Issue 3: March 2015

Flying Solo Properties Pty Ltd t/as Artee Signs v Collet [2015] NSWWCCPD 14

Claim before 1 October 2012; claim for cost of proposed surgery to worker’s cervical spine; interpretation of s 59A of the 1987 Act; meaning of “payable” and “ceased to be entitled to weekly payments of compensation” in s 59A; cl 5 of Pt 1 of Sch 8 to the 2010 Regulation

Roche DP

25 February 2015

Facts:

The worker was a sign installer for the appellant. He injured his cervical spine in the course of his employment on 18 January 2012 and as a result needed to have surgery. He had not had the surgery as the insurer had refused to pay for it. The insurer said that applying s 59A of the 1987 Act and cl 5 of Pt 1 of Sch 8 to the 2010 Regulation, it had no liability for the cost of the surgery. The Arbitrator ordered that it pay for the cost of the surgery. The employer appealed and the WorkCover Authority of New South Wales (WorkCover) intervened under s 106(1) of the 1998 Act.

The issue in dispute on appeal was whether the Arbitrator erred in his construction of s 59A and cl 5. The essential issues were whether, at the relevant time, weekly compensation was “payable” to the worker, whether, and if so, when, the worker “ceased to be entitled to weekly payments of compensation”, and when a worker “becomes entitled to weekly payments of compensation after ceasing to be entitled to compensation” under Div 3.

Held: The Arbitrator’s order that the employer meet the cost of the proposed surgery was revoked.

Legislation

Section 59A of the 1987 Act provides:

“59A Limit on payment of compensation

• Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided more than 12 months after a claim for compensation in respect of the injury was first made, unless weekly payments of compensation are or have been paid or payable to the worker.
• If weekly payments of compensation are or have been paid or payable to the worker, compensation is not payable under this Division in respect of any treatment, service or assistance given or provided more than 12 months after the worker ceased to be entitled to weekly payments of compensation.
• If a worker becomes entitled to weekly payments of compensation after ceasing to be entitled to compensation under this Division, the worker is once again entitled to compensation under this Division but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
• This section does not apply to a seriously injured worker (as defined in Division 2).”

Legislative context

1. The 2012 amending Act introduced a totally new regime for the assessment and payment of weekly compensation. It also introduced, in s 59A, significant limits on the recovery of compensation for “treatment, service or assistance” in Div 3 of the 1987 Act. The operation of s 59A is directly related to when weekly payments of compensation are paid or payable and when a worker has “ceased to be entitled to weekly payments of compensation”. There are now several different entitlement periods during which weekly compensation may (or may not) be payable. Each period gives rise to different potential entitlements to weekly compensation, depending on each worker’s particular circumstances and the application of the formulas in the legislation [16]–[18].

2. A worker’s “entitlement to compensation in the form of weekly payments under Part 3 ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period” under s 38 [22].

3. Despite any other provision in Div 2 of Pt 3 of the 1987 Act, a worker has “no entitlement to weekly payments of compensation” under Div 2 after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable in respect of the injury (s 39(1)). Section 39 does not apply to a worker whose injury has resulted in permanent impairment of more than 20 per cent (s 39(2)). For such workers, entitlement to compensation may continue after 260 weeks but “entitlement after 260 weeks is still subject to section 38”. For claims made before 1 October 2012, weekly payments made before 1 January 2013 will not be counted towards the 260 weeks (cl 4 of Pt 1 of Sch 8 to the 2010 Regulation) [23].

Arbitrator’s decision 

4. Dealing with the application of s 59A, the Arbitrator noted that the parties agreed that the worker had been paid weekly compensation from 19 January 2012 to 12 August 2012; the worker had not been paid weekly compensation, and had no entitlement to weekly compensation, from 13 August 2012 to 31 December 2013; and the appellant’s insurer had not made a “work capacity decision” [29].

5. The Arbitrator, following the reasoning in Vella v Penrith City Council [2014] NSWWCC 363 (Vella), held that “even if a worker has no actual entitlement to receive weekly compensation during the period, there is no loss of the entitlement until a work capacity decision determines otherwise”. He added, again agreeing with Vella, “that one example where a worker had not ceased to be entitled to weekly payments of compensation is where the worker is still within the second entitlement period”. The Arbitrator drew support for this view from the decision of Basten JA in Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217 (Sok). The Arbitrator said Basten JA’s statement at [60] was “consistent with the meaning of cessation of weekly payments occurring after the expiry of the second entitlement period unless the worker was entitled to compensation under the relevant provision for the next period". He added that “the meaning of when the  worker ‘ceased to be entitled to weekly payments of compensation’ must be by reference to the worker’s entitlements to receive weekly compensation as provided by ss 36–40 and 43 of the 1987 Act”. The Arbitrator concluded that the worker had satisfied the requirement in s 59A(1) and remained entitled to weekly payments of compensation as defined in s 59A(2) and therefore remained entitled to recover the cost of the proposed surgery [30]–[33].

Discussion

6. The Arbitrator’s approach and conclusion, and the approach in Vella, was incorrect. The first point to consider was the operation of cl 5. Though the Arbitrator found that this clause applied to the worker, he did not in fact apply it. The effect of cl 5 was that the worker’s claim was “deemed to have been made immediately before 1 January 2013” and that “no regard is to be had to any weekly payment of compensation paid or payable to [the worker] before 1 January 2013 (for the purpose of determining when [the worker] ceased to be entitled to weekly payments of compensation)” [52]–[53].

7. If, for the purpose of determining when the worker ceased to be entitled to weekly payments of compensation, “no regard is to be had to any weekly payments of compensation paid or payable” to him before 1 January 2013, the payments that he received before 1 January 2013 were disregarded when looking at s 59A. Further, applying cl 5, the worker’s claim was “deemed to have been made immediately before 1 January 2013” [54].

8. Therefore, in the circumstances of this case, no compensation under Div 3 was payable for treatment given or provided more than 12 months after 31 December 2012. As the proposed treatment was to be on a date after 31 December 2013, it was not open to the Arbitrator to order the appellant to pay it. However, that did not leave the worker without a remedy, because his entitlement to compensation under Div 3 will revive when he is again entitled to weekly compensation, as he will be when he stops work for the surgery (s 59A(3)) [56].

9. Section 59A(1) deals with the period 12 months after the claim for compensation in respect of the injury was first made. The entitlement periods defined in s 32A, upon which the Arbitrator relied, only established periods during which weekly compensation might be “paid or payable”. Merely because the entitlement periods had not expired did not establish that weekly compensation was “payable” in that period. The entitlement periods direct attention to the method to be used to determine a worker’s actual entitlement, if one exists, in each particular period. If the correct application of the relevant formula results in a worker having no entitlement to weekly compensation, no such compensation is “payable” [57]–[58].

10. Weekly compensation is “payable”, within the meaning of s 59A, when a worker has an entitlement to actually receive such compensation by reason of a compensable work injury. That can occur without a formal determination that it is payable (Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206 at [61]). However, before it can be determined if weekly compensation is “payable”, one of the formulas in ss 36, 37 or 38 must be applied [59].

11.Section 38 did not assist the worker. The statement by Basten JA in Sok, on which the Arbitrator relied, related to the potential entitlement to weekly compensation, not to the actual entitlement of a worker to receive such payments. The relevant distinction, which the Arbitrator’s approach overlooked, was between a worker being in an entitlement period and the right or entitlement to recover actual weekly compensation [60]–[61].

12. When dealing with the weekly compensation provisions in the Workers Compensation Act 1926, a worker who established that he or she received an injury arising out of or in the course of their employment, and that as a result sustained some incapacity for work, was “in general entitled” to receive workers compensation from the employer (J & H Timbers Pty Ltd v Nelson [1972] HCA 12; 126 CLR 625 at 650 (Nelson)). However, such a worker who had made out those facts “may not be entitled at any particular time to payment of compensation, since his right may be dormant” (Thompson v Armstrong & Royse Pty Ltd [1950] HCA 46; 81 CLR 585 at 596) [62].

13. Thus, if total or partial incapacity for work results from an injury, the compensation payable by the employer under the 1987 Act to the injured worker “shall include a weekly payment during the incapacity”. However, whether a worker is “entitled” to weekly compensation at any particular time will depend on the application of the legislation to the particular worker’s circumstances. A worker is not entitled to weekly compensation just because the entitlement periods have not expired [63].

14. The fact that the worker may have had an “incapacity” in 2013 was not determinative of whether weekly compensation was “payable” to him in the relevant period. It was clear that, in the 12-month period after the (deemed) date of claim the worker had not been “paid” weekly compensation and that such compensation was not “payable” to him. Therefore, s 59A(1) applied and the worker’s entitlement to receive compensation under Div 3 ceased on 31 December 2013, 12 months after his claim for compensation was deemed to have been made. Section 59A is concerned with an actual entitlement to receive weekly compensation, not with whether the “entitlement” periods, as defined, have expired [64]–[65].

15. As the entitlement periods can be aggregated, whether or not the weeks are consecutive, there will be many situations where those periods will never expire. The clear intention of s 59A was to place a limit on the time during which compensation under Div 3 may be recovered. That time (12 months) is referenced against, if weekly compensation has never been paid or payable, the date when the claim for compensation in respect of the injury was first made, or, if weekly compensation has been paid or payable, the date when the worker ceased to be entitled to such payments. If, after either of these dates, a worker again becomes entitled to receive weekly compensation, sub-s (3) of s 59A applies to revive the worker’s right to compensation under Div 3, but only to the extent permitted by that sub-section [66].

16. The most common way a worker will cease to be entitled to weekly compensation is if they have fully recovered from the effects of the injury and returned to normal pre-injury duties without any loss of income. A worker will also cease to be entitled to weekly compensation where an insurer, in a valid work capacity decision, assesses the worker to have no entitlement to such compensation. In either situation, the worker will have no entitlement to compensation under Div 3 for “any treatment, service or assistance given or provided more than 12 months after [the date on which] the worker ceased to be entitled to weekly payments of compensation” (s 59A(2)) [69].

17. No weekly compensation is “payable” if, after the correct application of the relevant legislation, there is in fact no entitlement to such compensation [71].

18. Once the worker ceased to be entitled to compensation under Div 3, which occurred on 31 December 2013, he is “once again entitled to compensation under” that Division in the circumstances set out in s 59A(3). That sub-section provides that if, after having ceased to be entitled to compensation under Div 3, a worker again becomes entitled to weekly payments of compensation, the worker is “once again entitled to compensation” under Div 3 “but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments of compensation are payable to the worker” [72].

19. Section 59A(3) will be relevant when the worker ceases work to have the recommended surgery to his cervical spine. The worker will be unable to work while he has the surgery, or while he is recovering from it. Thus, for a period, he will have no current work capacity. As the Commission has determined that the surgery is reasonably necessary treatment as a result of his work injury, when the worker ceases work for the surgery, he will “become entitled to weekly payments of compensation”. As a result, his entitlement to compensation under Div 3 will revive “but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to [him]” (s 59A(3)). That is, while he is having, and recovering from, the surgery [74].

20. As that will be in the future, it was not possible to make any finding or order in advance. However, it should be clearly understood that the fact that the time off work for the surgery will result in the worker being entitled to weekly compensation will also entitle him to compensation under Div 3 for the cost of the surgery. Though the Commission could not order the payment of the cost of the surgery, the insurer will have an obligation to meet that cost. A failure to do so would be, in the circumstances of this case, a most serious breach of the insurer’s statutory obligations [75].

Summary of the general operation of s 59A

21. Section 59A works as follows:

• for the purposes of s 59A, weekly compensation is not “payable” merely because a worker may have a future right to such compensation or merely because the “entitlement periods”, as defined in s 32A, have not expired;
• weekly compensation is “payable” when a worker has an entitlement to receive actual weekly compensation by reason of a compensable work injury. That can occur without a formal determination that it is payable;
• whether, for the purposes of s 59A(2), a worker has “ceased to be entitled” to weekly compensation at a particular time will depend on the circumstances in each case and on the correct application of the terms of the provisions in Div 2 of Pt 3 of the 1987 Act and other relevant provisions of the Act;
• a worker to whom weekly compensation has not been paid or payable is entitled to compensation under Div 3 of Pt 3 of the 1987 Act for 12 months from the date on which a claim for compensation in respect of the injury was first made, but is not entitled to recover the cost of such treatment given or provided more than 12 months after that date (s 59A(1));
• a worker to whom weekly compensation has been paid or payable is entitled to compensation under Div 3 of Pt 3 of the 1987 Act for 12 months from the date on which he or she ceased to be entitled to actual weekly compensation but is not entitled to recover the cost of such treatment given or provided more than 12 months after the date on which he or she ceased to be entitled to actual weekly payments of compensation (s 59A(2));
• if, by operation of either sub-ss (1) or (2) of s 59A, a worker has ceased to be entitled to compensation under Div 3 of Pt 3, the worker’s right to such compensation is revived during a period when weekly compensation is again payable, but only in respect of any treatment, service or assistance “given or provided during” the period when weekly compensation is “payable” to the worker (s 59A(3)), and
• the limits in s 59A do not apply to “seriously injured workers”, as that term is defined in Div 2 of Pt 3 of the 1987 Act.

