BlueScope Steel Ltd v Jovanovski
[2015] NSWWCCPD 44
•31 July 2015
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | BlueScope Steel Ltd v Jovanovski [2015] NSWWCCPD 44 | ||
| APPELLANT: | BlueScope Steel Ltd | ||
| RESPONDENT: | George Jovanovski | ||
| INSURER: | Self-insured | ||
| FILE NUMBER: | A1-6959/13 | ||
| ARBITRATOR: | Ms A Nicholl | ||
| DATE OF ARBITRATOR’S DECISION: | 16 April 2015 | ||
| DATE OF APPEAL HEARING: | 27 July 2015 | ||
| DATE OF APPEAL DECISION: | 31 July 2015 | ||
| SUBJECT MATTER OF DECISION: | Claim for future hospital and medical expenses; existing claim; whether claim exempt from the operation of s 59A of the Workers Compensation Act 1987; whether, in the circumstances of the case, an Arbitrator entitled to determine whether worker suffers permanent impairment; whether worker’s claim satisfied the requirements of cl 28 of Pt 2 of Sch 8 to the Workers Compensation Regulation 2010 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | Oral | ||
| REPRESENTATION: | Appellant: | Mr C Tanner, instructed by Bartier Perry | |
| Respondent: | Mr M Boulton, instructed by RMB Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. Paragraphs 1 and 2 and the second sentence of paragraph 3 of the Certificate of Determination of 16 April 2015 are confirmed. 2. Paragraph 3 of the Certificate of Determination of 16 April 2015 is amended by deleting the first sentence in that paragraph and inserting the following in its place: “By operation of Pt 2 of Sch 8 of the Workers Compensation Regulation 2010, the applicant worker’s claim is an existing claim and, by operation of cl 28, is exempt from the operation of s 59A of the Workers Compensation Act 1987.” | ||
INTRODUCTION
This case involves a claim for the cost of proposed surgery to repair a right inguinal hernia and a traumatic right hydrocele. Prima facie, the right to recover compensation for the cost of that surgery is governed by s 59A of the Workers Compensation Act 1987 (the 1987 Act). In broad terms, s 59A limits the payment of compensation for treatment, service or assistance to a period of 12 months after a claim for compensation is made or 12 months after weekly payments of compensation cease. The section does not apply if a worker is a “seriously injured worker”, as defined in s 32A of the 1987 Act (s 59A(4)). The Arbitrator held that the worker is a seriously injured worker, as defined, and that s 59A does not apply to him. The appellant employer has challenged that finding.
However, the arbitration proceeded on the wrong basis. The parties now agree that the worker’s claim is an “existing claim”, that is, it is a claim that was made before 1 October 2012. That means that the worker’s right to recover compensation under Div 3 of Pt 3 of the 1987 Act (which includes compensation for hospital and medical expenses in s 60) is governed by Pt 2 of Sch 8 to the Workers Compensation Regulation 2010 (the Regulation), which was introduced by the Workers Compensation Amendment (Existing Claims) Regulation 2014 and commenced operation on 3 September 2014. If a worker’s claim comes within the terms of cl 28 of Pt 2 of Sch 8, that claim is “exempt from the operation of section 59A” (cl 28(1)). The parties did not take the Arbitrator to cl 28 and she did not consider it. For the reasons explained below that makes no difference to the outcome.
While there are several similarities between the definition of “seriously injured worker” in s 32A and the wording of cl 28(2), and, largely, the arguments relating to one provision are applicable to the other, they are not identical. Seriously injured worker is defined in s 32A to mean:
“a worker whose injury has resulted in permanent impairment and:
(a)the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
(b)the degree of permanent impairment has not been assessed because an approved medical specialist has declined to make an assessment until satisfied that the impairment is permanent and the degree of permanent impairment is fully ascertainable, or
(c)the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.”
