Workers' Compensation Regulator v Langridge [2025] ICQ 8

Allina Pty Ltd v Commissioner of Taxation (1991) 28 FCR 203; [1991] FCA 87, considered

City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5, cited

Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; [1986] HCA 3, cited

Grain Elevators Board (Vic) v Dunmunkle Shire (1946) 73 CLR 70; [1986] HCA 3, cited

Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348; [1992] FCA 992, considered

Langridge v Workers' Compensation Regulator [2019] QIRC 048, related

Langridge v Workers' Compensation Regulator [2021] QIRC 251, related

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136; [2023] HCA 17, cited

Minister for Immigration v Eshetu (1999) 197 CLR 611; [1999] HCA 21, cited

R v A2 (2019) 269 CLR 507; [2019] HCA 35, followed

Mr McLeod KC was instructed directly by the Workers' Compensation Regulator

• [1] The Workers' Compensation Regulator appeals against a decision of the Queensland Industrial Relations Commission,[1] which held that on a proper construction of s 132A of the Workers' Compensation and Rehabilitation Act 2003[2] (WCR Act), WorkCover was obliged to refer the injury of the respondent, Michael Paul Langridge, for assessment upon an application for assessment being made in the prescribed way. An assessment of injury is a precondition to the right of an injured worker to sue their employer for common law damages.
• [2] WorkCover[3] did not refer the injury for assessment as it found that Mr Langridge had not suffered an "injury"[4] as defined in the WCR Act. The Regulator upheld that determination. Mr Langridge successfully argued before the Commission on appeal that the determination of whether Mr Langridge had suffered a relevant "injury" was not a consideration for WorkCover when determining an application for referral for assessment under s 132A.[5] Mr Langridge's application for referral was remitted back to WorkCover.[6] It is from that decision of the Commission that the Regulator now appeals.
• [3] If Mr Langridge's position is the correct one, then once he has lodged an application with WorkCover in a form prescribed by s 132A(3), WorkCover must refer his injury for assessment without further consideration, thus opening the gateway to the right to claim common law damages in court proceedings.

• [4] In 2014, Mr Langridge was employed by the State as a Building Construction Labourer with the Department of Transport and Main Roads. He claims that while working in August or September 2014 he suffered a "cervical spine C5/C6/C7 cord compression" injury. He claims that the injury left him with a degree of permanent impairment.
• [5] Mr Langridge lodged an application with WorkCover in reliance upon s 132A of the WCR Act, as it stood at the time of the injury. That section then provided:

"132A Applying for assessment of DPI[7] before applying for compensation

(1) This section applies to a worker who has not made an application under section 132.

(2) The worker may apply to the insurer to have the worker's injury assessed under section 179 to decide if the worker's injury has resulted in a DPI.

(a) lodged with the insurer; and

(b) in the approved form; and

(c) accompanied by -

(i) a certificate in the approved form given by a doctor who attended the worker; and

(ii) any other evidence or particulars prescribed under a regulation.

(4) A registered dentist may issue the certificate mentioned in subsection (3)(c)(i) for an oral injury.

(5) If the worker can not complete an application because of a physical or mental incapacity, someone else may complete it on the worker's behalf."[8]

• [6] Section 132A(1) refers to s 132. It is common ground that Mr Langridge had not made an application for compensation under s 132. He only made his application for assessment of permanent impairment pursuant to s 132A.
• [7] WorkCover rejected Mr Langridge's application on the basis that the injury alleged did not arise from his employment. In other words, he had not suffered an "injury" as defined in the WCR Act. When making its initial assessment, WorkCover relied upon s 132A as it appeared after amendments were made in 2015.[9] Section 132A, as it appeared after the 2015 amendments contained subsection (7). That provided:

"(7) The insurer may reject the application only if satisfied the worker -

(a) was not a worker when the injury was sustained; or

(b) has not sustained an injury."[10]

• [8] An application by Mr Langridge to review that decision was unsuccessful. The Regulator affirmed WorkCover's decision. In doing so, the Regulator applied the Act as it stood at the time of its decision, not as it appeared on the date that Mr Langridge's injury was allegedly suffered. In affirming WorkCover's decision, the Regulator relied upon s 132A(7).
• [9] Mr Langridge appealed to the Commission. That appeal raised a preliminary issue; namely, whether the amendments to s 132A, effected by the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2015, applied to Mr Langridge's application for referral for assessment. As already observed, the Regulator applied the 2015 amended version of s 132A, as had WorkCover. On appeal, the Commission held that to have been an error.[11] The Commission held that the Regulator should have determined the matter by reference to the law as it stood at the time of Mr Langridge's injury. The Commission remitted the matter back to the Regulator to review the decision according to the law as it applied at the time Mr Langridge's injury was suffered.
• [10] The Regulator considered the matter again, and again affirmed the decision of WorkCover. In so doing, the Regulator provided written reasons where it was found:

(a) by s 132A, as it stood at the time of the injury,[12] WorkCover must satisfy itself that the claimant is a "worker" who has sustained an "injury" before it can refer the injury for assessment;

(b) "injury" as defined by s 32 of the Act is a personal injury which arose out of or in the course of a claimant's employment;

(c) the evidence does not support a conclusion that Mr Langridge's injury arose in the course of his employment; and, therefore

(d) the injury should not be assessed.