Merchant v Shoalhaven City Council [2015] NSWWCCPD 13

Statutory interpretation; meaning of “whose injury” in s 32A of the 1987 Act; whether the section permits multiple injuries to be aggregated to reach the impairment threshold for seriously injured worker; s 8(b) of the Interpretation Act 1987; whether singular includes the plural; whether contrary intention appears in the legislation; failure to determine issue in dispute; determination of issue not argued

Keating P

23 February 2015

Facts:

This appeal concerned the construction of the phrase “seriously injured worker” in s 32A of the 1987 Act (which is defined in s 32A to mean “a worker whose injury has resulted in permanent impairment” that is more than 30 per cent). In particular, the issue concerned whether it is permissible to aggregate impairments that have resulted from injuries to different body parts, in a series of unrelated incidents, to meet the required permanent impairment threshold of more than 30 per cent to be characterised as a “seriously injured worker” to trigger additional entitlements under the legislation (the construction issue).

On 26 October 1988, the appellant worker commenced employment with the respondent, Shoalhaven City Council, as a ganger. His employment with the respondent was terminated on 12 April 2013, due to his incapacity arising from a number of work related injuries for which liability was accepted.

The worker sustained several injuries during separate work related incidents, on 25 October 1989, 6 April 1992, 12 March 1996, and 5 August 2010. The injuries sustained during these incidents were subject to several proceedings before the Commission resulting in compensation being awarded to the worker.

In November 2013, following further medical assessments in respect to the above injuries, the worker claimed compensation as a “seriously injured worker”. The worker claimed that he could aggregate the impairments that resulted from the above injuries to be characterised as a “seriously injured worker”. That claim was denied.

On 14 April 2014 the worker filed in the Commission a Miscellaneous Application (the Application) claiming assessment as to whether the degree of permanent impairment is more than 30 per cent (s 32A).

A Commission Arbitrator found that the worker’s claim failed for two reasons. First, the total whole person impairment had not been assessed by an AMS as required. Second, the construction issue had previously been considered and determined by a Senior Arbitrator in Hogan v Mercy Care Centre [2014] NSWWCC 349 (Hogan).

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

• failing to consider whether impairments resulting from different injuries could be aggregated to determine if the worker was a seriously injured worker, and
• deciding the case on the basis that had not been argued by the parties and failing to consider the submissions that were made.

Held: The Arbitrator’s determination was revoked and the worker’s Miscellaneous Application was dismissed.  

Discussion and findings

1. The Arbitrator correctly identified the issue before him as involving a question of construction concerning the definition of “seriously injured worker” in s 32A. The case was argued on the basis that the definition when read in conjunction with s 8(b) of the Interpretation Act(which provides that words in the singular will include the plural) causes the definition of “seriously injured worker” to be satisfied so long as a worker has suffered a total of 30 per cent whole person impairment arising from compensable injuries, whether or not that threshold was reached as a result of one injury or by aggregating impairments from multiple unrelated injuries [94].

2. The Arbitrator did not determine the construction issue. He dismissed the Application because the whole person impairment alleged had not been assessed by an AMS, and because he found that the construction issue had been considered and determined in the matter of Hogan, which the Arbitrator adopted for the purpose of disposing of the issue before him in this matter [95].

3. In Hogan the Senior Arbitrator did not determine the construction issue. The issue in that matter focused on whether impairments assessed under the Table of Disabilities applying to injuries sustained prior to 1 January 2002, could be added together to reach the 30 per cent impairment threshold provided for in s 32A. Having found against the worker on that issue the Senior Arbitrator in Hogan made orders referring the matter to an AMS for further assessment, presumably on the basis that the construction issue would only need to be considered in the event that the whole person impairment reached the required threshold. As a subsequent assessment by an AMS found that the worker was not suffering from a whole person impairment of greater than 30 per cent the construction issue was not further considered or determined. The facts in Hogan are also distinguishable from those in this matter because in Hogan there was only one injury, namely a back injury [96].

4. The Arbitrator, in the present matter, decided the case on a basis that had not been argued by the parties and he failed to consider the submissions that were made. That was an error. It followed that ground two was upheld and therefore the construction issue had to be re-determined. As there were no credit issues involved it was appropriate that the President conduct the re-determination [98].

Re-determination

5. The appellant’s argument depended entirely upon an acceptance of the presumption created by s 8(b) of the Interpretation Act to support his interpretation of the construction of s 32A. That presumption being, words in the singular will include the plural, unless a contrary intention appears in the legislation when read as a whole (s 5 of the Interpretation Act) [99]–[100].

6. A fundamental flaw in the appellant’s submissions, both before the Arbitrator and on appeal was that they failed to come to terms with a consideration of the ordinary and grammatical sense of the words used in s 32A having regard to their context and the legislative purpose of the Act as a whole [105].

7. The satisfaction of the definition of “seriously injured worker” is linked by s 32A to an injury within the use of that term in s 65 and s 66 (through the reference to Div 4 in s 32A). The use of the indefinite article “an”, referring to an injury in s 65 and s 66, points strongly to the conclusion that these provisions are intended to apply to a single injury [118].

8. These provisions point unequivocally to the contrary intention to that expressed in s 8(b). There is nothing in Div 4 or Pt 7 Ch 7 that would be consistent with multiple and unrelated injuries being aggregated so as to meet the threshold for “seriously injured worker”. The text and context of the legislation points clearly the other way [119].

9. Applying the principles discussed in Blue Metal Industries Ltd v Dilley [1969] UKPCHCA 2; (1969) 117 CLR 651; [1970] AC 827 and Pfeiffer v Stevens [2001] HCA 71; 209 CLR 57; 185 ALR 183; 76 ALJR 269 the President was satisfied that any presumption created by s 8(b) is displaced by the contrary intention which is evident from the legislation when read as a whole [124].

10. This conclusion is reinforced when one considers that the ordinary and grammatical sense of the statutory words used, namely “whose injury”, having regard to their context and the legislative purpose, are consistent with the conclusion that “injury”, referring to a singular injury, is the preferred construction. Had the legislature intended that the definition of “seriously injured worker” in s 32A have the meaning for which the appellant contends namely, “a worker whose injury or injuries have resulted in permanent impairment”, it could easily have said so but did not [125].

11. This conclusion is also consistent with the presence of s 322A of the 1998 Act which provides for only one assessment to be made of the degree of permanent impairment of an injured worker. The limitation on the number of assessments in s 322A applies to “any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury...” (s 322A(2)) (emphasis added) [126]–[127].

12. Contrary to the appellant’s submissions, the apportionment provisions in s 22 of the 1987 Act did not advance the appellant’s case. Section 22 only has work to do in terms of apportioning liability between employers or insurers after the entitlement to compensation arising from more than one injury has been determined. Merely because machinery exists to deal with the apportionment of liability arising from more than one injury does not support the conclusion that the reference to the words “whose injury” in s 32A should be construed as a reference to multiple injuries. This conclusion is strengthened by the relevant provisions of Div 4 and Ch 7 Pt 7 which indicate to the contrary [129]–[130].

Conclusion

13. The Arbitrator erred by failing to determine the issue before him and by deciding the matter on a basis not argued in the proceedings before him. As there was no entitlement to aggregate the worker’s various impairments, the worker’s application failed and was dismissed.

Sodexo Australia Pty Ltd v Khan [2015] NSWWCCPD 12

Second claim for permanent impairment compensation where the first claim for such compensation was “specifically sought” prior to 19 June 2012; whether amendments introduced by the 2012 amending Act apply to such a claim; cl 15 of Pt 19H of Sch 6 to the 1987 Act; cl 11 of Sch 8 to the 2010 Regulation; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 88 ALJR 624 applied; Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 distinguished

Roche DP

18 February 2015

Facts:

The issue in dispute on appeal was whether a worker who specifically sought, and was paid, permanent impairment compensation before 19 June 2012 is entitled to make a second claim for such compensation after that date because of a deterioration in his condition. The issue was identical to the issue considered in Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34 (Caulfield) and Cram Fluid Power Pty Ltd v Green [2014] NSWWCCPD 84 (Green).

The worker injured his back while working as a kitchen hand at the appellant employer’s restaurant on 13 August 1997. Liability was accepted and compensation payments made. In accordance with orders by the former Compensation Court of New South Wales on 26 June 2002, the worker received lump sum compensation under s 66 of the 1987 Act in respect of a 12.5 per cent permanent impairment of his back and two per cent permanent loss of efficient use of each leg at or above the knee, plus compensation for pain and suffering under s 67. It was accepted that that settlement was preceded by a claim for permanent impairment compensation for the back and each leg at or above the knee.

On 4 December 2013, the worker made a further claim for lump sum compensation pursuant to ss 66 and 67 for a 20 per cent permanent impairment of the back and 10 per cent permanent loss of efficient use of each leg at or above the knee. The Arbitrator found, applying Caulfield, that the worker was entitled to make a further claim for permanent impairment compensation after 19 June 2012, the date on which the 2012 amending Act took effect.

The appellant challenged the Arbitrator’s determination.

Held: The Arbitrator’s determination was confirmed.

The legislation

1. Prior to the 2012 amendments to s 66, excluding claims for hearing loss, there was no threshold for the recovery of lump sum compensation for permanent impairment. The effect of the amendments was that no permanent impairment compensation is payable for a permanent impairment unless the injury has resulted in a degree of permanent impairment greater than 10 per cent. In addition, only one claim can be made under the 1987 Act for permanent impairment compensation in respect of permanent impairment that results from an injury.

2. Also of relevance were the transitional provisions introduced by the 2012 amending Act, including cls 3 and 15 of Pt 19H of Sch 6 of the 1987 Act. Clause 3 provides that an amendment made by the 2012 amending Act extends to an injury received prior to, claim for compensation made prior to and proceedings pending in the Commission prior to the commencement of the 2012 amendments. Clause 15 provides that an amendment by Sch 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012 but not to such a claim made before that date. Clause 11 of Sch 8 to the 2010 Regulation provides that the amendments made by Sch 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under ss 66 or 67 of the 1987 Act [16]–[20].

3. The relevant transitional provisions and the 2010 Regulation (as amended) must be read together and must be read in light of binding authority. That is exactly what occurred in Caulfield [31].

4. The starting point is the meaning of “a claim”. In Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 (Goudappel No 1) the Court of Appeal held that “a claim” in cl 15 of Pt 19H includes any claim for compensation made before 19 June 2012 and that cl 11 of Sch 8 was invalid and did not apply. It followed that, as Mr Goudappel had made a claim for weekly compensation in 2010, the amendments to s 66 introduced by the 2012 amending Act did not apply to his later claim for lump sum compensation, even though he did not make that claim until 20 June 2012. The finding as to the meaning of “a claim” was not challenged in the High Court (ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 88 ALJR 624 (Goudappel)) and the plurality expressly noted that that Mr Goudappel’s original claim for compensation, made on 19 April 2010, could be taken as “subsuming a claim for permanent impairment compensation” [32]–[33].

5. However, overturning the Court of Appeal, the High Court held that cl 11 of Sch 8 is valid and applies according to its terms. The High Court further held that the amendments to Div 4 of Pt 3 of the 1987 Act (which deal with compensation for non-economic loss) introduced by Sch 2 of the 2012 amending Act apply to claims for compensation pursuant to s 66 of the 1987 Act 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” (emphasis added) [34].

6. The High Court added that to accept a beneficial purpose of the 1987 Act as a whole did not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of cl 11 was clear enough [36]–[37].

7. The High Court did not limit the exclusion from the operation of cl 11 to one set of proceedings for s 66 compensation, but expressed the exclusion as occurring when there has been a claim before 19 June 2012 under that section. This conclusion is consistent with the combined effect of cl 15 of Pt 19H and cl 11 of Sch 8, because the amendments do not apply to “a claim” for compensation made before 19 June 2012. As cl 15 must be “read subject to” cl 11, the proper interpretation of the two provisions, when read together, was that the permanent impairment amendments apply to a claim for compensation made on and after 19 June 2012, but not to such a claim made before that date. However, cl 11 modifies that position to make the amendments extend to a claim made before 19 June 2012 but not if, before that date, the worker made “a claim that specifically sought” compensation under s 66 or s 67 [38]–[39].

8. As Mr Caulfield “specifically sought” compensation under s 66 before 19 June 2012, he was not caught by the new threshold and not restricted to making only one claim for permanent impairment compensation. Thus, though it was Mr Caulfield’s second claim for permanent impairment compensation, he was entitled to make the claim. Though the combined value of his claims was over 10 per cent, as the amendments did not apply to him, it would not have mattered if they were not [40].

9. Contrary to the appellant’s submissions, neither cl 15 nor cl 11 refer to claims that are “on foot”. The task of statutory interpretation is one of construction of the words the legislature has enacted (Taylor v The Owners-Strata Plan No 11564 [2014] HCA 9 at [39]). There is no justification for adding the words urged by the appellant [24],[41].

10. The process of construction begins with the construction of the ordinary and grammatical meaning of the words in question, having regard to their context and legislative purpose (Rail Corporation New South Wales v Brown [2012] NSWCA 296; Australian Education Union v Department of Education and Children's Services [2012] HCA 3; Roadshow Films Pty Limited v iiNet Ltd [2012] HCA 16; Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 applied) [42]–[43].

11. Historical considerations and extrinsic materials cannot be relied upon to displace the clear meaning of the text (Griffiths v The Trustees of the Parliamentary Contributory Superannuation Fund [2012] NSWCA 231). Given the history of the litigation in Mr Goudappel’s claim, the clear statements by the plurality in the High Court, and given the ordinary and grammatical meaning of the words in question, the only reasonable conclusion was that, in the circumstances of this case, the amendments made by Sch 2 to the 2012 amending Act did not apply to the worker. The repeal of s 67 by the 2012 amending Act was not a relevant consideration [44].