An existing claim is, in respect of three categories of compensation, exempt from the operation of s 59A until the worker reaches retiring age. The three categories are: compensation payable to an injured worker under Div 3 of Pt 3 of the 1987 Act “if the worker’s injury has resulted in permanent impairment of greater than 20%”; compensation payable in respect of the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries); and compensation payable in respect of the modification of a worker’s home or vehicle (cl 28(1)). Only the first category is relevant in the present appeal.
Under cl 28(2), a worker’s injury is considered to have:
“resulted in permanent impairment of greater than 20% only if the injury has resulted in permanent impairment and:
(a) the degree of permanent impairment has been assessed for the purposes of Division 4 of Part 3 of the 1987 Act to be greater than 20%, or
(b) an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note. Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c) the insurer is satisfied that the degree of permanent impairment is likely to be greater than 20%.”
As can be seen, both the definition of seriously injured worker in s 32A and the definition of permanent impairment of greater than 20 per cent in cl 28(2) require that, as a first step, the injury has resulted in permanent impairment. In addition, the worker must satisfy one of the requirements in paragraphs (a), or (b), or (c) of the applicable provision. The Arbitrator held that the worker’s injury resulted in permanent impairment and that he satisfies paragraph (b) of the definition of seriously injured worker. The correct (second) question is whether the worker satisfies paragraph (b) of cl 28(2).
Essentially, the issues on appeal are:
(a) whether the worker’s injury has resulted in permanent impairment;
(b) whether, as the Arbitrator found, it is open to an Arbitrator to determine if a worker’s injury has resulted in permanent impairment or whether that question must be determined by an Approved Medical Specialist (AMS), and
(c) whether, read in context, cl 28(2)(b) means that for cl 28 to apply it must be “probable” that, as a result of the injury, the worker will have a permanent impairment of greater than 20 per cent.
For the reasons given in this decision, in the circumstances of this case, it was open to the Arbitrator to find that the worker’s injury resulted in permanent impairment. Further, by operation of Pt 2 of Sch 8, the worker’s claim is an existing claim and, by operation of cl 28, is exempt from the operation of s 59A.
BACKGROUND
The respondent worker, George Jovanovski, has worked for the appellant employer, BlueScope Steel Ltd, or its predecessors in title, for about 40 years. On 25 February 2011, he was pushing a large trolley filled with scrap metal when he felt sharp pain in his right groin. A few days later, he noticed swelling in his right scrotum. He remained at work and sought medical advice from a doctor at the appellant’s medical centre.
An ultrasound on 25 February 2011 revealed a small direct right inguinal hernia. An ultrasound on 28 February 2011 revealed a large hydrocele on the right. Mr Jovanovski’s general practitioner referred him to Dr Bernard Horan, a specialist surgeon. In his examination on 9 March 2011, Dr Horan found fluid around the right testis, suggesting a hydrocele. He said there might have been a weak cough impulse in each groin but “no marked swelling present”. At review on 15 March 2011, Dr Horan confirmed the presence of the hydrocele but could “not feel a definite hernia in [Mr Jovanovski’s] right groin”. He felt the incident in February 2011 was possibly muscular in origin.
On 13 December 2011, Dr Max Ellis, specialist qualified by Mr Jovanovski’s solicitors, examined Mr Jovanovski. Dr Ellis took a history of persisting pain in the right groin and, on examination, confirmed the presence of the right hydrocele, which he felt was not work related. He noted the ultrasound findings, which revealed a small inguinal hernia that had not reached a size to be detected on clinical examination. Because of continuing pain in the right groin, he assessed Mr Jovanovski to have a three per cent whole person impairment. (It is agreed that, though Dr Ellis did not expressly say so, the proper reading of his report is that, he being satisfied that Mr Jovanovski’s condition had reached maximum medical improvement, that impairment is permanent.)
On 5 March 2012, Dr Ellis wrote to the appellant’s workers’ compensation manager stating that the continuing pain in Mr Jovanovski’s right groin was due to a strain of the walls of the inguinal canal, which was confirmed by the weakening of the posterior wall demonstrated in the ultrasonic scan representing the small hernia. He said that a hydrocele is not usually painful and the continuing pain in the right groin was due to the hernia.
