Anderson v Secretary, Department of Education - [2018] NSWWCCPD 32

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Anderson v Secretary, Department of Education [2018] NSWWCCPD 32
APPELLANT:	Deborah Anderson
RESPONDENT:	Secretary, Department of Education
INSURER:	Allianz Australia Limited as Agent for NSW Self Insurance Corporation
FILE NUMBER:	A1-6520/17
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	27 February 2018
DATE OF APPEAL DECISION:	7 August 2018
SUBJECT MATTER OF DECISION:	Monetary threshold required by s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; application of Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25; Grimson v Intergral Energy [2003] NSWWCCPD 29, NSW Department of Education and Communities v Colefax [2012] NSWWCCPD 63, O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1, discussed
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Buttar, Caldwell & Co
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1. The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 are not satisfied, and there is no right of appeal.

INTRODUCTION

Ms Deborah Anderson filed an Application for Assessment by an Approved Medical Specialist (AAAMS) on 12 December 2017. Ms Anderson sought the assessment for the purposes of ascertaining whether she met the thresholds for domestic assistance pursuant to s 60AA of the Workers Compensation Act 1987 (the 1987 Act) and whether she was entitled to weekly payments beyond the first 260 weeks in accordance with s 39(2) of the 1987 Act.
The injury details at Part 4 of the AAAMS described the injury as a right knee injury occurring on 30 May 2010, causing her to overuse her left knee, which in turn caused aggravation of the right knee and onset of back pain. The Application also described a frank injury to the left knee on 26 October 2012.
The Secretary, Department of Education (the respondent) lodged a Response to the Application (Response), opposing the referral to an Approved Medical Specialist (AMS). The Respondent informed the Commission that there were issues as to liability. The injury to the back was disputed and it was also disputed that Ms Anderson was entitled to aggregate the assessments for each body part.
The matter proceeded to arbitration on 5 February 2018. On 27 February 2018, the Arbitrator issued a Certificate of Determination (COD), entering an award for the respondent. Ms Anderson appeals the Arbitrator’s determination.

BACKGROUND

Ms Anderson suffered two accepted injuries in the course of her employment as a teacher. The first injury was to her right knee on 30 May 2010 and the second was to her left knee on 26 October 2012.
In prior proceedings (matter number 720/16), each knee was assessed by Dr Mohammed Assem, AMS, who issued a Medical Assessment Certificate (MAC) on 9 June 2016. Doctor Assem assessed the whole person impairment (WPI) of the right leg as 14% and the left leg as 12%. The assessments were not combined under the Combined Values Chart because they were said to result from separate injuries.
It appears from a COD dated 12 May 2016 issued in those prior proceedings, that a claim was also made for permanent impairment compensation in respect of Ms Anderson’s lumbar spine and a further injury as a result of the “nature and conditions of employment” was alleged. Both the claim for the lumbar spine and the allegation of injury resulting from the “nature and conditions of employment” were discontinued prior to the AMS assessment.
According to the transcript of the arbitration in the current proceedings, it seems Ms Anderson abandoned the allegation that one knee was aggravated by the other. The matter proceeded by way of oral submissions in respect of the consequential condition in the lumbar spine, and whether the losses could be aggregated for the purposes of s 39(2) and s 60AA of the 1987 Act.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties are content to have the matter determined ‘on the papers’.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing. This is the appropriate course in the circumstances.

THRESHOLD MATTERS

Ms Anderson contends, and the respondent concedes, that the original appeal was lodged within the time prescribed by s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The respondent disputes that the monetary threshold to appeal prescribed in s 352(3) of the 1998 Act has been met, but made no submissions on that point. Ms Anderson did not give any indication or make any submission either as to whether the monetary threshold has been met.
Section 352(3) provides:
“There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
As neither party made submissions about the requirement to satisfy subss 352(3)(a) and 352(3)(b), on 13 July 2018, I issued a direction that they each do so. I also directed the attention of the parties to the decision of Deputy President Snell in Abu-Ali v Martin-Brower Australia Pty Ltd.[1]
[1] [2017] NSWWCCPD 25 (Abu-Ali).

The respondent’s threshold submissions

The respondent submits that the threshold required by s 352(3) of the 1998 Act has not been met as there is no amount of compensation claimed in the AAAMS. By extension, there is no amount at issue on the appeal.
The respondent relies on Abu-Ali, in particular at [23], where Deputy President Snell cited Grimson v Intergral Energy[2] as authority that where no monetary amount is ordered by the Arbitrator, the threshold question is to be determined by reference to the amount of the claim as particularised by the applicant. The respondent submits the circumstances in this appeal are strikingly similar to those in Abu-Ali.
[2] [2003] NSWWCCPD 29 (Grimson), [30].