12. Applying the High Court’s findings in Goudappel to the facts in Caulfield was not “problematic”. The application of Goudappel follows directly from the High Court’s answer to the question posed. Contrary to the appellant’s submissions, cl 11 does not talk about “new claims”. It talks about the amendments not applying to “a claim that specifically sought compensation under section 66 or 67 of the 1987 Act” [45].

Sukkar

13. The appellant claimed that Sukkar was binding. The worker submitted that Sukkar was not binding and is not persuasive when dealing with claims other than those concerning hearing loss and claimed that the proper approach was for the Commission to apply Caulfield and Green. It was not accepted that Sukkar supported the appellant’s position [61]–[67].

14. First, Sukkar addressed two specific questions about the application of the amendments introduced by the 2012 amending Act to a claim for permanent impairment compensation for a further loss of hearing. As McColl JA, in Sukkar, made clear, such a claim was in respect of an “injury” deemed to have happened on 19 June 2012 and, as the claim in respect of that injury was made on or after 19 June 2012, the amendments applied to it. In this context, the comments by Basten JA and Beech-Jones J, in Sukkar, to the extent that they purported to deal with claims generally, were obiter [68].

15. Second, though McColl JA made a passing reference to Goudappel, noting (at [6]) that the High Court held that cl 11 was valid, no member of the Court referred to the plurality’s comments in that case about cl 11 at [29]. Nor did their Honours refer to the Court of Appeal’s decision in Goudappel No 1 and the meaning of “a claim” accepted in that decision. If there was thought to be a conflict between the obiter comments by Beech-Jones J in Sukkar and the plurality’s judgment in Goudappel, the High Court’s decision is binding on the Commission and must be followed [69].

16. Third, to the extent that the appellant relied on Basten JA’s reference to “an unresolved claim” in the second sentence of the answer to the first question in Sukkar, it did not follow that that statement applied to the present matter. When dealing with a similar question in Goudappel No 1, namely whether the exception in cl 15 applied only to “extant claims”, Basten JA observed “had it been intended to require an extant claim for lump sum compensation as at the specified date, cl 15 could have so stated, but it did not” (Goudappel No 1 at [11]). Neither this statement, nor his Honour’s other observations about “a claim”, were challenged in the High Court. Had it been intended to restrict the exclusion in cl 11 to extant claims only, the legislature could easily have done so, but it did not [70]–[71].

17. Fourth, it appears that the Court was not referred to Caulfield, which was decided on 11 June 2014 or, more importantly, any part of its reasoning. That was understandable, given the significantly different issues thrown up by the hearing loss provisions with which Sukkar dealt [72].

18. Last, Beech-Jones J’s observation that Mr Sukkar’s submission that cls 15 and 11 conferred some form of immunity from the 2012 amending Act if he “just happened to have previously made a claim for workers compensation prior to then” was “misconceived” was inconsistent with the decision in Goudappel No 1 where it was held (and not challenged in the High Court) that “a claim” in cl 15 of Pt 19H includes any claim for compensation made before 19 June 2012 and with the plurality’s statement [73].

19. It was not accepted that Sukkar overruled Caulfield or Green, or that it lead to a different outcome to that reached by the Arbitrator [74].

State of New South Wales v Stockwell [2015] NSWWCCPD 9

Meaning of “paramedic” in cl 25 of Pt 19H of Sch 6 to the 1987 Act; whether the Arbitrator erred in interpretation of pay slips; whether the Arbitrator erred in finding the worker was required to hold paramedic qualifications; whether the Arbitrator reversed the onus of proof; definition of paramedic in the Operational Ambulance Officers (State) Award; entitlement to recover prescription pharmaceutical expenses incurred overseas; ss 59 and 60 of the 1987 Act; additional evidence on appeal; whether, with reasonable diligence, such evidence could have been obtained at the arbitration; substantial injustice; s 352(6) of the 1998 Act

Roche DP

10 February 2015

Facts:

The worker started work as an ambulance officer in 1996 and, after injuring his back, he became an operations centre officer in late 2000 or early 2001. The worker’s primary role as an operations centre officer, was to co-ordinate emergency and routine response for ambulance officers and patient transport officers in a given geographic area. He also said that he gave medical advice to emergency service workers and members of the public. As a result of his work as an operations centre officer, the worker suffered a psychological injury with a deemed date of injury of 31 January 2007.

On 20 May 2008, the worker recovered weekly compensation under ss 36 and 37 of the 1998 Act and the appellant was ordered to pay his hospital and medical expenses under s 60.

On 5 August 2008, an AMS assessed the worker to have a whole person impairment of 17 per cent as a result of his psychological injury. On 5 September 2008, the Commission issued a Certificate of Determination making orders for the payment of lump sum compensation consistent with the AMS’s assessment of permanent impairment and allowed $16,500 for pain and suffering.

In October 2009, the worker moved with his family to the United States of America. On 14 December 2009, the appellant’s insurer issued a notice denying ongoing liability for compensation on the ground that the worker had ceased to reside in Australia. On 6 December 2010, the Commission determined that the worker’s injury was “likely to be of a permanent nature” and his payments resumed.

On 23 March 2012, the insurer advised the worker that the workers’ compensation legislation makes no provision for the payment of s 60 expenses that are not prescribed and administered in Australia. On 14 November 2012, the insurer advised that as the worker was not an on-road paramedic, he would be subject to the changes introduced by the 2012 amending Act.

The worker’s solicitors asserted that the worker was a paramedic and that he was not caught by the 2012 amendments and was entitled to weekly payments of compensation and his medical and related expenses on the basis that the worker was a qualified paramedic and was performing that role at the time he suffered his psychological injury. The employer’s insurer claimed that the worker did not fall within the meaning of a paramedic and “was not ‘rostered on-road and not performing ‘in the field’ emergency/casualty response duties’,” and that he was not “an operational paramedic”.

In an Application filed on 18 December 2013, the worker sought weekly compensation from 18 July 2013 to date and continuing in respect of himself, his dependent wife and six dependent children, and medical expenses of US$5,961.34 and A$8,346.26.

The Arbitrator found that the worker was a paramedic, within the meaning of cl 25 of Sch 6 to Pt 19H of the 1987 Act, employed by the appellant and that he was doing the work of a paramedic, which included giving advice in emergency situations to injured members of the public, emergency services personnel and others. He did not consider it necessary that, to be a paramedic, the worker be at the scene of an emergency.

Dealing with the claim for pharmaceutical expenses, the Arbitrator found that s 59(e), which includes, among other things, “medicines, medical or surgical supplies … supplied or provided for the worker otherwise than as hospital treatment”, has no extraterritorial restriction and does not refer to any definition that constrains medical or related treatment to that provided in the Commonwealth of Australia and determined that the worker was entitled to reimbursement under s 60 of all the pharmaceutical expenses claimed.

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

• determining that the appellant required the worker to hold paramedic qualifications in order to perform the role in which he was employed (requirement to hold paramedic qualifications);
• determining that the duties performed (by the worker) in the role were that of a paramedic (the worker’s duties);
• determining that the onus of proof is on the appellant to establish that the worker was not a paramedic (onus of proof);
• his consideration of the decision of Ware v NSW Rural Fire Service [2014] NSWWCCPD 33 (Ware) (is Ware distinguishable?);
• determining that the worker was a paramedic for the purposes of cl 25 of Pt 19H of Sch 6 to the 1987 Act (determining that the worker was a paramedic), and
• determining that pharmaceutical expenses incurred outside Australia were payable by the appellant (pharmaceutical expenses).

An additional issue arose as to whether the employer was permitted to rely on additional or further evidence on appeal.

Held: The Arbitrator’s determination was revoked in-part and the matter remitted to a different Arbitrator for re-determination.  

Additional or fresh evidence

1. In reply to a duty statement filed by the employer the day before the arbitration, the worker gave oral evidence about his duties at the operations centre. The worker said that the duty statement did not properly address the work that he was required to perform. Counsel for the appellant did not ask the worker any questions, did not seek an adjournment and did not submit that the worker’s evidence should be excluded or that it caused her any prejudice [39]–[45].

2. On appeal, the appellant sought to tender statements from three witnesses to the effect that: the worker was not an intensive care paramedic; a dispatcher in the operations centre would never direct the treatment of a patient; that the position description relied upon before the Arbitrator was correct and that there was “no requirement” in the description for a dispatcher to perform paramedic duties; and that it is not mandatory for an operations centre dispatcher to hold a paramedic qualification [46]–[59].

3. Section 352(6) of the 1998 Act provides that fresh or additional evidence may not be admitted on appeal to the Commission except with leave of the Commission. This involves two threshold questions that are alternatives, first, the availability of the evidence in advance of the proceedings and second, an assessment of whether continued unavailability of the evidence “would cause substantial injustice in the case” (Chep Australia Ltd v Strickland [2013] NSWCA 351). If the evidence could, with reasonable diligence, have been obtained and tendered at the arbitration, the second test requires a decision as to the result that “would” emerge if the evidence were taken into account and the result that “would” emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion of the evidence. The power to admit fresh or additional evidence is therefore concerned with evidence which, if accepted, would have been likely to demonstrate that the decision appealed against was erroneous (Northern NSW Local Health Network v Heggie [2013] NSWCA 255) [65]–[68].

4. The Deputy President rejected the submission that the additional evidence could not have been obtained before the arbitration. The witnesses worked for the employer and, with reasonable diligence, the additional evidence could have been obtained and tendered at the arbitration. The statement of the worker attached to the application filed 18 December 2013 alleged that he gave “treatment advice”. The appellant’s legal advisors did nothing until two months after the arbitration to secure evidence responding to the worker’s statement. The appellant had always asserted that the worker was not a paramedic and relied upon the position description to support this, but did nothing to obtain relevant witness statements. The appellant could not satisfy the first limb of s 352(6). A party cannot sit on its hands and await the outcome of a case, in the expectation of being permitted to tender on appeal evidence that was readily available at the arbitration. Arbitrations are not a trial run to see how things turn out with a view of preparing the case on appeal. The appellant’s conduct in this matter, and that of its legal advisers, was most unsatisfactory and should not be repeated [69]–[75].

5. The fresh evidence could, therefore, only be admitted on appeal if the rejection of it would cause a substantial injustice. As the appeal succeeded in any event, without regard to the fresh evidence, it followed that the refusal to admit that evidence on appeal would cause no injustice in the case and the application to rely on it was refused. Both parties are free to tender such further evidence as they consider appropriate at the re-determination [77].

Requirement to hold paramedic qualifications

6. The Arbitrator found that the worker was required by the employer to have paramedic qualifications and to upgrade these qualifications every two or three years. He found that the worker’s work in the operations centre was “clearly that of a paramedic” and it was a pre-condition of the worker’s employment that he have paramedic qualifications and that he was acting as a paramedic, albeit not on a face-to-face basis with patients, in his day-to-day work. The appellant asserted that the evidence did not establish this.

7. It was held that the evidence did not establish that the terms of the worker’s employment required him to be a qualified paramedic, at least whilst he worked in the operations centre. It followed that the Arbitrator erred in saying that the worker was “required by his employer to have paramedic qualifications” [87]–[89].

8. The Arbitrator also relied on the worker’s pay slips. The worker’s evidence that he was classified as “ambulance officer operations centre grade 2 (with intensive care paramedic qualifications)” and was therefore a paramedic was inconsistent with the documentary evidence, including the pay slips, before the Arbitrator. None of them described the worker’s position in this way. A pay slip in July 2002 identified his position as “Ambulance Officer – Grade 2”. However, the November 2006 pay slips described the worker’s “Employee Classification” as “Ambulance Officer (Ops Centre)”. The former classification fell under the definition of paramedic in cl 25; however, the latter did not [90]–[92].

9. In making his determination, the Arbitrator merely said that the worker was “clearly a paramedic employed by the [appellant], that being the description on his pay slips” and did not analyse the evidence. That statement was wrong, regardless of the further evidence sought to be tendered on appeal and clearly influenced the Arbitrator to conclude that the worker, at the time of his injury, was a paramedic. This error required that the matter be re-determined [97].

The worker’s duties

10. The appellant contended that the weight of the evidence tendered at the arbitration would not support the Arbitrator’s conclusion that the worker’s substantive role in the operations centre was as a paramedic. The worker submitted that he provided paramedical service in the form of advice, directions, triage and the organisation of support services [101]–[102].

11. For the reasons noted below, the worker’s duties were not determinative of whether he was, at the time of the injury, a paramedic [103].

Onus of proof

12. The Arbitrator said that as the terms of employment required the worker to be a qualified paramedic, the onus was on the appellant to establish that the worker was not a paramedic [104].

13. As a general proposition, he who asserts must prove (Commonwealth v Muratore [1978] HCA 47; 141 CLR 296). The Arbitrator commented on the onus of proof in the same sentence in which he found that the worker’s terms of employment “required” him to be a qualified paramedic. That was wrong. It was not open to find that the onus was on the appellant to establish that the worker was not a paramedic and the Arbitrator erred in making that statement [108]–[109].

Is Ware distinguishable?