On 20 March 2012, Dr Drew, general surgeon, examined Mr Jovanovski at the request of the appellant. He said it was likely that Mr Jovanovski had a “very early, narrow-necked, right inguinal hernia which presents intermittently and which may or may not require surgery some time in the future”. Mr Jovanovski had intermittent pain in the right inguinal (hernia) region due to strains (at work), which, agreeing with Dr Horan, Dr Drew said were “clinically insignificant”. Accepting that the hernia was clinically insignificant, and there being no palpable defect, Dr Drew said there was nil assessable impairment.
In proceedings commenced in the Commission on 26 September 2012 (the 2012 proceedings), Mr Jovanovski claimed permanent impairment compensation of $4,125 in respect of a three per cent whole person impairment due to impairment of his digestive system (right inguinal hernia) as a result of the incident on 25 February 2011. The Commission referred that claim for assessment by an AMS, Dr Kumar. (As he has had no time off work because of his injury, or suffered a reduction in income, Mr Jovanovski made no claim for weekly compensation.)
On 31 October 2012, Dr Kumar issued a Medical Assessment Certificate (MAC) in which he diagnosed Mr Jovanovski to have, as a direct result of the incident on 25 February 2011, bilateral inguinal hernias and a traumatic right hydrocele. However, he said that Mr Jovanovski’s hernias were still “in the process of progression and development” and that the relevant “body parts/systems” had not stabilised or reached maximum medical improvement. He expected that to happen “after adequate repair of both the hernias and cure of [Mr Jovanovski’s] hydrocele”. Without any complications from the operation, he expected Mr Jovanovski’s maximum medical improvement to occur six months after surgery.
On 27 November 2012, Mr Jovanovski sought, through his solicitors, the appellant’s approval to have the surgery recommended by Dr Kumar. The appellant disputed liability for the proposed surgery. In the current proceedings, commenced on 10 July 2013, Mr Jovanovski has claimed the cost of the proposed surgery. The Commission referred the question of whether the surgery was reasonably necessary to a second AMS, Dr Berry.
Meanwhile, on 6 December 2012, acting on the MAC issued by Dr Kumar, the Commission issued a Certificate of Determination in the 2012 proceedings in which it determined that “the degree of permanent impairment resulting from injury to [Mr Jovanovski] on 25 February 2011 is not fully ascertainable”. The Determination added that either party could apply to “restore proceedings when [Mr Jovanovski] has attained maximum medical improvement”.
After an examination on 4 March 2014, Dr Berry issued a MAC on 13 March 2014 in which he found Mr Jovanovski to have “bilateral inguinal hernias of the direct type with a right hydrocele”. As the claim for the left hernia had been discontinued, Dr Berry restricted his opinion to the cause of the right hernia and the hydrocele, which he said were both “work caused”. He concluded that the proposed treatment for those conditions (surgery) was reasonably necessary as a result of the injury on 25 February 2011. Notwithstanding this report, the appellant continued to dispute liability.
At the arbitration on 11 September 2014, the Arbitrator heard oral submissions, but neither side sought leave to call any oral evidence. After receiving several sets of written submissions, the Arbitrator delivered a written decision on 16 April 2015. The Arbitrator found (at [83]) that Mr Jovanovski suffered, in addition to the right inguinal hernia, which the respondent (ultimately) conceded existed and had been caused by the incident on 25 February 2011, a right-sided hydrocele that had been caused by the same incident. She also found (at [87]) that the proposed surgery to correct both conditions was reasonably necessary as a result of the injury. These findings have not been challenged.
Turning to s 59A, the Arbitrator noted (at [90]) the concession by Mr Jovanovski’s counsel, Mr Mark Boulton, that in light of the decision of Flying Solo Properties Pty Ltd t/as Artee Signs v Collet [2015] NSWWCCPD 14 (Collet), she could not order the appellant to meet the cost of the proposed surgery unless Mr Jovanovski was a “seriously injured worker”, as defined in s 32A, and therefore exempt from the effects of s 59A (s 59A(4)). In light of the application of cl 28, that concession was incorrect. As Mr Jovanovski’s claim is an “existing claim”, because he claimed compensation before 1 October 2012 (cl 25(1) of Sch 8), cl 28 governs his entitlement to recover compensation for the proposed surgery. While that clause has several similarities with the definition of seriously injured worker, and it is therefore still necessary to consider the Arbitrator’s reasons, it is not identical.
