Carpentaria Gold Pty Ltd & Ors v WorkCover Queensland [2002] ICQ 29 (2002) 170 QGIG 243

243 Vol. 170 FRIDAY, 28 JUNE, 2002 No. 10 ########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND WorkCover Queensland Act 1996 – s. 509 – appeal against decision of industrial magistrate Carpentaria Gold Pty Ltd AND WorkCover Queensland (No. C16 of 2002) Carpentaria Gold Pty Ltd AND WorkCover Queensland (No. C17 of 2002) Copper Refineries Pty Ltd AND WorkCover Queensland (No. C18 of 2002) Copper Refineries Pty Ltd AND WorkCover Queensland (No. C19 of 2002) Oaky Creek Coal Pty Ltd AND WorkCover Queensland (No. C20 of 2002) -- 1 of 4 -- 244 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 June, 2002 Oaky Creek Pty Ltd AND WorkCover Queensland (No. C21 of 2002) Newlands Coal Pty Ltd AND WorkCover Queensland (No. C22 of 2002) Newlands Coal Pty Ltd AND WorkCover Queensland (No. C23 of 2002) PRESIDENT HALL 13 June 2002 DECISION Each of the appellants brought an appeal to the Industrial Magistrates Court pursuant to s. 498 of the WorkCover Queensland Act 1996. The appeals were against a decision of the WorkCover Queensland Review Unit about the correctness of WorkCover’s premium assessments for each of the appellants for accident insurance under the WorkCover Queensland Act 1996 in respect of 1998/1999 and later years. Each appeal raised identical issues about the inclusion in the relevant premium calculation of amounts referrable to industrial deafness claims made by employees of the appellants. Each appeal was dismissed by the Industrial Magistrate. It is the decision of the Industrial Magistrate which is now challenged pursuant to s. 509. Although the appeals were not joined, they were heard together. Each of the appeals was argued on the assumption that the relevant version of the WorkCover Queensland Act 1996 was that which included amendments up to Act No. 42 of 1999. Henceforth, I shall refer to sections without referring to the Act. Section 5(i)(a) establishes a Workers’ Compensation scheme for Queensland: “Providing benefits for workers who sustain injury in their employment, for dependents if a worker’s injury results in the worker’s death, for persons other than workers, and for other benefits.”. By s. 5(ii) the main provisions of the scheme established by the Act are said to include, amongst other things, provision for compensation for injuries sustained by workers in their employment, regulation of access to common law damages by workers for injuries sustained in their employment, the liability of employers for compensation for injuries sustained by workers in their employment and the obligation of employers to be covered against liability for compensation and damages either under a WorkCover insurance policy or under a licence as a self insurer. “Injury” is defined at s. 34(i) as “personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.” The definition of “injury” is both extended and reined in by the other subsections of s. 34. For present purposes it is necessary to mention only s. 34(iii)(c) by which “injury” is defined to include: “Loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing.”. Importantly, a worker who suffers an injury by way of loss of hearing resulting in industrial deafness is not entitled to compensation under the general provisions of the Act. By s. 152(1): “The worker is entitled to compensation for the industrial deafness under part 9 and section 229(i)(a) and not under any other provision.”. The part 9 referred to is part 9 of chapter 3 which deals with “entitlement to compensation for permanent impairment”. Section 229(i)(a) is located within chapter 4 which deals with “injury management” and relates to the payment of medical costs by WorkCover. As well as limiting the entitlement of a worker suffering from a loss of hearing resulting in industrial deafness to an entitlement under part 9 and s. 229(i)(a), s. 152 specifies the circumstances in which a loss of hearing resulting in industrial deafness is to be treated as attributable to the worker’s employment in the State of Queensland, specifies when the worker must claim for the injury and imposes a threshold “loss of hearing” test upon the worker’s entitlement to a lump sum payment. Section 152(2), (3) and (4) provide as follows: “(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 totalling, at least 5 years; and (b) the employment was at a location, or at locations, where the noise level was a significant contributing factor to the industrial deafness. (4) The worker is not entitled to lump sum compensation for the first 5% of the worker’s diminution of hearing.”. [For completeness, I note that s. 152(v) operates with s. 197 to require WorkCover to have the degree of permanent impairment of the worker’s hearing assessed by an audiologist]. Finally, by s. 50(1): “An employer is legally liable for compensation for injuries sustained by a worker employed by the employer.”