Issue 2: April 2018

The issues on appeal were whether the Arbitrator made an error of law in:

(a) finding that a total left knee replacement was an ‘artificial aid’ contemplated by s 59A(6)(a) of the 1987 Act (Ground No 1);

(b) relying on Thomas, in finding that a total left knee replacement was an ‘artificial aid’ contemplated by s 59A(6)(a) of the 1987 Act (Ground No 2), and

(c) failing to construe s 59A(6)(a) of the 1987 Act by reference to its text, context and purpose and consequently erred in finding that a total left knee replacement was an ‘artificial aid’ contemplated by s 59A(6)(a) of the 1987 Act (Ground No 3).

Held: The Amended Certificate of Determination dated 9 October 2017 was confirmed.

Ground No 1

1. This ground was not argued separately and depended on “the reasons articulated in grounds nos 2 and 3”. It was appropriate to deal with the other grounds. ([31])

Ground No 2

The decision in Thomas

2. Thomas has been frequently applied over the years. It has been applied by the Court of Appeal on other issues; on multiple occasions in the former Compensation Court of NSW, and in the Commission. On many of the occasions on which Thomas has been applied over the years, it has been on the issue of the construction of the phrase ‘curative apparatus’. ([38])

(Bresmac v Starr (1992) 29 NSWLR 318; 8 NSWCCR 601; Our Lady of Loreto Nursing Home vOlsen [2000] NSWCA 12; 19 NSWCCR 465; McWilliams v Rachel Forster Hospital [2002] NSWCC 22; 23 NSWCCR 197; Sinanian v WorkCover Authority (NSW) (1999) 19 NSWCCR 83; Woollahra Council v Beck [1996] NSWCC 43; 14 NSWCCR 179 (Beck); Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233; Harbison v Harbison [2000] NSWCC 15; 19 NSWCCR 548; Sankey v NSW Fire Brigade [1998] NSWCC 46; 17 NSWCCR 100, and Newcastle Regional Public Tenants Council Incorporated v Grant [2005] NSWWCCPD 2 referred to)

The words in the definition

3. The words employed in the relevant definitions, in cl (b) of s 10(2) of the 1926 Act, cl (d) dealing with ‘medical or related treatment’ in s 59 of the 1987 Act, and s 59A(6)(a) of the 1987 Act (inserted by the 2015 Amending Act), are very similar. ([39])

4. The fact that Thomas was decided “thirty-eight years ago” did not mean that it no longer has application. The consideration of the phrase by Hutley JA was of a general nature. His Honour’s reasoning, on the meaning of ‘artificial aids’, was in the context of a claim for modification of a motor vehicle and instruction in its use. His Honour’s reasoning did not depend on that context. His Honour’s conclusion was that an ‘artificial aid’ is “anything which has been specially constructed to enable the effects of the disability (the result of injury) to be overcome”. In reaching this conclusion, his Honour had apparent regard to the words themselves, and to the list in the definition, saying the “other articles in the subclause, crutches, artificial members, eyes or teeth, are illustrations of this”. ([45])

(Beck at 181E referred to)

5. The plain words, in those parts of the statutory definitions which deal with ‘artificial aids’, have changed very little since the decision in Thomas, and not in a way which would suggest the meaning of ‘artificial aids’ has altered. No developed submission was made by the appellant, that the insertion of cl (g) into the relevant definition in s 59 of the 1987 Act (and the corresponding inclusion of s 59A(6)(b) in the 1987 Act), requires that the term ‘artificial aids’ be read more restrictively than it was in Thomas. Other than the insertion of cl (g), the appellant had not sought to identify any specific change in the words, which would warrant an interpretation different to that in Thomas. The Deputy President accepted the submission by the worker and the intervener, that the interpretation in Thomas is consistent with the words of the text. The Arbitrator’s reliance on the decision in Thomas was supported by the application of Ex parte Campbell. ([47])

The reliance on Ex parte Campbell

6. Clause (d) of the definition of ‘medical or related treatment’ in s 59, and s 59A(6)(a), both appear in the same Division (Div 3 of Pt 3) of the 1987 Act, dealing with “Compensation for Medical, Hospital and Rehabilitation Expenses etc”. One essentially repeats the wording of the other. There is no reason why those words should not be given the same meaning in each instance. Section 59A(8) provides that s 59A “does not affect the requirements of section 60”. Thus, although s 59A(6) may quarantine a certain kind of ‘medical or related treatment’ from the disentitling operation of s 59A, it is still necessary that the cost of the treatment be recoverable pursuant to ss 59 and 60. It is appropriate that the term ‘artificial aids’ has the same meaning in the definition in s 59, and in s 59A(6)(a). This is consistent with those provisions operating coherently together, giving “effect to harmonious goals”. ([65])

(Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 at [70] applied)

7. The relevant words appeared in the definition of ‘medical treatment’ in s 10(2) of the 1926 Act. They appeared, in very similar form, in the definition of ‘medical or related treatment’ in s 59 of the 1987 Act. They appeared in substantially identical form (but with the addition of the words “including hearing aids and hearing aid batteries”) in s 59A(6)(a) of the 1987 Act, a provision which placed that particular kind of ‘medical or related treatment’ outside the otherwise disentitling provisions of s 59A. The repeated use of substantially identical words in these provisions, with only very minor changes, was consistent with an intention that they have the same meaning as when the phrase ‘artificial aids’ was construed in Thomas. Thomas is a longstanding authority dealing with the meaning of the words. Consistent with Re Alcan and related authorities referred to above, the presumption relied on by the Arbitrator, citing Ex parte Campbell, was a “permissible approach” to interpretation of the words. It did not have the effect of perpetuating an erroneous construction. The Arbitrator did not err in relying on the principle, in support of his application of the decision in Thomas. ([66])

Is the provision beneficial?