Dealing with whether Mr Jovanovski is a seriously injured worker, the Arbitrator said that, to meet the requirements of the definition of seriously injured worker in s 32A, Mr Jovanovski had to establish that his injury “has resulted in permanent impairment” and that an AMS has declined to make an assessment of the degree of permanent impairment because such degree is not fully ascertainable. She said (at [99]) that the first requirement did not require referral to an AMS. After reviewing the medical evidence, the Arbitrator concluded that Dr Ellis’s assessment was “sufficient to allow [Mr Jovanovski] to satisfy the preliminary requirement that the injury has resulted in permanent impairment” ([107]).
Noting that Dr Kumar concluded that Mr Jovanovski’s condition had not reached maximum medical improvement, the Arbitrator found (at [110]) that Mr Jovanovski met the requirement of s 32A(b) that the degree of permanent impairment has not been assessed because an AMS has declined to make an assessment until satisfied that the impairment is permanent and the degree of permanent impairment is fully ascertainable.
The Arbitrator did not accept the submissions by counsel for the appellant, Mr Craig Tanner, that the words “a worker whose injury has resulted in permanent impairment” are to be understood as contemplating a degree of whole person impairment of more than 30 per cent. She said that the “plain and ordinary meaning of the words of the section” were “abundantly clear” ([113]) and that the preliminary comments in s 32A do not refer to meeting a threshold of 30 per cent whole person impairment. The only requirement is that “the injury has resulted in permanent impairment”. The worker must then also meet the requirements of paragraph (a), or (b), or (c). Those requirements are disjunctive. The Arbitrator said that Mr Tanner’s submissions amounted to a rewriting of the section as a whole.
Consistent with the Arbitrator’s findings, the Commission issued a Certificate of Determination on 16 April 2015 in the following terms:
“1.In accordance with section 60(5) of the Workers Compensation Act 1987 the matter has already been referred to the Registrar for assessment under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.
2.The proposed surgical correction in respect of both the right-sided direct inguinal hernia and the right hydrocele is reasonably necessary as a result of the injury at work on 25 February 2011 for the purposes of section 60(1) of the Workers Compensation Act 1987.
3.The applicant is a seriously injured worker for the purpose of section 32A of the Workers Compensation Act 1987 (as amended in June 2012) and pursuant to section 59A(4) of the Workers Compensation Act 1987 (as amended in June 2012) that section does not apply to the applicant. I order that the respondent pay the costs of the proposed surgical correction in respect of both the right-sided direct inguinal hernia and the right hydrocele.”
The appellant has challenged the Arbitrator’s determination.
ISSUES IN DISPUTE
The issues in dispute in the appeal, as originally drafted, were whether the Arbitrator erred in:
(a) finding that Mr Jovanovski’s injury has resulted in permanent impairment, when there is no evidence to support this finding and when such finding was not “within the province of the Arbitrator”;
(b) interpreting s 32A as allowing for Mr Jovanovski to qualify as a seriously injured worker, when the evidence did not indicate that there was any prospect that Mr Jovanovski would have permanent impairment of more than 30 per cent when maximum medical improvement is reached;
(c) finding that Mr Jovanovski is a seriously injured worker, and
(d) finding that s 59A does not apply to Mr Jovanovski.
As it is now agreed that the matter is governed by cl 28, and not the definition of seriously injured worker in s 32A, it is convenient to deal with the appeal under two headings. First, “permanent impairment” and, second, “applying cl 28, is Mr Jovanovski’s claim exempt from the operation of s 59A?”