Ms Anderson’s threshold submissions

In her written submissions, Ms Anderson refers to previous proceedings (matter number 720/16) in which she brought proceedings for lump sums pursuant to s 66 of the 1987 Act, as well as treatment expenses pursuant to s 60 of the 1987 Act. She contends that only the s 66 component of that matter was resolved and that the remaining claim for s 60 expenses was at large. She asserts that matter number 720/16 was joined to the current proceedings, so that the threshold to appeal has been met because of the outstanding s 60 claim.
Ms Anderson further contends that an attempt was made to lodge an ARD but that it was rejected and she was advised by the Commission to use an AAAMS.
Ms Anderson submits that s 352(3) of the 1998 Act should be read consistent with the Commission’s statutory duty to act with as little formality and technicality as a proper consideration permits, as required by s 354(1). Ms Anderson also submits that the Commission is to act in accordance with s 354(3), that it is not to be bound by strict pleadings and is required to act according to equity, good conscience and the substantial merits of the case (relying on Inghams Enterprises Pty LtdvThoroughgood[3]).
[3] [2014] NSWCA 166 (Thoroughgood).
Ms Anderson relies on Project Blue Sky Inc v Australian Broadcasting Authority,[4] where Brennan CJ said:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole.”
[4] [1998] HCA 28 [69]; 194 CLR 355; 153 ALR 490; 72 ALJR 841.
Ms Anderson submits that her appeal should not be rejected because the incorrect initiating form was used, in circumstances where the Commission and the parties are aware of the substantial merits of the case. She submits that if the Commission declined to determine the appeal because of the form of the initiating document, that would be inconsistent with subss 354(1) and 354(2) of the 1998 Act and would constitute an error of law. Accordingly, she says that she should not be penalised.
Ms Anderson submits that the issue as to aggregation of the impairments goes to the assessment of whole person impairment for not only the purposes of s 39 and s 60AA of the 1987 Act, but also to other thresholds, such as the threshold for work injury damages. It was therefore appropriate to use an AAAMS.
Ms Anderson refers to the Arbitrator’s decision where he states that Ms Anderson “seeks compensation … pursuant to the provisions of s 39 and s 60AA of the Workers Compensation Act 1987”[5] and “[t]he parties agree that the following issues remain in dispute”.[6] Ms Anderson states that the Arbitrator then listed the matters in dispute, which she alleges are all issues concerning claims for compensation.
[5] Anderson v Secretary, Department of Education [2018] NSWWCC 55 (Reasons), [1].
[6] Reasons, [6].
Ms Anderson further refers to parts of the transcript as being supportive. Her counsel clarified to the Arbitrator that the application was brought under s 39 and s 60AA.[7] Further, Ms Anderson refers to page 5 of the transcript and submits that the respondent’s submissions indicate that there was no suggestion that the respondent was not aware that Ms Anderson was claiming compensation.
[7] Transcript of Arbitration Proceedings, 5 February 2018, (transcript) T2.5–9.
Ms Anderson submits that the respondent’s submissions on the threshold are inconsistent with that awareness and should be given no weight.
Ms Anderson seeks to distinguish the decision of Abu-Ali and NSW Department of Education and Communities v Colefax.[8] She submits that in the present proceedings, compensation has been claimed, whereas in Abu-Ali it was conceded that there was no compensation claimed and the Arbitrator did not deal with any application for an award. In contrast, she says, compensation under s 39 and s 60AA is at issue in these proceedings. She further submits that Abu-Ali is distinguishable on the facts as it was a claim in respect of a secondary psychological condition and Ms Anderson does not have a psychological condition.
[8] [2012] NSWWCCPD 63 (Colefax).
Ms Anderson asserts that the respondent has wrongly attributed [23] of the reasons in Abu-Ali to Deputy President Snell as it is a quote from Colefax at [22]–[24]. Furthermore, Ms Anderson contends that “in the paragraph immediately before [22] the President in Colefax stated ‘The application before the Commission does not involve a dispute a[s] to the worker’s entitlement to weekly compensation and there has been no determination made by the Commission on that issue’.”[9] Ms Anderson maintains that the distinction between Colefax and the current proceedings, as in the current proceedings there is a dispute about compensation which has been determined by the Arbitrator.
[9] Ms Anderson’s threshold submissions, [18].
Ms Anderson submits that because there has been an award of compensation at issue in these proceedings, the threshold question should not be determined on the basis of a lack of particulars.
Ms Anderson contends that on the basis of the above, the respondent’s submission that this case and the case of Abu-Ali are “strikingly similar” should be rejected and that Abu-Ali does not apply.
In respect of the particularisation of the claim, Ms Anderson submits that the total amount of weekly payments at issue is $615,798.72 and the amount claimed in respect of domestic assistance is $25,721. She says those amounts clearly exceed the monetary threshold.

