Avni v Visy Industrial Plastics Pty Ltd
[2016] NSWWCCPD 46
•16 September 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Avni v Visy Industrial Plastics Pty Ltd [2016] NSWWCCPD 46 | |
| APPELLANT: | Hanife Avni | |
| RESPONDENT: | Visy Industrial Plastics Pty Ltd | |
| INSURER: | CGU Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-621/16 | |
| ARBITRATOR: | Ms D Moore | |
| DATE OF ARBITRATOR’S DECISION: | 12 May 2016 | |
| DATE OF APPEAL DECISION: | 16 September 2016 | |
| SUBJECT MATTER OF DECISION: | Clause 11 of Sch 8 to the Workers Compensation Regulation 2016; formerly cl 11A of Sch 8 to the Workers Compensation Regulation 2010; whether the worker’s entitlement to make a further claim for permanent impairment compensation is exhausted by an intermediate claim that was withdrawn | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | La Rosa, Izzo & Co |
| Respondent: | Rankin Ellison Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s Certificate of Determination of 12 May 2016 is revoked. 2. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for an assessment of the worker’s whole person impairment as a result of injuries to both upper extremities sustained in the course of her employment with the respondent on 30 March 2005. | |
INTRODUCTION
A worker who receives an injury that results in a degree of permanent impairment greater than 10 per cent is entitled to receive from his or her employer compensation for that permanent impairment, as provided by s 66 of the Workers Compensation Act 1987 (the 1987 Act). However, s 66(1A) provides that “[o]nly one claim can be made under [the 1987 Act] for permanent impairment in respect to the permanent impairment that results from an injury”.
Clause 11 of Sch 8 of the Workers Compensation Regulation 2016 (the 2016 Regulation) (formerly cl 11A of the Workers Compensation Regulation 2010 (the 2010 Regulation)) contains savings and transitional provisions with respect to the operation of s 66(1).
This appeal concerns the operation of cl 11 and the entitlement of a worker to pursue one further claim, in circumstances where the first claim for permanent impairment compensation was resolved by a Complying Agreement and a further claim was withdrawn following referral to an Approved Medical Specialist (AMS) and the issue of a Medical Assessment Certificate (MAC).
BACKGROUND
The appellant worker, Hanife Avni, was employed by the respondent employer, Visy Industrial Plastics Pty Ltd, as a process worker.
Ms Avni sustained an injury to her upper extremities due to the nature and conditions of her employment which she deemed to occur on 30 March 2005. She described her employment to involve repetitive and heavy lifting.
On 18 August 2010, the parties entered into a Complying Agreement for lump sum compensation payment of $12,500 pursuant to s 66 of the 1987 Act in respect of 10 per cent whole person impairment for injury to the upper extremities. The agreement was stated to comprise of eight per cent impairment for the right upper extremity (wrist) and two per cent impairment for the left upper extremity (wrist). However the impairment was based on a report of Dr Conrad dated 1 July 2010, which also included an assessment of the right shoulder.
On 21 June 2012, Ms Avni made a further claim for compensation pursuant to s 66 of the 1987 Act. She claimed $4,500 in respect of an additional three per cent whole person impairment. The claim was based on an assessment by Dr Conrad dated 13 June 2012. Dr Conrad confirmed his 2010 assessment of impairments of Ms Avni’s right wrist, right shoulder and left wrist, however he included an assessment of five per cent impairment of the left shoulder to conclude that her whole person impairment was 13 per cent at that point. This claim for compensation was in respect of a deemed date of injury said to be 30 June 2005.
On 28 January 2014, Dr Neil Berry, AMS, assessed Ms Avni’s whole person impairment in respect of injury to the left upper extremity (shoulder and wrist) deemed to have occurred on 30 June 2005. On 4 February 2014, Dr Berry issued a MAC assessing Ms Avni to have eight per cent whole person impairment for the left upper extremity.
On 16 May 2014, the Commission issued a Certificate of Determination – Consent Orders & Orders that provided, among other things, an award for Ms Avni in respect of weekly compensation for a closed period (1 July 2005 to 30 June 2007) and medical expenses pursuant to s 60 of the 1987 Act. It also provided for the amendment of the deemed date of injury to 30 March 2005 and the discontinuance of the claim for lump sum compensation.
