Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459

WORKERS COMPENSATION - claim for permanent impairment compensation for hearing loss - assessment and amount - effect of amendments made by Workers Compensation Legislation Amendment Act 2012 - transitional provisions - application of amendments to lump sum compensation - aggregation of impairment arising from the same injury - s 17, 66(1) 1987 Act (NSW) - ss 322, 323 1998 Act (NSW)

McCool and Basten JJA and Beech-Jones J

22 December 2014

Leave to appeal granted to the extent necessary to vary the answers given by the Commission to the referred questions of law.

The applicant worker had been employed by the respondent employer as an electrician since about 1996.

It was not disputed that the respondent employed the worker in employment which had the tendencies, incidents and characteristics to give rise to a real risk of occupational noise induced hearing loss by a gradual process (industrial deafness).

In 1996, the worker claimed lump sum compensation in respect of noise induced hearing loss. The application resulted in the registration of an agreement with WorkCover. That agreement recorded that the worker suffered 12.9 per cent binaural hearing loss, at the time of the agreement, for which he was paid compensation.

On 19 June 2012, the worker claimed an additional nine per cent whole person impairment, based on the report of an ear, nose and throat specialist dated 18 June 2012, who had assessed the worker to suffer a 31.6 per cent hearing loss, which equated to a whole person impairment of 16 per cent. After adjustment for the prior claim (of 12.9 per cent) the remaining hearing loss was 18.7 per cent which equated to a nine per cent whole person impairment.

It was agreed that the deemed date of injury in respect of the worker’s second claim was 19 June 2012 (s 17(1)(a)(i)).

The insurer rejected the claim on the basis that the whole person impairment claimed (nine per cent) did not meet the impairment threshold of “greater than 10%” in s 66(1), as amended by the Workers Compensation Legislation Amendment Act 2012(the amending Act).

The Arbitrator noted that the dispute between the parties was whether the applicant was entitled to aggregate the impairments due to the same pathology in order to satisfy the s 66(1) threshold or whether the claim was in substance two separate claims, with two different dates of injury as prescribed by s 17 of the 1987 Act.

The Arbitrator sought leave to refer two questions of law to the President for determination under s 351 of the 1998 Act.

The amendments introduced by the amending Act included the introduction of s 66(1) and s 66(1A) into the 1987 Act. Section 66(1) provides that a worker who has received an injury that results in a degree of permanent impairment greater than 10 per cent is entitled to receive compensation for that impairment. Section 66(1A) provides that only one claim can be made under the Act for permanent impairment compensation in respect of permanent impairment that results from an injury.

The referred questions of law and the President’s responses were as follows:

• Do the amendments to Div 4 Pt 3 of the 1987 Actintroduced by Sch 2 of the amending Act apply to claims for permanent impairment compensation for hearing loss (to which s 17 of the 1987 Act has application) made on or after 19 June 2012 when a worker has made a previous claim for permanent impairment compensation for hearing loss prior to 19 June 2012?

Answer: Yes

• If yes to the first question, whether in claims for compensation pursuant to s 66 of the 1987 Act, including hearing loss claims (to which s 17 of the 1987 Act has application), involving the same pathology of injury arising from multiple injurious events of injury, the multiple injuries can be aggregated for the purpose of determining whether or not the worker’s claim exceeds the s 66(1) threshold?

Answer: No, in circumstances where a worker has made a prior claim for compensation pursuant to s 66 of the 1987 Act.

The worker appealed the President’s decision to the Court of Appeal.

Decision

The Court of Appeal granted leave to appeal to the extent necessary to vary the answers given by the Commission to the following:

• A claim for lump sum compensation for permanent impairment made on or after 19 June 2012 is a claim to which the 2012 Amending Act applies by virtue of the transitional provision in cl 15, Pt 19H, Sch 6 to the 1987 Act. If there is an unresolved claim, specifically for lump sum compensation for permanent impairment, made before 19 June 2012, the 2012 Amending Act will not apply to it.
• The scope of the injury involving hearing loss should be determined by applying s 17 of the 1987 Act. A second claim with respect to "an injury", being the loss of hearing which had arisen before, and was the subject of, a prior claim, whether made before or after 19 June 2012, is prevented by s 66(1A). Section 66(1A) would not preclude a claim for a further loss of hearing, post-dating the prior claim, being a further injury. The question is not capable of further answer.

Findings

1. The claim failed because the current claim did not satisfy the “greater than 10%” threshold (per [90] McColl JA at [90]).

2. The effect of cl 11 of Sch 8 to the 2010 Regulation was to preclude reliance on the old form of s 66 with respect to a claim made prior to 19 June 2012, unless the claim specifically sought lump sum compensation. The 1996 claim fell within the exception. However, that did not assist the applicant because, not only had that claim been disposed of, but it could not give rise to an entitlement to compensation for loss of hearing after August 1996. It followed that the 2012 Amendment Act applied to the only extant claim, namely that made on 19 June 2012 (per Basten JA at [106]).

3. The second limb to the applicant's case, designed to avoid the unavailability of compensation for whole person impairment which was not greater than 10 per cent, was to assert that the "injury" for which compensation was claimed was the assessed loss of hearing at the date of the claim. That included the loss of hearing attributable to his employment prior to the 1996 claim, with the result that the whole person impairment amounted to 16 per cent (per Basten JA at [107]).

4. That argument was fatally flawed. Either it gave rise to a double payment for the hearing loss suffered prior to August 1996 (which the applicant wisely eschewed) or it required an explanation of what it meant to say that the "injury" involved whole person impairment of 16 per cent, compensable as to only 9 per cent, in circumstances where an impairment not greater than 10 per cent was not compensable (per Basten JA at [108]).

5. It is not correct to state that s 66(1A) is not engaged in respect of a claim made on or after 19 June 2012 if there had previously been a claim made before 19 June 2012. When s 66(1A) is applied to a claim made on or after 19 June 2012 it restricts a worker to making one claim "under this Act". The phrase "this Act" is referring to the entirety of the 1987 Act of which the amendments introduced in June 2012 forms part (see Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd [1963] HCA 22; (1963) 109 CLR 276; Commonwealth of Australia v Western Mining Corp Resources Ltd [1998] HCA 8; 194 CLR 1) (per Beech-Jones J at [132]).

6. This approach is not inconsistent with the transitional provisions and nor does it give s 66(1A) a retrospective operation. To the contrary it only involves s 66(1A) "tak[ing] account of antecedent facts and circumstances as a basis for what it prescribes for the future, and ... no more than that" (Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819 at 824). On and from 19 June 2012 s 66(1A) mandates that there shall only be one claim for permanent impairment compensation in respect of the permanent impairment that results from an injury. In doing so it may operate on facts antecedent to it coming into force including the existence of an earlier claim but it does no more than that (per Beech-Jones J at [133]).

7. In respect of the second question, Beech-Jones J agreed with the answer proposed by Basten JA, which he noted did not foreclose consideration of that issue. Justice Beech-Jones then stated that it is clear that s 66(1A) operates with respect to a prior claim whether made before or after 19 June 2012 (per Beech-Jones J at [135]).

Cram Fluid Power Pty Ltd v Green [2014] NSWWCCPD 84

Application of the amendments introduced by the Workers Compensation Legislation Amendment Act 2012; cl 15 of Pt 19H of Sch 6 to the 1987 Act; cl 11 of Sch 8 to the 2010 Regulation; whether the amendments apply only to claims that are “pending” or “on foot”; Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 considered and applied; whether the limitation on claims referred to in s 66(1A) of the 1987 Act applies only in respect of claims made after 19 June 2012

Keating P

17 December 2014

Introduction

This appeal concerned the effect of the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 (the amending Act) and the Workers Compensation Amendment (Miscellaneous) Regulation 2012 (the amending Regulation) on workers’ entitlements to pursue subsequent claims for permanent impairment compensation under s 66 and s 67 of the 1987 Act.

In particular, the issues concerned whether the transitional provisions, which are expressed to exempt certain claims from the application of the amending Act, apply only to claims that are pending or unresolved as at 19 June 2012. The appeal also concerned the question of whether the limitation of “only one claim” contained in s 66(1A), is intended to mean one claim in respect of an injury or one claim following the introduction of the amending Act and amending Regulation.