The respondent’s response to the allegation of joinder

In my second direction issued on 31 July 2018, I directed the respondent to advise as to whether it had any knowledge of the alleged joinder of matter number 720/16 and these proceedings.
The respondent’s legal representative indicated that she had received instructions to act on behalf of the respondent in these proceedings on 14 December 2017.
On the basis of a file note of the telephone conference, and advice from counsel following the conclusion of the arbitration, the legal representative confirmed that there was no reference to any application or orders made for the two matters to be joined. Accordingly, the respondent had no knowledge of any such joinder.
She advised that as far as she was aware, the proceedings in matter number 720/16 were finalised, but as her firm was not instructed in that matter, deferred to the Commission’s records.

DISCUSSION AND CONSIDERATION

The passage relied on by the respondent does not come from Colefax. It is an extract from the reasons of Deputy President Snell in Abu-Ali, where he relied on Grimson. The passage relied on by Ms Anderson quoted at [28] is extracted from [22] of Keating P’s reasons in Colefax, and not “the paragraph immediately before [22]”.
In respect of the submissions made at [18]–[19] above, no documents were sought to be admitted in support of those assertions.
I issued the second direction for Ms Anderson to file and serve all documents in support of her contentions that the proceedings in matter number 720/16 were joined to these proceedings and that she had attempted to file an initiating form that included a monetary claim.
Ms Anderson’s legal representatives forwarded the following documents:
(a)    the COD dated 14 July 2016 issued in matter number 720/2016, a copy of which is already in evidence;[10]
(b)    copy of an email from the Commission dated 12 November 2017, advising of the deficiencies in the (rejected) ARD;
(c)    the ARD filed in matter number 720/16, and
(d)    an email from the Commission attaching a sealed copy of the AAAMS in these proceedings.
[10] Reply, p 36.
Those documents were attached to several emails from Ms Anderson’s legal representatives. In the email dated 31 July 2018 sent at 2.03 pm, Ms Anderson’s legal representative wrote:
“There was an error on our part in possibly asserting another application was still pending.
An attempt was made to file an [ARD] before we were required and directed by registry to file an [AAAMS] instead.
In a separate email we will be forwarding whatever our email records reveal.
We regret for the error and submit the issue of aggregation of WPI and the arguments and submissions may be read subject to above.
The correspondence from two separate registry staff may be taken into account while the submissions are perused.”
It is not clear from that email as to whether Ms Anderson intended to convey that she was no longer asserting that the two matters had been joined. I will deal with that assertion in any event.
I have accessed and perused the Commission’s entire files in respect of matters numbered 720/16 and 6520/17. There is no reference to any application pursuant to r 11.1 of the Workers Compensation Commission Rules 2011 to join the proceedings or any such order in any of the documentation or in the transcript of arbitration recorded in these proceedings.
The respondent has no knowledge of any such application or order.
The documents forwarded to the Commission in response to my direction dated 31 July 2018 do not allude to any application or order and provide no supportive evidence of the assertion made by Ms Anderson.
I reject Ms Anderson’s assertion that the two matters were joined.
In any event, a COD dated 12 May 2016 was issued in matter number 720/16 by Arbitrator Moore. In that COD, the claim for lump sum in respect of the lumbar spine, the claim for injury resulting from the ‘nature and conditions of employment’ and the claim for s 60 expenses were discontinued. Even if the two matters had been joined, there is no evidence that the discontinued claim for s 60 expenses was revived, and so it cannot be accepted that it was claimed in these proceedings. Whatever was claimed in matter number 720/16 is of no assistance to Ms Anderson in relation to satisfaction of the monetary threshold in these proceedings.
Ms Anderson’s submissions relating to the form used to initiate proceedings are equally of no assistance.
It seems apparent that Ms Anderson forwarded an ARD to the Commission at some time prior to 12 November 2017.
In the email from the Commission dated 12 November 2017, Ms Anderson was advised that the claim for domestic assistance at part 5.4 of the application did not provide particulars of the type of domestic assistance sought or the monetary value of the assistance. In respect of the claim for weekly payments, the Commission advised:
“Noting the letter from the insurer dated 24 May 2017 and the period stated at part 5.1 it appears this is a matter best addressed through the current expedited Form 7 process.”
Under the heading “In summary”, Ms Anderson was advised that if the matter was confined to threshold issues, she should lodge an AAAMS. If she was seeking domestic assistance, an ARD with full particulars should be lodged with the AAAMS.
It can be taken from that email that the ARD referred to both domestic assistance and weekly payments. The Commission does not retain documents that have been rejected. The document was not included in the documents forwarded by Ms Anderson in support of her argument that the appeal satisfies the monetary threshold. Clearly, sufficient particulars of the domestic assistance were not provided and there is no evidence of what particulars were given or amounts (if any) were claimed in respect of weekly payments.
Whatever the contents of the document, it (or any re-drafted ARD) was not re-lodged with the AAAMS filed in these proceedings.
The only matter before the Commission concerns a request for determination of a dispute in respect of the thresholds required in order to be entitled to make a claim pursuant to s 39 and s 60AA of the 1987 Act. I have discussed the application of the relevant authorities to this claim below and it is clear that the monetary threshold has not been satisfied.
Ms Anderson’s reliance on subss 354(1) and 354(3) of the 1998 Act and the Court of Appeal decision in Thoroughgood is misplaced. Section 352(3) of the 1998 Act is expressed in clear terms. It provides that there is no appeal under this section unless the amount of compensation at issue on the appeal, in this case, exceeds $5,000.
As explained by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:[11]
“the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
[11] [2009] HCA 41; 239 CLR 27, [47].
The general purpose and policy of the provision is to require a certain monetary threshold to be met, that is, there is “an amount in issue”. The provision restricts the right of appeal in a number of circumstances, as the authorities referred to below illustrate. The requirement is not a simple formality or technicality and its application does not offend the principles and objectives of the Commission set out in subss 354(1) and 354(3) of the 1998 Act.