8. It was apparent, from the text of the amendment, and its legislative history, that s 59A(6) quarantined specified kinds of medical or related treatment, including those described in s 59A(6)(a), from the otherwise disentitling effect of s 59A. The Arbitrator correctly recognised that it had “some beneficial purpose”. There was no reason why the words in s 59A(6)(a) should not have the same meaning as those in cl (d) of the definition of ‘medical or related treatment’, in s 59 of the 1987 Act. There was no reason why they should be read more narrowly than the corresponding phrase in the definition in s 59. ([73])

9. The Arbitrator’s conclusion in this regard was not dependent on construing s 59A(6) beneficially. The Arbitrator rejected the submission that s 59A(6) should be read widely. The Arbitrator did not err in his approach to whether the provision should be construed beneficially. The Arbitrator did not construe the provision on that basis, so any such error could not have affected the result in any event. ([74])

10. Ground No 2 was rejected. ([75])

Ground No 3

11. Ground No 3 referred to a failure by the Arbitrator to construe s 59A(6)(a) of the 1987 Act by reference to its text, context and purpose. Notwithstanding this, the appellant’s submissions on this ground essentially dealt with the two canons of construction which it submitted should have been applied. ([91])

12. The first was noscitur a sociis, “legislation is not understood by reading it word for word”, but by “reading whole phrases or sections”. The appellant submitted the phrases “artificial members” and “other artificial aids” should be understood “in the context of the phrases in which they appear”, citing Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation [1971] HCA 17; 124 CLR 97; 45 ALJR 280. ([77])

13. The second canon referred to was ejusdem generis; the maxim “presumes that a general word is read down to have the meaning of specific words in a list. To successfully argue ejusdem generis it is necessary to characterise the genus of the list.” The genus of the list in s 59A(6)(a) was submitted to be “aids that are external, visible and externally accessible to an injured worker’s body”. The appellant submitted that “s 59A(6)(b) confirms that the genus in s 59A(6)(a) should not be read more widely”. ([78])

14. The worker’s submissions attacked the appellant’s characterisation that the articles in s 59A(6)(a) are exclusively external to the body. The worker submitted the articles in s 59A(6)(a) are “not exclusively external to the body”. Eyes and teeth are internal to the body. A cochlear implant has “an internal component”, yet would be compensable as it falls within the meaning of ‘hearing aids’. Artificial body parts, organs and limbs, would be compensable as ‘artificial members’, yet are “internally located”. ([95])

15. Rather than reading down the general words, ‘artificial aids’, to make their meaning consistent with the specific items in the list, Hutley JA, in Thomas, described the specific items as illustrative of the meaning he ascribed to the general words. His Honour gave the general words their full literal meaning, consistent with the clear words of the provision. Deputy President Snell accepted the submissions of the intervener and the worker, that the plain words of the text were consistent with a total knee replacement falling within the definition of an ‘artificial aid’. ([103])

16. In any event, if the term were being construed by reference to the genus of the other items in s 59A(6)(a), the Deputy President did not accept that this would result in it being limited in the way for which the appellant contended. The words of the provision do not suggest that its meaning is restricted to be aids that are external, visible, and externally accessible to an injured worker’s body under the ejusdem generis maxim. The items in the list, in s 59A(6)(a), were not consistent with the genus which the appellant argued should be applied. ([94], [104]–[105], [108])

17. Artificial teeth may take the form of removable dentures, or may be implanted. Either would clearly fall within the ambit of s 59A(6)(a). In either event, they are designed to be used within the mouth and would, as the worker submitted, be “internal”. An artificial eye, whilst in part externally visible, is used within the eye socket. It could not be appropriately described as an aid that was “external”. The definition in s 59A(6)(a) includes the words “including hearing aids and hearing aid batteries”. Hearing aids are likely to be partially external and partially internal. They could not be simply described as “external”. Aids such as artificial teeth, or some hearing aids, would not necessarily be visible. The genus which the appellant sought to identify (aids that are external, visible and externally accessible to an injured worker’s body) was not consistent with the other items in the list in s 59A(6)(a). ([106])

(Cody v J H Nelson Pty Ltd [1947] HCA 17; 74 CLR 629; Deputy Commissioner of Taxation vClark [2003] NSWCA 91; 57 NSWLR 113, and Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 referred to)

18. There was no reference in the appellant’s submissions to the objects of the legislation, or to any section of the Acts themselves, which would indicate an intention to exclude artificial aids that were internal ([107]).