That question required a consideration of the High Court’s decision in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 (GoudappelNo 2), the transitional provisions introduced by the amending Act and the amendments to the 2010 Regulation.

The appeal also challenged the correctness of the decision in Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34 (Caulfield), where Deputy President Roche held that the amendments to s 66 introduced by the amending Act, do not apply to workers who had specifically sought permanent impairment compensation prior to 19 June 2012.

Background

The worker was employed by the appellant as a maintenance fitter. On 24 May 2005, the worker injured his lower back when he was crouching down to lift parts off a hose assembly. It was accepted that the worker was injured in compensable circumstances.

In 2010 the worker’s claim for lump sum compensation pursuant to s 66 in respect of seven per cent whole person impairment, which was assumed to relate to his back condition, was accepted and the parties entered a complying agreement.

The worker’s condition deteriorated and he made a further claim for compensation pursuant to s 66 and a claim for compensation under s 67 on 29 October 2013. The matter did not settle and proceedings commenced in the Commission on 3 March 2014.

On 10 June 2014, the employer’s insurer served a belated s 74 notice. Notwithstanding the previous acceptance of the worker’s claim for permanent impairment compensation the insurer denied liability for further impairment compensation. It alleged that the worker had no entitlement to claim further compensation under s 66 or s 67 of the 1987 Act.

The matter came before a Commission Arbitrator who found that the worker was not precluded from bringing his claims for lump sum compensation. In reaching that finding the Arbitrator applied binding authority, namely the decision in Caulfield.

The issues in dispute on appeal were whether the Arbitrator erred in finding that:

• cl 15 of Pt 19H of Sch 6 of the 1987 Act and cl 11 of the 2010 Regulation permitted a further claim for permanent impairment to be made on or after 19 June 2012 in respect of an injury for which a claim for compensation for permanent impairment was made and resolved before 19 June 2012, and
• s 66(1A) of the 1987 Act permitted one claim for compensation for permanent impairment in respect of an injury to be made on or after 19 June 2012 where a claim for compensation for permanent impairment in respect of the same injury had already been made and resolved before 19 June 2012.

Held: The Arbitrator’s determination was confirmed.

Did the Arbitrator err in allowing the appellant’s further claim for permanent impairment compensation?

1. The appellant’s submission that the matter of Caulfield was wrongly decided was rejected. The President respectfully adopted the reasoning in Caulfield [63].

2. Contrary to the appellant’s submissions, the Deputy President in Caulfield read cl 3 and cl 15 of the transitional provisions and cl 11 of the 2010 Regulation together [64].

3. The appellant challenged the Deputy President’s conclusions in Caulfield concerning the meaning of “a claim” as found by the Court of Appeal in Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 (Goudappel No 1). It argued that in Goudappel No 1 the Court of Appeal was not concerned with the determination of whether “a claim” meant any claim for compensation or whether it meant an unresolved or pending claim [65].

4. The Court of Appeal accepted the proposition that had cl 15 been intended to exclude only extant claims or pending claims for lump sum compensation from the amendments introduced by Sch 2 of the amending Act, cl 15 could have so stated, but did not (see Goudappel No 1 at [11]). It followed that the President did not accept the appellant’s submissions [68].

5. The appellant sought to distinguish the findings of the High Court in Goudappel No 2 on the basis that the Court was not directing its attention to whether “a claim” in cl 15 of Pt 19H and cl 11 of Sch 8 of the 2010 Regulation, was a reference to any claim for compensation or a reference to a pending or unresolved claim made before 19 June 2012 that specifically sought compensation under the former s 66. That submission was also rejected [71].

6. If the appellant’s submissions were accepted, the outcome would be contrary to the combined effect of that much of Goudappel No 1 that was not challenged in the High Court and the findings in Goudappel No 2, which are binding on the Commission. It would have the effect that only claims for lump sum compensation made prior to 19 June 2012 that were pending or unresolved when the amendments became operative, would be excluded from the operation of Sch 2 of the amending Act. That outcome is not consistent with the Court of Appeal’s finding as to the meaning of “a claim” in the relevant provisions, nor is it consistent with the High Court’s determination of the validity and effect of cl 11 of Sch 8 of the 2010 Regulation. Nor is it consistent with the words used in the relevant provisions [73].

7. In Goudappel both the Court of Appeal and the High Court based their consideration upon the agreed facts, namely that Mr Goudappel had submitted a claim for compensation, not being a claim for lump sum compensation, on 19 April 2010, that is, more than two years before submitting his claim for lump sum compensation on 20 June 2012. It may reasonably be inferred that both the Court of Appeal and the High Court were treating the prior claim as a claim which had been made and resolved and not as an extant claim or a claim that was still “on foot” [74].

8. The appellant conceded that neither cl 15 Pt 19H, nor cl 11 of the 2010 Regulation, use the word “on foot” in identifying those claims that are to be exempt from the amendments introduced by Sch 2 of the amending Act. However, in order to accept his construction of the provisions it would be necessary to read those words into either or both of the transitional provisions and the 2010 Regulation. As a matter of statutory construction that is not permitted [75].

9. The correct approach is to interpret statutory provisions so that they are “consistent with the language and purpose of all the provisions of the statute” (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355). Whilst it is permissible to give effect to the purpose of a provision, that purpose must be derived from what the legislation says and not from any assumption about the desired or desirable reach or operation of the relevant provisions: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56. The task remains the construction of the words the legislature has enacted (Taylor v The Owners-Strata Plan No 11564 [2014] HCA 9), and it is not permissible to add words to achieve what is perceived to be the desired outcome [76].

10. As the High Court made clear, the amendments introduced by the amending Act apply to claims for compensation under s 66 made on or after 19 June 2012 “where the worker has not made a claim specifically seeking compensation under s 66 or s 67 before 19 June 2012”. On the facts in this case, the worker made a claim specifically seeking compensation under s 66 before 19 June 2012. It was clear, on that basis, that the amendments to s 66 and s 67 introduced by the amending Act do not apply to him and therefore he is free to pursue his claim. It followed that, as that was the conclusion reached by the Arbitrator, no error had been demonstrated and therefore this ground of appeal failed [83].

Does s 66(1A) of the 1987 Act permit one claim for compensation for permanent impairment in respect of injury to be made on or after 19 June 2012, where a claim for compensation for permanent impairment in respect of the same injury had already been made and resolved before 19 June 2012?

11. Having regard to the President’s findings in relation to ground one, it was unnecessary to deal with ground two. However the President made the following observations [98].

12. This issue turned partly on whether s 66(1A) is to be read prospectively, so that a worker is restricted to one claim after the commencement of the amendment, or whether it applies retrospectively by construing the sub-section as extending to claims made before its commencement [99].

13. That s 66(1A) is not intended to have retrospective effect is evidenced by the fact that the clear words of cl 15 of Pt 19H which expressly provides that an amendment introduced by Sch 2 of the amending Act, which includes s 66(1A), extends to claims for compensation made on or after 19 June 2012, but not to such a claim made before that date. It followed that the “one claim” referred to in s 66(1A) cannot be a reference to a claim or claims made before 19 June 2012 [105] (Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318; Maxwell v Murphy [1957] HCA 7; 96 CLR 261 and Goudappel No 2 applied).

14. That conclusion was reinforced by cl 11 of Sch 8 of the 2010 Regulation. Clause 11 clearly provides that the amendments introduced by the amending Act, including s 66(1A) and the one claim limitation, do not apply to claims that specifically sought lump sum compensation under s 66 or s 67 before 19 June 2012 [106].

15. It followed from the plain reading of the relevant provisions that the one claim limitation referred to in s 66(1A) is a limitation that applies to claims for lump sum compensation made on or after 19 June 2012. That is, the provision applies prospectively to claims made on or after 19 June 2012. A claim or claims made under s 66 or s 67 prior to 19 June 2012 are not counted as the one claim for the purposes of the amended provision [107].