In order to determine whether the monetary threshold pursuant to s 352(3) has been met in this appeal, it is helpful to review the legislative context and summarise the relevant presidential authorities.

The legislative context

Section 4 of the 1998 Act defines “compensation” as “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts”.
An appeal against a decision of an Arbitrator is brought pursuant to s 352(1) of the 1998 Act. Section 352(8) provides that a “decision” includes an award, interim award, order, determination, ruling and direction.
Section 32A of the 1987 Act defines “worker with high needs” and “worker with highest needs” for the purposes of Div 2 of Pt 3 and Sch 3 to the 1987 Act. A “worker with high needs” is a worker whose injury has resulted in more than 20% WPI and a “worker with highest needs” is one whose injury has resulted in more than 30% WPI. Both thresholds provide gateways for additional entitlements for weekly payments and treatment expenses.
Section 39(1) of the 1987 Act provides that a worker has no entitlement to weekly payments after the expiration of 260 weeks of payments of compensation. Section 39(2) of the 1987 Act provides for an exception where the worker’s injury resulted in an assessment of greater than 20% WPI. Relevantly, if Ms Anderson achieved the threshold of more than 20% WPI, her entitlements to weekly payments after the expiration of 260 weeks may be enlivened, subject to her being able to satisfy the requirements of s 38 of the 1987 Act.
Under s 60AA(1) of the 1987 Act, Ms Anderson may also qualify for domestic assistance provided her impairment resulting from injury was at least 15% WPI, subject to certain other preconditions being met. Those preconditions are that:
(a)    following the functional assessment of the worker, a medical practitioner has certified that provision of such assistance is reasonably necessary and as a result of the injury;
(b)    the need for assistance would not otherwise be provided, and
(c)    the assistance is in accordance with a care plan established by the insurer and consistent with the Workers Compensation Guidelines.
It appears from the evidence that Ms Anderson has exhausted the temporary domestic assistance available to her pursuant to s 60AA(2) of the 1987 Act.
Prior to the amendments to s 352 of the 1998 Act which took effect from 1 February 2011, the requirement to meet the monetary threshold was set out in s 352(2). As s 352(2) was expressed in identical terms to s 352(3) as it now appears, the pre-2011 authorities dealing with the former s 352(2) are equally applicable to the issues relating to the monetary threshold pursuant to s 352(3).[12]
[12] Re Alcan Australia Limited; Ex parte Federation of Industrial Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96; 68 ALJR 626; 123 ALR 193.
Subsection (3)(a) of s 352 of the 1998 Act requires that the amount of compensation at issue on the appeal is at least $5,000 and subs (3)(b) requires that at least 20% of the amount awarded also must be in issue.
In some circumstances, the types of decisions referred to in subs 352(8) will not result in an award of compensation but still found an appeal to a Presidential member. Equally, a decision against a worker where an award for the respondent is entered is also capable of founding an appeal.