14. Before the Arbitrator, and on appeal, the appellant relied on the decision of Ware. The Arbitrator distinguished Ware on the facts. The appellant gained no support from Ware unless it was found that the worker was not employed as a paramedic. In Ware, it was held that, in the absence of a definition of “firefighter”, “firefighter” meant, based on the dictionary definition, “someone whose activity or employment is to extinguish fires, especially bushfires”. As Mr Ware was employed as a mechanic, not a firefighter, he was only a firefighter, for the purposes of cl 25, when he was engaged in providing support at the fire front during a fire [117]–[118].

15. To accept the appellant’s argument would mean a firefighter with the NSW Fire Brigade would not be a firefighter if he or she were injured while performing administrative duties rather than fighting a fire. As explained in Ware (at [53]), such a person is a firefighter regardless of the actual duties being performed at the time of injury. Similarly, a person who is employed as a paramedic is a paramedic regardless of the exact nature of the duties he or she is performing at the time of injury [120].

16. There was a critical distinction between Ware and the present matter, being that, to be a firefighter, Mr Ware was not required to have any particular qualifications or certifications before he could provide support at the fire front during a fire. In addition, there was no applicable definition of firefighter in the relevant legislation or employment award. However, in the present case, the term “paramedic” is defined in the Ambulance Officers’ (State) Award to be:

an employee who has successfully completed the necessary and relevant training and work experience as determined by the [Ambulance] Service to become a Paramedic and who is appointed to an approved Paramedic position. Provided that such an employee shall be required to undertake and successfully complete further instruction/in-service courses necessary for the maintenance of their clinical certificate to practice and the reissue of their clinical certificate to practice every three (3) years.

The Ambulance Officers’ Award also provides definitions for “Paramedic Specialist”, which includes an “Intensive Care Paramedic”, which the worker asserted he was, and an “Extended Care Paramedic”, and other categories of employees with the appellant [121]–[123].

17. The Ambulance Officers’ Award had a sub-heading “Ambulance Operations Centre Officer – Paramedic and Paramedic Specialist”. The Award stated that employees “permanently appointed to positions of Ambulance Operations Centre Officer are to be paid up to the maximum rate applicable for a Paramedic Specialist” and, in addition to their wages and allowances, the “Operations Centre Allowance”. The worker’s pay slip for November 2006 included $162.38 for “Op Cent Allow” [124].

18. The fact that the Ambulance Officers’ Award makes specific reference to, and allowance for, paramedics who work in the operations centres points strongly to the worker’s position being an approved paramedic position. It followed that a paramedic who meets the definition of a paramedic in the Ambulance Officers’ Award, and who works in the operations centre, is a paramedic under cl 25 regardless of the nature of the duties he or she performs. The question of whether the worker gave clinical advice, as a paramedic, or merely directed ambulances to specific places did not arise. The issue was whether the worker was, at the time of his injury, employed as a paramedic. That question must be re-determined [125].

19. The appellant argued that it would be unnatural and unrealistic for two workers working side-by-side in the same role, to have different entitlements depending on their qualifications “prior” to their employment. The Ambulance Officers’ Award expressly acknowledged that two workers, with different qualifications, working side-by-side in the same role, will receive different remuneration. It was consistent and appropriate that such workers also come under different workers’ compensation regimes. Moreover, the distinction was not based on qualifications “prior” to the workers’ employment, but on their qualifications and classification at the time of injury [126]–[127].

20. The further consequence is that a worker who does not meet the definition of paramedic in the Ambulance Officers’ Award will not normally be a paramedic under cl 25, because, just as a private citizen does not become a police officer by making a citizen’s arrest, a worker with the Ambulance Service who does not have a “clinical certificate to practice” will not, save in exceptional circumstances, become a paramedic by giving clinical advice he or she is not entitled to give. Where the Ambulance Officers’ Award, which was agreed governed the parties’ employment relationship, clearly defined the meaning of a paramedic, it was not necessary to have resort to the dictionary definition of that term. If the Ambulance Officers’ Award did not provide a complete and exclusive definition of “paramedic”, or did not cover the field, the legal meaning of “paramedic” corresponds with its normal grammatical (dictionary) meaning and there was nothing in the context, purpose or policy behind cl 25 that leads to a different conclusion. [129]–[131].

21. A worker can provide specialist primary care to the injured or sick without having to be “in the field” or directly “hands on”. Provided they are qualified to give such advice, a person who provides the advice over the phone is just as much a paramedic as the person at the scene of the particular incident where the care is being provided. Therefore, if the worker gave the kind of advice that he gave evidence of at the arbitration, and if it is found that, at the time of his injury, he was qualified to give that advice, that is, if he had a “clinical certificate to practice” as a paramedic, he is a paramedic under cl 25 and is exempt from the effect of the 2012 amendments [133]–[134].

Determining that the worker was a paramedic

22. The Arbitrator was satisfied that the worker was a paramedic because his employment required him to have paramedic qualifications and, in giving advice over the phone, he was doing the work of a paramedic. Given the above findings, this finding must be re-determined [135],[137].

Pharmaceutical expenses

23. The Arbitrator erred in saying that the description of “therapeutic services and supplies” imposes no extraterritorial restriction or reference to any definition or cognate legislation which constrains medical or related treatment to that provided in Australia [144].

24. Section 60(1) states that if, as a result of an injury received by a worker, it is “reasonably necessary that” “any medical or related treatment (other than domestic assistance) be given” the worker’s employer is liable to pay the cost of that treatment or service. Section 59 defines “medical or related treatment” [145]–[146].

25. It was accepted that reasonably necessary medication may be obtained by prescription or without a prescription. The point argued by the appellant was whether prescription “medicines” are treatment by a medical practitioner and, if so, whether the cost of such medicines was recoverable in circumstances where they were not prescribed by a doctor registered under the Health Practitioner Regulation National Law to practise as a medical practitioner.

26. Clearly, treatment by a medical practitioner can include a range of things: examination, surgery, and “the application of medicines” (Macquarie Online Dictionary). The prescription of medicines is often an integral part of the treatment by the medical practitioner. The cost of that treatment is not recoverable unless a doctor registered under the Health Practitioner Regulation National Law to practise as a medical practitioner provides it [147]–[148].

27. The worker was only entitled to the cost of reasonably necessary medication that had been prescribed as treatment by a doctor registered under the Health Practitioner Regulation National Law to practise as a medical practitioner and for the cost of reasonably necessary medication that has not been prescribed by a medical practitioner [150].

NSW Police Force v Hain [2015] NSWWCCPD 11

Police officer injured while playing football; unchallenged finding that injury arose out of employment; whether employment a substantial contributing factor to the injury; s 9A of the 1987 Act; alleged failure to give reasons

Roche DP

11 February 2015

Facts:

The worker is a senior constable with the NSW Police Force. He ruptured his Achilles tendon while playing in a rugby league match between two Local Area Commands on 17 July 2013. The match had been organised by police officers to raise funds for NSW Police Legacy Ltd (the Police Legacy), a charitable organisation established to support the families of police officers who have suffered a loss. The Police Legacy is not part of the NSW Police Force.

The issue under appeal related to s 9A of the 1987 Act, whether the worker’s employment was a substantial contributing factor to the injury, which the Arbitrator decided in favour of the worker.

The Arbitrator found that the worker’s attendance at the match had not been “required” or “expected” but was one of voluntary participation. He held that the activity had been authorised by the appellant because police computer resources were used to distribute information concerning the game; police headquarters were used for planning meetings, some of which occurred during work hours, the fact that only police officers from the Hunter Valley LAC were in one team and serving officers from the Oxley LAC were in the other team; that the terms of various emails suggest that one purpose or effect of the game was morale boosting amongst police officers; the Superintendent herself appeared in a photograph that was supportive of NSW Police Legacy and supportive of the NSW Police Force participation; the game had the support of higher ranks and an Inspector was involved in the preparation of the event; and, on the day of the football game, the Command briefing was used to present participants with their uniforms.

The Arbitrator found that the worker’s participation was authorised and encouraged by the appellant (JP Morgan Holdings Australia Ltd t/as JP Morgan Operations Australia Ltd v Haider [2006] NSWWCCPD 234 (appeal to Court of Appeal dismissed: Haider v JP Morgan Holdings Aust t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158; 4 DDCR 634) applied). An important factor was that rosters were relaxed so that the players could have time off to play.

The Arbitrator found that the worker’s injury arose out of his employment with the appellant and this finding was not challenged on appeal. He also found that employment was a substantial contributing factor to the injury.

Having regard to s 9A(2), the Arbitrator found that: the time and place of the injury occurred during the football game that was found to arise out of the course of employment; the nature of the work performed and the particular tasks of that work, finding that the participation in the rugby league game arose out of the course of employment as a police officer; there was no evidence to suggest that the ankle or Achilles tendon would have been ruptured at or about the same time or at the same stage of the worker’s life and was not a case of a degenerative problem, and there was no suggestion that the worker’s state of health or existence of any hereditary risk caused or contributed to the injury. The Arbitrator did not consider the duration of employment was a relevant matter.

The NSW Police Force appealed. The issues in dispute on appeal were whether the Arbitrator erred in:

finding that playing rugby league was part of the worker’s duties as a police officer and that employment was a substantial contributing factor to the injury;

• failing to correctly apply s 9A to the facts;
• misdirecting himself in the application of s 9A;
• failing to apply the higher standard of causation required to be satisfied under s 9A than the standard required for satisfaction under s 4;
• finding that what the worker was doing in his employment was playing or participating in a rugby league game, and, in the alternative,
• failing to provide any or any adequate or sufficient reasons in respect of his findings in relation to s 9A.

Held: The Arbitrator’s determination was confirmed.

Substantial contributing factor

1. The starting point in the analysis of whether the Arbitrator erred in his conclusion on whether s 9A was satisfied was the concession by the appellant that the Arbitrator did not err in finding that the injury arose out of the worker’s employment. It was accepted that the “arising out of test” involves a causal connection between the employment and the injury (Kavanagh v The Commonwealth [1960] HCA 25; 103 CLR 547). Moreover, an injury may arise out of the employment even though, at the time of the injury, the worker was not in the course of his or her employment (Tarry v Warringah Shire Council [1974] 48 WCR 1 at 7) [26].

2. While the Arbitrator’s statement that “what [the worker] is doing in the employment is playing or participating in a rugby league game” was inaccurate, in the context of his reasons overall, it was clear the Arbitrator meant that the worker, by playing in the match, was engaged in an activity that arose out of his employment because it was authorised and encouraged by the appellant. The Arbitrator’s statement involved no relevant error and was consistent with his finding that the worker had been authorised and encouraged by the appellant to participate in the match, which findings all showed a strong, direct and intimate connection between the match and the worker’s employment as a police officer. The factual findings upon which the Arbitrator based his conclusion were not challenged and were clearly open to him. Therefore, the Arbitrator’s imprecise expression was not of any significance and did not materially affect the outcome [27]–[28].

3. The fact that an injury arose out of or was received in the course of the employment is not necessarily sufficient, on its own, to satisfy s 9A. However, as the plurality acknowledged in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi), there may be circumstances where the factors considered necessary and sufficient to satisfy the test “arising out of employment” for the “purposes of s 9 [sic s 4]”, are sufficient to satisfy the test in s 9A. The factual circumstances of the present case which were not challenged on appeal, satisfied both the arising out of test in s 4 and the substantial contributing factor test in s 9A [29].

4. The satisfaction of s 9A is a question of fact (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; 22 NSWCCR 46), as is the question of whether the injury arose out of the employment. Although, with s 9A, the strength of the linkage between the employment and injury is the question in issue, the determination is an evaluative one, leaving a broad area for the personal judgment of the trial judge (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271). Being an evaluative matter involving questions of impression and degree, a finding as to relative contributing factors is a finding of fact (Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102, citing Badawi) [30].

5. It was also accepted that s 9A directs attention to the nature of the work performed and the particular tasks of that work and not to what the employee was doing at the actual time of injury (Badawi). The nature of the worker’s work was that of a police officer. Counsel for the appellant submitted that it was not an inherent or essential feature of the worker’s work as a police officer that he play rugby league. This approach was erroneous and inconsistent with Badawi [31]–[35].

6. In the context of this case, Basten JA in Badawi said that the matters listed in s 9A(2):

should not be read as excluding from the concept of ‘the employment concerned’ all activities which are not within the inherent features or essential incidents of the employment. The apparent purpose in including s 9A in the Workers Compensation Act was to impose a causal connection of a substantial kind between the employment and the injury, not to restrict in some way the concept of ‘the employment’.

7. The appellant’s approach invited the Commission to look at the “inherent or essential incidents” of the work of a police officer and to find that because the worker was not injured while performing such “inherent or essential” work, he could not satisfy s 9A. This approach was incorrect [39].

8. The facts that satisfy the causal connection between employment and injury required by s 9A are the same facts that satisfy the test of “arising out of”. The “key fact” was the activity carried on by the worker at the time of injury. That activity was playing in a rugby league match. The Arbitrator found that the activity was not only authorised, but encouraged by the appellant [40]–[41].

9. For the principles in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? If the worker was injured while engaging in an activity, the question is: “did the employer induce or encourage the employee to engage in that activity?” If the answer is affirmative, the injury will have occurred in the course of the employment (Comcare v PVYW [2013] HCA 41; 88 ALJR 1 (PVYW)). The Arbitrator’s analysis and conclusion on whether employment was a substantial contributing factor to the injury was perfectly consistent with the finding that the appellant had encouraged the worker to participate in the activity that caused his injury and with the approach in PVYW [42]–[43].