16. For these reasons, it followed that, if the President was in error in his consideration of the first ground, the worker would in any event be entitled to pursue one claim for compensation for permanent impairment after 19 June 2012, provided the threshold in s 66(1) is satisfied [108].

Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79

Extension of time to appeal; fresh evidence on appeal; credit findings in the absence of cross-examination; application of principles in Browne v Dunn (1993) 6 R 67; alleged denial of procedural fairness by giving an extempore decision; improper allegation of bias in consideration of medical evidence; improper allegation of bias in conduct of reconsideration application; alleged denial of procedural fairness in conduct of reconsideration application; failure to refer to relevant evidence in tax records; whether failure to refer to relevant evidence affected credit findings; claim for lump sum compensation and weekly compensation; consequence of finding that effect of injury had ceased; Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 discussed and applied; Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mr Iannazzo Ran t/as Pure and Delicious Healthy [2009] NSWWCCPD 47 not followed; s 65 of the 1987 Act; ss 293, 319, 321, 326, 350(3) and 352 of the 1998 Act; failure to comply with Practice Direction No 6; failure to properly identify grounds of appeal; attempt to conduct appeal as a re-hearing

Roche DP

9 December 2014

Facts:

This appeal involved a claim for weekly compensation, lump sum compensation for permanent impairment, and compensation for medical expenses as a result of a back injury. The principle issues on appeal concerned fresh evidence or additional evidence on appeal, the Arbitrator’s assessment of the evidence, the Arbitrator’s credit findings (in the absence of cross-examination), and the Commission’s power to determine a claim for lump sum compensation in light of recent appellate authorities.

The worker came to Australia from Afghanistan on a spousal visa in November 2008. He obtained employment with the respondent as a casual full-time moulder on 25 March 2009, a role that was “probationary for a period of three months”.

In an Application filed with the Commission on 18 September 2012, the worker alleged that he injured his lumbar and thoracic spine on 12 June 2009 when he lifted a mould weighing approximately 15 to 25 kilograms. Though he initially claimed weekly compensation from 4 September 2009 to date and continuing, that claim was amended at the hearing to be for a closed period up to 31 December 2012. He also claimed lump sum compensation in respect of a 17 per cent whole person impairment (12 per cent for his lumbar spine and five per cent for his thoracic spine) together with hospital and medical expenses of “$4,640.60 plus ongoing medical expenses as required”.

Though certain medical histories recorded that the worker ceased work at the time of his injury, the accepted evidence was that he continued his normal duties until, due to a downturn in work, he and six other workers were retrenched on 19 June 2009. After ceasing work, he operated a fruit shop from 19 November 2010 until either 18 September 2012 or 19 June 2013. A question before the Arbitrator and on appeal was whether the worker paid wages to other staff or operated the fruit shop himself. Inconsistent with this, several medical histories recorded that the worker had done no work since ceasing work with the respondent. On 19 June 2013, the worker’s visa was cancelled. He was taken to the Detention Centre, where he remains pending legal proceedings relating to the status of his visa.

Though the respondent’s insurer initially accepted provisional liability, and paid voluntary weekly compensation up to September 2009, it put the following matters in issue at the arbitration, whether the worker injured his back; if he did injure his back, whether he had recovered from that injury; whether the worker suffered any permanent impairment, and whether he gave notice of injury as required by the legislation.

As the Arbitrator found that the effects of the lumbar spine injury had ceased, he declined to refer the assessment of whole person impairment for the lumbar spine to an AMS (Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mr Iannazzo Ran t/as Pure and Delicious Healthy [2009] NSWWCCPD 47 (Peric)).

In a Certificate of Determination dated 17 February 2014, the Arbitrator found that the worker did not sustain injury to either the thoracic or L1/2 regions; that he suffered only a strain injury to the low lumbar region and that the effects of any injury to the lumbar spine ceased by 19 January 2010. The finding that the worker did not injure his thoracic spine was not challenged on appeal, though a request that an AMS comment on causation “regarding [the worker’s] thoracic spine injury” was made. The Arbitrator ordered the respondent to pay the worker weekly compensation at the following rates and for the following periods:

• 4 September 2009 – 29 September 2009 pursuant to the former s 36 of the 1987 Act at the rate of $682.53 per week with credit for payments made by the Respondent during this period, and
• 30 September 2009 – 18 January 2010 pursuant to the former s 40 of the 1987 Act at the rate of $300 per week.

The Arbitrator also ordered the respondent to pay the applicant’s s 60 expenses up until 18 January 2010 and made the following awards in favour of the respondent:

• in respect of the claim for weekly compensation after 18 January 2010;
• in respect of the claim for section 60 expenses after 18 January 2010; and
• in respect of the claim pursuant to ss 66 and 67 of the 1987 Act.

The worker wrote to the Commission on 26 May 2014 requesting “an appeal or reconsideration of the decision” under s 352 or s 350 of the 1998 Act. With respect to the delay since the decision, the worker said that his “solicitor refused to appeal after delaying it for more than 2 months while I am in [the] [detention centre]…”.

The Commission dealt with the worker’s letter as an application for reconsideration under s 350(3) of the 1998 Act and referred the matter to the Arbitrator for that purpose.

In a decision delivered on 10 June 2015, the Arbitrator refused the reconsideration application because he considered himself bound by Greater Taree City Council v Moore [2010] NSWWCCPD 49 at [98]–[103] (Moore), which discussed and applied Peric, WorkCover New South Wales v Evans [2009] NSWWCCPD 95 (Evans) and Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 33 (Waretini). He noted Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139 (Haroun) and said that, given his finding that the effect of the worker’s injury to his lumbar spine had ceased, there was no medical dispute for referral to an AMS.

The worker filed two appeals with the Presidential Unit. One (A2), filed outside the 28 days allowed in s 352(4) for an appeal to be filed in time, was against the decision of 17 February 2014, and another (A1), against the reconsideration decision dated 10 June 2014, was filed within time on 8 July 2014. Save that the appeal against the decision of 17 February 2014, which contained submissions on why time to appeal should be extended, the substantive submissions in support of both appeals were identical. It was therefore appropriate to deal with the appeals together.

Neither appeal properly identified the grounds of appeal. Instead, each alleged that the Arbitrator’s respective decisions were affected by “an error of fact, law or discretion pursuant to section 352(5) of the 1998 Act”. The appeals, as originally filed, did not comply with Practice Direction No 6 in that they did not identify the grounds of appeal. Instead, they listed several broad headings which included: proposed medical treatment; lump sum compensation; the Arbitrator’s finding of fact and relevant/irrelevant considerations, and material error.

Presenting the appeals in this way was completely unacceptable and showed total disregard for the Commission’s procedures. In the submissions filed by another barrister (when the worker had terminated his retainer with his original solicitor), one ground of appeal was identified, namely that the Arbitrator erred in law when, having found injury to the worker’s lumbar spine, he made an award in favour of the respondent pursuant to ss 66 and 67 of the 1987 Act when he had no jurisdiction to determine that issue (Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 (Bindah)).

The appeal also raised (not as a ground of appeal but buried in the body of the submissions) an allegation that the Arbitrator failed to consider relevant evidence in the worker’s tax returns dealing with wages he said he paid to workers who did work in the fruit shop that he said he could not do because of his injury. Prima facie, this allegation had merit and appeared to have affected the Arbitrator’s finding that the effect of the injury to the lumbar spine ceased by January 2010.

In addition to the above matters, the following preliminary issues also arose: first, whether time to appeal the decision of 17 February 2014 should be extended and, second, whether the worker should be given leave to tender fresh evidence or additional evidence on appeal. The Deputy President extended time to appeal the Arbitrator’s decision of 17 February 2014 until 8 July 2014.

Held: The appeal was successful with regard to the Arbitrator’s failure to consider relevant evidence of the worker’s tax returns. The matter was remitted to a different Arbitrator for determination.

Fresh evidence

1. The worker’s former solicitor sought to tender fresh evidence on appeal including a further statement from the worker, lay witness statements regarding the fruit shop’s operations, Business Activity Statements for the period the worker was operating the fruit shop and further reports from a doctor qualified for the worker [116].