• [11] In making its findings, the Regulator relied upon s 132A as it stood before the 2015 amendments; that is without subsection (7).[13] The Regulator's case on appeal is that both before, and after the 2015 amendments, as part of the exercise of its functions under s 132A, it must determine whether a claimant is a "worker" who has suffered an "injury".
• [12] Mr Langridge appealed that decision to the Commission.[14] On the second appeal, the Commission again held that, on a proper construction of s 132A, WorkCover's function did not include determining whether the applicant was a "worker" or if the worker had suffered an "injury". The Commission held that once an application is made for referral, WorkCover[15] must have the injury assessed, provided the application is made in accordance with the requirements of s 132A(3). That is the decision the subject of the current appeal. The grounds of appeal are:

"1. The Queensland Industrial Relations Commission erred in holding that, on a proper construction of s.132A (in its pre-amended form) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the WCR Act"), WorkCover Queensland ("WorkCover"), as insurer:

(a) was obliged to refer the respondent for assessment of permanent impairment under s.179 of the WCR Act; and

(b) WorkCover had no capacity to reject the respondent's application for the said assessment under s.132A: (Reasons for decision at [60]-[61])."

• [13] Ultimately, the only question is as to the proper construction of the relevant provisions of the WCR Act.

• [14] As earlier observed, the relevant version of the WCR Act is that which was in force at the time of Mr Langridge's injury.[16] However, the parties say that the legislative history of amendments both before and after the 2015 amendments is relevant to the determination of the proper construction of s 132A in its form at the time of the injury to Mr Langridge.[17]
• [15] Section 132A was introduced by the Newman Government, consequent upon other amendments which introduced a DPI threshold of five per cent before a claim could be made for permanent disablement. Those amendments were introduced by the Workers' Compensation and Other Legislation Amendment Act 2013.[18]
• [16] The terms "worker" and "injury" after the 2013 amendments were defined relevantly as follows:

(a) works under a contract; and

(b) in relation to the work, is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cwlth), schedule 1, part 2-5.

(1) An injury is personal injury arising out of, or in the course of, employment if--

(a) ... the employment is a significant contributing factor to the injury..."[19]

• [17] It is common ground that Mr Langridge is a "worker".
• [18] Section 132A(1)[20] applies s 132A to a "worker" "who has not made an application under s 132". Section 132 concerns applications for compensation. That distinction between compensation and a claim for common law damages is a fundamental characteristic of the workers' compensation scheme under all the different versions of the WCR Act. "Compensation" is a statutory entitlement. Common law damages are compensatory in nature and are awarded upon proof of a tort,[21] but are not included within the concept of "compensation" under the WCR Act. The various versions of the WCR Act not only provide for statutory compensation, but also regulate common law actions.[22]
• [19] "Compensation" is defined by s 9 which provided:

Compensation is compensation under this Act, that is, amounts for a worker's injury payable under chapters 3 and 4 by an insurer to a worker, a dependant of a deceased worker or anyone else, and includes compensation paid or payable under a former Act."[23]

• [20] Chapters 3 and 4 of the WCR Act provided for the payment of compensation under the Act, which can be by weekly payments or by lump sum depending on the circumstances.[24]
• [21] Section 108 provided:

(1) Compensation is payable under this Act for an injury sustained by a worker.

(2) However, if a worker's injury is an aggravation mentioned in section 32(3)(b) or (ba), the worker is entitled to compensation for the injury only to the extent of the effects of the aggravation."[25]

(1) An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises.

(2) If an application is lodged more than 20 business days after the entitlement to compensation arises, the extent of the insurer's liability to pay compensation is limited to a period starting no earlier than 20 business days before the day on which the valid application is lodged.

(3) Subsection (2) does not apply if death is, or results from, the injury.

(4) An insurer must waive subsection (1) for a particular application if it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist.

(5) An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant's failure to lodge the application was due to -

(a) mistake; or

(b) the claimant's absence from the State; or

(c) a reasonable cause.

(1) An application for compensation must be made in the approved form by the claimant.

(2) The application must be lodged with the insurer.

(a) a certificate in the approved form given by -

(i) a doctor who attended the claimant; or

(ii) if the application relates to a minor injury - a nurse practitioner who attended the claimant and who is acting in accordance with the workers' compensation certificate protocol; and

(b) any other evidence or particulars prescribed under a regulation.

(4) A registered dentist may issue the certificate mentioned in subsection (3)(a) for an oral injury.

(5) If the claimant can not complete an application because of a physical or mental incapacity, someone else may complete it on the claimant's behalf."[26]

• [23] Section 134 provided for WorkCover to make a decision on any application:

"134 Decision about application for compensation

(1) A claimant's application for compensation must be allowed or rejected in the first instance by the insurer.

(2) The insurer must make a decision on the application within 20 business days after the application is made.

(3) The insurer must notify the claimant of its decision on the application.

(4) If the insurer rejects the application, the insurer must also, when giving the claimant notice of its decision, give the claimant written reasons for the decision and the information prescribed under a regulation.

(5) Subsection (6) applies if the insurer does not make a decision on the application within the time stated in subsection (2).

(6) The insurer must, within 5 business days after the end of the time stated in subsection (2), notify the claimant of its reasons for not making the decision and that the claimant may have the claimant's application reviewed under chapter 13."[27]

• [24] As can be seen from s 134(6), there were rights to review a decision by WorkCover to decline an application for compensation. Those review procedures were contained in Chapter 13.
• [25] As earlier observed, while claims for common law damages are not "compensation" within the terms of the WCR Act, the legislation does regulate common law claims.
• [26] As also already observed, the 2013 amendments introduced a DPI threshold for permanent disablement claims. This lead to consequential amendments to sections regulating claims for common law damages.
• [27] Section 237 before the 2013 amendments provided:

"237 General limitation on persons entitled to seek damages

(1) The following are the only persons entitled to seek damages for an injury sustained by a worker -

(a) the worker, if the worker -

(i) has received a notice of assessment from the insurer for the injury; or

(ii) has not received a notice of assessment for the injury, but -

(A) has received a notice of assessment for any injury resulting from the same event (the assessed injury); and

(B) for the assessed injury, the worker has a WRI[28] of 20% or more or, under section 239, the worker has elected to seek damages;

(b) the worker, if the worker's application for compensation was allowed and the injury has not been assessed for permanent impairment;

(c) the worker, if -

(i) the worker has lodged an application, for compensation for the injury, that is or has been the subject of a review or appeal under chapter 13; and

(ii) the application has not been decided in or following the review or appeal;

(d) the worker, if the worker has not lodged an application for compensation for the injury;

(e) a dependant of the deceased worker, if the injury results in the worker's death.