The authorities

The requirement in subs (3)(b) is limited to those cases in which an award was made. Where no compensation was awarded, an appeal against a decision of an Arbitrator can still be brought, provided it satisfies subs (3)(a), that is, the amount of compensation at issue is at least $5,000.[13]
[13] Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5, [22].
The amount of compensation at issue on the appeal must be determined by reference to the amount at issue in the proceedings at first instance.[14] The appeal must have a real capacity to put the amount in issue in the appeal.[15]
[14] Kate Louise Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3, [16].
[15] Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7 (Regan), [27].
In Colefax, Keating P considered whether the monetary threshold to appeal had been met. The appeal arose out of a decision of the Senior Arbitrator that the respondent was to provide suitable duties to the worker. The appellant argued that the threshold had been met because as suitable duties had not been provided, the worker had been prevented from earning her pre-injury weekly income which in total exceeded $5,000. Applying the relevant authorities, Keating P found there was no amount of compensation claimed in the Application before the Senior Arbitrator, so there was no amount of compensation at issue on the appeal and the s 352(3) threshold had not been met.
Similarly, the cost of occupational rehabilitation services has been found not to be a monetary benefit and does not constitute “compensation”.[16] Nor does an order for costs.[17]
[16] Department of Community Services v Hickey [2006] NSWWCCPD 320; Rail Corporation NSW v Lam Luu [2010] NSWWCCPD 44.
[17] Sydney Opera House Trust v Sykes [2006] NSWWCCPD 227.
In O’Callaghan v Energy World Corporation Ltd,[18] the worker sought to bring an appeal against a refusal by an Arbitrator to set aside consent orders. If the orders were set aside, it would enable her to bring a medical appeal pursuant to s 327(3) of the 1998 Act, with a view to bringing a work injury damages claim. Deputy President Roche said that the “claim is not one for compensation but one that relates to the threshold for a potential work injury damages claim. As a result the monetary threshold cannot be met. (I note, in passing, that ‘damages’ does not include ‘compensation’ under the 1987 Act (s 149(1) of the 1987 Act).)”[19]
[18] [2016] NSWWCCPD 1 (O’Callaghan).
[19] O’Callaghan, [50].
Deputy President Roche did not accept the submission that the threshold was met because a new MAC was binding for all purposes, and other compensation entitlements would flow. He said Ms O’Callaghan had claimed no compensation in the proceedings and had given no notice of an intention to do so.[20]
[20] O’Callaghan, [51].
With respect to domestic assistance, Deputy President Roche determined in Hawke v Stanyer & ors t/as Stanyer Partnership[21] that a claim for domestic assistance expenses was not a claim for compensation because there was no evidence by a medical practitioner to support the claim and the Commission had no power to determine future (not yet incurred) treatment expenses, following Widdup v Hamilton.[22] Since that decision, the 1987 Act has been amended to include s 60(5), which extended the Commission’s jurisdiction to the determination of disputes concerning future treatment expenses.
[21] [2007] NSWWCCPD 208.
[22] [2006] NSWWCCPD 258.
I drew the parties’ attention to the decision of Deputy President Snell in Abu-Ali referred to above.
In that case, Mr Abu-Ali brought an application for assessment of permanent impairment to determine whether he was a worker with high or highest needs in accordance with s 32A of the 1987 Act. The request for a referral was made for the purposes of establishing whether Mr Abu-Ali could potentially claim further compensation, in particular weekly payments pursuant to s 39 (which had not been particularised).
The referral for an assessment of permanent impairment was in respect of a secondary psychological injury. Martin-Brower Pty Ltd opposed the referral on the basis that s 65A(1) of the 1987 Act provided that a secondary psychological condition is not compensable. If it was not compensable, then it could not be included in an assessment of whether Mr Abu-Ali was a worker with high or highest needs as defined.
The Arbitrator struck out the application. Mr Abu-Ali appealed.
As to whether his appeal satisfied the threshold requirements of s 352(3), Mr Abu-Ali submitted that, although there was no compensation claimed before the Arbitrator, and none was directly in issue on appeal, the relevant threshold was satisfied because of the consequences of the order sought. If the order for referral to an AMS was to be made, and an AMS then assessed permanent impairment at greater than 20 or 30 per cent, Mr Abu-Ali would potentially be entitled to further compensation, such as weekly payments and medical expenses.
The Deputy President considered a long line of presidential authorities on point. He concluded that:
“The orders sought by the appellant on the appeal are revocation of the Certificate of Determination dated 5 December 2016, and referral to an AMS ‘to assess WPI attributable to his secondary psychological condition for the purposes of s 32A’. If that assessment exceeded 20 per cent or 30 per cent, this would potentially increase the appellant’s entitlement to benefits under the Workers Compensation Acts, if he was otherwise entitled. There was no amount of compensation claimed before the Arbitrator, and there is no amount of compensation directly at issue on the appeal. If the appeal were to succeed, there would be no orders for the payment of compensation. In my view the threshold is not met. In the circumstances, no appeal lies pursuant to s 352, due to the application of s 352(3) of the 1998 Act.”[23]
[23] Abu-Ali, [22].