10. Regarding s 9A, the causal connection required by that section is one that is “real and of substance” (Badawi) and was satisfied in this case because had the worker not been authorised and encouraged to participate in the match, an activity that was supported by the appellant, the injury would not have occurred [46].

11. The Arbitrator had full regard to what the worker was doing at the time of his injury. He determined that the worker’s participation in the match was authorised and encouraged by the appellant and, therefore, the injury arose out of the employment. In the terms used in PVYW, the activity that caused the injury was one that the appellant had encouraged. It was one from which the appellant clearly benefitted in the form of improved morale and public relations. The fact that the worker’s usual work was that of a police officer did not diminish the strength of the causal connection between the injury and his employment [48].

12. Given the Arbitrator’s unchallenged findings, it did not matter whether the injury was received during a period of overall work or during an interval between two periods of work. The worker’s employment was not only “a” substantial contributing factor to the injury, it was “the” substantial contributing factor. That was because the worker was injured while engaged in an activity, playing in the match, authorised and encouraged by his employer [50]–[51].

13. The Arbitrator’s s 9A analysis involved no material error and this ground of appeal was not made out [53].

Reasons

14. When considering a challenge to the adequacy of reasons, it must be remembered that the decision must be read as a whole and that “reasons need not be lengthy or elaborate” (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430). The extent and scope of a trial judge’s (or Arbitrator’s) duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725). The reasons must do justice to the issues posed by the parties’ cases (Moylan v Nutrasweet Co [2000] NSWCA 337) [55].

15. Moreover, when considering if an Arbitrator has complied with his or her obligation to give reasons, it is necessary to have regard to the overall sense and import of the reasons, read as a whole and without an eye attuned to the detection of error (Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167). In addition, courts should avoid an “overly pernickety examination of the reasons” and that the “focus of attention is on the substance of the decision and whether it addressed the ‘real issue’ presented by the contest between the parties” (Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115) [56].

16. On the issue of whether the worker satisfied the test in s 9A, the Arbitrator considered the terms of s 9A(2) and gave reasons with respect to each of the provisions in that subsection. Thus, he exposed his reasoning and articulated the essential ground on which he based his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). The submission that the Arbitrator failed to give adequate reasons was without merit and was rejected [57].

NSW Police Force v Faccin [2015] NSWWCCPD 8

Section 4 of the 1987 Act; injury arising in the course of employment; injury received during an interval between periods of employment; s 9A of the 1987 Act; employment a substantial contributing factor to injury

O’Grady DP

9 February 2015

Facts:

This appeal concerned the question as to whether an injury received by the worker, a police constable, during a game of rugby league in a competition conducted by the NSW Police Rugby League Association (the Association), was compensable.

The worker received a significant right knee injury when tackled during the match which took place on 24 April 2013 at Coogee Oval. He lodged an Incident Notification Form with the NSW Police Force (the appellant) on 27 April 2013. The appellant’s insurer, Employers Mutual Ltd NSW Treasury Managed Fund, declined liability in respect of workers compensation payments on 2 May 2013. Subsequently, on 29 May 2013, provisional liability was accepted by the insurer. Following further consideration of the claim the insurer declined liability. A notice concerning that decision was issued and served upon the worker pursuant to s 74 of the 1998 Act on 17 July 2013.

The dispute concerning the worker’s entitlement to compensation benefits was the subject of an Application to Resolve a Dispute filed with the Commission on 15 October 2013.

The Arbitrator found that the worker suffered an injury to his right knee on 27 April 2013 and that the worker satisfied ss 4 and 9A of the 1987 Act. The Arbitrator ordered the employer to pay weekly compensation from 17 July 2013 to 9 December 2013 in the sum of $140.00 per week. The respondent was also ordered to pay s 60 expenses.

Given the fact that the worker is a police officer, the Arbitrator’s Determination and Orders were made having regard to the provisions of the 1987 Act and the 1998 Act in their terms as existed before the operation of the 2012 amending Act: cl 25 of Pt 19H of Sch 6 to the 1987 Act. This appeal was thus governed by the Acts in their unamended terms.

The employer appealed and relied upon five separate grounds of appeal. The first three of those grounds suggested particular errors on the part of the Arbitrator in concluding that the worker had received an injury within the meaning of s 4 of the 1987 Act. The fourth and fifth grounds suggested error on her part in concluding that the worker’s employment was a substantial contributing factor to the subject injury in terms of s 9A of the 1987 Act.

Held: For the reasons stated on this appeal, the Arbitrator’s determination was confirmed.

Submissions, discussion and findings

1. As earlier noted, the first three grounds relied upon suggest error on the part of the Arbitrator in finding that the subject injury was one within the meaning of s 4 of the 1987 Act (in its unamended form).

2. Ground one stated:

The appellant submits the Arbitrator made an error of fact and law in finding that the circumstances of the present matter were analogous to those requiring consideration and determination by Neilson J in Clark v Commissioner of Police [2002] NSWCC 40; (2004) 1 DDCR 193 and that the respondent worker therefore satisfied s 4 of the Act. [50]

3. The appellant correctly noted that a factual distinction exists between Clark, which involved a football injury received by a police officer, and the evidence of the present case. In Clark, his Honour accepted the following matters of fact:

Here, [Mr Clark] was given time off work without financial penalty to train or participate in matches if he was rostered on for the [sic] duty at the time of training or competition.

4. The only evidence in the present case concerning the worker’s work status at the relevant time was that he was not on duty and his superior officer had no knowledge of his participation in the match. Thus there was a distinction of considerable importance between Clark and the present case, and the Arbitrator erred in concluding that Neilson CCJ in Clark had considered “the same argument” as was raised in the present matter concerning the relevance of being “not on duty” [54].

5. It was accepted by the worker’s counsel, that “... [the worker] wasn’t rostered on, he wasn’t on duty” [55].

6. The “false dichotomy” identified by Neilson CCJ arose by reason of the fact in that case that, regardless of whether the injured officer was or was not on duty, his participation in the match was encouraged by the employer and the employer derived benefit from the participation. The payment received by the officer in Clark, of which there is no evidence in the present case, may be seen as constituting a significant part of the encouragement given by the employer. The question as to whether this error has relevantly affected the Arbitrator’s decision is addressed below [56].

7. Ground two stated:

The appellant submits the Arbitrator made an error of fact in finding that the NSW Police Rugby League Association was an organisation ‘within’ NSW Police. [57]

8. It was argued that the Arbitrator’s failure to refer to the Australian Securities and Investments Commission (ASIC) extract in evidence, which established that the Association “is a separate registered association [to NSW Police]”, constituted relevant error [58].

9. Whilst it was correct, as argued, that the ASIC evidence was not referred to by the Arbitrator in the course of her reasons, the Deputy President was not persuaded that her description of the Association as being “within the NSW Police” demonstrates relevant error. Her use of the word “within” does not constitute a finding that the Association formed part of the NSW Police Force. It is to be noted that the Police Act 1990 prescribes the composition of the NSW Police Force. Further it cannot be said that the Arbitrator intended to convey a finding that the activities of the Association constituted a “mission or function” of the NSW Police Force which are regulated by s 6 of that Act [59].

10. It was reasonably clear that in stating that the Association was “within the NSW Police” the Arbitrator intended to convey no more than that the Association was comprised of members of the NSW Police Force. It appeared that, as argued on behalf of the worker, she has adopted the term “within” from the Association’s website under the heading “goals” where it is stated:

“[The Association] is an organisation within the NSW Police Force.” [60]

11. The Arbitrator’s ultimate conclusion that, as stated by her, “section 4 is satisfied” is not affected by her statement concerning the Association being “within the NSW Police Force”. This ground was rejected [61].

12. Ground three stated:

The appellant submits the Arbitrator made an error of law in the application of s 4 of [the 1987 Act] and by failing to consider relevant evidence in her analysis of s 4 of the Act. [62]

13. The appellant made reference in the course of submissions to the decisions of the High Court in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (Hatzimanolis) and Comcare v PVYW [2013] HCA 41; 250 CLR 246 (PVYW) and it was put that the Arbitrator “should have been guided by the principle in Hatzimanolis which has recently been ‘endorsed’ by the High Court in [PVYW]”. The Deputy President found earlier that the Arbitrator had erred concerning her approach to the application of s 4. It was thus necessary to examine the evidence to determine whether those errors had relevantly affected her ultimate determination concerning the matters addressed by that section.

14. Whilst the appellant did not raise the specific nature of the Arbitrator’s determination in the course of its argument, it must be noted at the outset that she had not expressly stated in her reasons that the injury arose out of the employment or whether it arose in the course of employment. Her reasons merely stated, as earlier noted, that s 4 is “satisfied” [67].

15. The question before the Arbitrator required, as argued by the appellant, consideration of the proper construction and application of s 4 to the facts as found, as is authoritatively addressed in Hatzimanolis and PVYW. Whilst the Arbitrator made reference to the decision in Clark in which Neilson CCJ considered the decision of Hatzimanolis, there was absent from the Arbitrator’s reasoning any clear statement of relevant principle which may be derived from the High Court decisions. Indeed there was no mention of those authorities. This omission was considered together with her erroneous treatment of both the facts and argument in Clark as being “very similar” to the present case [68].

16. The focus of the Arbitrator’s reasoning fell upon a consideration of whether there was evidence of a benefit to the employer flowing from the worker’s participation in the match. That approach reflects matters elaborated in earlier authority, that is decisions which predate Hatzimanolis. Theonly mention of the factors considered in Hatzimanolis and subsequent authorities, which concerned permission or encouragement by the employer, is found where the Arbitrator summarises the decision of Neilson CCJ in Clark [72].

17. Notwithstanding the deficiencies in the reasoning of the Arbitrator, the errors have not relevantly affected the determination of the dispute concerning injury, given the conclusion that the evidence supports a finding that the injury arose in the course of employment [73].

18. The appellant did not provide financial assistance with respect to participation in the match and the worker was off duty at the time of the injury. The worker had not sought permission or approval from his superior as was emphasised by the appellant. Notwithstanding those matters, the worker came to play in the match by reason of an invitation given by a fellow police officer who represented the Association which was affiliated with the Police Sports Council. The worker qualified for that invitation by reason of the fact that he was himself a serving police officer in the relevant geographical region with which the team was associated and identified [74].

19. It was open to inference that the worker’s participation in the match was relevantly encouraged by the appellant given: the appellant’s acceptance of the existence of the Association and its activities; its permission to use the police insignia; the participation of senior officers in the Association including the appointment of such an officer as patron and, significantly, the Association is affiliated with the Police Council of Sport. That last factor concerning the Police Council of Sport, of which the present Chairman is Deputy Commissioner Hudson, suggested that the activities of the Association would, to a degree, be the subject of supervision by the Council [75]. A finding was made on appeal that the injury was received in the course of employment.

20. The Arbitrator’s finding that the worker’s employment was a substantial contributing factor to the injury is challenged by the appellant in terms found in grounds four and five [77].

21. Ground four stated:

The appellant submits the Arbitrator erred in law in finding that the respondent worker suffered injury substantially contributed to by his employment by failing to properly apply s 9A(2)(b) of [the 1987 Act]. [78]

22. The error asserted was that the Arbitrator failed to “direct her attention to how the particular tasks of [the worker’s] employment caused or materially contributed to him suffering injury when playing rugby league”. Reliance was placed upon the decisions of Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 (Hills) and Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi) in support of this assertion of error. It was noted in submissions that Badawi confirms that “substantial in s 9A means real and of substance”. It was put that a proper consideration of s 9A(2)(a)–(f) would have caused the Arbitrator to conclude that the worker had “not satisfied [the] onus of establishing the contribution of his employment was ‘real and of substance’ to his injury” [79].

23. The Arbitrator’s conclusion concerning s 9A addressed both the employment concerned and all relevant circumstances surrounding the occurrence of the injury including the activity of playing rugby league which was accepted by the appellant as having a “connection” with the employment. It is well established that a substantial contributing factor involves a causative element (Badawi). On the present facts the “connection” with employment was a causative connection; that the injury occurred during the match was “an incident or state of affairs to which [the worker] was exposed in the course of his employment and to which he would not otherwise have been exposed” (per Basten JA in Da Ros v Qantas Airways Ltd [2010] NSWCA 89 (Da Ros) at [24]). The employment, on the evidence, was a substantial contributing factor to the injury, that is it was one which was “real or of substance” and the Arbitrator’s conclusion that the injury was compensable may not be challenged under this ground [83].

24. Ground five stated

The appellant submits the Arbitrator erred at law applying the incorrect test of causation under s 9A of [the 1987 Act]. [84]

25. It was asserted that the Arbitrator erred in adopting the “but for” test when, upon reliance of that stated by Basten JA in Da Ros (at [24]) she concluded that:

... the football game was an incident, or the injury itself [sic] to which [the worker] was exposed in the course of his employment and to which he otherwise would not have been exposed but for his employment. [85]

26. The statement by Basten JA to which the Arbitrator made reference (and which is referred to at [83] of the decision) is as follows:

In the present case, the collision with the courier was an incident or state of affairs to which the appellant was exposed in the course of his employment and to which he would not otherwise have been exposed. Because it was one of two contributing factors (the other being the presence of the courier at the same place at the same time) it is difficult to understand why it would not be a substantial contributing factor. No satisfactory alternative having been proffered on behalf of Qantas, and in accordance with the reasoning in Badawi, there was only one conclusion reasonably open on the findings of primary fact. [86]

27. The appellant, relying upon that which was stated by the majority in Badawi at [81], was correct to assert that in compensation law the test of causation is not the “but for” test, but one of common sense. However, matters revealed by the application of the “but for” test, whilst not determinative of the question, may have relevance (as in Da Ros) to the question of causation [87].