(2) The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter.

(a) is required under section 239 to make an election to seek damages for an injury; and

(b) has accepted an offer of payment of lump sum compensation under chapter 3, part 10, division 3 for the injury;

the worker is not entitled under subsection (1)(a)(ii) to seek damages.

(4) However, subsection (3) does not prevent a worker from seeking damages under section 266.

(5) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker."[29] (emphasis added)

• [28] Section 237(1)(d) entitled a worker to commence proceedings for damages where they had "not lodged an application for compensation for the injury".[30]
• [29] Sections 257 and 258 were in Division 6 of Part 2 of Chapter 5. Division 6 was headed "Claimant mentioned in s 237(1)(d)".[31]
• [30] Section 257 provided:

This division applies to a claimant who is a person mentioned in section 237(1)(d)."[32]

• [31] As already observed, prior to the 2013 amendments, s 132A did not exist. In the version before the 2013 amendments, s 258 provided:

"258 Access to damages if claimant has not lodged application for compensation

(1) The claimant may seek damages for the injury only if the insurer -

(a) decides that the claimant -

(i) was a worker when the injury was sustained; and

(ii) has sustained an injury; and

(b) gives the claimant a notice of assessment for the injury.

(2) For subsection (1), the insurer must have the degree of permanent impairment assessed under chapter 3, part 10 and give the claimant a notice of assessment.

(3) Chapter 3, part 10 applies to the assessment, but only for the purpose of assessing the degree of permanent impairment for the purposes of part 12.

(4) To remove any doubt, it is declared that the assessment does not give the claimant an entitlement to lump sum compensation under chapter 3, part 10, division 3 for the injury.

(5) The insurer must make a decision or decisions for the purpose of subsection (1) within 3 months after -

(a) the claimant gives, or is taken to have given, a complying notice of claim; or

(b) the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275, with or without conditions; or

(c) a court makes a declaration under section 297.

(6) If the insurer is WorkCover, WorkCover must notify the claimant and the claimant's employer of any decision it makes for the purpose of subsection (1).

(7) If, for any injury, the insurer decides that the claimant -

(a) was not a worker when the injury was sustained; or

(b) has not sustained an injury; the notification must include written reasons for the decision.

(8) If, for any injury, the insurer does not make a decision for the purpose of subsection (1) within the time mentioned in subsection (5), the claimant may have the failure to make a decision reviewed under chapter 13.

(9) A person aggrieved by a decision made by the insurer for the purpose of subsection (1) may have the decision reviewed under chapter 13.

(10) For any assessment mentioned in subsection (1) made by the insurer with which the person does not agree, section 186 applies."[33] (emphasis added)

• [32] By force of s 258, a notice of assessment for injury was a pre-condition to an action for damages. By s 258(1) an action could only be commenced where the insurer determined that:

(a) the claimant was a "worker"; and

(b) the complainant had sustained an "injury".

• [33] Apart from the two findings by the insurer prescribed by s 258(1)(a)(i) and (ii), s 258(1)(b) prescribed another pre‑condition. That was that the insurer must provide to the claimant a "notice of assessment for the injury".
• [34] The determination under s 258(1)(b) had to be made within three months of a "Notice of Claim". In the legislation, both before and after the 2013 amendments, s 275 provided for a Notice of Claim. Section 275 before the 2013 amendments provided:

(1) Before starting a proceeding in a court for damages, a claimant must give notice under this section within the period of limitation for bringing a proceeding for the damages under the Limitation of Actions Act 1974.

(a) give the notice of claim in the approved form to the insurer at the insurer's registered office; and

(b) if the worker's employer is not a self-insurer, give a copy of the notice of claim to the worker's employer.

(3) The notice must include the particulars prescribed under a regulation.

(a) whether, and to what extent, liability expressed as a percentage is admitted for the injury; or

(b) a statement of the reasons why the claimant can not admit liability.

(5) Any statement made by the claimant in the notice that is in the claimant's personal knowledge must be verified by statutory declaration.

(6) The notice must be accompanied by a genuine offer of settlement or a statement of the reasons why an offer of settlement can not yet be made.

(7) The notice must be accompanied by the claimant's written authority allowing the insurer to obtain information, including copies of documents relevant to the claim, and in the possession of -

(a) a hospital; or

(b) the ambulance service of the State or another State; or

(c) a doctor, provider of treatment or rehabilitation services or person qualified to assess cognitive, functional or vocational capacity; or

(d) the employer or a previous employer; or

(e) persons that carry on the business of providing workers' compensation insurance, compulsory third party insurance, personal accident or illness insurance, insurance against loss of income through disability, superannuation funds or any other type of insurance; or

(f) a department, agency or instrumentality of the Commonwealth or the State; or

(g) a solicitor, other than where giving the information or documents would breach legal professional privilege.

(8) The notice must also be accompanied by copies of all documents supporting the claim including, but not limited to -

(a) hospital, medical and other reports relating to the injury sustained by the worker, other than reports obtained by or on behalf of the insurer; and

(b) income tax returns, group certificates and other documents for the 3 years immediately before the injury supporting the claimant's claim for lost earnings or diminution of income-earning capacity; and

(c) invoices, accounts, receipts and other documents evidencing the claimant's claim for out-of-pocket expenses."[34]

• [35] Whether before or after the 2013 amendments, the assessment itself would occur under ss 179 and 180 which, before the 2013 amendments, provided:

(1) An insurer may decide, or a worker may ask the insurer, to have the worker's injury assessed to decide if the worker's injury has resulted in a degree of permanent impairment.