In a report dated 28 November 2014, Dr Mohammed Assem assessed Ms Avni to have a 15 per cent whole person impairment comprising of eight per cent impairment in respect of the right upper extremity and eight per cent impairment in respect of the left upper extremity.
On 23 December 2014, Ms Avni made a further claim for lump sum compensation pursuant to s 66, in respect of the monetary difference between Dr Assem’s medical assessment of 15 per cent whole person impairment and the 10 per cent whole person impairment agreed to in the Complying Agreement.
On 20 February 2015, the respondent’s insurer denied liability for Ms Avni’s claim for further compensation. It claimed that it was not the last employer who employed Ms Avni in employment that was a substantial contributing factor to the disease condition (ss 4(b)(ii), 16 of the 1987 Act).
On 8 February 2016, Ms Avni lodged an Application to Resolve a Dispute (the Application). She claimed further lump sum compensation as particularised above.
On 29 February 2016, the respondent lodged a reply to the Application. It relied upon the s 74 notice and s 66(1A) of the 1987 Act and s 322A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to argue that Ms Avni could not make a further claim and could not apply for a further MAC.
The matter came before a Commission Arbitrator for conciliation/arbitration proceedings on 13 April 2016, where both parties were represented by counsel, following which the Arbitrator reserved her decision.
On 12 May 2016, the Arbitrator issued a Certificate of Determination and Statement of Reasons finding in favour of the respondent. The Arbitrator was not persuaded that Ms Avni had any entitlement to bring a further claim for lump sum compensation in respect of her injuries.
Following a request by the respondent’s legal representative, on 7 June 2016, the Certificate of Determination was amended to delete an obvious error. That error appeared at [30] of the Statement of Reasons and was a mistaken reference to the date of injury being 30 June 2012, instead of 30 June 2005. An amended Certificate of Determination was issued on 8 June 2016 correcting that error.
PRELIMINARY MATTERS
Threshold
There is no issue that the threshold requirements of s 352(3) and (4) of the 1998 Act are satisfied. Therefore there is no impediment to the appeal proceeding.
Workers Compensation Regulation 2016
The Arbitrator determined the matter on application of cl 11A in the 2010 Regulation. However, on 1 September 2016 the 2016 Regulation commenced, replacing the 2010 Regulation which was repealed on the same day by s 10(2) of the Subordinate Legislation Act 1989. Relevantly, cl 11A in the 2010 Regulation appears in the same terms as cl 11 of the 2016 Regulation, with the exception of the reference in sub-cl 5(c) to the new cl 10 (formerly cl 11).
The submissions on appeal were filed before the commencement of the 2016 Regulation and therefore refer to cl 11A of the 2010 Regulation. As the 2010 Regulation is now repealed and replaced by the 2016 Regulation, and as cl 11A and cl 11 are for all relevant purposes in the same terms, I will determine the appeal on the application of cl 11.
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.”
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 and that this is the appropriate course in the circumstances.
FRESH EVIDENCE
The respondent seeks leave to admit and rely on the following fresh evidence:
(a) report of Dr Conrad dated 1 July 2010;
(b) letter of claim from Ms Avni’s solicitors dated 21 June 2010;
(c) report of Dr Conrad dated 13 June 2012;
(d) Application to Resolve a Dispute in matter number 12079/2012, and
(e) Amended Application to Resolve a Dispute in matter number 12079/2012.
‘Fresh evidence’ on appeal is governed by s 352(6) of the 1998 Act which states:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The respondent submits that the fresh evidence should be admitted on appeal for the following reasons:
(a) the evidence relates to Ms Avni’s prior claims for lump sum compensation;
(b) the evidence provides further clarity surrounding the prior claims which are central to the issues on appeal;
(c) there is no prejudice to the appellant as these are documents which were relied upon by her and do not take her by surprise.
The appellant made no submissions in relation to the application to admit fresh evidence on appeal, notwithstanding the fact that the timetable permitted her to do so by way of a reply.
All of the documents the subject of this application pre-date the arbitration hearing. They were available to the parties to introduce into evidence at the arbitration had they elected to do so. It follows that the first limb of s 352(6) cannot be satisfied.
It therefore remains to be determined whether failure to grant leave to admit the documents would cause substantial injustice in the case (CHEP Australia Ltd v Strickland [2013] NSWCA 351).
The issues in dispute on appeal concern important questions of law, namely the proper construction of cl 11. The clause was introduced following the decision in Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 (Cram Fluid) and commenced from 13 November 2015.