2. Essentially, the worker’s solicitor attempted to call evidence that could and should have been called at the arbitration, and to conduct the appeal as a re-hearing. It will be a most exceptional case where a party will be allowed to tender on appeal evidence that was readily available at the arbitration and, apparently, not called because of a lack of basic preparation. Parties were reminded that arbitrations are not a trial run where they can wait and see how things turn out in the expectation that additional evidence can be tendered on appeal to fill in obvious gaps in the case or to deal with adverse findings on credit or other issues that arise during the arbitration. The application to rely on fresh evidence on appeal was refused [189].

3. However, the evidence before the Arbitrator was that, consistent with the worker’s evidence, the fruit shop did pay wages in the financial year ending 30 June 2012. It was not necessary to call evidence of exactly when and to whom the wages were paid. The critical point was that the Arbitrator wrongly determined that the worker had never paid wages and, because of that finding, he had a “great deal of disquiet in relation to [the worker’s] evidence”. The Arbitrator based that disquiet, in part, on an erroneous reading of the evidence in the 2012 tax return [142].

4. As the issue as to the consequences and nature of the worker’s lumbar spine injury must be re-determined due to the error regarding the tax returns, the Deputy President noted that the parties are free, within the limits set by the legislation and the rules, to tender such further evidence as they believe is appropriate at the re-determination [188].

Proposed medical treatment

5. The question of proposed medical treatment was not an issue pleaded or argued at the arbitration and it was not open to raise it for the first time on appeal (Coulton v Holcombe [1986] HCA 33; 162 CLR 1; Metwally; Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418; Water Board v Moustakas [1988] HCA 12; 180 CLR 491). It is not an error for an Arbitrator not to deal with a matter not argued (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111) or a claim never made [193].

6. The reference in the Application to “ongoing medical expenses as required” did not come close to particularising a claim for “proposed treatment or service” under s 60(5). The reference to “GP and specialist consultations, MRI scans, CT scans and nerve conduction studies” was followed immediately by a statement that the worker relied on the schedule of out of pocket expenses attached to the Application. That schedule identified expenses incurred up to 3 September 2012 but did not refer to future expenses [194].

7. A dispute about a claim for medical expenses compensation cannot be referred for determination by the Commission unless the person on whom the claim is made disputes liability for the claim or fails to determine the claim as and when required by the 1998 Act (s 289(2)). A doctor making general assertions, as two doctors qualified for the worker did here, that continued medical supervision and conservative treatment for pain relief will be required does not satisfy the requirements that a claim be properly particularised. As the worker never made a claim for future medical expenses, there was no claim for the insurer to dispute and no dispute to be referred to the Commission for determination [195].

8. Though both doctors referred to future (possible) medical expenses in their reports, that was not to the point. The worker never made a claim for those expenses, no submissions were made about them at the arbitration and, understandably, the parties did not ask the Arbitrator to deal with them. In the circumstances, the Arbitrator did not err in not dealing with them. This “ground” of appeal was completely specious and was rejected [196].

Lump sum compensation

9. The following principles apply to proceedings in the Commission:

• questions of causation are not foreign to medical disputes within the meaning of that term when used in the 1998 Act. Assessing the degree of permanent impairment “as a result of an injury”, and whether any proportion of permanent impairment is “due” to any previous injury or pre-existing condition or abnormality, both call for a determination of a causal connection (Bindah at [110]);
• it is for the Commission to determine whether a worker has received an injury within the meaning of s 4 of the 1987 Act and whether there are any disentitling provisions, such that compensation is not payable for that injury (Bindah at [111] and s 105 of the 1998 Act);
• the Commission’s jurisdiction is restricted by s 65(3) of the 1987 Act, which precludes the Commission (an Arbitrator or a Presidential member) from awarding permanent impairment compensation if there is a dispute about the degree of permanent impairment, unless the degree of impairment has been assessed by an AMS (Bindah at [111]);
• the determination of the degree of permanent impairment that results from an injury is a matter wholly within the jurisdiction of the AMS or, on appeal, the Appeal Panel and is not a matter for determination by an Arbitrator (Bindah at [112]);
• a finding made by a person without jurisdiction cannot bind a person or persons who have jurisdiction (Haroun at [16] and [19]–[21]), and
• it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues (Bindah at [110]; Tolevski at [35]) [249].

10. This means that, to the extent that it held that all matters of causation are exclusively within the jurisdiction of the Commission, Peric cannot stand with Bindah, Tolevksi and Austin. In a claim for lump sum compensation, the physical consequences of the injury (in relation to the assessment of whole person impairment as a result of the injury) are not within the exclusive jurisdiction of the Commission. They are within the exclusive jurisdiction of the AMS. That is so even if the matter also involves a disputed claim for weekly compensation and disputes about causation, which the Commission has determined [250].

11. However, it was accepted (Bindah at [111]), that it is for the Commission to determine whether a worker has received an injury within the meaning of s 4 of the 1987 Act (the one exception to this statement relates to loss of hearing claims, discussed below). It is also accepted, though not expressly considered in Bindah, that “injury” in s 4 includes an injurious event and the pathology caused by that event [251].

12. The authority for the statement in the last sentence of the preceding paragraph is Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422. The correctness of that statement has never been challenged and the Commission has consistently applied it in several decisions (see, for example, Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 at [31]). Consistent with this approach, Giles JA (Hodgson JA and Brownie AJA agreeing) said in Wyong Shire Council v Paterson [2005] NSWCA 74 (at [38]) that “[i]n general, a frank injury means a specific occasion of injury while a nature and conditions claim relies on the accumulated effect of a worker’s activities. These, however, are descriptions of mechanisms for suffering an injury” [252].

13. In other words, an “incident” (an injurious event) is only a mechanism for suffering an injury and is not itself a s 4 injury. The relevant “injury” in s 4 is the pathology that has arisen out of or in the course of the employment. As explained by Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 a “personal injury” is “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”. The cause of the injury (the injurious event) is “not the important matter” (Latham CJ in Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; 61 CLR 120 at 129) in determining the compensation payable. (Obviously, the cause of the injury, and the circumstances in which it is received, will be important in determining if the injury was received in circumstances giving rise to an entitlement to compensation under the legislation. His Honour was saying that the important matter is the consequence of the injury, both in terms of pathology and in terms of the economic consequences.) [253]

14. To the extent that “the precise nature of the injury” is “within the province of a medical dispute”, which is for an AMS to determine, the definition of a medical dispute in s 319 does not include “the nature of the injury”, though it does include “the worker’s condition” and the “aetiology of the condition”. However, to the extent that the expressions “worker’s condition” and the “aetiology of the condition” relate to “the nature of the injury”, it must be remembered that the AMS’s opinion (expressed in a valid MAC) on those matters is not conclusively presumed to be correct [254].

15. The only matters that are “conclusively presumed to be correct” are those matters listed in s 326(1). They are:

• “the degree of permanent impairment of the worker as a result of an injury,
• whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
• the nature and extent of loss of hearing suffered by a worker,
• whether impairment is permanent,
• whether the degree of permanent impairment is fully ascertainable.” [255]

16. It follows that, since “the nature of the injury” (or the “condition” or “aetiology of the condition”) is not a matter on which an assessment in a MAC is conclusively presumed to be correct, the opinions of an AMS on such matters do not bind the Commission. This follows from s 326(2), which states that “[a]s to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings”. This conclusion is reinforced when one considers s 319(e), which defines medical dispute to include “the nature and extent of loss of hearing suffered by a worker”, and s 326(c), which states that an assessment in a MAC is conclusively presumed to be correct as to “the nature and extent of loss of hearing suffered by a worker” (McGowan v Secretary, Department of Education and Communities [2014] NSWWCCPD 51 (McGowan)). In other words, if the injury is a loss, or further loss, of hearing an AMS determines the “injury” issue. That is an exception to the norm [256].

17. The absence of any similar provisions for “the nature of the injury” points strongly to the conclusion that “the nature of the injury” is a matter for the Commission to determine. This is consistent with Emmett JA’s statements at [111] that it is for the Commission “to determine whether a worker has suffered an injury within the meaning of s 4 of the [1987] Act” and his Honour’s later statement (at [118]) that only “certain matters of causation” (emphasis added) are within the exclusive jurisdiction of an AMS [257].

