 9 -- 7  this is indicative of a legislative intent to limit the availability of compensation for industrial deafness to claimants who are currently a worker under the Act or to persons who have recently been workers under the Queensland legislation.  it was entirely consistent with that context that section 125(2)(a) introduces a jurisdictional element which required a claimant to, in fact, be working in Queensland at the time of making their application for compensation.  such position was consistent with the "Golden Rule" of statutory interpretation which states that "the grammatical or ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity or inconsistency, but no farther: see Lord Wensleydale in Grey v Pearson2.  it is a further principle of statutory interpretation that all words have meaning (per Griffith CJ in Commonwealth v Baume3; per Brennan J in Project Blue Sky Inc v Australian Broadcasting Authority4.  the interpretation being propounded by Mr Dubbin leaves no work for the words "under this Act" (as contained in sections 125(2)(a) and (b)) to do. If it was the legislative intention that a person could claim workers' compensation benefits for an industrial deafness condition from the Queensland scheme, wherever they may be working at the time of making the claim, the words "under this Act" could have simply been omitted from the text of those sections.  the phrase "under this Act" had been included in each of sections 125(2)(a) and (b) for a reason, and the reason is to provide a geographic limitation in that the person making the claim for industrial deafness must be a worker within Queensland or temporarily unemployed from what is usually Queensland employment. [10] Finally, Mr O'Neill referred to two decisions which, he said, supported his submissions. In Andrew v The Workers' Compensation Board of Queensland5, Murrell S.M. dismissed an Appeal where a claim for workers' compensation for industrial deafness was lodged more than 12 months after the Appellant retired. [11] In an earlier decision in Blow v Workers' Compensation Board of Queensland6, Evans I.M. dismissed Mr Blow's Appeal against the rejection of his Application for workers' compensation for industrial deafness in circumstances where he took a voluntary redundancy in November 1983 and filed his Application for workers' compensation on 5 January 1984. In doing so, the Industrial Magistrate found that on the date the Application was lodged Mr Blow was not a worker or temporarily unemployed, as required by section 14(1)(C)(h)(ii) of the then legislation. 2 Grey v Pearson (1857) 6 HLC 61. 3 Commonwealth v Baume (1905) 2 CLR 405. 4 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. 5 Andrew v The Workers' Compensation Board of Queensland (1993) 33 WCR 346. 6 Blow v Workers' Compensation Board of Queensland6 (1985) 30 WCR 66. -- 7 of 9 -- 8 Findings and conclusion [12] As I recorded at the conclusion of proceedings on 23 June 2017, the submissions of Mr O'Neill on behalf of the Regulator, about the meaning to be given to the provisions at section 125(2) of the Act, are clearly correct. [13] The wording used in the section is clear on its face and there is no need to resort to external materials to assist in its interpretation. It is a tightly worded section which acts to clearly identify who, and who is not, entitled to make an Application for workers' compensation for industrial deafness. [14] Subject to the exceptions recorded at section 113 of the Act, section 125(2) records that applications for workers' compensation for industrial deafness may only be made by three (3) categories of persons, as follows:  by a person who is currently a worker (as defined in section 11 of the Act) while they are actually working in Queensland and covered by the Act; or  a person who would ordinarily meet the requirements immediately above but who is temporarily unemployed; or  a person who met the requirement at the first dot point and who submits an application within 12 months after their formal retirement from employment. [15] Relevantly, in terms of the arguments presented on behalf of Mr Dubbin, neither sections 125(2)(b) and/or (c) have any relevance to his situation. His submissions are limited to the argument that he is captured by the provisions of section 125(2)(a) because he is "a worker" as defined under this Act. [16] However, the italicised words do not appear in the Act as they would need to if Mr Dubbin's submission was to succeed. Rather, as Mr O'Neill submitted, in order to satisfy the requirements at section 125(2)(a) a person making a workers' compensation claim for industrial deafness may only do so (under that section) while the person "is a worker under this Act". Mr Dubbin did not satisfy that requirement at the time of lodging his Application in October 2015. [17] Although Mr O'Neill's submissions did not touch on the submissions of Mr Dubbin about section 125(3) of the Act, it is clear that that section does not stand alone in the sense of providing some avenue by which Mr Dubbin might be entitled to workers' compensation for industrial deafness. [18] Section 125(3) merely prescribes a minimum employment period in the State of Queensland before a person who has met one of the tests at section 125(2) can pursue their application. In other words, before a person is entitled to compensation for industrial deafness they must satisfy one of the three elements at section 125(2) and the whole of section 125(3). While Mr Dubbin might satisfy the provisions at s 125(3), those provisions have no application unless he falls into one of the three categories at section 125(2) – which he does not. -- 8 of 9 -- 9 [19] For the foregoing reasons I refused Mr Dubbin's appeal, on 23 June 2017, against the decision of the Regulator to confirm an earlier decision of WorkCover which rejected his workers' compensation application for industrial deafness. [20] The decision of the Regulator dated 4 October 2016 is confirmed. Mr Dubbin's appeal against that decision is dismissed. Mr Dubbin is to pay the Regulator's costs of, and incidental to, the Appeal, with recourse to the Commission as presently constituted if the parties cannot agree on the costs involved. [21] I determine and Order accordingly. -- 9 of 9 --