. It is the (presently irreversible) policy adopted by the legislature in s. 152(1), (2) and (3) which lies behind the issues on the present appeal. One may put aside the case in which an employee making a claim in respect of a loss of hearing which is industrial deafness has had only one employer. One may put aside also the case in which, although the claimant has had a number of employers, it may be affirmatively established that the loss of hearing which is industrial deafness is attributable solely to the engagement with a particular employer. In the common case, where there is serial employment or “at a location or at locations where the noise level was a significant contributing factor to the industrial deafness”, the liability to pay compensation will fasten upon the last employer in the chain. The whole liability will attach to that employer notwithstanding that is the scheme of s. 152(iii) that liability arises out of employment at noisy locations within the State of Queensland and notwithstanding that the contribution to the diminution of hearing made by the employment last in the chain may be minimal. Section 32(2) which provides, -- 2 of 4 -- 28 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 245 S:\QIRCDEV-BASE\QGIG\2002\VOL 170\NO.10 28.06.02.DOC “A reference to an employer of a worker who sustains an injury is a reference to the employer out of whose employment, or in the course of whose employment, the injury arose”, is not effective to confine liability to employers in whose employment or in the course of whose employment, the injury solely arose. An employer is not, of course, expected to discharge the liability cast upon the employer by s. 50(1). The scheme of the Act is that the employer is to provide for the liability either under a licence as a self insurer under part 5 of chapter 2 or under a WorkCover policy, s. 52(3). Materially, the appellants were covered by a WorkCover policy. Understandably every policy is supported by a premium. The function of setting the premium under a WorkCover policy is allocated to WorkCover, s. 58(1). Section 58(2) directs WorkCover as to how the premium is to be set. By s. 58(2): “The premium payable for the policy for a period of insurance must be assessed according to the method (the “method”) and at the rate (the “rate”) specified by WorkCover by Industrial Gazette notice.”. Subject to an obligation to notify the Minister and to the right of the Minister to issue directions, the decision about the “method” to be specified by the Industrial Gazette notice and the decision about the “rate” to be specified by the Industrial Gazette notice is remitted to WorkCover. The relevant notice, “WorkCover Queensland Notice No. 1 of 1998”, was published in the Industrial Gazette for the 26th of June 1998, see 158 QGIG 231-299. It has (relevantly) been amended by “WorkCover Queensland Notice Amendment Notice (No. 3) of 1999” which was published in the Queensland Government Industrial Gazette of 29 June 1999, see 161 QGIG 177 to 184. It is not necessary, in order to dispose of the appeals, to deal with the Notice as amended in any detail. It is sufficient to say that in calculating the premium for a particular employer WorkCover is required to have regard to the Experience Factor of that employer calculated in accordance with schedule 6. The calculation at schedule 6 requires WorkCover, amongst other things, to have regard to the employer’s “statutory claims history” for each of the three financial years prior to the year for which the premium is being set and to have regard to the employer’s “common law claims history” for each of the two years prior to that. The issue in this case is the definition of the statutory claims which are to be taken into account and the definition of the common law claims which are to be taken into account. To reveal the nub of the matter to set forth the definitions relating to statutory claims the definitions are as follows: “S0 ” is the costs of statutory claims (to a maximum of $250,000 per claim) to the conclusion of the preceding period of insurance under the Act incurred by WorkCover in respect to injuries to workers incurred on a date in the preceding period of insurance. “S1 ” is the costs of statutory (to a maximum of $250,000 per claim) to the conclusion of the preceding period of insurance under the Act or former Act against the employer incurred by WorkCover in respect of injuries incurred on a date in the period of insurance immediately preceding the period of insurance referred to in S 0 . “S2 ” is the costs of statutory claims (to a maximum of $250,000 per claim) to the conclusion of the preceding period of insurance under the Act or the former Act against the employer in respect of injuries incurred on a date in the period of insurance immediately preceding the period of insurance referred to in S1 .”. It is the submission of the appellant that in the case of each definition the phrase “incurred on a date in the preceding period of insurance” refers to “injuries”. (The presence of the words “to workers” in the definition of S 0 and their omission in the definitions of S2 and S3 is said to be immaterial). It is then contended that because an “injury” which is a loss of hearing which is industrial deafness occurs over a period of time rather than on “a date”, moneys paid in respect of successful claims about industrial deafness are not to be brought into account. The first contention of the respondent is that the words “incurred on a date in the preceding period of insurance” refers back to “costs”. On that submission there is nothing in the appellants’ first point as each expenditure made in any particular period of insurance will be incurred on a “date”. In support of the submission the respondent has conducted an electronic search of the reprint of the Act in the form which it took after Act No. 42 of 1999. That shows that the expression “injury incurred” does not appear in any provision, that the expression “injury sustained” appears on 52 occasions and that “incurred” appears in reference to “costs” or “expense” on 14 occasions. Whilst one must respect the ingenuity and effort involved in the submission, the plain answer is to be found in s. 3A of schedule 6 which provides: “Date of injury 3A. Where for the purpose of calculating S and C Factors in section 3, there is no doubt as to the date an injury was incurred, the injury is deemed to have been incurred by a worker on the date upon which the worker was assessed as having the injury by a doctor or a dentist.”