18. The only matters that are within the exclusive jurisdiction of the AMS (that is, that are conclusively presumed to be correct) are those matters listed in s 326(1) (see [15] above). Save for hearing loss, “the nature of the injury” is not one of those matters. By way of contrast, the terms of cl 4(2) of Pt 18C to Sch 6 to the 1987 Act, which relate to claims for lump sum compensation for injuries received before 1 January 2002, are completely different. In respect of those injuries, the MAC is “conclusively presumed to be correct as to the matters in dispute [which can include whether the worker has received an injury] in any proceedings in respect of the claim for compensation”. It seems that counsel did not take Campbell J to cl 4(2) in Austin. (As to the effect of cl 4(2) see Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [77]–[78].)[258]

19. In Bindah, the parties agreed that the worker had received an injury and the Arbitrator did not “need” to make a determination about the precise nature of the injury. However, when the Commission, either by consent or after a contest, has determined the nature of the injury, it is for the AMS to determine the degree of whole person impairment that has resulted from that injury. While it is open to an AMS to determine that no whole person impairment has resulted from the agreed or found injury (Austin; Haroun), it is not open to an AMS to find that the worker suffered no injury or has suffered a different injury to that found or agreed [259].

20. The current dispute was not whether the Arbitrator was permitted to find that the worker suffered an injury (only) to his lumbar spine or that the effect of that injury had ceased. He clearly had jurisdiction to determine both those issues and it has not been argued that he did not. The dispute was whether he was entitled, based on his finding that the effect of the injury had ceased, to make an award for the respondent in respect of the claim for lump sum compensation for permanent impairment as a result of that injury [260].

21. Bindah makes clear that the Commission’s jurisdiction is restricted by s 65(3) of the 1987 Act which precludes the Commission (an Arbitrator or a Presidential member) from awarding permanent impairment compensation, if there is a dispute about the degree of permanent impairment, unless an AMS has assessed the degree of impairment. Logically, given the statements in Bindah, that restriction also prevents the making of an award for the respondent in such circumstances, such award being the equivalent of a finding that, because the effect of the injury has ceased, the worker has suffered a nil permanent impairment as a result of the injury [261].

22. This follows notwithstanding that, as explained in Evans, the Arbitrator’s decision that the effect of the injury has ceased by a certain date creates an estoppel. Unless “otherwise provided by the 1998 Act”, that decision is “final and binding on the parties” (s 350(1) of the 1998 Act) and prevents the worker from obtaining an award of weekly compensation, or compensation for hospital and medical expenses, beyond the date determined unless and until it is varied or rescinded [262].

23. However, there can be no estoppel against a statute (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 17; Minister for Immigration & Ethnic Affairs v Polat [1995] FCA 1204; (1995) 57 FCR 98 at 105). Further, there can be no issue estoppel against the operation of a statute which creates public rights and duties or which enacts imperative provisions (Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502) [262].

24. Consistent with Bindah, the Commission’s jurisdiction with respect to making an award for permanent impairment compensation is restricted by s 65(3) and no estoppel can overcome that clear statutory restriction. The Arbitrator’s finding did not determine the medical dispute concerning the claim for lump sum compensation. Moreover, a finding made by a person without jurisdiction cannot bind a person or persons who have jurisdiction (Haroun). In other words, with regard to a claim for lump sum compensation, the legislation has “otherwise provided” (s 350(1)) in ss 319(c) and 326(1)(a) [263].

25. The result is that, contrary to Peric, where there is a claim for weekly compensation and lump sum compensation and an Arbitrator decides that, because the effect of the injury has ceased, there is no entitlement to weekly compensation, and makes an award for the respondent in respect of that part of the claim, the assessment of whole person impairment must still be referred to an AMS. Depending on the AMS’s assessment, this could give rise to a significant problem [264].

26. If the AMS determines that, as a result of the injury, the worker suffers from a permanent impairment, there will be a clear conflict between the AMS’s finding, which is conclusively presumed to be correct as to the degree of permanent impairment of a worker as a result of an injury (s 326(1)(a)), on the one hand, and the Arbitrator’s finding that the effect of the aggravation has ceased, on the other. Assuming that the AMS has issued a valid MAC (Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50, applied in McGowan) the worker would be entitled to have the Commission enter an award for lump sum compensation in terms consistent with the MAC. That is because a valid MAC that is conclusively presumed to be correct under s 326(1) “trumps any inconsistent findings by an Arbitrator” (Haroun at [22]) [265].

27. Once the award for lump sum compensation is entered there will then be two inconsistent awards: the first, by an Arbitrator, that, so far as the claim for weekly compensation is concerned, the effect of the injury has ceased and, the second, based on the AMS’s assessment, that, so far as the claim for lump sum compensation is concerned, the effect of the injury is continuing. Thus, the result offends both the principle that the law should avoid conflicting judgments (Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589) and the public interest in the finality of litigation. As explained by the High Court “[a] central and pervading tenet of the judicial system that controversies, once resolved, are not to be reopened except in a few narrowly defined, circumstances” (D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1, Gleeson CJ, Gummow, Hayne and Heydon JJ at [34]) [266].

28. Such an outcome is undesirable. The conflict can be addressed, but not solved, by the worker asking that the Arbitrator’s decision be reconsidered under s 350(3) of the 1998 Act. Thus, there will be further delay and expense while there is a second hearing to determine if the AMS’s assessment makes any difference to the Arbitrator’s finding on weekly compensation and medical expenses. This will undermine two of the Commission’s core statutory objectives: the provision of a fair and cost effective system for the resolution of disputes under the 1998 Act and the 1987 Act and the provision of a timely service ensuring that workers’ entitlements are paid promptly (s 367(1)(a) and (c) of the 1998 Act) [267].

29. The fact that an AMS finds that there is a permanent impairment in circumstances where the Arbitrator has found that the effect of the injury has ceased will not automatically mean that the worker is entitled to a continuing award of weekly compensation or continuing medical expenses. There may well be cases where a finding of a modest whole person impairment does not result in an economic incapacity. Moreover, the recovery of the medical expenses is now restricted by s 59A. Naturally, each case will depend on its own facts [268].

30. The uncertainty and delay that will result from the above can be reduced if, when there is a claim for weekly compensation and lump sum compensation, and the Arbitrator finds that the worker has suffered a s 4 injury, the matter is referred to an AMS for assessment of the whole person impairment that has resulted from that injury before the Arbitrator makes final orders. That is far from ideal, because it delays the final resolution of the claim, but it is better than forcing a worker to make a reconsideration application in the event that the MAC is inconsistent with the Arbitrator’s findings [269].

31. It followed that, in light of the current state of the authorities, the Arbitrator erred in making an award for the respondent in respect of the worker’s claim for lump sum compensation and in refusing his reconsideration application. It should now be accepted that an Arbitrator’s finding, when dealing with a claim for weekly compensation or for medical expenses, that the effect of the injury has ceased does not determine the claim for lump sum compensation for whole person impairment as a result of the injury. That question must be remitted to the Registrar for referral to an AMS [279].

The Arbitrator’s finding of fact and relevant/irrelevant considerations

32. The Arbitrator erred in saying that the 2012 tax return did not disclose the payment of wages. As that error has affected the outcome on the issue of incapacity (that is, the question of incapacity that has resulted from the injury to the lumbar spine), that part of the claim, including the nature of the lumbar injury and the worker’s entitlement to medical expenses, must be re-determined. However, the rest of the worker’s solicitor’s submissions under this general heading were misguided and wrong [290].

33. There is no right to cross-examination in the Commission (Aluminium Louvres & Ceilings P/L v Zheng [2006] NSWCA 34 at [37]; [2004] NSWCA 164; 4 DDCR 348). The respondent was not prevented from attacking the worker’s credit because counsel had not cross-examined him. Nor was the Arbitrator required to question the worker before making an adverse credit finding. A court is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence (Ali v Nationwide News Pty Ltd [2008] NSWCA 183 [110]–[112]; M & E M Hull Pty Ltd v Thompson [2001] NSWCA 359 [21]; Bulstrode v Trimble [1970] VICRP 104; [1970] VR 840; Gaunt v Hooft [2009] WASC 36; Bauskis v Liew [2013] NSWCA 297) [291].