PERMANENT IMPAIRMENT
Submissions
Mr Tanner’s submissions on this issue are essentially the same as the written submissions he made when dealing with the definition of seriously injured worker. In summary, he submitted that Mr Jovanovski has not proved that he has a permanent impairment because:
(a) in the absence of agreement that the injury has resulted in permanent impairment, Mr Jovanovski requires an AMS to have considered the competing opinions of Dr Ellis and Dr Drew, and to have made a preliminary finding that his condition meets the criteria in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed) (AMA5) and the WorkCover Guides for the Evaluation of Permanent Impairment (the WorkCover Guides);
(b) the existence of a permanent impairment is a medical dispute, as defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and, because an AMS’s opinion is conclusively presumed to be correct in such a dispute, only an AMS (and not an Arbitrator) can determine if a permanent impairment exists;
(c) it would be contrary to the “scheme of the workers compensation legislation” for existence of a permanent impairment to be satisfied merely by a forensic medical report tendered by the worker (particularly in the face of a contrary report relied upon by the appellant);
(d) in purporting to find that Mr Jovanovski has permanent impairment, the Arbitrator has not considered the fact that Mr Jovanovski’s condition may resolve entirely, as a result of surgery, thus leaving him with no permanent impairment. That prospect would “negate” a finding that the injury “has resulted in permanent impairment”;
(e) an Arbitrator does not have jurisdiction, and is not equipped, to determine a dispute as to whether a worker has a permanent impairment. The scheme provides for a process of assessment of permanent impairment by medical specialists who have received accreditation following training in the application of AMA5 and the WorkCover Guides. Where there is a dispute as to whether a worker has permanent impairment that has resulted from an injury, an AMS is responsible for making the relevant assessment, not an Arbitrator;
(f) there is no permanent impairment because Dr Kumar did not say there is such an impairment. He “contemplated” that, after surgery, Mr Jovanovski would have a lesser impairment or no impairment;
(g) as, at the date of Dr Kumar’s assessment, maximum medical improvement had not been reached, it is therefore not possible to say if the state of permanent impairment has been reached, and
(h) as we are dealing with a fluid situation, Mr Jovanovski’s condition is not permanent.
Discussion and findings
I do not accept Mr Tanner’s submissions.
There is no basis for the contention that Mr Jovanovski requires an AMS to have considered the competing views of Dr Ellis and Dr Drew, and to have made a preliminary finding that the injury has resulted in permanent impairment. There is nothing in the legislation or the “scheme” that requires it.
The legislation is very clear as to the circumstances in which the Commission must refer a matter to an AMS. They are identified in s 60(5) of the 1987 Act and s 293(2) of the 1998 Act. The former concerns a dispute about proposed treatment and the compensation that will be payable under s 60 in respect of any such treatment. “Any such dispute must be referred by the Registrar for assessment under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act, unless the regulations otherwise provide”.
Section 60(5) makes the referral to an AMS mandatory (Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449 per Leeming JA (Beazley P and Tobias AJA agreeing) at [29]). Thus, as the present claim involves a dispute about a claim for proposed treatment, it had to be referred by the Registrar “for assessment” under Pt 7 of Ch 7 of the 1998 Act. That happened and Dr Berry provided an answer to the question put to him (see [18] above), but only that question.
Section 293(2) requires that if “the dispute concerns the degree of permanent impairment” (emphasis added) the Registrar “must refer that aspect of the dispute for assessment under” Pt 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment. This may be contrasted to s 293(1) which states that when a dispute referred for determination by the Commission concerns a “medical dispute” within the meaning of Pt 7, the Registrar “may” refer the medical dispute for medical assessment under Pt 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment.
In the 2012 proceedings, the Registrar referred to an AMS the assessment of the degree of permanent impairment suffered by Mr Jovanovski as a result of his injury. Before an AMS can make such an assessment, he or she must be satisfied that the relevant impairment is permanent. Though that was one of the questions put to him, Dr Kumar did not answer that question. He merely said that Mr Jovanovski had not reached maximum medical improvement and, therefore, the degree of permanent impairment could not be assessed.