19. On the plain words used in s 59A(6)(a), if a worker required an artificial foot, or leg below the knee, the replacement of “part of a leg, that could not be characterised as a whole ‘member’, that must be an artificial aid of a similar kind.” The intervener submitted that “a total knee replacement involved exactly that step, except that it happens below the flesh”. The Deputy President accepted the intervener’s submission that there was no reason, in the text or purpose of the sections, to exclude such treatment from the meaning of ‘artificial aids’. ([109])

20. Ground No 3 was rejected. It followed, from the failure of Grounds Nos 2 and 3, that Ground No 1 also was rejected. The appeal failed. ([110])

Another matter

21. Other than a brief submission by the intervener, the parties did not make submissions going to an argument concerning whether the proposed knee replacement involved the provision of an ‘artificial member’. It was not desirable that this alternative argument be dealt with in the current circumstances. ([112])

The grounds of appeal were whether the Senior Arbitrator erred when he:

(a) failed to determine that the worker had a partial incapacity within the meaning of s 33 of the 1987 Act;

(b) interpreted s 38A of the 1987 Act by only considering the explanatory note, the second reading speech and the Benefit Guide, rather than the clear and unambiguous grammatical meaning of the words of the section;

(c) concluded that a worker who has no entitlement to a weekly payment (pursuant to ss 34-38) is not entitled to a payment pursuant to s 38A;

(d) concluded that the clear and unambiguous meaning of s 38A is that a worker with highest needs is to receive a minimum amount of $788.32 per week made up of compensation and actual earnings and then did not apply that meaning;

(e) found that the clear and unambiguous meaning of s 38A is to set a minimum amount of compensation to be paid to a worker with highest needs and then did not apply that interpretation, and

(f) concluded that a worker was not entitled to a payment pursuant to s 38A unless he was entitled to a payment pursuant to ss 34-38.

Work Capacity Decision

1. Whilst there is no provision for a “notice of contention” in Commission proceedings, the President saw no impediment to the contention being considered in the context of the appeal given that the appellant had an opportunity to address it, and did so, in its submissions in reply. However, the respondent made no attempt to identify the error in respect of the Senior Arbitrator’s finding on the purported work capacity decision and no submissions were made in support of any alleged error. The respondent merely re-stated its submissions before the Senior Arbitrator (verbatim). Therefore, there was nothing before the President to determine on appeal concerning the purported work capacity decision. ([83]-[90])

Discussion and findings

2. The issues raised on appeal turned in part on a question of statutory construction. The President observed that the relevant provision must be construed so that it is consistent with the language and purpose of the statute. The starting point in statutory construction is a consideration of the ordinary and grammatical meaning of the provision having regard to the legislative purpose. ([129]-[132])

(Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27; Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378;  SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 considered)

3. Having considered the relevant legislation, the President found that the text of s 38A makes it clear that the additional special benefits provided by that provision are only payable if certain conditions are satisfied. ([140])

4. First, there must be a “determination” made of the amount of weekly payments of compensation payable in accordance with the subdivision (Subdiv 2). In the circumstances of this case, as the worker was still within the second entitlement period that must mean a determination made in accordance with s 37 of the 1987 Act. ([141])

5. Second, s 38A provides that there must be an “amount of weekly payments of compensation payable” (emphasis added) following such a determination. ([142])

6. Third, the amount of compensation must be an amount that is less than $788.32. ([143])

7. The President observed that the general purpose of s 38A is to ensure that workers with highest needs receive additional weekly compensation payments compared to those workers with an impairment of 30% or less. That is not to say that all workers with highest needs receive the additional compensation. Such compensation is only available to those workers who meet the conditions set out above. ([144], [161])

8. The President did not accept the appellant’s submission that the benefits available under s  38A are merely payable by satisfaction of the definition of worker with highest needs coupled with a finding of “incapacity” under s 33, as that term was understood prior to the 2012 Amending Act. That is because, as the Arbitrator found, s 33 merely confirms that an employer is liable to pay weekly compensation to an injured worker during a period of incapacity, whether it be total or partial.However, the manner of calculating the quantum of entitlements is based on the clear and unambiguous terms of ss 34 to 38 of the 1987 Act. ([145], [165])

9. It was not disputed that any entitlement to weekly compensation the worker may have fell under s 37, as he was still within the second entitlement period. The formulas provided for in s 37 depend upon whether the worker “has current work capacity” or “no current work capacity” as those terms are defined in s 32A. The worker could not satisfy the statutory description of a worker with “current work capacity” or “no current work capacity” because he was able to return to his pre-injury employment. The application for weekly compensation should have failed once the Arbitrator found that the worker was able to return to his pre-injury employment. ([146]-[148])

(Sabanayagam v St George Bank Ltd [2016] NSWCA 145 applied)

10. The President did not accept the appellant’s submission that an assessment of nil under s 37 does not equate to a finding of no entitlement to benefits under s 38A. Unless the calculation of any entitlement under Div 2 results in an amount “of compensation payable” to the worker s 38A does not apply. This ensures that only those workers who have a demonstrated entitlement to weekly compensation are able to access the additional benefits under s 38A. An assessment of nil under s 37 cannot result in “compensation payable” to the worker. It would be an absurd outcome if the additional benefits under s 38A were available to workers such as the present worker who, notwithstanding his considerable impairment, is unable to demonstrate that he is suffering any loss of earnings as a consequence of his injury. ([151]-[152])

11. In any event, a calculation of nil under s 37 is not any “real number” or any actual amount that could result in compensation payable as required by s 38A before the additional special benefits are payable. ([154]-[158])

(Kesen v Luke Singer Pty Ltd (1989) 18 NSWLR 566; Flying Solo Properties Pty Ltd t/as Artee Signs v Collet [2015] NSWWCCPD 14 considered and applied.)