34. Thus, as the Commission has held in dozens of similar cases, the absence of cross-examination did not mean that the worker’s evidence was unchallenged or that the Arbitrator was obliged to accept his assertions. There was a substantial body of evidence that was inconsistent with the worker’s assertions. The Arbitrator had to assess the veracity of his claims by weighing them against the evidence overall. Subject to the error regarding the 2012 tax return, that is what the Arbitrator did [292].

35. The circumstances in which Browne v Dunn (1993) 6 R 67 requires a matter to be put in cross-examination depend on the nature of the pre-trial preparation and whether the pre-trial preparation has been sufficient to give notice to a witness of the submissions ultimately intended to be put by a party (Campbell J in West v Mead [2003] NSWSC 161; discussed and applied in New South Wales Police Force v Winter [2011] NSWCA 330 from [81]). (See also the discussion on the application of Browne v Dunn to proceedings in the Commission in Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3 at [56]–[63].) [293]

36. In the present matter, all the material on which counsel for the respondent based his attack on the worker’s case was material that was available to both sides before the arbitration commenced. The submissions merely drew the Arbitrator’s attention to the several inconsistencies in the worker’s claims. The worker was well aware of that material and his counsel addressed on it. Moreover, his counsel took no objection to any of the respondent’s submissions. While it was accepted on appeal that counsel for the respondent erred in submitting that the 2012 tax return did not disclose any wages, the evidence supported his other submissions [294].

Withdrawal of admissions

37. The applicant’s counsel wrongly conceded, at the arbitratoion, that the applicant had not paid wages to staff in his fruit business.

38. A party is normally bound by the conduct of his or her counsel at arbitration, and is not permitted to raise new issues on appeal that could have been met with evidence at the hearing (University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 (Metwally)). However, in the present case the issue was not whether the worker should have been permitted to run a different case on appeal to the one run by his counsel, or to raise new issues that were not run at the arbitration. The issue was whether he should be bound by a concession by his counsel that was inconsistent with the evidence and wrong [145].

39. It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts or where the admission was made without due consideration of material matters (Santow J in Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127 (applied in Maile v Rafiq [2005] NSWCA 410)). Applying this authority, the worker should not be bound by the erroneous concession made by his counsel. That concession was not a considered or formal admission, it overlooked material evidence and, significantly, it was contrary to the actual facts. It was a response to a proposition put by the Arbitrator. The Arbitrator’s suggestion appears to have been based on an acceptance of the respondent’s counsel’s incorrect submission that no one involved with the fruit shop was paid any wages in the 2012 financial year [146].

Material error

40. The worker’s solicitor submitted that the above matters were all material in the sense that they were capable of affecting the outcome [310].

41. The Arbitrator’s failure to consider the wages in the 2012 tax return and the failure to refer the assessment of the worker’s whole person impairment as a result of the injury to the lumbar spine affected the outcome. It followed that the worker’s entitlement to weekly compensation, lump sum compensation and medical expenses as a result of the injury to his lumbar spine, must be re-determined [311].

42. It is a matter for the next Arbitrator how the second arbitration proceeds. However, if he or she finds that the worker suffered a compensable injury in the course of or arising out of his employment with the respondent then, to reduce the possibility of inconsistent findings between the Commission and the AMS, it might be prudent if the permanent impairment issue is referred to an AMS prior to the final determination of the other issues [312].

Conclusion

43. The appeal against the Arbitrator’s findings that the worker recovered from the effects of his lumbar spine injury and the award for the respondent in respect of the claim for lump sum compensation was successful. The finding that the worker did not injure his thoracic spine, which had not been challenged on appeal, was confirmed and is not open to be re-determined at the next arbitration [313].

44. As it was unclear what role the adverse credit finding played in the Arbitrator’s finding that the worker only suffered a soft tissue injury to his lumbar spine, and as the consequences of that injury must be re-determined in any event, it is appropriate that that finding be revoked and for that question to also be re-determined. In view of the credit issues involved, the re-determination will be by a different Arbitrator [314].

Mohamed v Barnardos Australia Ltd [2014] NSWWCCPD 81

Worker; s 4 of the 1998 Act ; deemed worker; Sch 1 cl 2 of the 1998 Act; injury

O’Grady DP

11 December 2014

Facts:

Ms Mohamed worked as a carer between August 2007 and October 2011. The child care was conducted at Ms Mohamed’s home. The question before the Arbitrator and on appeal concerned the nature of the legal relationship between Ms Mohamed and the respondent (Barnardos).

By way of relevant background, the federal government provides financial assistance to families who have a need for child care services, known as “child care benefit” (CCB). The quantum of any CCB to which a family is entitled is determined by the government agency Centrelink. The family’s entitlement is “means tested”. Administration of the CCB scheme is not conducted by the relevant government department, but rather is carried out by a number of “Agency Scheme/ Co-ordination units” of which Barnardos is one. Ms Mohamed was “engaged” by Barnardos to provide relevant Child Care Services.

Ms Mohamed alleged that, on 1 July 2011, she received injury to her back as she was lifting a child and fell to the ground. It was further alleged that the back injury had resulted from the “nature and conditions” of her work.

She made a claim for workers compensation benefits against Barnardos. That claim was declined by the respondent’s workers compensation insurer, following which proceedings were commenced in the Commission for weekly compensation and lump sum compensation.

Barnardos, upon receipt of her claim, denied that she was a worker within the meaning of the workers compensation legislation and, further, denied the occurrence of injury.

A finding of injury occurring on 21 December 2011 was made by the Arbitrator. As stated by the Arbitrator, that date was at a time “when [Ms Mohamed] was no longer involved with [Barnardos]”. It appears that the Arbitrator had earlier found that Ms Mohamed had experienced symptoms in her back, but that such symptoms had resolved before her relationship with Barnardos ceased in October 2011.

Further findings were made by the Arbitrator that Ms Mohamed was not a worker within the meaning of the 1987 Act and the 1998 Act and that Ms Mohamed was not a deemed worker within the meaning of Sch 1 cl 2 to the 1998 Act.

Ms Mohamed appealed, challenging the Arbitrator’s finding concerning the issue of injury and the finding concerning her allegation that she was a worker or a deemed worker. The documents before the Commission did not include any statement by Ms Mohamed as to the ground or grounds upon which reliance is placed. That omission was explained by Ms Mohamed being self-represented and was not fatal to the appeal. The submissions provided in support of the appeal adequately demonstrated the bases upon which the Arbitrator’s determination was challenged.

Held: The Arbitrator’s determination was confirmed for the reasons stated on appeal.

Worker

1. Whilst it was difficult to discern the exact process of reasoning, it appeared that no consideration had been given by the Arbitrator to the question as to the true nature of the agreement that existed between Barnardos and Ms Mohamed. Whilst reference was made to the “control” test and the various indicia which, as adopted from the judgment of Bromberg J inOn Call Interpreters and Translators Agency Pty Ltd v Commission of Taxation (No 3) [2011] FCA 366; 279 ALR 341 (On Call Interpreters), might have indicated the existence of a business (conducted by Ms Mohamed) the Arbitrator appeared to consider the nature of the relationship between Barnardos and the federal government as being in some manner determinative of the question as to whether Ms Mohamed was or was not a worker employed by Barnardos [54].

2. The Arbitrator’s approach, which demonstrated the application of the wrong test, constituted error of law. The reasoning as expressed also demonstrated error of fact given the Arbitrator’s conclusion that Ms Mohamed “was not in fact providing [Barnardos] with any service”. Having identified error it was necessary to determine whether the Arbitrator’s decision was relevantly affected [55]–[56].