Application of the authorities

On page one of the AAAMS, Ms Anderson indicated that she sought the AMS assessment for the purposes of potential claims pursuant to ss 39 and 60AA of the 1987 Act. No particulars of a weekly payment claim or a s 60AA claim were provided in the Application.
There is no “amount of compensation” claimed in these proceedings. The matter proceeded to arbitration as there were issues as to injury and consequential conditions, and there was an argument as to whether the losses from those injuries and conditions could be aggregated. If they could be aggregated, the assessment could potentially qualify Ms Anderson for entitlements to domestic assistance pursuant to s 60AA of the 1987 Act and/or ongoing weekly payments pursuant to s 39 of the 1987 Act.
Contrary to Ms Anderson’s submissions, the matters listed by the Arbitrator as in dispute are not “issues concerning claims for compensation”, they are issues as to liability for which an entitlement may at some subsequent stage crystalise and may or may not eventuate as an amount of compensation. Such an eventuality does not constitute a “real capacity” to put an amount in issue in this appeal.[24]
[24] Regan, [27].
Ms Anderson cannot bring a claim for domestic assistance pursuant to s 60AA until she has satisfied the necessary 15% WPI threshold and the assistance is in accordance with a care plan established by the insurer. There is no care plan in evidence. Although the Commission now has jurisdiction to determine a claim for domestic assistance, a claim for compensation cannot be brought in the absence of a care plan.
Section 39 provides for the continuation of payments beyond the first 260 weeks if the worker satisfies the greater than 20% WPI threshold, however the worker’s entitlements are subject to the requirements of s 38 of the 1987 Act. Putting aside the question of the Commission’s jurisdiction to determine such a claim, there are no particulars provided that go to the matters that need to be satisfied under s 38. It is abundantly clear that no such claim is before the Commission.
I do not accept Ms Anderson’s submission that Abu-Ali can be distinguished. It is on all fours with these proceedings. As in Abu-Ali, Ms Anderson is seeking a referral to an AMS for the purpose of reaching the necessary thresholds that, if reached, would enable her to make a claim for further weekly payments pursuant to s 39 and domestic assistance pursuant to s 60AA. There was no amount of compensation claimed before Arbitrator Wynyard and there is no amount of compensation directly at issue on this appeal.
The reasons and conclusions in Abu-Ali are consistent with the principles enunciated in the authorities discussed above, including Regan, Grimson, Colefax, and O’Callaghan. It is appropriate to apply the ratio decidendi in Abu-Ali to this appeal.
I am not satisfied that Ms Anderson has met the monetary threshold pursuant to s 352(3)(a) of the 1998 Act and the appeal cannot be brought.
It is therefore not necessary for me to determine the remaining issues, which include:
(a)    an application by Ms Anderson to adduce new evidence on the appeal;
(b)    the submissions by Ms Anderson as to the constitutional validity of the weekly payments amendments to the 1987 Act introduced in 2012, first raised in her submissions in reply and not related to any ground of appeal, and
(c)    the merits of the appeal.

DECISION

The monetary thresholds in s 352(3) of the 1998 Act are not satisfied, and there is no right of appeal.

Elizabeth Wood

Deputy President

7 August 2018