12. It followed that even if the appellant’s submissions were accepted the word “determination” in s 38A would be superfluous because the s 38A benefit would become payable in all circumstances where a worker with highest needs is suffering an incapacity regardless of any determination of the compensation payable. The words “amount” and “payable” would also be superfluous because the s 38A benefit is available where there is no amount of weekly payments of compensation payable. ([163])

13. The Senior Arbitrator’s reliance on the explanatory note, the second reading speech and the Benefit Guide to ascertain the meaning meaning and operation of s 38A was an error of law, because the reference to the extrinsic material was clearly inconsistent with the plain words of the legislation and could not be used to displaced the clear terms of the legislation. However, nothing turned on this error because when s 38A is construed applying the ordinary grammatical meaning of the text the result remains the same. Namely, in the absence of an amount of weekly compensation payable to the worker calculated in accordance with the provisions of ss 34–38 there can be no entitlement to the additional benefits conferred by s 38A of the 1987 Act. ([172]-[173])

14. A worker with highest needs is not entitled to the additional benefits payable pursuant to s 38A because of that fact alone. More is required. The benefits provided for in s 38A are only payable where a worker has established that there is an amount of weekly compensation payable applying the provisions of ss 34-38 that is less than $788.32. A worker, such as the present worker, who is unable to establish any amount of weekly compensation payable arising from a compensable injury, is not eligible for the additional benefits under s 38A. For these reasons, the appeal failed. ([188]-[189])

The issues in dispute on the appeal concerned whether the Arbitrator erred by:

(a) finding that the appellant was not an “exempt employer” at the time of the incident;

(b) construing the test involved in s 155AA of the 1987 Act as comprising both subjective and objective elements;

(c) failing to consider the appellant’s known and ascertainable wages, and, amongst other things, and

(d) reversing the onus of proof by requiring the appellant to adduce evidence of the existence of facts sufficient to induce the state of mind or belief that an employer would objectively believe that the wages payable would exceed the exemption limit, in circumstances of the respondent not having made out a prima facie case.

Held: The Arbitrator’s Certificate of Determination was confirmed. 

The test of “reasonable grounds”

1. The President accepted the appellant’s submission that, where a statute describes that there must be “reasonable grounds” for a state of mind, an objective test is applied. However, he rejected the appellant’s submission that the Arbitrator erred by finding that the test of “reasonable belief” involved the appellant holding an actual or positive belief that it was an exempt employer under s 155AA of the 1987 Act. ([150]-[151])

(George v Rockett [1990] 170 CLR 140 (Rockett) applied)

2. The Arbitrator’s approach was consistent with the decision in Rockett. The Arbitrator correctly approached the matter on the basis that the words “reasonable grounds for believing” would require an objective consideration based on information known to the employer at the relevant time. ([151]-[154])

3. The President also rejected the submission that the Arbitrator erroneously found that the test of “reasonable grounds” under s 155AA comprised of two elements, namely, objective and subjective elements. The Arbitrator proceeded on an objective consideration of the facts to determine if, at the relevant time, namely, at the point of injury, the appellant, through its only director, would have formed the necessary belief that the appellant was exempt from holding workers compensation insurance. In conducting that analysis, the Arbitrator accepted that the director was an unsophisticated person, particularly in dealing with legal and regulatory concepts. He held that whatever the director may have said or done based on a subjective belief or understanding of a relevant circumstance may not necessarily have reflected the true position in fact or law. ([155]-[156])

Wages that will be payable

4. The President did not accept the appellant’s contention that the reference to “wages that will be payable” in s 155AA should be construed as wages in respect of known and ascertainable legal obligations to workers employed at the relevant time, excluding provision for contingent future wages. On the appellant’s submission, if known evidence and ascertainable legal obligations establishes wages did not exceed the exemption limit of $7,500 then the appellant is taken to be deemed to have obtained a policy of insurance in compliance with s 155 of the 1987 Act. ([158])

5. Section 155AA of the 1987 Act must be construed so that it is consistent with the language and purpose of the statute. The President observed that the starting point in statutory construction is a consideration of the ordinary and grammatical meaning of the provision having regard to the legislative purpose. ([162])

(Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27; Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378;  SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 considered)

6. The appellant’s status as an exempt employer under s 155AA of the 1987 Act is available only while it has reasonable grounds for believing its wages will not exceed the exemption limit “during the financial year”. A “financial year” is defined under s 155AA(8) of the 1987 Act to mean “a period of 12 months commencing on 1 July in any year”. It is an ongoing obligation on an employer to give consideration to wages that will become payable during the financial year in order to be satisfied that it is entitled to continue to enjoy an exempt employer status. That must include an assessment of wages payable to current and future employees and casual labour, whether there is an extant legal liability or not. ([164])

7. The unambiguous words of s 155AA of the 1987 Act envisage that an employer is required to form reasonable grounds for believing that the total amount of wages “that will be payable” during the financial year to workers will not exceed the exemption limit. This cannot be satisfied only be a consideration of extant legal obligations at a given point in time ([165]-[166])

8. The amount of wages actually paid is not determinative of an assessment of what “will be payable” under s 155AA of the 1987 Act. The provision does not provide a for a retrospective consideration of the established evidence of wages paid. ([167])

9. The question of construction is not aided by considering the meaning of the word “payable” in isolation. It must be considered in the context in which it appears in the text of the provision, namely, “total amount of wages that will be payable”. ([171])