(2) The insurer must have the degree of permanent impairment assessed -

(a) for industrial deafness - by an audiologist; or

(b) for a psychiatric or psychological injury - by a medical assessment tribunal; or

(c) for another injury - by a doctor.

(3) The degree of permanent impairment must be assessed in the way prescribed under a regulation and a report must be given to the insurer stating -

(a) the matters taken into account, and the weight given to the matters, in deciding the degree of permanent impairment; and

(b) any other information prescribed under a regulation.

(1) If, as a result of the assessment, a worker is entitled to lump sum compensation, the amount of the lump sum compensation must be calculated under a regulation having regard to the degree of permanent impairment and the table of injuries.

(2) Without limiting subsection (1), lump sum compensation for injury must not include an amount for a degree of impairment attributable to -

(a) a condition existing before the injury; or

(b) a condition for which the worker is not entitled to compensation.

(3) The amount of lump sum compensation is to be calculated as at the day the insurer makes an offer of lump sum compensation to the worker under section 187."[35]

• [36] The term "notice of assessment" was defined as "notice of assessment means a notice of assessment of permanent impairment issued by WorkCover under section 185".[36]
• [37] Section 185 was contained within Chapter 3, Part 10, Division 3. Sections 184 and 185 provided:

This division applies if an assessment of permanent impairment of a worker's injury has been made under section 179.

1. Insurer to give notice of assessment of permanent impairment

(1) The insurer must, within 10 business days after receiving the assessment of the worker's permanent impairment, give the worker a notice of assessment in the approved form.

(2) However, if a worker sustains multiple injuries in an event, the insurer must give the notice only after the worker's degree of permanent impairment from all the injuries has been assessed.

(a) whether the worker has sustained permanent impairment from the injury; and

(b) if the worker has sustained permanent impairment -

(i) the degree of permanent impairment attributable to the injury; and

(ii) the WRI calculated for the injury; and

(iii) the amount of lump sum compensation under section 180 to which the worker is entitled for the injury; and

(c) if the worker's WRI is 30% or more - the worker's entitlement to additional lump sum compensation under section 192; and

(d) if the worker's WRI is 15% or more - the worker's entitlement to additional lump sum compensation (if any) for gratuitous care under section 193.

(4) If the notice states the worker has not sustained a degree of permanent impairment, the insurer must also give the worker a copy of sections 10, 237(3), 239, 240 and 316."[37]

• [38] The 2013 amendments, as already observed, brought s 132A into existence. The explanatory note to the Workers' Compensation and Rehabilitation Act 2003 Amendment Bill says:

"Clause 9 inserts a new section 132A outlining the process for applying to an insurer for an assessment of the degree of permanent impairment in situations where an application for statutory compensation has not been made, for example if the applicant is seeking to lodge a notice of claim for damages."

• [39] By force of those amendments, s 258 was repealed and s 237 was amended, so it read:

"237 General limitation on persons entitled to seek damages

(1) The following are the only persons entitled to seek damages for an injury sustained by a worker -

(a) the worker, if the worker -

(i) has received a notice of assessment from the insurer for the injury and the DPI for the assessed injury is more than 5%; or

(ii) has a terminal condition;

(b) a dependant of the deceased worker, if the injury results in the worker's death.

(2) The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter.

(a) is required under section 239 to make an election to seek damages for an injury; and

(b) has accepted an offer of payment of lump sum compensation under chapter 3, part 10, division 3 for the injury;

(4) However, subsection (3) does not prevent a worker from seeking damages under section 266.

(5) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker."[38]

• [40] Sections 179 and 180 were also amended. After the amendment, they provided:

(1) An insurer may decide, or a worker who has made an application under section 132 may ask the insurer, to have the worker's injury assessed to decide if the worker's injury has resulted in a degree of permanent impairment.

(2) The insurer must have the degree of permanent impairment assessed -

(a) for industrial deafness - by an audiologist; or

(b) for a psychiatric or psychological injury - by a medical assessment tribunal; or

(c) for another injury - by a doctor.

(3) The degree of permanent impairment must be assessed in accordance with the GEPI to decide the DPI for the injury, and a report complying with the GEPI must be given to the insurer.

(4) If the worker sustains permanent impairment from multiple injuries sustained in 1 event -

(a) the degree of permanent impairment for the injuries, other than a psychiatric or psychological injury, must be assessed together to decide the DPI for the injuries; and

(b) the degree of permanent impairment for the psychiatric or psychological injury must be assessed separately to decide the DPI for the injury.

(1) If, as a result of an assessment under section 179, a worker is entitled to lump sum compensation, the amount of the lump sum compensation must be calculated under a regulation having regard to the DPI.

(2) Without limiting subsection (1), lump sum compensation for injury must not include an amount for a degree of impairment attributable to -

(a) a condition existing before the injury; or

(b) a condition for which the worker is not entitled to compensation.

(3) The amount of lump sum compensation is to be calculated as at the day the insurer makes an offer of lump sum compensation to the worker under section 187."[39]

• [41] After the 2013 amendments to s 237, that section:

(a) prescribed that a prerequisite to seeking damages was a notice of assessment; and

(b) did not provide (as did s 237(1)(d)[40]) for a right to claim damages only where there had been no compensation claim.