28. On the present facts the worker qualified for participation in the match by reason of his employment as a police officer and, as earlier discussed, he was performing his duties in the region from which serving officers were drawn for membership of the particular team. The Arbitrator’s conclusion that the employment was a substantial contributing factor to injury was a question of fact which was determined by her following a summary of all relevant evidence and was not erroneously founded upon a simplistic assessment of the question of causation by reference to the “but for” test. As to the “test” applied, it must be noted that the Arbitrator summarised, albeit briefly, the correct approach to construction and application of s 9A by reference to the decision in Badawi [88].

29. The appellant challenged the Arbitrator’s factual conclusion concerning employment being a substantial contributing factor to injury by suggesting that relevant evidence had not been taken into account. Matters referred to in submissions included the worker’s initial rejection of the invitation to participate and his subsequent enquiries about participation together with his election to participate on a rostered day off. That participation was, it was argued, relevantly not known, consented to or approved by his superior. No relevant factual error was made out, it was determined on appeal, given the fact that the Arbitrator had summarised the matters raised in the submission in the course of her “background” summary and it may be safely assumed that such matters were taken into account when evaluating the strength of the causal nexus between employment and the injury [89].

30. The appellant sought to distinguish the present matter from Da Ros having regard to relevant facts. The appellant correctly noted in submissions that the worker was not “engaged in one overall period of work” as was the case in Da Ros, but was “injured during an interval between discrete periods of work where his employer had no knowledge of his whereabouts or activities”. Whilst such matters are points of distinction it could not be said that the Arbitrator erred in her reliance upon matters stated by the Court in Da Ros when reaching her conclusion. So far as it was suggested in submissions that the worker “was not at a place required or encouraged by his employer” such argument could not stand for the reasons earlier stated when the subject of s 4 of the 1987 Act was considered. Ground five was not made out [90].

31. Each of the grounds relied upon by the appellant were rejected. In the circumstances, the Arbitrator’s determination was confirmed [91].

Hume v CSR Ltd [2015] NSWWCCPD 7

Failure to determine all issues in dispute; failure to consider submissions made on entitlement to weekly compensation; failure to consider the legislation; failure to consider if worker had a current work capacity; meaning of suitable employment; relevance of worker’s failure to disclose prior back injury when applying for post-injury employment; whether post-injury employment was “artificial” and therefore not suitable employment because of non-disclosure of prior back injury; relevance of unavailability of suitable employment on the open labour market; ss 32A, 36 and 37 of the 1987 Act, as amended by the 2012 amending Act; extension of time to appeal; Pt 16 r 16.2(12) of the 2011 Rules; absence of provision for a cross-appeal

Roche DP

3 February 2015

Facts:

The worker, a glass production worker at CSR, injured his back on 17 September 2012 when he attempted to move a heavy trolley. He had physiotherapy and was certified fit for light duties. His symptoms did not improve and was referred to a spinal surgeon who diagnosed disc damage at the L4/5 and L5/S1 levels of his back, with a small annular tear at L4/5.

On 15 November 2012, the worker’s employment was terminated by CSR. The worker made a claim for compensation. On 24 December 2012, CSR issued a s 74 notice, disputing liability on the grounds that the worker had not sustained any injury caused by or arising out of his employment, any medical condition suffered by the worker was not causally connected to any work injury, the worker was not incapacitated for work, or, if he was, the incapacity had not resulted from his injury, and that any medical treatment required was not reasonably necessary as a result of injury. It relied upon a report from Dr Edwards that asserted that the worker suffered only a musculoligamentous strain in the incident on 17 September 2012 and that he was fit for his normal duties.

The worker claimed weekly compensation from 16 November 2012 to date. The worker sought alternative employment with another glass company (K & K Glass) (which he obtained by not disclosing his previous back injury), which was terminated on the ground of excessive absenteeism. The worker claimed that the absenteeism was due to his back injury and his employment at K & K Glass was not “suitable employment”. The Arbitrator did not accept that explanation and did not accept that the work with K & K Glass was not suitable employment.

In his decision, the Arbitrator:

• rejected the evidence from Dr Edwards that the worker had only suffered a musculoligamentous strain;
• accepted the evidence from Dr Hsu and Dr Collins that in the incident on 17 September 2012, the worker suffered disc damage affecting the L4/5 and L5/S1 discs;
• accepted the worker’s evidence as to the physical effects of his injury until his employment was terminated on 15 November 2012;
• accepted that the worker was “still convalescent from his injuries when he was dismissed by [CSR] and [was] accordingly entitled to weekly compensation pursuant to section 36 of the 1987 Act” (from 16 November 2012 to 7 February 2013);
• found the worker to be entitled to weekly compensation at the rate of $855 per week from 16 November 2012 until 7 February 2013 under s 36 of the 1987 Act and at the rate of $720 per week from 8 February 2013 to 1 October 2013 under s 37 of the 1987 Act;
• did not accept the worker was dismissed by K & K Glass because he had been taking time off as a result of his back injury, noting that other factors were involved in him taking time off work with K & K Glass;
• accepted the worker’s entitlement under s 37(3) of the 1987 Act was $666.37, being 80 per cent of his average weekly earnings (with CSR) of $832.96;
• accepted that as the worker’s earnings with K & K Glass exceeded his entitlement under s 37(3), the worker had no entitlement to weekly compensation while working for K & K Glass between 2 October 2013 until 15 May 2014, and
• found that the worker had a “current ability to earn $722 per week in suitable employment” and therefore had no entitlement to “ongoing weekly payments of compensation” (from 15 May 2014).

Both parties appealed. The issues in dispute on CSR’s appeal were whether the Arbitrator erred in:

• failing to give reasons;
• failing to consider s 37(3) and the “suitable employment” factors in s 32A, and
• failing to address the worker’s ability to earn in the period concerned.

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

• failing to properly undertake the task required by s 32A of the 1987 Act;
• finding that the worker had no entitlement to ongoing weekly payments of compensation beyond 15 May 2014, the date on which his employment with K & K Glass ceased;
• finding that the worker had a current ability to earn of $722 per week;
• failing to find that the effects of the injury led the worker to take so much time off work with K & K Glass that it led to his dismissal, and
• finding that there was no adequate or convincing explanation why the worker did not reveal to K & K Glass the problems associated with his back injury when confronted about his absenteeism with that company.

Held: The Arbitrator’s determination was revoked in part and the matter was remitted to a different Arbitrator for re-determination.  

Extension of time to appeal

1. As their appeal was filed five days out of time, CSR sought an extension of time in which to appeal. It argued that its appeal was in the nature of a cross appeal.

2. In Gallo v Dawson [1990] HCA 30; 64 ALJR 458 (Gallo), to determine whether the strict application of time limits will work an injustice, it is necessary to have regard to the history of the proceedings; the conduct of the parties; the nature of the litigation; the consequences for the parties of the grant or refusal of the application for the extension of time; the prospects of the applicant succeeding in the appeal, and upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted [19]–[25].

3. As the Commission has no provision for a cross appeal, CSR’s application to extend time was determined under the Commission’s rules and the principles in Gallo. For the following reasons time to appeal was extended:

• the history of the proceedings demonstrated that there were several contentious issues involved in the Arbitrator’s assessment of the claim;
• CSR’s conduct in deciding (initially) to not appeal and acting promptly to then appeal once it became aware of the worker’s position was not unreasonable;
• CSR’s appeal was filed only five days out of time, and five days after the worker’s filed his appeal;
• the nature of the litigation raised issues about the amendments introduced by the 2012 amending Act that require determination;
• the issues raised by CSR’s appeal involved a clear and fundamental error by the Arbitrator, and
• given that the matter was already before a Presidential member, there was no prejudice to the worker in extending time for CSR to appeal. [26].

CSR’s appeal

4. The Arbitrator’s only reasons dealing with the period from 16 November 2012 to 1 October 2013 were that he accepted that the worker was still convalescent from his injuries when he was dismissed by CSR and was entitled to weekly compensation pursuant to s 36 of the 1987 Act and CSR agreed that there was no challenge to the worker’s further amended wages schedule of 19 September 2014 in respect of the period from 16 November 2012 until 1 October 2013 when he commenced employment with K & K Glass. The quantum of these awards could only have been arrived at by assuming that in that period, the worker had no current work capacity [46].

5. However, the period from 16 November 2012 to 1 October 2013 covered two “entitlement periods”. The first was “an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker” (s 32A). The quantum of weekly compensation payable in this period is determined under s 36(1) or s 36(2), depending on whether the worker has a current work capacity or no current work capacity. The second was “an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker” (s 32A). The quantum of weekly compensation payable in this period is determined under s 37(1), s 37(2) or s 37(3), depending on whether the worker has a current work capacity (and if so, whether the worker has returned to work for less than or greater than 15 hours per week) or no current work capacity [48]–[49].

6. If the effect of the injury is continuing, the calculation of a weekly payment of compensation during the first and second entitlement periods starts by determining whether the worker has a “current work capacity” or “no current work capacity”. That question is determined by whether or not the worker is able to return to work in his or her pre-injury employment or in “suitable employment”. The Arbitrator did not consider, with respect to the period from 16 November 2012 to 1 November 2013, whether the worker had a “current work capacity” or “no current work capacity”. The Arbitrator wrongly assumed that the worker had no current work capacity in the whole of the period [50]–[51].

7. Despite CSR not challenging the worker’s wage schedule, this did not relieve the Arbitrator of his obligation to determine the issues in dispute in accordance with the legislation. CSR submitted to the Arbitrator that from 16 November 2012 to 1 November 2013, the worker did have a current work capacity, but the Arbitrator did not consider those submissions, or the issues they raised, and awarded compensation on the assumption that the worker was entitled to an award for the amounts in the wage schedule. The worker’s submissions on appeal did not address this issue; rather, attempting to justify the Arbitrator’s conclusion on the grounds that “practically speaking” there was no employment available to the worker “on the open labour market”. The worker’s submission that no employment was available ignored the legislation. The worker had suitable employment with CSR and he obtained similar, though slightly lighter work with K & K Glass in October 2013. The worker’s submissions ignored the clear words of s 32A, which make it clear that suitable employment means employment in work for which the worker is currently suited “regardless” of whether “the work or the employment is available” [52]–[54],[60].

8. As explained in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar), the legislation requires an assessment of whether the worker is able to return to work in either his or her pre-injury employment or in suitable employment. Suitable employment is defined as employment in work for which the worker is currently suited, having regard to certain specified matters, regardless of whether the work or employment is “available” or is of a type or nature that is “generally available in the employment market”. It was difficult to see that the worker had “no current work capacity” in the period concerned [56]–[57].

9. This was not to say that a work capacity is established merely by the fact that a worker applies for a particular job. The assessment of whether a worker is “suited” for “suitable employment” depends on the matters listed in s 32A(a) (Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 at [33] (Figueira)). In particular, it depends on the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker under s 44B. Unlike Figueira, there was no medical evidence in this case that, between 16 November 2012 and 1 October 2013, the worker had no current work capacity [58].

10. CSR’s appeal succeeded and that part of the claim was remitted for re-determination by a different arbitrator.

The worker’s appeal

11. How the worker came to work at K & K Glass was largely irrelevant to the exercise the Arbitrator had to undertake. The issue was whether he had any entitlement to weekly compensation after he was dismissed by K & K Glass. As that period fell within the second entitlement period, his entitlement had to be determined under s 37 [70].

12. The first question was whether, on and from 15 May 2014, the worker had a current work capacity. He did. Until his dismissal, the worker had been working full-time for over seven months in work that was “pretty much” identical with the sort of work he had done with CSR, but without the drilling and milling. The work with K & K Glass was work that the worker was capable of continuing, if it were available to him and provided a prima facie measure of the worker's work capacity. The worker referred to no medical or other evidence that, as at 15 May 2014, or immediately after that date, his work capacity was less than he demonstrated with K & K Glass. It was open to the Arbitrator to measure that capacity by reference to the work the worker did with K & K Glass, regardless of whether that work continued to be “available”. Since the worker was not working, his entitlement to weekly compensation from 15 May 2014 was determined under s 37(3) [71]–[73].

13. The weekly payment of compensation to which the worker was entitled under s 37(3) was determined by applying the formula: (AWE x 80%) – (E + D). If the worker’s employment with K & K Glass was “suitable employment”, as defined, as the Arbitrator found, he had no entitlement to weekly compensation beyond 15 May 2014 because the amount he was able to earn in suitable employment ($722) was greater than 80 per cent of his average weekly earnings ($666.37) [74]–[75].

14. The worker’s real challenge was that the Arbitrator erred in finding that the employment with K & K Glass was “suitable employment”. The worker's submissions on this issue ignored the definition of suitable employment in s 32A and substantially ignored the evidence. There was no error by the Arbitrator [76].