The Arbitrator found (at [99]), that the definition of seriously injured worker contains no express provision that requires the question of whether an injury results in permanent impairment to be determined by an AMS. I do not have to determine if that statement was correct as far as the definition of seriously injured worker is concerned and do not do so. It is clearly correct as far as cl 28 is concerned. There is no such provision in any other part of the 1987 Act or the 1998 Act, or the Regulation or the WorkCover Guidelines. It follows that Mr Tanner’s submission that an Arbitrator has no jurisdiction to determine whether a worker’s injury has resulted in permanent impairment and that an AMS must determine that question cannot be accepted. There is no such requirement.
It is correct that cl 28(2)(b) contemplates that an assessment (by an AMS) of the degree of whole person impairment “is pending and has not been made”. However, it does so in very specific circumstances, namely, where the degree of permanent impairment has not been assessed “because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable”. Paragraph (b) (of cl 28) does not require that, before a finding or determination is made that the “injury has resulted in permanent impairment”, there must be an assessment to that effect by an AMS.
The fact that an impairment may improve (or deteriorate) in the future does not prevent a finding of permanent impairment at a particular time. Assessments of the degree of permanent impairment are only to be conducted when the medical assessor considers that the degree of permanent impairment of the injured worker is “fully ascertainable”. The permanent impairment will be fully ascertainable where the medical assessor considers that the person has attained maximum medical improvement. That occurs “when the worker’s condition has been medically stable for the previous three months and is unlikely to change by more than 3%WPI in the ensuing 12 months with or without further medical treatment (ie further recovery or deterioration is not anticipated)” (the WorkCover Guides at cl 1.21). It does not mean that further recovery or deterioration has been excluded as a possibility.
On the issue of whether Mr Jovanovski had reached maximum medical improvement, Dr Kumar included the following in the MAC:
“b. Have all body parts/systems stabilized/reached maximum medical improvement?
No. [Mr Jovanovski’s] bilateral hernias are still in the process of progression and development. On clinical grounds he has hernias which are obvious in my examination today which has not been noted in extent by two previous surgeons who have seen him. Dr Horan saw him in March last year. Dr John Drew saw him in March this year. It is now more than seven months since Dr Drew has seen him and the hernia has definitely progressed. This hernia has therefore not been stable and will not meet the requirements of maximum medical improvement as defined in WorkCover Guidelines.
c.If not, please list those injuries not yet stable/at maximum medical improvement:
Bilateral direct inguinal Hernias and traumatic right hydrocele.
d.If stabilization/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur?
Maximum medical improvement would be expected to happen after adequate repair of both the hernias and cure of his hydrocele. He will need surgical correction and at this stage without any complications I would expect his maximum medical improvement to occur approximately six months after surgery.”
Dr Kumar added, under “Reasons for Assessment”:
“[Mr Jovanovski] has not reached maximum medical improvement as defined by WorkCover Guidelines and AMA Guides 5th Edition and therefore he cannot be assessed at this stage. He does have bilateral direct inguinal hernias as well as a traumatic right hydrocele. This is very amenable to surgery. These hernias are progressive. His assessment will need to be made after surgical correction of his inguinal hernias and hydrocele.”
It can be seen from the above answers that Dr Kumar did not decline to assess the degree of whole person impairment Mr Jovanovski has as a result of his injury because of the possible improvement that may result from surgery, though he acknowledged that the condition is “very amenable” to surgery. He declined to do so because the bilateral hernias were “still in the process of progression and development”. In other words, they were getting worse. For that reason, they were not “stable” and Mr Jovanovski’s condition did not meet the requirements of maximum medical improvement, as defined in the WorkCover Guides. That did not mean, and Dr Kumar did not say, that Mr Jovanovski’s injury did not result in permanent impairment.
It may well be that an AMS will decline to make an assessment of permanent impairment because he or she is not satisfied that, at the date of assessment, the injury has resulted in permanent impairment. If, in a valid MAC, an AMS has expressed that view, it will be conclusively presumed to be correct (s 326(1)(d)) and it will not be open to an Arbitrator to reach a contrary conclusion. However, Dr Kumar has not expressed that view. He merely declined to assess the degree of permanent impairment because he was not satisfied that Mr Jovanovski had reached maximum medical improvement. He reached that view because the “bilateral hernias are still in the process of progression and development”. In the circumstances, it was open to the Arbitrator to determine that Mr Jovanovski’s injury “resulted in permanent impairment”.