The Workers' Compensation and Rehabilitation Act 2003 after the enactment of the Workers' Compensation and Other Legislation Amendment Act 2015

• [42] In 2015, the WCR Act was amended again. By this stage, the Newman Government had fallen. The 2015 amendments were effected by the Workers' Compensation and Other Legislation Amendment Act 2015, which abolished the five per cent DPI requirement and amended s 132A so that it read:

"132A Applying for assessment of DPI if no application made for compensation

(1) This section applies to a worker who has not made an application under section 132.

(2) The worker may apply to the insurer to have the worker's injury assessed under section 179 to decide if the worker's injury has resulted in a DPI.

(a) lodged with the insurer; and

(b) in the approved form; and

(c) accompanied by -

(i) a certificate in the approved form given by a doctor who attended the worker; and

(ii) any other evidence or particulars prescribed under a regulation.

(4) A registered dentist may issue the certificate mentioned in subsection (3)(c)(i) for an oral injury.

(5) If the worker can not complete an application because of a physical or mental incapacity, someone else may complete it on the worker's behalf.

(6) The insurer must, within 40 business days after an application under subsection (2) is made, decide to allow or reject the application.

(7) The insurer may reject the application only if satisfied the worker -

(a) was not a worker when the injury was sustained; or

(b) has not sustained an injury.

(8) The insurer must notify the worker of its decision on the application.

(9) If the insurer rejects the application, the insurer must also, when giving the worker notice of its decision, give the worker written reasons for the decision and the information prescribed by regulation.

(10) If the worker is aggrieved by the insurer's decision on the application, the worker may have the decision reviewed under chapter 13.

(11) If the insurer does not decide the application within the time stated in subsection (6) -

(a) the insurer must, within 5 business days after the end of the time stated in subsection (6), notify the worker -

(i) of its reasons for not deciding the application; and

(ii) that the worker may have the insurer's failure to decide the application reviewed under chapter 13; and

(b) the worker may have the insurer's failure to decide the application reviewed under chapter 13.

(12) To remove any doubt, it is declared that a decision of the insurer to allow the application does not entitle the worker to compensation for the injury."[41] (emphasis added)

• [43] It can be seen that subsections (6) to (12) of s 132A provided that WorkCover must determine, on a s 132A assessment, whether:

(a) the claimant is a "worker"; and whether

(b) the claimant has suffered an "injury".

• [44] Section 132A(12) provides that acceptance of the worker's application does not equate to an entitlement to compensation.[42]
• [45] The explanatory notes to that amendment[43] reads:

"... s 132A does not provide any entitlement to damages but rather is merely a mechanism whereby a person can apply for an assessment of the injury where they have not made an application for compensation under s 132 of the Act."

• [46] The Regulator accepted that, upon application by a claimant under s 132A, it ultimately acts under s 179. It is under s 179 that the insurer refers the injury for assessment.
• [47] The power to refer, the Regulator argued, is a power which relates to an "injury" suffered by a "worker". It follows, it was submitted, that in order to exercise the power conferred by s 179, the insurer must determine whether the claimant is a "worker" and whether the claimant has suffered an "injury".
• [48] The Regulator appreciated that, before me, Mr Langridge relied upon the 2015 amendments to s 132A to show the proper construction of s 132A as it was at the time of Mr Langridge's injury. In particular, Mr Langridge submitted that the inclusion of s 132A(7) expressly acknowledged a power to reject an application where the insurer was not satisfied that the claimant is a "worker" who had suffered an "injury". Mr Langridge submitted that the amendment changed the law where, previously, it was no part of the insurer's function under s 132A to determine whether the claimant was a "worker" who had suffered an "injury". The Regulator submitted that the amendment merely clarified, not changed, the nature of the insurer's task.
• [49] Mr Langridge defended the decision of the Commission. He drew a distinction between lump sum compensation and common law damages. He submitted that s 132A did not provide an "implied power" to determine whether the claimant was a "worker" who was "insured". The section only provided, together with s 237, a gateway to making a common law damages claim. This can, he submitted, be contrasted to a lump sum compensation claim assessed under s 180.
• [50] Mr Langridge submitted that where an assessment is made under s 179 for the purpose of a common law claim, s 237 is engaged, but, ultimately, questions as to whether the claimant is a "worker" who has suffered an "injury" are to be determined by the court who hears the action. This can be contrasted, it was submitted, to where the assessment is effected for the purposes of a lump sum compensation claim. There, he submitted, the determination of whether a claimant is a "worker" who has suffered an "injury" is determined as part of the assessment under s 180. This argument is strengthened, he submitted, by s 132A(12) as it appeared after the 2015 amendments. It is acknowledged by the Regulator that the assessment of entitlement to lump sum compensation is made under s 180, not s 132A or s 179.

• [51] As earlier observed, the question is ultimately as to the proper construction of the relevant provisions of the WCR Act at the time of the injury to Mr Langridge.[44] That is a matter of law. As a matter of law there is only one proper construction of the provisions. It is therefore not necessary to identify how the Commission erred if it did. It is only necessary for this Court to properly construe the relevant provisions.
• [52] There is no contention as to the proper approach to statutory construction. The principles were authoritatively stated by the High Court in R v A2.[45] Those principles can be summarised by stating that the objective of statutory construction is to ascertain the meaning of the text adopted by the legislature, but read in the context of the statute as a whole against other relevant context and by reference to its purpose. Context includes relevant extrinsic material and legislative history. While it is ultimately the meaning of the actual words used by Parliament which is decisive, "[a] literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision even if the result is improbable, has long been eschewed by [the High Court]".[46]
• [53] Section 132A(1), as it stood at the relevant time,[47] namely after the 2013 amendments, provides that the section applies to a "worker". That term is defined by s 11.[48] By s 132A(2) the "worker" may apply to have the worker's "injury" assessed. The term "injury" is defined by s 32.[49]
• [54] Reading the definitions of "worker" and "injury" into ss 132A(1) and (2) as it appeared after the 2013 amendments produces this result:

Section 132A(1): "This section applies to a person who works under a contract and is an employee for the purpose of assessment for PAYG withholding, who has not made an application under s 132."