I accept that the documents sought to be admitted assist with clarifying the factual background to the prior claims for permanent impairment compensation made by the appellant. That will assist the Commission to clarify the proper construction of cl 11 of the 2016 Regulation, not only in the circumstances of this appeal, but doubtlessly in many others.
I am therefore satisfied that to exclude those documents from consideration would cause substantial injustice. I therefore grant leave for the fresh evidence to be admitted on appeal.
GROUNDS OF APPEAL
The appellant alleges that the Arbitrator erred by:
(a) misconstruing and misapplying sub-cl (4)(b)(i) and (ii) and (4)(c) of cl 11 when determining that Ms Avni had no entitlement to bring a further claim, and
(b) by misconceiving the effect of cl 11 as not being “a beneficial and exceptional entitling regulation for the [appellant].”
LEGISLATIVE PROVISIONS
The legislation relevant to this appeal is detailed below.
Section 66 of the 1987 Act provides:
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note. No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.
…”
Chapter 7, Pt 7 of the 1998 Act deals with “medical assessment”. Section 322 provides:
“322 Assessment of impairment
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note. Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4) An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”
Section 322A of the 1998 Act provides:
“322A One assessment only of degree of permanent impairment
(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of assessment and a medical assessment certificate under this Part.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment).”
Clause 11 of Sch 8 to the 2016 Regulation provides:
“11 Lump sum compensation: further claims
(1) A further lump sum compensation claim may be made in respect of an existing impairment.
(2) Only one further lump sum compensation claim can be made in respect of the existing impairment.
(3) Despite section 66 (1) of the 1987 Act, the degree of permanent impairment in respect of which the further lump sum compensation claim is made is not required to be greater than 10%.
(4) For the purposes of subclauses (1) and (2):
(a) a further lump sum compensation claim made, and not withdrawn or otherwise finally dealt with, before the commencement of subclause (1) is to continue and be dealt with as if section 66 (1A) of the 1987 Act had never been enacted, and
(b) no regard is to be had to any further lump sum compensation claim made in respect of the existing impairment:
(i) that was withdrawn or otherwise finally dealt with before the commencement of subclause (1), and
(ii) in respect of which no compensation has been paid, and
(c) section 322A of the 1998 Act does not operate to prevent an assessment being made under section 322 of that Act for the purposes of a further lump sum compensation claim.
(5) The following provisions are to be read subject to this clause:
(a) section 66 of, and clause 15 of Part 19H of Schedule 6 to, the 1987 Act,
(b) section 322A of the 1998 Act,
(c) clauses 10 and 19 of this Schedule.
(6) In this clause:
existing impairment means a permanent impairment resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012.
further lump sum compensation claim means a lump sum compensation claim made on or after 19 June 2012 in respect of an existing impairment.
lump sum compensation claim means a claim specifically seeking compensation under section 66 of the 1987 Act.”
SUBMISSIONS
The interpretation of cl 11 (ground one)
Appellant’s submissions
Mr Hickey of counsel, who represents Ms Avni, submits that subsequent to and resultant from the decision in Cram Fluid cl 11 (former cl 11A) was introduced and became effective from 13 November 2015.
Contrary to the Arbitrator’s reasoning (at [25]) the appellant’s current claim made on 23 December 2014 is not her third claim but as a matter of construction of cl 11(4)(b)(i) and (ii) is her second claim.
The appellant submits that her earlier claim dated 21 June 2012 was withdrawn or finally dealt with by discontinuance on 16 May 2014 and no further compensation was paid in respect of that claim. Therefore, for the purposes of determining the one further claim in respect of the existing impairment, no regard is to be had to the claim on 21 June 2012, as it was withdrawn or otherwise finally dealt with (discontinued) before the commencement of sub-cl (1) on 13 November 2015. Thus as a matter of construction the current claim is the one further lump sum compensation claim in respect of the existing impairment as defined in cl 11(6).
The appellant further submits that the Arbitrator “misconstrued [cl 11](4)(b)(i) and (ii)” as “disentitling clauses”. Construed as a whole the provision is a beneficial and entitling provision:
“Further, the use of the conjunctive ‘and’ in [cl 11](4)(b) and (c) promotes a construction of cl 4(b)(i) and (ii) which is beneficial and entitling for the appellant given the fulfilment of the regulatory tests on the facts.”