15. The worker’s submission that the work with K & K Glass was “artificial” was untenable. It had no support in Dewar, or in the evidence. The job with K & K Glass was undoubtedly “a real job in employment for which [the worker was] suited” (Dewar at [59]), having regard to his age, education, skills and work experience. Nothing in Dewar supported a contrary conclusion. It was a job that the worker did for over seven months and one he would have continued had he not been dismissed. Just because the worker did not reveal his previous back injury when he applied for work with K & K Glass did not mean that the job with that company was “artificial”. The issue was whether, having regard to the definition of suitable employment in s 32A, the employment with K & K Glass was employment in work for which the worker was suited. Whether, if he had disclosed his previous back injury, that job would not have been offered to him, was not the test [77]–[78].

16. The submission that a job that requires an injured worker to deceive prospective employers to secure the job cannot be seen to be “suitable employment” ignored the definition of that term in s 32A and was rejected. Provided it is a real job in employment for which the worker is suited, it does not matter if the suitable employment is not “available” to the worker [79].

17. The worker’s submission that the Arbitrator erred in not finding that he was dismissed because of time off because of his back and, therefore, erred in finding that the work with K & K Glass was suitable employment, ignored the Arbitrator’s reasons [80]–[81].

18. When the Arbitrator’s conclusion was viewed in its proper context, it was seen that he did not rely solely, or even mainly, on the worker’s nephew’s drug taking as the reason for not accepting the worker’s evidence as to why he took so much time off work with K & K Glass. The Arbitrator’s conclusion was open to him and involved no error. Nothing in the worker’s statement of 18 July 2014, or his oral evidence established error by the Arbitrator on this point. The evidence that the worker had “niggling pain” was perfectly consistent with the Arbitrator’s finding that the worker had suffered only a “low-grade injury to his lumbar spine”. It was also consistent with the worker’s statement of 3 May 2014, which the Arbitrator referred to [82]–[83].

19. The worker’s evidence that he had “odd days off when he had really bad days in terms of back pain” and that he was “having difficulty” with the duties with K & K Glass was not supported by the evidence from Dr Farabi, or any other evidence, and was not evidence that the Arbitrator was obliged to accept. (That is not to say that corroboration is essential before a worker can succeed (see Chanaa v Zarour [2011] NSWCA 199 at [86] and Woolworths Ltd v Warfe [2013] VSCA 22, both applied in Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66). It is merely a matter an Arbitrator is entitled to consider.) The Arbitrator correctly noted that the worker made no mention, in his statement of 3 May 2014, of having to take considerable time off work because of his back. This was, however, only one reason for not accepting the worker’s evidence as to why he was dismissed by K & K Glass [84].

20. It was not for CSR to prove why the worker was taking excessive time off with K & K Glass. It was for the worker to prove, as he asserted, that he was dismissed because he took excessive time off because of his back injury. He failed to do so. Counsel for the worker’s submission, as with most of his submissions, was an attempt to conduct the appeal as a rehearing. That is not permissible in a s 352 appeal, which is restricted to the identification and correction of error [85].

21. The worker also referred to an absence of evidence from Mr Waring, the factory manager who worked closely with the worker at K & K Glass. As Mr Waring was not employed by CSR, it was not accepted that he was a person in CSR’s “camp” (Payne v Parker [1976] 1 NSWLR 191) and therefore a person CSR would be expected to call. The worker did not identify what inference should be drawn, favourable to him, because of the absence of evidence from Mr Waring. He gave no evidence that he had, for example, complained to Mr Waring about his back symptoms causing him difficulties at K & K Glass or causing him to take time off work. The worker’s evidence was the opposite, namely that he did not tell Mr Waring about his back injury. If, because of his back, the worker was having “difficulty” with his work with K & K Glass, as he claimed, it was for him to call evidence to establish that fact. The Arbitrator did not say that the worker offered no explanation why he did not reveal his previous back injury to K & K Glass. He said that the worker provided “no adequate or convincing explanation”. That finding was open and disclosed no error [86]–[87].

22. Even if the worker’s explanation for not telling Mr Waring or Mr McParland about his back injury was considered “adequate”, and the Arbitrator erred in not reaching that conclusion, that made no difference to the result. In the absence of any evidence that, as a result of the injury with CSR, the worker’s condition deteriorated after leaving K & K Glass, it was also open to the Arbitrator to find that, at the date of the arbitration, the work with K & K Glass was suitable employment [88].

23. The submission that the employment with K & K Glass was not “suitable employment” was interconnected with the submission that, because of his back injury, the worker had to take extensive time off work, which led to the termination of his employment. Though it would have been more appropriate to say merely that the dismissal had not resulted from the back injury, the Arbitrator’s findings and conclusions were open on the evidence. It was also open for the Arbitrator to find that the worker had a “current ability to earn $722 per week in suitable employment”, which analysis was consistent with the evidence and disclosed no error [89]–[91].

Michell Australia Pty Ltd v Fordham [2015] NSWWCCPD 15

Claim for further lump sum compensation; s 66 of the 1987 Act; effect of amendments to the 1987 Act and the 2010 Regulation; whether further claim made after operation of amendments is defeated by application of the amended provisions when earlier claim made specifically sought such compensation under unamended provision

O’Grady DP

26 February 2015

Facts:

This appeal concerned the proper construction and application of the 1987 Act, following amendments effected by the 2012 Amending Act and relevant regulations. The question concerned the entitlement to lump sum compensation of the worker as against his former employer, Michell Australia Pty Ltd. The worker received the relevant injury on 20 September 1989. Lump sum compensation was claimed by him and paid by the appellant in 2004.

On 17 December 2008, the worker underwent a L5/S1 discectomy which involved laminectomy and decompression as well as rhizolysis of L5 and S1 nerve roots. A claim for further lump sum compensation was made by the worker on 6 January 2014 that alleged further loss of function of body parts. It was alleged that the losses had increased so far as the back (to 25 per cent), right leg (to 10 per cent) and left leg (to 20 per cent) and an additional claim was made in respect of an alleged 20 per cent loss of efficient use of sexual organs. The insurer made a compromise offer that was not accepted. The insurer subsequently declined that claim. The s 74 notice was not in evidence before the Arbitrator.

In proceedings before the Arbitrator, the appellant asserted that the 1987 Act, in its amended terms applied and that the worker’s further claim was defeated by operation of s 66. That assertion was rejected by the Arbitrator. The appellant challenged the Arbitrator’s findings made in the course of his reasons.

The grounds of appeal relied upon were:

• the Arbitrator erred in law in holding that the worker’s claim was not defeated by s 66(1A) of the 1987 Act;
• the Arbitrator erred in law in regarding the application of s 66(1A) of the 1987 Act contended for by the employer to be a retrospective application;
• the Arbitrator erred in law in concluding that s 66(1A) was, relevantly, ‘particularly unclear’, and
• having determined that the worker’s current claim was caught by the amendments as provided by clause 19, schedule 8 of 2010 Regulation and s 66(1A) of the 1987 Act, the Arbitrator erred in law in failing to take clause 19 into account in determining the application of s 66(1A) to the worker’s claim.

Held: The Arbitrator’s determination was confirmed, subject to paragraph 2 being amended.  

Interlocutory

1. Whilst the Arbitrator had determined there was no statutory bar to the worker proceeding with his application seeking further lump sums, no final order had been made. The rights of the parties had not been finally disposed of and the decision was interlocutory (see: Licul v Corney [1976] HCA 6; 180 CLR 213; 50 ALJR 439). In the circumstances the appellant required leave to proceed with the appeal (s 352(3A)) [8]–[9].

2. The questions raised in this appeal had been determined in earlier Presidential decisions on appeal (Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34 (Caulfield) and Cram Fluid Power Pty Ltd v Green [2014] NSWWCCPD 84 (Cram Fluid)). Those decisions determined the dispute in the worker’s favour and both decisions were guided in their reasoning by the decision of the High Court in ADCO Constructions v Goudappel [2014] HCA 18; 88 ALJR 624 (Goudappel). Since the delivery of the Arbitrator’s decision, the Court of Appeal’s decision in Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 (Sukkar) had been delivered and the worker sought to distinguish Sukkar from his case on the facts. As such, leave was granted [10]–[11].

Fresh evidence

3. The appellant sought leave pursuant to s 352(6) of the 1998 Act to adduce additional evidence on the appeal. There was no basis upon which the appellant should have been granted leave to adduce additional evidence and leave was refused [17]–[19].

The arbitral proceedings

4. Before the 2012 amending Act, there was, except in cases of industrial deafness, no limiting threshold of permanent impairment or permanent loss of a thing mentioned in the Table of Disabilities. Nor was there any legislative constraint as to the making of multiple claims for lump sum compensation in respect of the one injury. Such matters were the subject of change following operation of the amending Act [26].

5. The appellant acknowledged at the hearing before the Arbitrator that the decision in Caulfield had addressed the question concerning the application of s 66(1A). However, the appellant sought to distinguish Caulfield. The appellant’s assertion was that, by reason of the operation of cl 19 of the 2010 Regulation, the amended provisions of s 66, in particular s 66(1A), applied “in respect of injuries before 2002”. The appellant relied upon the decision of BP Australia Ltd v Greene [2013] NSWWCCPD 60 (Greene) to support its argument that s 66(1A) applied [28]–[29].

The Arbitrator’s reasons

6. The Arbitrator identified the first “issue” for determination as being:

“The liability issue raised by [the appellant] is that [the worker] is not entitled to bring a further claim for lump sum compensation by virtue of s 66(1A) of the 1987 Act and the effect of [cl 19 of Sch 8 to the Regulation].”

7. The appellant submitted that Caulfield “turned upon the effect of [Sch 6 Pt 19H cl 15 and cl 11 of Sch 8 to the Regulation]” which was accepted by the Arbitrator. The Arbitrator recorded the appellant’s submission that the decision of Greene “indicated that cl 19 [of Sch 8 of the Regulation] unequivocally referred to the pre-2002 scheme and the reference to the clauses in Caulfield are irrelevant”. The Arbitrator then accepted the appellant’s submission that Caulfield did not apply and that the Arbitrator should look at cl 19 of Sch 8 to the Regulation. However, the Arbitrator also accepted the worker’s submission that cl 19 only applied in so far as it deemed s 66(1A) of the 1987 Act to apply to injuries received before 2002 [32]–[35].

8. The Arbitrator found that the claim made on 6 January 2014 by the worker “clearly post-date[d] the amended Regulation and the section as amended”. The Arbitrator identified a separate “issue” as being whether the worker was “precluded from bringing this claim because he ha[d] previously made his ‘one’ claim for lump sum compensation”. The Arbitrator did not call for the worker to address this. He considered a number of authorities which addressed the subject of statutory interpretation and referred to s 30 of the Interpretation Act 1987. The Arbitrator immediately proceeded to consider whether the amendments operated “retrospectively”. The Arbitrator expressed his view that it was particularly unclear that the sub-section was designed to act retrospectively. The Arbitrator stated that there was no relevant authority on the point and concluded that although cl 19 of the 2010 Regulation applied to the worker, it only applied in so far as s 66(1A) applied to the worker’s claim, which would mean that the claim was his one and only claim within the meaning of that section. The Arbitrator agreed with the worker’s submission that the operation of that Regulation did not affect his entitlements pursuant to s 67 of the 1987 Act. [37]–[40].

Disposition of the appeal

9. The fundamental challenge made was that the Arbitrator had erred in determining that the provisions of s 66(1A) have no application on the present facts and did not prevent the worker proceeding with his claim. Error was said to be demonstrated by the Arbitrator’s rejection of the appellant’s argument as to “retrospectivity” of the amended provisions. It was claimed that the Arbitrator’s statement was unclear, but that was not an assertion of failure by the Arbitrator to state adequate reasons [42].

10. No careful attention was given in argument to the relevant transitional provisions other than cl 19 of Sch 8 which had been carefully considered in Caulfield, which was of no relevance [44].

11. Greene suggested that cl 19 of Sch 8 demonstrated that the legislature “has indicated an intention that [injuries received before the 2002 amendments] should continue to be assessed and compensated under the Table of Disabilities, subject to the one claim restriction”. The Deputy President accepted this. It was clear that the purpose of cl 19 was to overcome an omission concerning pre-2002 permanent loss cases in the 2012 amending Act. However, as had been made clear in Goudappel, Caulfield and recently, Sukkar, the transitional provisions must be applied to determine whether a claim is caught by the “claim restrictions”. The Arbitrator failed to correctly address those transitional provisions [45]–[46].

12. So far as the question of “retrospectivity” was concerned, the Arbitrator erred in asking a wrong question, that being whether the amendments operated retrospectively. As was emphasised by the plurality in Goudappel at [26], the proper construction of the relevant provisions required attention to the text of the relevant clauses. It may be seen that the worker’s entitlement to pursue his claim required a determination, not of “retrospectivity”, but of the proper application of cl 11 to the relevant facts. The Arbitrator’s failure to address that question constituted error on his part [47]–[49].

Application of clause 11

13. It was of significance that the worker had, in 2004, claimed and received lump sum compensation. The question raised was whether such claim was “a claim that specifically sought compensation under s 66 or s 67 of the 1987 Act” in terms of cl 11. Guidance concerning this question may be gained from the plurality in Goudappel. That case concerned an injury received on 17 April 2010; a claim for workers compensation benefits (not expressly including a claim for lump sum compensation) made on 19 April 2010, and the making of a claim by Mr Goudappel seeking lump sum compensation on 20 June 2012. The High Court found that the regulation in question was validly made. On the facts of that case, Mr Goudappel’s claim was defeated by the amendments as applied in accordance with the savings and transitional provisions [50]–[52].