Section 132A(2): "The person who works under a contract and is an employee for the purposes of assessment for PAYG withholding may apply to the insurer to have [his] personal injury arising out of, or in the course of employment if the employment is a significant contributing factor to the injury, assessed under s 179 to decide if [his] injury has resulted in a DPI."

• [55] Section 132A does not vest a power upon the insurer. Section 132A also does not impose any obligation upon the insurer. Section 132A merely provides a procedure where a "worker may apply to the insurer to have the worker's injury assessed under s 179".[50]
• [56] Section 179(1)[51] does not refer to s 132A and does not refer to any "application" made by the "worker"; neither does any other subsection of s 179.
• [57] By s 179(1), assessment occurs in one of two circumstances:

(a) where the insurer decides to have "the worker's injury" assessed. That clearly bestows a discretion upon the insurer, of its own motion, to conduct an assessment; or

(b) where the worker "asks" the insurer "to have the worker's injury assessed".

• [58] Reading ss 132A and 179 together, it must be that "a worker may ask the insurer to have the worker's injury assessed"[52] by "apply[ing] to the insurer to have the worker's injury assessed".[53]
• [59] It can be seen then that the power to have the "worker's injury" assessed does not come from s 132A. Section 132A prescribes the procedure whereby the claimant "asks" the insurer to assess the injury. The power to "have the degree of permanent impairment assessed" is vested by s 179(2).
• [60] There is ambiguity in s 179 as it is unclear as to the scope of discretion vested in the insurer. As already observed, there is a discretion vested in the insurer of its own motion "to have the worker's injury assessed". In that circumstance, or when the "worker [has asked] the insurer to have the worker's injury assessed", by s 179(2) "the insurer must have the degree of permanent impairment assessed" in ways prescribed which depend upon the nature of the injury.[54]
• [61] The mandatory command of "must" could refer to the assessment, i.e., the insurer "must" assess the injury. It could apply to the nature of the assessment, i.e., having decided (in exercise of discretion) to have the injury assessed (if the insurer decides to do so under s 179(1)), or, if the worker "asks" for the assessment (s 179(1)), any assessment must be done in the manner prescribed by s 179(2). While the latter alternative is probably the correct construction, it is unnecessary to decide that point.
• [62] Where executive power is vested upon a decision-maker, it is for the decision-maker to determine whether the power has risen for exercise before exercising it. Generally, the existence or otherwise of those facts is a jurisdictional question, although complicated questions can arise as to whether a fact is "jurisdictional" or not. Whether a fact is "jurisdictional" may affect the power of judicial review. A non‑jurisdictional fact is generally reviewable only in the case of recognised administrative error, but a court on review may determine itself (sometimes on new or fresh evidence) whether a jurisdictional fact does exist.[55]
• [63] The facts that Mr Langridge is a "worker" (as defined) and has suffered an "injury" (as defined) may or may not be jurisdictional facts for the purposes of any limitation upon a judicial review. That is not necessary to decide. On a conventional construction of ss 132A and 179, the insurer must determine, for the purposes of the exercise of the power in s 179(2) whether it is a "worker" (as defined) who has suffered an "injury" (as defined), who has "ask[ed]" it to "have the degree of permanent impairment assessed".
• [64] Mr Langridge's approach, namely, to consider whether there was an "implied power" vested in the insurer by s 132A to determine whether he was a "worker" who suffered an "injury" is, in my view, misplaced. For the reasons I have explained, the "power" is to obtain the assessment. That power is bestowed by s 179. By s 179(1) that power may be exercised upon a request by a "worker" to refer the "worker's injury" for assessment. There is no power to refer for assessment an "injury", other than an "injury" defined by the legislation, suffered by a "worker" as that term is defined by the legislation. This is obvious. The insurer has no power to assess anything, except an "injury" to a "worker".
• [65] Therefore, in order to comply with the statutory command to assess the "worker's injury", the insurer must determine whether the request is made by a "worker" who has an "injury". The fact that an assessment of compensation is ultimately performed under s 179 or s 180 does not mean that the insurer is not obliged to determine whether the person seeking an assessment is entitled to do so. The fact that s 237 entitles a person who holds an assessment under s 179 to commence a claim for damages does not obviate the obligations of the insurer to determine whether the person who is seeking the assessment is entitled to do so; that the person is a "worker" who has an "injury".
• [66] While the claimant may qualify to issue a claim for damages through s 237, in order to do so they must obtain an assessment, and by s 132A,[56] the insurer may only refer a "worker" who has an "injury" for assessment.
• [67] A literal interpretation, even one based on a conventional approach to the interpretation of provisions vesting executive power, may give way to an alternative construction when context is considered. Mr Langridge says this is such a case.
• [68] Part of the context against which provisions are construed is legislative history.
• [69] Section 275, prior to the 2013 amendments, provided that where a worker had not lodged a claim for compensation,[57] they could deliver a notice of claim for damages. Upon receipt of that notice of claim, the insurer would then act under s 258 and may issue a notice of assessment. In so doing, the insurer must decide whether the claimant was a "worker" who had "sustained an injury". If so, the notice of assessment would be issued and the prerequisite in s 237(1)(a) would be fulfilled.
• [70] The 2013 amendments retained s 237, but amended it so as to provide that no right to damages arose unless the impairment to the injured worker was more than five per cent. Section 237(1)(d) was omitted and Division 6 of Chapter 5 which contained s 258 and was headed "Claimant mentioned in s 237(1)(d)" was omitted. Section 275 remained.
• [71] Therefore, under the 2013 amendments the distinction between a claimant who had made, or not made, a compensation application fell and the right to claim damages was dependent upon (amongst other things) receipt of "a notice of assessment from the insurer for the injury and the DPI for the assessed injury is more than five per cent".
• [72] Section 540, before the 2013 amendments, provided for an avenue of review of a decision made under s 258. That right of review was, with s 258 itself, removed by the 2013 amendments. Consequently, after the 2013 amendments there was no right within the WCR Act, of review of any decision made under either s 132A or s 179 that the claimant was not a "worker" or not a worker who had suffered an "injury". Any review of such a decision could only be made under the Judicial Review Act 1991.
• [73] It was argued by Mr Langridge that the assessment under s 179, when looked at especially in light of s 237 and the removal of s 258, was a mechanism which provided a gateway to a claim for damages and all that was required was an application under s 132A, and the assessment then proceeded under s 179. That there was no statutory avenue of review of a decision under s 132A or s 179 suggested, it was submitted, that no assessment was done under those sections of whether the claimant falls within the definitions in the legislation of a "worker" who has an "injury".
• [74] As already observed, Mr Langridge submitted that if the injury as assessed resulted in a DPI of more than five per cent, a claimant could bring an action for damages and questions of whether he was a "worker" and had an "injury" were matters to be determined by the court deciding the action for damages.
• [75] The legislative history against which the exercise of construction is undertaken may include later amendments.[58] However, there are significant limitations to such an approach. In Interlego AG v Croner Trading Pty Ltd,[59] Gummow J sitting in the Full Court of the Federal Court urged caution in using subsequent amendments to discern legislative purpose. His Honour said, "It is, after all, a curious way of revealing parliamentary intention at the time of passing the earlier provision".[60] As observed in Allina Pty Ltd v Commissioner of Taxation,[61] later amendments may reflect on legislative desire to clarify, not alter the meaning of a provision.[62]
• [76] Here, there were amendments to s 132A and also to s 540 made in 2015.[63] As already observed, s 132A was amended to add subsection (7), which provided that the insurer could reject the application if satisfied that the claimant "was not a worker" or had not "sustained an injury". Section 540 was amended to include a decision to reject an application made under s 132A as a reviewable decision. Mr Langridge argues that the introduction of s 132A(7) empowers the insurer to reject the application in circumstances where it could not reject it prior to the 2015 amendments.
• [77] In my view, all these arguments ought to be rejected.
• [78] The scheme created by the WCR Act in any of its versions concerns "workers" who have sustained an "injury". Section 5 of the WCR Act[64] states the objects of the legislation. Section 5(2) provided:

"(2) The main provisions of the scheme provide the following for injuries sustained by workers in their employment -

(a) ...

(b) regulation of access to damages."

• [79] The access to "damages" which are sought to be regulated is "damages for injury sustained by a worker".
• [80] Section 132A as it stood upon its introduction by the 2013 amendments enables a "worker" who has sustained an "injury" to commence a process which obliges an insurer to seek an assessment of an "injury". That dovetails with s 237 which is contained in Part 2 of Chapter 5. It identifies "... the only persons entitled to seek damages for an injury sustained by a worker";[65] which includes the "worker" seeking damages for an "injury". The scheme of the WCR is to shut out claims for damages unless the "worker" has obtained an assessment of their "injury". The notion that the legislature, by introducing further restrictions upon workers seeking damages (by introducing a five per cent DPI threshold) intended to ease procedural restrictions is not consistent with the clear intent of the 2013 amendments, which was to restrict the number of claims.
• [81] The Explanatory Memorandum to the Bill which resulted in the 2015 amendments contained the following:

The Bill implements a number of policy proposals made by the current Queensland Government in its pre-election policy document Restoring the rights of Queenslanders injured at work. The Bill aims to achieve the following objectives:

• reinstate common law rights for injured workers that were affected by changes made by the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (the 2013 Amendment Act) ...

The Bill also makes a number of other minor miscellaneous amendments that will improve the day-to-day operation of Queensland's workers' compensation scheme." (emphasis added)

The Bill will achieve the Government's policy objectives by amending the Workers' Compensation and Rehabilitation Act 2003 (the Act) to:

• remove the current limitation on the entitlement to seek damages that requires a worker to have a degree of permanent impairment as a result of the injury greater than 5% to access common law since the date of the Queensland State election; ...
• clarify certain procedural aspects of the claims process and reduce regulatory burden through a number of minor miscellaneous amendments." (emphasis added)

"Clause 4 amends section 132A of the Act to specify the decisions the insurer must make in determining the application, the time the decision must be made within, and that the decisions of an insurer is reviewable. The amendment also clarifies that the decision of the insurer to accept the application does not entitle a worker to compensation for the injury."

• [82] While the 2015 amendments removed the five per cent DPI threshold for common law claims, the general structure established under the 2013 amendments by ss 132A, 179, 237, and 275 remained unchanged.
• [83] In my view, the 2015 amendments to s 132A clarified the role of the insurer established under s 132A by the 2013 amendments by expressly identifying the function of the insurer as including the making of the findings specified in s 132A(7).[66] For the reasons I have explained, the exercise of power to refer the "worker's injury" for assessment always required the insurer to determine whether the "application" in the form prescribed by s 132A(3)[67] was one made by a "worker" for assessment of an "injury" as defined by the WCR Act. By specifically identifying the decisions, a review avenue can be easily created. That was achieved by the amendment to s 540.[68]
• [84] Both the legislative history and the Explanatory Memorandum to the 2015 Bill are consistent with the construction I have placed on s 132A as it appeared after the 2013 amendments.
• [85] In my view, the Regulator was right to consider whether Mr Langridge suffered an "injury", as defined by the WCR Act ,when determining whether to refer any injury for assessment. Whether Mr Langridge does or does not, as a matter of fact, have an "injury", as defined by the WCR Act, is not an issue before me.
• [86] The appeal must be allowed. I will make directions to facilitate the determination of the question of costs.