The appellant refers to principles of statutory construction which are set out in the submissions and to which I have had regard. The appellant submits that the Arbitrator’s construction of the 2016 Regulation does not promote the purpose or object underlying it:
“which was to provide certain otherwise aggrieved workers who were caught by the adverse decision in Cram’s case with an opportunity to make one further claim as they had or might have previously believed that they could do so.”
Respondent’s submissions
Mr Barnes of counsel, who appears on behalf of the respondent, submits the Complying Agreement entered into on 18 August 2010 incorrectly records Dr Conrad’s assessment. The agreement reflects 10 per cent whole person impairment comprising of eight per cent impairment of the right wrist and two per cent of the left wrist. In fact, the impairment of the right upper extremity included an assessment of seven per cent impairment of the right shoulder. Properly considered, the assessment of Dr Conrad which led to the Complying Agreement comprised components of impairments in the right shoulder and wrist and the left wrist.
The claim on 21 June 2012 seeks compensation for an additional three per cent whole person impairment based on Dr Conrad’s assessment on 13 June 2012. In his report, Dr Conrad confirmed the previously assessed impairments in the right shoulder, right wrist and left wrist. In addition he assessed an impairment to the left shoulder of five per cent which increased the overall whole person impairment from 10 per cent to 13 per cent.
The further claim made on 21 June 2012 came before the Commission in matter number 1986/2013. That application is not before the Commission. Mr Barnes submits that that claim was consolidated with a claim for weekly payments into WCC matter number 12079/2012. The claim for lump sum compensation was referred to Dr Berry, AMS. Dr Berry’s MAC refers to the current application in respect of a “further injury” with a deemed dated of 30 June 2005. The respondent submits that the date of injury of 30 June 2005 is “an artificial construct in the mind of the solicitor” for the appellant and the correct deemed date of injury is 30 March 2005, as clarified by the consent orders entered by Arbitrator Rimmer on 20 May 2014.
Paragraph one of the consent orders referred to above reads as follows:
“Amend Amended Application to Resolve a Dispute dated 16 October 2013 as follows:
(a) At Part 4 – Injury Details, delete (ii) and (iii) and amend (i) to read “due to the nature and conditions of repetitive and heavy employment using upper limbs (deemed date: 30/3/2005)” (emphasis added)
In the consent orders Arbitrator Rimmer noted that the claim for lump sum compensation was discontinued.
Mr Barnes submits that the subject matter of Dr Berry’s assessment was a “further injury” which fails to meet the statutory threshold pursuant to s 66 and must therefore fail.
In the alternative, Mr Barnes submits that the effect of the MAC issued by Dr Berry did not relate to an “existing impairment” for the purposes of the application of cl 11(6) as the impairment in relation to the shoulder was not a permanent impairment resulting from an injury in respect of which a claim for compensation was made before 19 June 2012. Dr Conrad made no assessment of the permanent impairment in the worker’s left upper extremity (shoulder) and confined himself to the upper extremity (wrist). On that ground alone, it is submitted that the appeal ought not succeed.
Further in the alternative, Mr Barnes submits that properly interpreted, cl 11 would disentitle Ms Avni from making a further claim for lump sum compensation. If the 2012 claim had been upheld by the AMS, it would have been capable of payment and would have given rise to a payment pursuant to s 66 of the 1987 Act. Therefore the claim was validly made: Woolworths Ltd v Stafford [2015] NSWWCCPD 36.
Mr Barnes further submits that as the AMS found a total impairment of eight per cent whole person impairment, which is not only below the threshold required by s 66(1), it is also less than the degree of the impairment for which the applicant had previously been compensated (10 per cent whole person impairment by way of Complying Agreement dated 18 August 2010). Accordingly, so it is submitted, Ms Avni had no further entitlement to compensation. Mr Barnes submits that it was not the intention of the legislature when enacting cl 11 to allow workers indefinite attempts to surpass relevant thresholds in circumstances where their impairment is assessed by an AMS and they are found to have no further entitlement.
Finally it is submitted that, the discontinuance of the 2012 claim was effected only upon receipt of the MAC and upon a conclusion (correctly) by Ms Avni’s solicitors that the assessment of whole person impairment in the MAC gave her no further entitlement. Had the 2012 claim proceeded to finality it was Ms Avni’s “one further lump sum claim”. Accordingly, it is submitted that Ms Avni is not entitled to proceed with the current claim.