3. The agreement between Ms Mohamed and Barnardos plainly defined the terms concerning Ms Mohamed’s provision to Barnardos of child care services. Those terms, as seemed to have been found by the Arbitrator, established that Barnardos exercised very considerable control concerning the manner in which the provision of those services was to be made. Such would, as observed by the Arbitrator, suggest that the relationship was one of employer/employee, but was not alone determinative of that question. It was instructive to consider, as did the Arbitrator, the observations of Bromberg J in On Call Interpreters concerning the “modern approach” to this question, as follows (at [204]):

Despite the earlier preoccupation of the law with the degree of control exercised by the putative employer as defining an employment relationship, the modern approach is multi-factorial. As the majority said in Hollis [Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 (Hollis)] at [24] it is ‘the totality of the relationship’ which is to be considered. A range of indicia may be examined. Some will be more useful than others in some work arrangements but less useful in other work arrangements. Because of the multiplicity and diversity of work arrangements and the ingenuity of those fostering disguised relationships, there is value in a multi-factorial test which recognises that one spotlight will not necessarily adequately illuminate the totality of the relationship. Such an approach also involves what may be described as a ‘smell test’, or a level of intuition. The majority in Hollis (at [48]) described the notion that bicycle couriers were each running their own business as ‘intuitively unsound’. [57]

4. The members of the Court in Hollis identified a non-exhaustive range of indicia which might be considered when determining the nature of an agreement concerning the provision of services. Those matters included the mode of remuneration; the provision and maintenance of equipment; the obligation to work; hours of work and provision of holidays; deduction of income tax; delegation of work; the right to dismiss; the right to have a particular person do the work; the right to dictate the place and hours of work and payment by the putative worker of expenses from his remuneration [58].

5. A consideration of these indicia in Hollis did not provide a clear cut indication as to the nature of the relationship presently considered. It was clear, however, despite the conflict in the evidence, that Ms Mohamed had direct dealings with the parents of the children for whom she cared concerning, at least, the hourly rate payable. Ms Mohamed agreed in evidence that she altered the rates after negotiating with the parents and she had, on occasions, received the “gap” payment (the difference between the means tested CCB) directly from the parents for which a receipt was issued. These aspects of the manner in which the agreement with Barnardos was performed led the Deputy President to the conclusion that, as represented to the taxation office, Ms Mohamed was indeed conducting a business. The services provided to Barnardos were provided by Ms Mohamed as an independent contractor. In the circumstances the Arbitrator’s finding that Ms Mohamed was not a worker employed by Barnardos was confirmed on appeal [59].

Deemed worker

6. The Deputy President found that the Arbitrator had erred in concluding that Ms Mohamed was not “providing [Barnardos] with any service”. The evidence established that Barnardos had been appointed as an Agency Scheme/Co-ordination Unit by the federal government department. The discharge of its obligations required that Barnardos secure the services, on terms dictated by the government, of persons such as Ms Mohamed, to provide the service of child care. Those services were provided by Ms Mohamed pursuant to a contract for services. Whilst she had dealings with the parents of the children, the existence of any contractual relations between her and the parents did not exclude the existence of contractual relations with Barnardos, as seems to have been determined by the Arbitrator [61].

7. The Arbitrator’s erroneous approach to the questions raised concerning “deemed worker” required examination on this appeal of the evidence to determine whether his determination of the dispute had been relevantly affected [62].

8. Ms Mohamed provided services to Barnardos between 2007 and 2011. Ms Mohamed had direct dealings with the parents of children for whom she cared. Throughout that period she accepted payment from the parents of the sum of the “gap” between the agreed rate and that recovered from the federal government in accordance with her agreement with Barnardos. Those dealings with the parents were relied upon by Barnardos in submissions before the Arbitrator as suggesting that the relevant contract was between Ms Mohamed and the parents. That argument appeared to have been accepted by the Arbitrator given the finding made that “... the work [Ms Mohamed] performed was pursuant to her relationship with the parents whose children she was caring for”. That finding was made in the absence of any analysis of the true nature of the relationship between Ms Mohamed and Barnardos. Such finding again demonstrated error on the part of the Arbitrator [64].

9. The dealings earlier found to have been conducted by Ms Mohamed with the parents demonstrated not only that she was an independent contractor, but also that she was at all relevant times performing work for Barnardos which was incidental to a trade or business regularly carried on by her in her own name. Accordingly, Ms Mohamed did not have the benefit of the deeming provisions: Sch 1 cl 2(1)(a) [65].

10. The Arbitrator reached a similar conclusion, thus his determination of the dispute was not relevantly affected by the errors found. His orders were, for the reasons stated, affirmed on appeal [66].

Galluzzo v Commonwealth Bank of Australia [2014] NSWWCCPD 82

Injury; claim for lump sum compensation; purported determination of claim for lump sum compensation without assessment by Approved Medical Specialist

Roche DP

15 December 2014

Facts:

The appellant worker worked for the respondent employer as a financial planner. On 19 December 2002, the worker attended a team meeting at a motel (the Motel). As she was leaving, she fell down the stairs leading from the first floor to the ground floor. She gave evidence that she immediately felt significant pain in her right knee, left knee, right shoulder and had bruising about her body.

The incident was witnessed by the respondent’s area manager, and another colleague. The worker reported the fall to her boss and the Motel’s receptionist and relied on a document, “the incident report form”, provided by the Motel. The worker described the incident report form as “a report of the incident to [her boss]”. She said that the Motel’s receptionist completed the top half of the form, which set out the worker’s name, address, the name and address of a witness, and the nature of the injuries. She said that someone from the respondent employer got the form and it was completed with motel staff.

The first time the worker saw the incident report form was when her boss gave it to her on 5 July 2006. At the same time, the worker was given a letter stating that her role was to change to that of a paraplanner and threatening termination of her employment due to the condition of her right knee, which the worker said had been painful ever since the fall. She also had pain in her right shoulder and right hip “up until the present day”, it being “basically a continual niggling type pain”.

The worker did not submit a claim form in respect of this injury until 2 April 2012. She said in the claim form that she injured her right knee, right shoulder, right hip and leg in the fall on 19 December 2002. Also on 2 April 2012, she claimed lump sum compensation of $20,500 in respect of a 12 per cent whole person impairment (10 per cent for the right knee and two per cent for the right shoulder).

In support of her claim, the worker relied on several reports from her orthopaedic surgeon who had reported on her in 2004, 2005 and 2006. His first reports related exclusively to a fall in 2001 (which was unrelated to the present proceedings), in which the worker fractured her right wrist and injured her neck and back. However, he took no history of the 2002 fall, or the injuries in that fall, until his report of 25 July 2006.

The 2001 injury required extensive time off work in February 2002 and again in August 2002 for surgery to the right wrist. As the worker had had a lot of time off in 2002, because of her serious wrist injury, she said that she did not want to jeopardise her position by taking time off because of her right knee pain.

In November 2005, the worker had a medical procedure on her back, again as a result of the 2001 fall. During physiotherapy after that procedure, the pain in her right knee became worse and, from late 2005, her knee was very swollen and painful. The first mention of her right knee to her general practitioner was (apparently) on 3 February 2006. The entry for that date reads, “[p]roblems with (R) knee Swelling/acute [indecipherable] Saw GP in Wagga XR/US”.

In a s 74 notice dated 4 June 2012, the respondent disputed liability on the grounds that the worker had not given notice of injury as soon as possible after the injury happened, had not claimed compensation within six months after the injury, and had not suffered any injury on 19 December 2002. Given that the incident was witnessed by the respondent’s area manager and reported to her boss on the day it happened, it was difficult to see how it could be argued that the worker did not report the injury.

The Arbitrator accepted that the 2002 fall was not “an innocuous event”, but there was no “corroborating medical evidence that the worker suffered more than bruising to the right side of her body and grazes to her knee”. He said, contrary to the worker’s evidence, that she took no time off work and that she did not seek any medical treatment. He added that this was in the context of a significant non-work related injury in 2001 and “sudden symptoms she had to her knee in 2005 which appear to have an origin in exercises she was doing for her back and also an unpleaded event at work when she was kneeling down in 2005”.