• [87] I make the following orders:
  1. Appeal allowed.
  2. The decision of the Queensland Industrial Relations Commission is set aside.
  3. The parties file and exchange submissions on costs by 4 pm on 25 June 2025.
  4. Each party may apply for leave to make oral submissions on costs by filing and serving such an application by 4 pm on 9 July 2025, failing which the question of costs will be determined without further oral hearing.

[1] Langridge v Workers' Compensation Regulator [2021] QIRC 251.

[2] As it stood at the time of Mr Langridge's injury being sustained.

[3] WorkCover is the relevant "insurer"; Workers' Compensation and Rehabilitation Act 2003: Reprint current as at 1 July 2014, sch 6, definition of "insurer".

[4] Workers' Compensation and Rehabilitation Act 2003, Reprint current as at 1 July 2014, s 32.

[5] Langridge v Workers' Compensation Regulator [2021] QIRC 251 at [60].

[7] "DPI, for an injury of a worker, means an estimate, expressed as a percentage of the degree of the worker's permanent impairment assessed and decided in accordance with the GEPI" and "GEPI means the Guidelines for the Evaluation of Permanent Impairment made under section 183"; Workers' Compensation and Rehabilitation Act 2003, Reprint current as at 1 July 2014, sch 6, definition of "DPI" and "GEPI".

[9] Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2015; section 132A in that form appears in paragraph [42] of these reasons.

[10] Reprint current as at 31 January 2015.

[11] Langridge v Workers' Compensation Regulator [2019] QIRC 048.

[12] Reprint current as at 1 July 2014; see paragraph [5] of these reasons.

[13] See paragraph [7] of these reasons.

[14] Langridge v Workers' Compensation Regulator [2021] QIRC 251.

[16] The relevant reprints are: Time of injury: Reprint current as at 1 July 2014; Pre-2013 amendments: Reprint current as at 23 September 2013; 2013 amendments: Reprint current as at 29 October 2013; 2015 amendments: Reprint current as at 31 January 2015.

[17] Reprint current as at 1 July 2014.

[18] Act No. 52 of 2013; Reprint current as at 29 October 2013.

[19] Reprint current as at 29 October 2013; for present purposes, the form of ss 11 and 32 in the Reprint current as at 1 July 2014 is equivalent.

[20] See paragraph [5] of these reasons; Reprint current as at 1 July 2014.

[21] See generally Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1 at 11-13.

[22] Workers' Compensation and Rehabilitation Act 2003, Reprint current as at 29 October 2013, ss 5(2)(b), 9 and 10.

[23] Reprint current as at 1 July 2014.

[24] Chapter 3, Part 9 and Part 10; Reprint current as at 1 July 2014.

[25] Reprint current as at 1 July 2014.

[26] Reprint current as at 1 July 2014.

[28] Defined as "Work Related Impairment", sch 6; Reprint current as at 23 September 2013.

[29] Reprint current as at 23 September 2013.

[30] Reprint current as at 23 September 2013.

[31] Reprint current as at 23 September 2013.

[32] Reprint current as at 23 September 2013.

[33] Reprint current as at 23 September 2013.

[34] Reprint current as at 23 September 2013; In substance, s 275 remained unchanged by the 2013 amendments, see Reprint current as at 29 October 2013.

[35] Reprint current as at 23 September 2013; s 180 applies to compensation, not damages.

[36] Reprint current as at 23 September 2013; sch 6.

[37] Reprint current as at 23 September 2013.

[38] Reprint current as at 29 October 2013; for present purposes, the form of s 237 in the Reprint current as at 1 July 2014 is equivalent.

[39] Reprint current as at 29 October 2013; for present purposes, the form of ss 179 and 180 in the Reprint current as at 1 July 2014 is equivalent.

[40] Reprint current as at 23 September 2013.

[41] Reprint current as at 31 January 2015.

[42] By removing doubt as to the position before the 2015 amendment; see s 132A(12) as appears at paragraph [42] of these reasons and the Reprint current as at 31 January 2015.

[43] Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2015.

[44] The provisions as appears in the Reprint current as at 29 October 2013.

[45] [2019] HCA 35; (2019) 269 CLR 507 at [32]- [37]; followed in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2024] HCA 6; (2023) 276 CLR 136 at [54].

[46] R v A2 [2019] HCA 35; (2019) 269 CLR 507 at [32].

[47] Appearing at paragraph [5] of these reasons.

[48] Appearing at paragraph [16] of these reasons.

[49] Appearing at paragraph [16] of these reasons.

[51] As appears in paragraph [40] of these reasons; Reprint current as at 1 July 2014.

[54] Each of the injuries identified in subsections (a), (b) and (c) to s 179(2); see paragraph [40] of these reasons where the section appears.

[55] City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 154-155; and see generally Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [127]- [140] per Gummow J.

[56] As it stood after the 2013 amendments; see Reprint current as at 29 October 2013 and, for present purposes, 1 July 2014.

[58] Grain Elevators Board (Vic) v Dunmunkle Shire [1946] HCA 13; (1946) 73 CLR 70.

[59] [1992] FCA 624; (1992) 39 FCR 348.

[63] Reprint current as at 31 January 2015.

[64] Reprint current as at 1 July 2014; see also ss 5(1), 5(3) and 5(4).

[66] Reprint current as at 31 January 2015.

[67] Reprint current as at 1 July 2014.

[68] Reprint current as at 31 January 2015