Onus of proof

10. The Arbitrator correctly found that the Nominal Insurer carried the legal onus of proof under s 145 of the 1987 Act. ([188])

11. The President rejected the appellant’s submission that the onus of proof was reversed by requiring it to discharge the evidentiary onus in circumstances where the Nominal Insurer had not discharged its legal onus, at least to a prima facie level. The certificate issued by the Nominal Insurer under s 145(5) of the 1987 Act was prima facie evidence that the appellant was liable for payments made by the Nominal Insurer pursuant to the Deed, unless proven otherwise. ([192]-[193])

12. Having correctly dealt with the question of onus, the Arbitrator drew an inference on the available evidence that the appellant, at the relevant time, did not have reasonable grounds for believing that the total amount of wages that would have been payable to the worker during the financial year would not exceed the exemption limit. That inference was drawn on the basis of all of the evidence before him. The President was not satisfied that an error of the kind described in Whitely Muir occurred. ([194]-[199])

(Whiteley Muir and Zwanenverg Ltd v Kerr (1966) 39 ALJR 505 Raulston v Toll Pty Ltd[2011] NSWWCCPD 25; 10 DDCR 156 considered and applied)

Conclusion 

13. The Arbitrator correctly found that the Nominal Insurer established, on the balance of probabilities, that the appellant did not have reasonable grounds for believing that the total amount of wages payable to workers during the financial year would not exceed the “exemption limit”. It followed that the appellant was not an “exempt employer” within the meaning of s 155AA of the 1987 Act. Consequently, it was uninsured at the time of the worker’s injury. The Arbitrator’s decision was confirmed and the matter remitted for determination of outstanding liability issues.

Time

1. The appeal was filed out of time. The worker submitted that there was no delay in the preparation of the appeal due to her or her legal representatives but rather the length of time it took for them to receive the transcript of the Arbitrator’s extempore reasons. ([40]–[50])

2. Had the worker’s legal representatives taken proper notes, the appeal could have been lodged in time and she would not have been precluded from providing further submissions on receipt of the transcript. ([51])

3. The delay in provision of the transcript was a mitigating factor, but not of itself sufficient to extend time. ([59])

4. The Presidential member is also required to consider whether declining to extend the period would cause a demonstrable or substantial injustice. ([60])

5. For the reasons below, Deputy President Wood determined that the Arbitrator erred in law in finding that the worker was precluded from bringing a further claim because of the operation of cl 11. The Deputy President granted an extension of time to appeal. ([65]–[67])

(Gallo v Dawson [1990] HCA 30; 64 ALJR 458 applied)

Fresh evidence

6. The respondent sought to adduce further documentary evidence. No substantial injustice to either party would occur by declining to admit the documents, as the Deputy President declined to re-determine the matter. The parties could avail themselves of the opportunity to adduce further evidence on the re-determination. The respondent’s application to adduce fresh evidence was refused. ([91]–[92])

(CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501 applied)

Discussion

7. In order to determine whether the Arbitrator misconstrued subcl (4)(b)(i), it was also relevant to consider the claims history. It was abundantly clear that the claim that was assessed by the AMS in 2014 included an assessment of the lumbar spine (which included Activities of Daily Living as part of that assessment) and the gastrointestinal condition. These were the body parts referred for assessment noted on the first page of the Medical Assessment Certificate (MAC) of Dr Sundaraj dated 14 June 2014 and in Table 2 annexed to the MAC. This resulted in the second payment to the worker of s 66 entitlements, consequent upon her upper gastrointestinal symptoms only. As part of that assessment, the worker received no further compensation for her lumbar spine and no compensation for her lower gastrointestinal claim. ([134]–[136])

8. In the circumstances of this case, subcl 4(b)(i) was not determinative of whether the claim finalised in 2014 for which compensation was paid constituted a further claim. Subclause 4(b)(i) is to be read together with subcl 4(b)(ii). ([143])

9. The Arbitrator did not make any determination with respect to that issue as he decided that the worker’s claim was “statute barred” because of the operation of subcl (4)(b)(i). He reasoned that if a claim is precluded by legislation, parties cannot confer upon itself “jurisdiction they do not have.” ([102])

10. In turning his mind to cl 11, the Arbitrator said:

The Regulation, to which I shall shortly come, provides that if a claim is withdrawn or finally dealt with, there is no further claim for the applicant. ([104])

11. He found:

I am satisfied that this present claim is caught by clause 11 sub-paragraph (4)(b)(i) of the 2016 Regulation. The claim has been finally dealt with as a permissible claim pursuant to the relevant legislation.