CONSIDERATION
I accept Mr Hickey’s submission that the Arbitrator misinterpreted the correct application of cl 11.
Sub-clause (4)(b)(i) and (ii) expressly excludes from the operation of sub-cl (1) and (2), a claim for lump sum compensation in respect of an existing impairment that was withdrawn and in respect of which no compensation was paid. As Mr Hickey submits, on the facts of this case, as Ms Avni withdrew her 2012 claim for lump sum compensation and as no compensation was paid in respect of that claim, no regard is to be had to it in determining whether she has any further entitlement to compensation.
Mr Barnes’ submissions, to the contrary, are rejected for the reasons that follow.
Is there one injury or more than one injury?
I reject the submission that the subject of the 2012 claim was a further injury. Mr Barnes’ submission that the referral to Dr Berry, couched in terms of “further injury” with a deemed date of injury of 30 June 2005, “raises the spectre” of a further injury can readily be put to one side. There is no evidence that Ms Avni suffered an injury, deemed or otherwise, on 30 June 2005. The only reference to that date appears in the letter of claim dated 21 June 2012, from Ms Avni’s solicitor to the respondent and is clearly an error.
The letter of claim makes it clear that the claim being pressed was for a “[f]urther 3% whole person impairment” in respect of the accepted disease injury.
The Certificate of Determination – Consent Orders & Orders issued on 16 May 2014 clarified, with the consent of the parties, that the correct deemed date of injury was 30 March 2005, not 30 June 2005. Where the injury is a disease of gradual onset, either caused by the employment or aggravated by it, the injury is for the purposes of the 1987 Act deemed to have happened at the time of the worker’s death or incapacity (ss 15 and 16 of the 1987 Act). It is not in issue that Ms Avni was partially incapacitated as a result of the alleged injury from 30 March 2005. That is the date pleaded in the current application, matter number 621/2016, and is clearly correct.
The injuries pleaded in Pt 4 of the current application describe the injury as “injury to the left and right upper extremities” arising from the nature and conditions of Ms Avni’s employment. That is precisely what was claimed in the 2012 application (as amended by consent orders on 16 May 2014), that is, it is the same injury.
For these reasons I reject the submission that the subject of Dr Berry’s assessment was a further injury pertaining to the left shoulder.
Was the impairment of the left shoulder an existing impairment?
The 2010 claim is properly characterised as a claim for permanent impairment compensation in respect of an injury occurring on 30 March 2005 (the deemed date). The impairment with respect to Ms Avni’s left shoulder is alleged to arise from the same disease injury that is deemed to have occurred on 30 March 2005. It is not, for the reasons I have explained, a new injury.
Impairments that result from one injury are to be assessed together to assess the degree of permanent impairment of the injured worker (s 322(2) of the 1998 Act).
The statutory framework for determining entitlement to permanent impairment compensation is dependent upon an assessment of the degree of whole person impairment in respect of an injury. That impairment may, as is made clear by s 322 of the 1998 Act, result from a number of individual impairments resulting from the same injury. That was the basis upon which the 2010 claim proceeded and that is the basis upon which the current application proceeds. Put another way, it is immaterial to an assessment of Ms Avni’s current whole person impairment arising from the accepted work injury, that the 2010 claim did not seek compensation in respect of a particular body part, namely the left shoulder. If her condition has deteriorated such that she is now symptomatic in the left shoulder the effect of cl 11 is to preserve her entitlement to make one further claim in respect of all impairments arising from her accepted injury.
The effect of the MAC
I reject the submission that the 2012 claim proceeded to finality by reason of the MAC issued by Dr Berry on 4 February 2014.
The submission wrongly assumes that the mere issuing of a MAC resolves the issues in dispute and that a MAC issued in one set of proceedings therefore binds the parties in subsequent proceedings. Whilst a properly constituted and issued MAC is conclusively presumed to be correct in any proceedings with which the certificate is concerned, a MAC does not determine the parties’ rights (Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50; 5 DDCR 321).
A dispute is not determined unless and until the Commission determines liability and issues a Certificate of Determination (s 294 of the 1998 Act). The Commission is constituted by the President, Deputy Presidents, the Registrar and Arbitrators (s 368 of the 1998 Act). An AMS is not a Member of the Commission and cannot finally determine disputes before the Commission.