. Section 3A, which was added by WorkCover Queensland Notice Amendment Notice (No. 3) of 1999, must be taken into account in determining the scope of the definitions at s. 2 prior to the amendment at least to avoid a result which would render the amendment unnecessary or futile, Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 at 85 to 86 per Dixon J and Hunter Resources Limited v Melville (1988) 164 CLR 234 at 254 to 5 per Dawson J. In the light of s. 3A it seems to me that the words “incurred on a date in the preceding period of insurance” must be read as referring to “injuries”. The respondent’s second argument is more persuasive. Whilst it may be factually true that a loss of hearing which is industrial deafness develops over a period of time, the Act proceeds on the view that it becomes a compensable injury when the threshold of s. 152(4) is crossed. In terms of the definitions at S0 , S 1 , and S2 , that is the date at which the injury is “incurred”. The date of the injury in that sense will be a matter of some doubt. For the purposes of working out a statutory claims history s. 3A removes the doubt by “deeming” the injury to have been incurred “on the date upon which the worker was assessed as having the injury by a doctor”. The appellants’ alternative submission commences with s. 32(2) which provides: “A reference to an employer of a worker who sustains an injury is a reference to the employer out of whose employment, or in the course of whose employment, the injury arose.”. The submission is that in assessing the C and S factors in the course of calculating an employer’s premium reference may be made only to the costs of claims relating to injuries arising out of, or in the course of, employment with the employer whose premium is being assessed. With respect, neither the definition of S0 , S 1, S 2 , C 4 or C 5 refers to the notion of a worker sustaining an injury. The expression “injury sustained”, which as pointed out above is used time and again in the Act, has been eschewed in favour of an expression nowhere to be found in the Act, viz, “injury incurred”. There seems to be no reason to deny “worker” its meaning at s. 12.1, viz (roughly) a person employed under a contract of service, and to refrain from acknowledging the actual employer of the worker as the employer for the purposes of definitions of S0 , S1 , S 2 , C 3 and C 4 . On that (neutral) interpretation one would, for example, in calculating S0 bring into account moneys paid to workers or former workers of the employer in respect of injuries “incurred on a date in the -- 3 of 4 -- 246 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 June, 2002 preceding period of insurance” in response to claims made pursuant to s. 152(2). I note that in support of its submission the appellants develop the argument that the purpose of referring to the previous claims experience is to reward employers with a good claims history and penalise employers who do not have a good claims history, and develops the argument that there is some funding of the costs of a loss of hearing which is industrial deafness by the rates at schedule 1 of the WorkCover Queensland Notice No. 1 of 1988. The appellant relies also on s. 5(vi) which provides: “Because it is in the State’s interests that industry remain locally, nationally and internationally competitive, it is intended that compulsory insurance against injury in employment should not impose too heavy a burden on employers and the community.”. All of that must be weighed against s. 5(v) which provides: “The scheme is taken to be fully funded if WorkCover is able to meet its liabilities for compensation and damages payable from its funds and accounts and maintains: (a) the minimum solvency or capital adequacy standards under the Insurance Act 1973 (C’wth), section 29; and (b) solvency required under a regulation.”. Whilst it may be conceded that the objects are an aid to the interpretation of the Act, see s. 4(ii), it seems to me that this is one of those cases in which a Court of construction should step back, acknowledge that each of the Legislature and the body charged with the function of setting the “method” and the “rate”, viz WorkCover, has made a policy decision, and respect those decisions. I dismiss the appeals. Dated 13 June 2002. D.R. HALL, President. Released: 13 June 2002 Appearances: Mr R. Hanson SC, with him Mr G. Rhead (instructed by MIM Care) for the appellants. Mr J. Logan SC, with him Mr A. Horneman-Wren (instructed by WorkCover) for the respondent. -- 4 of 4 --