Accordingly the claim made in this case is statute barred. ([107])

12. The Arbitrator’s summation of cl 11 above was incorrect and clearly tainted his reasons leading to determination. The Arbitrator erred in his construction and application of subcl 4(b)(i). That was sufficient to set aside the Arbitrator’s determination. ([148])

13. The Arbitrator did not turn his mind to the two primary arguments raised by the worker at the arbitration and those issues remained at large. The first remaining issue was the ‘contract’ argument, being that the Commission should give effect to the agreement to pay the further 25% WPI as recorded in the unsigned complying agreement. This was not pressed on appeal and no submissions were made as to the manner in which the Arbitrator dealt with that issue. The other remaining issue was whether the resolution in 2014 was of an amended claim that was first made on 25 October 2011. Alternately, was the gastrointestinal claim a new claim not made until after 19 June 2012 and therefore constituted the one further claim permitted by cl 11, thus precluding the current claim. ([150]–[151], [153])

14. It was the Deputy President’s view that in order to protect the interests of both parties and to ensure justice is achieved, it was appropriate to remit the matter to a different Arbitrator, rather than determine the matter on appeal. ([164])

The appellant’s issues on appeal were:

(a) Grounds Nos 1 to 3 alleged that the Arbitrator erred in failing to acknowledge and address concessions made by Westpac, relevant to incapacity:

(i) Westpac’s Reply stated that it “does not dispute that [the worker] has been partially incapacitated as a result of his non-compensable injury”. The worker submitted that the dispute on incapacity was limited to the extent of partial incapacity, not to whether the worker was incapacitated at all (Ground No 1);

(ii) Westpac, at the arbitration hearing, submitted that the worker had a partial incapacity, not that incapacity had ceased. Westpac did not submit that the worker’s ability to earn in suitable employment was greater than $500 per week, nor that incapacity had ceased (Ground No 2), and

(iii) The worker, at the arbitration hearing, accepted the submission by Westpac’s counsel, referred to in the preceding sub-paragraph. The parties agreed on the extent of the worker’s “incapacity and diminished earning capacity”. The dispute was restricted to whether the ability to earn $500 per week commenced from 3 April 2017 (the date of Dr Vickery’s report) or 29 June 2017 (the date of Mr Mueller’s report). That was the issue between the parties regarding incapacity (Ground No 3).

(b) The balance of the grounds (Ground Nos 4 to 11) went to whether the evidence, and how the Arbitrator dealt with it, supported the findings on incapacity.

In the Notice of Opposition, Westpac submitted that all grounds of appeal should fail. However, in the alternative, it supported the appeal, asserting that the Arbitrator erred by relying on Dr Vickery’s opinion without the third of that doctor’s reports being in evidence. Westpac submitted the Arbitrator based his final determination on a conclusion that was, in fact, inconsistent with the opinion of Dr Vickery if all three of the doctor’s reports were read together.

Held: The respondent’s application to rely on fresh evidence was refused and the Certificate of Determination dated 17 November 2017 was revoked in part.

Fresh evidence

1. Westpac sought to admit fresh evidence, being Dr Vickery’s third report and email correspondence between the parties serving the report. Deputy President Snell held that the report was available prior to the proceedings, with Westpac having served it and given notice to the worker that it intended relying on it at the arbitration. However, it was not tendered. The threshold tests as set out in CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501 were not satisfied and the application to rely on fresh evidence was refused. ([23], [33]–[41])

Grounds Nos 1–3

2. Reading Westpac’s s 74 notice as a whole, having regard to the concessions in it, and the requirements of s 74 of the 1998 Act, Westpac’s notice did not raise, in a concise and readily understandable statement, an issue regarding whether partial incapacity had ceased. The reply filed in the Commission said that Westpac did not dispute the existence of partial incapacity as a result of the injury. ([51])

3. Section 289A of the 1998 Act restricts the issues which can be referred to the Commission for determination, to those that have been “previously notified as disputed”. A dispute regarding whether the worker suffered from continuing incapacity as a result of injury was not “previously notified as disputed”. As a consequence, the Commission was precluded from hearing or otherwise dealing with such a dispute, by s 289A(3). No application was made to the Arbitrator, pursuant to s 289A(4), to deal with such an issue. It followed that the worker’s submission was correct, the Arbitrator lacked jurisdiction to determine the unnotified dispute going to whether incapacity had ceased. Grounds Nos 1 and 2 were made out. ([53])

(Far West Area Health Service v Radford [2003] NSWWCCPD 10 and Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488 at [45] applied)

4. Ground No 3 was also upheld. The Arbitrator gave the parties no indication, during the running of the arbitration hearing, that he was considering making findings outside the submissions of both parties. The Arbitrator’s reasons, dealing with his findings on the worker’s ability to earn, made no reference to Westpac’s concession on the worker’s ability to earn. The worker correctly submitted that the concession “was simply ignored”. The Arbitrator was not obliged to decide this issue consistently with the submissions. However, Westpac’s concession was a relevant matter, which should have been considered. It was something the Arbitrator “could not properly ignore”. ([54]–[64])

(Wrigley Co Pty Ltd v Holland [2002] NSWCA 109; 23 NSWCCR 463; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 at [78]; Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816; Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45; 10 DDCR 290 at [75], and Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 at [82]–[84] applied)

Westpac’s grounds of appeal

5. Westpac argued the mater should be remitted for re-determination, so that the “complete opinion of Dr Vickery” was in evidence. Deputy President Snell said that the Commission’s procedures did not have provision for notices of contention or cross appeals. This case was not an appropriate vehicle to consider whether the procedure adopted by Westpac (seeking remitter of a decision which it otherwise sought to uphold) was available in the circumstances. This argument of Westpac had to fail on its merits in any event. Whether it was procedurally available was not decided. ([68]–[69])

(BlueScope Steel Ltd v Markovski [2013] NSWWCCPD 69 at [12]–[13] and Navitas English Pty Ltd v Trinh [2017] NSWWCCPD 52 at [27] referred to)