14. The present case was different. The worker had made a claim before 19 June 2012 that specifically sought compensation under the old s 66. Having regard to the High Court’s findings in Goudappel, it appeared to follow that the worker’s claim was not defeated by the amended provisions. Such a tentative conclusion needed to be tested having regard to the decision of the Court of Appeal delivered on 22 December 2014 in Sukkar. The facts of Sukkar concerned a worker who had been exposed to loud industrial noise for many years. Mr Sukkar made a claim for, and was paid, lump sum compensation in 1996 in respect of hearing loss as assessed at that time. A claim with respect to further hearing loss was made by Mr Sukkar on 19 June 2012. It was important to note that Mr Sukkar’s claims each fell within the terms of s 17 (Loss of hearing – special provisions) of the 1987 Act [53], [55]–[57].

15. In Sukkar, two questions of law had, by leave, been addressed by the President of the Commission, Keating DCJ. The first of those questions was of relevance to this matter. His Honour, in answering those questions, concluded on the facts that the terms of s 17 deemed that the happening of the injury occurs on the date notice of injury was given. Having regard to the date of injury so determined, his Honour concluded that Mr Sukkar’s entitlement to compensation for such further loss was to be determined in accordance with the provisions of the Act as amended following operation of the 2012 amending Act. Mr Sukkar sought leave to appeal [58]–[59].

16. Each member of the Court of Appeal approached the appeal differently (see Sukkar McColl JA at [75]–[78], Basten JA at [106] and Beech-Jones J at [123], [131]–[133], [136]). Basten JA at [122] varied the answer by the President to the first question to be:

Q1 Do the amendments to the Div 4, Pt 3 of the [1987 Act] introduced by Sch 2 of the [2012 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?

Ans 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 [60]–[67].

17. In this matter, the appellant argued that Cram Fluid was wrongly decided and was the subject of a “holding appeal”. It was submitted that the Commission might “regard it as appropriate that the determination of the present appeal abide the decision of the Court of Appeal [in Cram Fluid]”. It was not considered appropriate to defer determination of this appeal and the Deputy President rejected the assertion that the conclusion reached by the President in Cram Fluid was wrong [69]–[70].

18. There can be no doubt that the reasons stated by Basten JA and Beech-Jones J each afford support for the submission that the worker did not have an unresolved claim for lump sum compensation which was made prior to 19 June 2012 and that his lump sum compensation claim, made after 19 June 2012, is subsequently defeated by s 66(1A) of the 1987 Act. However the persuasive nature of their Honours’ comments must be evaluated in the light of that which was stated by the High Court in Goudappel (at [29]– [30]). Clause 11, as decided by the High Court, “applied the new s 66 to entitlements to permanent impairment compensation which had not been the subject of a claim made before 19 June 2012 that specifically sought compensation under the old s 66 ” (emphasis added) [74].

19. That statement of the High Court constituted part of the ratio of the decision and, in so far as the comments of Basten JA and Beech-Jones J may be seen to conflict, the Deputy President was bound to follow the reasoning expressed by the plurality in Goudappel [75].

20. The force of the comments made by Basten JA concerning “any extant claim” must be considered having regard to his Honour’s earlier comments in Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94; 11 DDCR 534 (Goudappel No 1) at [16] where it was said (albeit concerning cl 15):

None of these provisions suggest that the Acts required, in June 2012, that an injured worker must make a separate claim for lump sum compensation: rather they are consistent with the contrary conclusion. It must follow that cl 15 did not require the application of the amended s 66 where the worker was able to rely upon a claim made prior to 19 June 2012 to establish an entitlement to permanent impairment compensation.

The same observation may be made in the context of cl 11 [76].

21. It must also be remembered that the subject matter of Sukkar concerned the special provisions of s 17 of the 1987 Act which govern hearing loss claims. Subject to that section, the date of claim (or if relevant, the last day of relevant employment) determines the date of injury. It was upon that basis, that is that the Court was dealing with an injury deemed to have been received after the amendment, that McColl JA determined that the “claim” was caught by the amendments.

22. The worker in the present case had, in 2004, made a claim that specifically sought compensation under s 66 and was not prevented by the amendments to proceed with his claim for further lump sum compensation. A similar conclusion was reached by Roche DP in Sodexo Australia Pty Ltd v Khan [2015] NSWWCCPD 12 [78].

23. It followed that the Arbitrator’s ultimate conclusion was correct and may be seen as not affected by the errors earlier identified [79].

Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10

Factual findings; whether worker injured his neck; alleged failure to give reasons; whether worker suffers from a gastrointestinal condition as a result of medication taken for an accepted back injury; assessment of expert evidence; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; standard of proof; meaning of balance of probabilities; fresh evidence or further evidence on appeal; s 352(6) of the 1998 Act; failure to properly prepare case for arbitration

Roche DP

13 February 2015

Facts:

This appeal involved challenges to factual findings that the worker did not injure his neck and that his gastrointestinal symptoms did not result from an accepted injury to his back. The first challenge failed but the second succeeded.

The worker works for the respondent employer making parts for vehicle and office seats. It was not disputed that he injured his back at work on 5 July 2012 while lifting a heavy bundle of metal tubes. After six or seven weeks off, he returned to work on light duties.

On 19 December 2012, while still working on light duties because of the July back injury, the worker was getting up from a crouching position when he felt severe back pain which caused him to fall and strike his head and right knee. The Arbitrator found, and it was not challenged on appeal, that this fall resulted from the original back injury.

The worker sought lump sum compensation in respect of whole person impairment due to injuries to his lumbar spine, cervical spine, right lower extremity and upper and lower gastric tract. The impairment of the lumbar spine was alleged to have resulted from the injuries on 5 July 2012 and 19 December 2012, and the remaining impairments were alleged to have resulted from the injury on 19 December 2012 or, in the alternative, to be consequential conditions that resulted from the initial back injury on 5 July 2012.

The employer’s insurer accepted liability for the injury to the lumbar spine on 5 July 2012, but disputed that the worker sustained any injury arising out of or in the course of his employment on 19 December 2012. Specifically, in its s 74 notice, the insurer disputed that the worker suffered any injury to his gastrointestinal system as a result of the accident on 5 July 2012 and disputed the claim for whole person impairment “for the gastrointestinal system as same has not arisen from an accepted workplace injury”.

The Arbitrator found that the worker did not injure his cervical spine on 19 December 2012 and does not suffer a gastrointestinal condition as a result of the ingestion of medication for his accepted back injury.

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

• finding that the worker did not suffer an injury to his lumbar spine on 19 December 2012 as a consequence of the injury on 5 July 2012;
• ignoring and not addressing the worker’s evidence, the evidence from the employer’s first aid officer, and the evidence in the incident/accident report forms dated 19 December 2012 recording injury to the neck;
• failing to give adequate or sufficient reasons for finding that the worker did not suffer an injury to his cervical spine;
• determining that the worker did not suffer a consequential condition in his upper and lower gastrointestinal tract as a result of the ingestion of medication resulting from the back injury of 5 July 2012;
• applying the incorrect standard of proof when he determined that there was not sufficient evidence for him to be “comfortably satisfied that the [gastrointestinal tract] condition arose as a result of the ingestion of pain relief medication taken following the back injury on 5 July 2012”, and
• basing his findings, with respect to the consequential gastrointestinal injury, on an incomplete and/or erroneous reading by him of the clinical notes of the worker’s treating general practitioner.

Held: The Arbitrator’s determination was in-part revoked. The question of whether the worker’s condition in his upper and lower digestive tract resulted from the injury to his lumbar spine is to be re-determined by a different Arbitrator.

Fresh evidence or additional evidence

1. The worker sought to tender, as fresh evidence or additional evidence pursuant to s 352(6) of the 1998 Act, a report from his treating general practitioner. Section 352(6) involves two threshold questions that are alternatives. The first goes to the issue of availability of the evidence in advance of the proceedings. The second involves an assessment of whether continued unavailability of the evidence “would cause substantial injustice in the case”. The power to admit the evidence is discretionary but the discretion only becomes available if the Commission is satisfied as to one of the threshold matters (Chep Australia Ltd v Strickland [2013] NSWCA 351 (Strickland)) [22].

2. In respect of the first threshold question, there was no evidence that the general practitioner would not have been able to provide the report prior to the arbitration, had he been asked to do so. Therefore, the first test could not be satisfied [25].

3. The question that remained was whether the refusal to grant leave to rely on the additional evidence would cause a substantial injustice in the case. This requires a consideration of what the result “would” be if the evidence were excluded and what the result “would” be if it were admitted. It requires careful consideration of the merits of the grounds of appeal on this issue [26].

4. For the reasons explained below, the Deputy President concluded, without regard to the additional evidence sought to be tendered on appeal, that the Arbitrator erred on a number of material points and that the matter relating to the worker’s gastrointestinal symptoms must be re-determined. As the worker sought to tender further evidence, it was appropriate that the re-determination be conducted at a second arbitration before a different Arbitrator when both sides will have the opportunity to tender such evidence as they consider necessary. It followed that there was no injustice if the additional evidence was not admitted on appeal and the application to rely on it, on the appeal, was refused (Strickland and Northern NSW Local Health Network v Heggie [2013] NSWCA 255 applied) [27].

5. The legal profession was reminded, yet again, that arbitrations are not a dress rehearsal where the parties can await the outcome and then attempt to tender, on appeal, evidence that could and should have been tendered at the arbitration.

Injury to the cervical spine

6. After an extensive review of the relevant evidence, which included an assessment of the specific markings on the diagram of a human figure on each of the incident/accident forms, the Arbitrator concluded that whilst the worker undoubtedly struck his head in the incident of 19 December 2012, he did not suffer an injury to his cervical spine. The Arbitrator noted that there was no reference in the medical material generated immediately following that injury to any injury to the cervical spine or any investigation of any such injury [54].

7. The Arbitrator was not bound to accept the worker’s evidence, as expressed in his statement, that he had injured his neck on 19 December 2012. That evidence was inconsistent with a substantial body of credible contemporaneous medical evidence (Bulstrode v Trimble [1970] VicRp 104; VR 840; HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302). The Arbitrator’s decision not to accept the worker’s evidence involved no error [57].

8. The Deputy President did not accept the appellant’s submission that the “sole factor” in the Arbitrator’s “decision making process”, with regard to the alleged cervical spine injury on 19 December 2012, was his review of the medical evidence. The Arbitrator expressly referred to the incident/accident report forms, and to the markings on those forms, the physiotherapist’s examination and to the general practitioner’s notes. None of those matters, taken together or individually, meant that the Arbitrator erred in not finding in the worker’s favour on this issue [67].

9. The submission that the Arbitrator failed to give reasons was without merit. On the issue of whether the worker injured his cervical spine, the Arbitrator’s reasons, when read in their entirety, exposed his reasoning process and articulated the essential ground on which he based his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 [68]–[70].

Gastrointestinal condition

10. While it was correct that, as the Arbitrator noted, the worker had a history of pre-existing gastrointestinal problems, those problems were not so numerous or significant to justify a rejection of the evidence of the worker’s treating gastroenterologist (who found that the gastrointestinal condition arose as a result of the ingestion of pain relieving medication taken following the back injury of 5 July 2012). The worker’s complaints to his general practitioner from October 2010 in respect of abdominal discomfort were relevant, but had to be viewed in the context of the worker’s history of a worsening of his gastrointestinal symptoms in 2013. The worsening of the worker’s gastrointestinal symptoms occurred after a period of sustained use of Voltaren, Tramadol and Panadeine Extra [92].

11. It was not determinative that the treating gastroenterologist’s history of the worker’s symptoms did not accord precisely with the general practitioner’s notes, or that the gastroenterologist had no history of the worker’s previous episodes of gastroenteritis. Having regard to the totality of the evidence, the gastroenterologist’s history provided a fair climate for the consideration of his opinion (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505). In circumstances where the respondent called no evidence on this issue, the Arbitrator erred in (apparently) discounting the gastroenterologist’s evidence because he did not have a completely accurate history [93]–[95].

12. Contrary to the Arbitrator’s view, the worsening of the worker’s gastrointestinal symptoms, and the link between the worsening of those symptoms and the medication he was taking for his back injury, was corroborated by the general practitioner’s notes [96].

13. By saying that there was not “sufficient evidence” for him to be “comfortably satisfied” that the worker’s gastrointestinal condition arose as a result of pain relieving medication for his accepted back injury, the Arbitrator applied the wrong standard of proof. For an applicant to succeed in a claim for compensation, he or she only has to satisfy the Commission on the balance of probabilities of the facts that establish the claim [103].

14. A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel “an actual persuasion of the occurrence or existence of the fact in issue before it can be found” (NOM v DPP [2012] VSCA 198; see also Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Helton v Allen [1940] HCA 20; 63 CLR 691) [104].

15. Once the feeling of actual persuasion has been obtained, “it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’” (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes [2008] NSWCA 246) [105].

16. The standard of being “comfortably satisfied” is a higher standard than that of actual persuasion on the balance of probabilities. While the balance of probabilities standard will be satisfied if an Arbitrator is “comfortably satisfied” that a fact exists, that is not a necessary prerequisite for satisfaction of the civil standard and the Arbitrator erred in applying that standard. The evidence only had to establish that it was more probable than not that the gastrointestinal condition resulted from the medication taken for the worker’s accepted back injury [106].

17. The claim relating to the gastrointestinal condition was remitted to a different Arbitrator for re-determination [107].