The Arbitrator concluded that he was not persuaded that the worker’s claim for lump sum benefits for injury to her right shoulder and right knee in the fall of December 2002 was made out and made an award for the respondent with respect to those claims for lump sum benefits.

In view of the Arbitrator’s finding, he did not deal with the other issues argued, namely, the notice of injury and notice of claim issues. The worker appealed this determination.

The issues in dispute on appeal were whether the Arbitrator erred in:

• finding that the worker was not entitled to lump sum compensation, and
• failing to refer the worker’s claim to an AMS for assessment of her whole person impairment as a result of the 2002 fall, if any.

Held: The appeal was successful.

Discussion and findings

1. The Arbitrator failed to appreciate the nature of the issue in dispute. The issue was whether the worker suffered a s 4(a) injury to her right knee and right shoulder in the 2002 fall. That is, the Arbitrator had to determine if the worker suffered a “personal injury” in the fall [30].

2. A “personal injury” is “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” (Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286). The Commission has consistently applied this statement (North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead)). Moreover, as explained in Felstead, to constitute a personal injury, such a physiological change or disturbance change “may be as simple as a bruise or a soft tissue strain” [31].

3. The Arbitrator accepted that the worker suffered “bruises and grazes” to her right shoulder and right knee in the fall but failed to acknowledge they were personal injuries. He then considered an issue he had no jurisdiction to consider, namely, whether the worker had made out her claim for lump sum benefits as a result of these injuries [32].

4. The degree of permanent impairment of the worker as a result of an injury is exclusively within the jurisdiction of an AMS to determine, not an Arbitrator (Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 (Bindah); Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79). With respect to a claim for lump sum compensation only, such as the present claim, the limitation on an Arbitrator’s jurisdiction was clear well before Bindah (see Greater Taree City Council v Moore [2010] NSWWCCPD 49) [33].

5. While it was correct that the respondent disputed that the worker had received any injury in the fall, the Arbitrator’s reasons made it clear that he did not accept that to be so. His reasoning was supported by the evidence from the worker and the evidence in the incident report form. As previously noted, the Arbitrator’s finding that the worker suffered “bruises and grazes” to her right shoulder and right knee in the fall had not been challenged [34].

6. Thus, the worker suffered a personal injury in the December 2002 fall and the Arbitrator erred in failing to acknowledge that a bruise or strain is a personal injury and in asserting, when he had no power to do so, that the claim for lump sum compensation had not been made out. Whether that claim is made out depends on an assessment by an AMS [35].

7. The appeal therefore succeeded. However, as the Arbitrator expressed no opinion on the other issues in dispute, namely, the notice of injury and notice of claim issues, the matter was remitted to another Arbitrator for those issues to be determined [40].

The Presbyterian Church (New South Wales) Property Trust v Pingol [2014] NSWWCCPD 80

Weight to be attached to evidence of injury in the absence of corroboration; notice of injury; time within which a claim for compensation must be made; ss 254 and 261 of the 1998 Act

Keating P

10 December 2014

Facts:

The worker in this matter suffered from an advanced degenerative condition in her cervical spine that resulted in ossification (calcification of soft tissue) in her spine. She alleges that in addition to injuring her shoulder her cervical condition was permanently aggravated, during the course of her employment on 25 February 2012, by the action of throwing garbage bags into a skip bin with one hand whilst holding the lid of the skip with the other.

The incident was not reported for several months. It was only reported after the worker sought expert medical and legal advice concerning the extent of her injuries and her entitlement to compensation.

The employer denied the worker’s claim for weekly compensation, medical expenses and lump sum compensation, among other reasons, for alleged failure to give notice of injury and failure to bring a claim within the relevant period of time.

The dispute came before a Commission Arbitrator who found that the worker had injured her left shoulder as a result of the injury. The Arbitrator found that the reason the worker did not give notice of the injury as soon as possible after the injury happened was occasioned by ignorance or other reasonable cause (s 254(3)(b)), namely that she thought it was a minor injury that would resolve.

The Arbitrator was satisfied that the letter of 7 June 2012 that the worker’s solicitor sent to the employer was notice of the claim for the purpose of making a claim for compensation (s 261(1)). He was also satisfied that the worker first became aware for the purposes of s 261(6) that she had received a compensable injury when she obtained expert medical evidence and legal advice on the relevance of that evidence (after 7 June 2012).

The issues in dispute on appeal were whether the Arbitrator erred in:

• failing to properly apply s 254 of the 1998 Act;
• failing to properly apply s 261 of the 1998 Act, and
• finding uncorroborated facts in support of the worker’s claim of injury.

Held: The Arbitrator’s determination was confirmed.

The Arbitrator’s finding on injury

1. The President rejected the submission that the worker could not succeed unless her version of events was corroborated by contemporaneous records or statements from work colleagues [70].

2. The question of corroboration is one that goes to the weight of the available evidence (Chanaa v Zarour [2011] NSWCA 199) [71].

3. The Arbitrator was clearly conscious of the lack of a contemporaneous report of the circumstances surrounding the alleged injury to treating medical practitioners and St George Hospital [72].

4. The Arbitrator correctly noted that the worker’s complaints about the onset of neck pain at the time of the incident with the rubbish skip bin were consistent with the hospital admission notes which recorded a two week history of severe neck pain radiating to her left shoulder and left arm. The Arbitrator also found that her complaints were consistent with the history of injury set out in the letter of 7 June 2012 and the history recorded by her orthopaedic consultant. These were matters that the Arbitrator was entitled to take into account, and did take into account, in determining whether he accepted that the worker received an injury in the circumstances alleged [73].

5. In the absence of any evidence that the worker was an unreliable or untruthful person, it was open to the Arbitrator, in the circumstances of this case, to accept her evidence. In reaching his conclusions the Arbitrator did that which he was required to do, that was, to weigh all the evidence both favourable and unfavourable to the worker. No error was demonstrated with respect to the Arbitrator’s conclusions as to injury [78]–[79].

Did the Arbitrator fail to properly apply s 254 of the 1987 Act with respect to proper notice of the injury?

6. The worker conceded that she did not give notice of the injury until her solicitor notified the appellant of it in the letter of 7 June 2012. The issue raised on appeal was whether the Arbitrator was correct to find that the worker’s failure to report the injury as soon as possible after the injury happened was occasioned by ignorance or other reasonable cause. Namely, that she believed she suffered from a muscular condition which would settle and that she did not appreciate the seriousness of her cervical condition until she was admitted to hospital [87].

7. There was ample evidence to support that finding. It was open to the Arbitrator in the circumstances to conclude that the failure to report the injury immediately was excusable under s 254(3)(b) because of the worker’s mistaken view that she had sustained only a minor injury which she believed would resolve [88]–[89].

8. The failure to give notice as required by s 254 is not a bar to recovery of compensation if any of the special circumstances in s 254(3) are satisfied. Once the Arbitrator correctly concluded that s 254(3)(b) applied in the circumstances of this case it did not matter that ss 254(3)(a) and (c), which provide alternative special circumstances excusing failure to give notice as required by s 254, were not also independently satisfied. It followed that this ground of appeal failed [92]–[93].

Did the Arbitrator fail to properly apply s 261 of the 1998 Act?

9. The Arbitrator found that the letter of 7 June 2012 constituted proper notice of a claim as required by s 261(1) of the 1998 Act. Although there may be some doubt as to whether the letter of 7 June 2012 was a valid notice of claim, this finding had not been challenged on appeal. It followed therefore that, as the injury was sustained on 25 February 2012 and the unchallenged finding is that a claim was made on 7 June 2012, the claim was made within the time provided by s 261(1) (six months). On that basis this ground of appeal failed [100]–[101].

10. For completeness, the President noted that even if, contrary to the Arbitrator’s unchallenged finding, the letter of 7 June 2012 did not constitute a valid notice of claim under s 261, the worker would in all probability still be entitled to succeed. That is because the evidence which was held sufficient to support the Arbitrator’s finding in her favour under s 254(3)(b) may equally support a finding that any failure to claim compensation within time was excusable under s 261(4). However, as that matter was not argued on appeal the President made no finding in relation to it and it did not form a basis for his decision [110].