6. The submission that the Arbitrator ought to have considered Dr Vickery’s third report, in circumstances where it was not before him as neither party had sought to rely on it, was misconceived. Plainly, the Arbitrator could not have considered evidence which not only was not the subject of argument or submissions, but which was not placed before him. It is not error to fail to consider an issue not argued. The Arbitrator did not err in failing to deal with evidence which was not before him, and to which no submissions or arguments were directed. ([70]–[72])

(Dick’s Diesel Pty Ltd v Caddaye [2015] NSWWCCPD 68 at [68]; Boele v Rinbac Pty Ltd [2014] NSWCA 451 at [14], [90], [100]; Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 at [22] and [30]; Mamo v Surace [2014] NSWCA 58 at [75], and Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4 at [92] applied)

Re-Determination

7. Deputy President Snell was of the view that it was appropriate to re-determine the matter. He found that the views of the treating doctors and psychologists were entitled to greater weight than that of Dr Vickery, as they had greater opportunity to assess the worker’s condition and capacity. The submissions of the parties, as modified by the worker’s submission on the appeal, were consistent with an ability to earn the sum of $750 per week, in suitable employment. On the basis of the treating practitioners’ evidence overall, and the submissions of both parties, this was the appropriate finding of the worker’s ability to earn in suitable employment since 30 August 2017. ([73]–[75], [90]–[91]).

Consistent with the request of the parties, the Deputy President took the email correspondence as an application to reconsider the decision dated 28 February 2018, pursuant to s 350(3) of the 1998 Act.  In the particular circumstances of this matter and given the consent of the parties, the decision of Harding v Westpac Banking Corporation [2018] NSWWCCPD 7 was reconsidered and the orders made in that decision were varied, in effect, ordering the payment of weekly compensation pursuant to s 37 from 4 April 2017 to 30 November 2017. ([5])

The issues on appeal included whether the Arbitrator erred:

(a) in not finding a date of injury, and

(b) in finding that the worker’s psychological condition was caused by reasonable actions of the Bank.

Held: The Certificate of Determination dated 13 September 2017 was revoked and the matter was remitted to another Arbitrator for re-determination.

Transcript

1. In considering the appeal, Deputy President Snell formed a view that there were significant shortcomings in the quality of the transcript of the arbitration hearing, which could impede his ability to deal with the appeal. He convened a telephone conference seeking the views of the parties, regarding whether agreement could be reached on the substance of the submissions at the arbitral hearing, dealing with various issues which were raised on the appeal. These included how the case was run on ‘injury’, and submissions dealing with s 11A(1) of the 1987 Act. The parties could not agree on what was submitted at the arbitration, on any of these topics. The parties subsequently filed further written submissions dealing with how the appeal should be dealt with in the circumstances. ([27]–[37])

Fresh evidence

2. The Bank sought leave to rely on a letter to its solicitors from the worker’s solicitors, sent prior to the arbitration hearing. It said that it went to how the worker pleaded her injury. The application to adduce fresh evidence was refused pursuant to s 352(6) of the 1998 Act, as the threshold tests in s 352(6) were not met. ([38], [41], [45]–[46])

(CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied)

The Circumstances of the Matter

3. The transcript of the arbitration hearing was littered with passages that were described as “not transcribable”, typically on multiple occasions on each page. It was frequently impossible to follow the submissions of the parties. For much of the transcript the person speaking from time to time was simply described as “SPEAKER”, and it was not possible to identify what was said by whom. ([56])

4. There was an issue regarding the basis on which the worker’s case on ‘injury’ was run at the arbitration hearing. The Application pleaded a date of injury of 2 June 2016. It was common ground that this was amended to 26 May 2016 at the hearing. There was an issue whether this was to plead a ‘frank injury’ on that date, or to rely on that date as a ‘deemed date’ under the ‘disease’ provisions. The Arbitrator dealt with the allegation as one of a frank injury, however the worker argued it had only ever been alleged as a deemed date. ([60])

5. Whether there was error on the Arbitrator’s part, in dealing with the ‘injury’ issue, was fundamental to the outcome of the appeal. Deputy President Snell formed the view that, in all of the circumstances, he could not properly carry out the task of dealing with the appeal, given the deficiencies in the transcript. The absence of reliable transcript also affected the other grounds raised, as it is not possible to reliably identify the submissions made by the parties dealing with the issues pursuant to s 11A(1) of the 1987 Act. ([70])

(Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358 and Wyong Shire Council v Paterson [2005] NSWCA 74; 5 DDCR 13 applied)

The issues on appeal were whether the Arbitrator erred when he:

(a) found that the deceased was not in the course of his employment at the time of his injury and death (Ground 1);

(b) found that the deceased would have travelled to his place of work before going to visit clients (Ground 2), and

(c) applied and relied upon a statement from Constable Hurst that the deceased’s father-in-law had said he had been told that the deceased was going shopping at Myers (Ground 3).

Held: The Certificate of Determination dated 23 October 2017 was revoked and the matter was remitted for re-determination by another Arbitrator.