It follows that Mr Barnes’ submission that, by reason of Dr Berry’s certificate, Ms Avni had no further entitlement to compensation must be rejected. The MAC issued by Dr Berry did not amount to an award of the Commission.
Dr Berry’s assessment of eight per cent whole person impairment was confined to the matters that were referred to him for assessment, namely the impairment related to the left upper extremity. Dr Berry was not asked to combine his assessment of impairment of the left upper extremity with the accepted impairments in respect of the right upper extremity. Had he done so, contrary to Mr Barnes’ submission, his findings might well have resulted in an entitlement to further compensation in addition to that paid pursuant to the Complying Agreement on 18 August 2010.
In the alternative, if Mr Barnes’ submissions are correct and Dr Berry’s MAC brought the 2012 claim to finality that is of no consequence. That is because cl 11(4)(b)(i) provides that for the purposes of sub-cls (1) and (2) of cl 11 no regard is to be had to any further lump sum compensation claim made in respect of the existing impairment that was finally dealt with before the commencement of sub-cl (1). For the reasons discussed above the 2012 claim was a claim in respect of an existing impairment. In addition, Dr Berry’s MAC was issued on 4 February 2014 before the commencement of sub-cl (1), on 13 November 2015. It follows that whether or not Dr Berry’s MAC brought the 2012 claim to finality Ms Avni’s entitlement to pursue a further claim is preserved.
The effect of the discontinuance
I do not accept the submission that the discontinuance of the 2012 claim was effected only upon receipt of the MAC and upon a conclusion that Ms Avni had no further entitlement to compensation. There is no evidence before the Arbitrator or before me to make any finding concerning the reasons for the discontinuance of the claim.
Rule 15.7 of the Workers Compensation Commission Rules 2011 provides for an applicant to discontinue any proceedings, or any part of any proceedings, as against any or all of the other parties to the proceedings at any time.
Arbitrator Rimmer’s determination of 16 May 2014 merely notes: “4. Discontinue claim for lump sum compensation”. Having elected to discontinue the proceedings, Ms Avni was free to recommence that claim at any time without penalty. Contrary to Mr Barnes’ submission, the discontinuance of the lump sum compensation claim in 2014 did not finally determine her entitlement to compensation for whole person impairment. On the contrary, it preserved her right to pursue her entitlements, if any, in the future.
The no prior claim submission
The submission that Ms Avni’s claim in respect of the left shoulder impairment cannot succeed because there was no claim made by the applicant before 19 June 2012 is rejected.
The fact that not all body parts affected are mentioned in the initial notification of injury is not a bar to recovery of compensation in respect of those body parts: Shoalhaven City Council v Schutz [2012] NSWWCCPD 14 at [104]–[116]. A worker may not know the exact nature and extent of the injury at the time of the initial notification or claim for compensation. For example medical investigations after an incident may reveal results of an injurious event more serious or possibly involving parts of the body not known at the time of the initial notification. The fact that Ms Avni made a claim in respect of the disease injury meant that she was considered to have made a claim for any compensation in respect of the injury concerned (Warwick Hobart t/as Terry White Chemists v Pietrzak [2006] NSWWCCPD 315).
For the reasons discussed above ground one is upheld. It is therefore unnecessary to consider the remaining ground of appeal.
RELIEF SOUGHT
The appellant submits that the Arbitrator’s Certificate of Determination dated 12 May 2016 should be set aside and an award entered in her favour in the sum of $7,500, being the additional compensation payable between the 15 per cent whole person impairment claimed and the 10 per cent previously awarded.
The respondent disputes the degree of whole person impairment and submits that it should be referred to the Registrar for referral to an AMS as there is a dispute in relation to the whole person impairment.
As the degree of whole person impairment is in dispute the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an AMS (s 65 of the 1987 Act). Therefore the appropriate order is that the matter is remitted to the Registrar for referral to an AMS for an assessment of the worker’s whole person impairment as a result of injuries to both upper extremities sustained in the course of her employment with the respondent on 30 March 2005.
ORDERS
The Arbitrator’s Certificate of Determination of 12 May 2016 is revoked.
The matter is remitted to the Registrar for referral to an Approved Medical Specialist for an assessment of the worker’s whole person impairment as a result of injuries to both upper extremities sustained in the course of her employment with the respondent on 30 March 2005.
Judge Keating
President
16 September 2016
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