Preliminary discussion

1. Rule 10.5 of the 2011 Rules mandates that in respect of a claim for lump sum benefits pursuant to s 25(1)(a) of the 1987 Act, all dependents are to be joined as parties to the proceedings. A direction was issued to the claimant’s legal representatives to file an Amended Appeal Application correctly nominating the parties. Her legal representatives failed to comply and as a result, the dependent children were not named parties to the proceedings. No submissions from Ms Knezevic were provided as to why that was so, or why the Commission should dispense with r 10.5(1) of the 2011 Rules. ([146])

2. Although the dependent children had privity of interest with Ms Knezevic in relation to the question of liability, they have competing interests with respect to the apportionment of any potential lump sum entitlement. ([147])

3. In the event that the decision of the Arbitrator was set aside, the lump sum benefit could not be determined either on appeal or on remitter without those dependents being party to the proceedings. ([148])

Discussion of issues on appeal

4. From the way in which the matter proceeded and the submissions made, it was clear that Ms Knezevic was alleging that the death occurred in the course of employment rather than arising out of his employment. The Arbitrator’s finding that the worker had not been terminated from his employment at the time of his death was not challenged on appeal. ([149]–[150])

5. The reference to shopping at “Myers” did not appear anywhere in the evidence or in any part of the reasons given by the Arbitrator. The Commission was not assisted by Ms Knezevic’s legal representative misstating the facts in this case. ([154])

6. Ground 1 could not succeed as the Arbitrator did not make the finding about which Ms Knezevic now complained. ([151]–[152], [155])

7. Grounds 2 and 3 of the appeal rested on a consideration of whether the Arbitrator fell into error by either drawing inferences that were not available on the facts or failing to draw inferences that were. For Ms Knezevic to succeed on appeal, she must establish that the Arbitrator made an error of fact, law or discretion. It is not sufficient to establish a different view is preferable. ([156], [159])

(Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217; 87 NSWLR 198; 13 DDCR 139 at [25] applied)

8. In the Deputy President’s view, in the circumstances of this case, the time of day Mr Knezevic was on the M7 motorway was not determinative. As acknowledged by the Arbitrator, Mr Knezevic’s occupation was relevant. The evidence of Ms Knezevic was that Mr Knezevic would leave later if visiting clients and that morning he had informed her that he was leaving later that day. Taking that evidence into account it could not be inferred from the time of day that Mr Knezevic could or could not have been in the course of his employment. ([162])

9. Ms Knezevic submitted the Arbitrator’s finding rested predominantly on:

(a) whether it was open to him to accept Senior Constable Hurst’s evidence that Mr Meyers told him Mr Knezevic was going shopping, and

(b) whether the conclusion that 10.00 am was an odd time to be travelling to work was sound. ([163])

10. Ms Knezevic challenged the reliability of the evidence of Senior Constable Hurst. Firstly, she maintained that the Senior Constable said there was no mechanical failure of the vehicle, which was established to be incorrect. Secondly, he formed the view that Mr Knezevic had committed suicide, and there was no basis for that conclusion. Thirdly, he stated that Mr Knezevic had pulled into the breakdown lane at 9.50 am, which was not supported by any probative witness evidence. ([165])

11. Deputy President Wood held that it would be reasonable to consider that the recollection at least two months later of a police officer going about his usual duties might not be entirely accurate in terms of direct conversation. It was part of Mr Knezevic’s business activity to visit tile shops. An intention to “visit shops” would not be inconsistent with either the evidence of Mr Meyers and Ms Knezevic or the police officer’s recollection. ([168])

12. Senior Constable Hurst also recorded that Mr Knezevic left home at 8.30 am on 13 June 2012. There was no other document that recorded that information and it was somewhat inconsistent with the evidence of Ms Knezevic, who stated that she left at around 8.30 am and had informed her that he was not leaving yet. Mr Meyers said he had a conversation at about that time and did not put a time to when Mr Knezevic left the house. ([169])

13. Without some explanation, the questions raised with respect to the evidence of Senior Constable Hurst would not, in the Deputy President’s view, tend to give that evidence the weight accorded to it by the Arbitrator. However, although Ms Knezevic maintained that Mr Meyers denied the conversation, there was no such denial in the evidence. A failure by Ms Knezevic to exclude that information was relevant as to whether an inference favourable to Laticrete could be drawn. ([170])

14. Deputy President Wood considered the time of 10.00 am was not an odd time for Mr Knezevic to be on the M7, either visiting clients or travelling to his place of work. It was not open to the Arbitrator to infer that Mr Knezevic was unlikely to be travelling to work at that time. ([175])

15. Further, the Arbitrator observed that it was unlikely that in the circumstances Mr Knezevic would travel to his place of employment without first contacting Laticrete by phone. In the Deputy President’s view, it was mere conjecture that a worker who might elect to go about duties in any event, despite his termination, would be likely to contact his employer before travelling to the premises. ([176])

16. Where there is no direct evidence of the circumstances, a conclusion can be arrived at by inferential finding of fact. The ultimate conclusion must rest on inferences made from the known facts. ([178])

(State of New South Wales v Fuller-Lyons [2014] NSWCA 424 at [31] applied)

17. Deputy President Wood held that the Arbitrator’s decision was affected by error by taking into account the following speculative conclusions:

(a) that the time of day was an odd time for Mr Knezevic to be travelling at that point on the M7, and

(b) that had he been travelling to work, he would likely have contacted his place of employment first. ([180])

18. Those inference were not available on the evidence and tainted the Arbitrator’s decision. The Certificate of Determination of 23 October 2017 was revoked and the Deputy President declined to re-determine the matter and held that the appropriate course was to remit the matter for re-determination by another Arbitrator, noting that some parts of the transcript were of poor quality and the three dependent children were not party to the proceedings and have a vested and competing interest in the outcome. ([181]–[185])