I do not accept Mr Tanner’s submission that Dr Kumar “contemplated” that, after surgery, Mr Jovanovski would have a lesser impairment or no impairment. Dr Kumar said that “maximum medical improvement would be expected to happen after adequate repair of both the hernias and cure of his hydrocele”. He did not say that surgery would leave Mr Jovanovski with no impairment. Similarly, contrary to Mr Boulton’s submission, it is not open to infer that Dr Kumar thought there is permanent impairment. He simply did not express an opinion on that question. That was regrettable, but it left the question to be determined by the Arbitrator on the evidence tendered and it was open to her to accept the evidence from Dr Ellis that permanent impairment exists. That finding, though made in the context of the definition of seriously injured worker, is also applicable to cl 28.
Mr Tanner’s submission that, in purporting to find that Mr Jovanovski has permanent impairment, the Arbitrator did not consider the fact that his condition may resolve entirely cannot be sustained. There is no evidence to that effect. Dr Drew, the respondent’s specialist, assessed Mr Jovanovski to have a nil whole person impairment because the hernia was clinically insignificant, not because the condition may resolve. For reasons stated, which the appellant has not challenged on appeal, the Arbitrator did not accept Dr Drew’s evidence. As previously noted, Dr Kumar merely said that the condition is “very amenable” to surgery but did not suggest that the condition would resolve entirely after surgery.
It is true that the legislation provides for the assessment of the degree of permanent impairment to be assessed by an AMS and that, if there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an AMS (s 65(3)). However, in the absence of a valid MAC, in which an AMS has determined that there is no permanent impairment, which opinion will be conclusively presumed to be correct (s 326(1)(d)), there is no prohibition on the Commission determining that permanent impairment exists.
The submission that an Arbitrator is not “equipped” to determine a dispute as to whether a worker’s injury has resulted in permanent impairment is without substance. Such a determination will be based on the expert medical evidence in the case. Claims for permanent impairment compensation must be accompanied by a medical report completed in accordance with the WorkCover Guidelines for Claiming Compensation Benefits by a medical specialist with qualifications and training relevant to the body system being assessed “who has been trained in the WorkCover Guides”. Both Dr Ellis and Dr Drew are WorkCover approved impairment assessors who received accreditation following training in the application of AMA5 and the WorkCover Guides. The Arbitrator reached her conclusion that a permanent impairment exists by accepting the evidence from Dr Ellis. It was open to her to do so and her acceptance of Dr Ellis’s evidence involved no error.
APPLYING CLAUSE 28, IS MR JOVANOVSKI’S CLAIM EXEMPT FROM THE OPERATION OF S 59A?
Submissions
Notwithstanding my request that submissions be directed to cl 28, which the parties agreed applies in this case, Mr Tanner insisted on couching his submissions in terms of the definition of seriously injured worker. He submitted that the legislature could not have contemplated someone like Mr Jovanovski being a seriously injured worker. He said that the plain meaning of the words indicates that workers to whom the term applies have suffered more serious injuries than other workers.
He contended that the legislature has determined that serious injuries are to be distinguished from injuries that are not serious by the degree of permanent impairment that has resulted from the underlying injury. To that end, it has set a high threshold of more than 30 per cent to denote the significant level of impairment that would distinguish seriously injured workers from others.
Mr Tanner argued it is essential that the provisions of paragraph (b) of the definition of seriously injured worker be interpreted in the context of the definition as a whole, and the legislative scheme of which it is part. He said it is necessary that the interpretation construes the provisions so they are “consistent with the language and purpose of all the provisions of the statute” (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69]; 194 CLR 355 (Project Blue Sky)).
He submitted that a proper understanding of paragraph (b) of the definition of seriously injured worker cannot be gained by reading its contents in isolation, and without acknowledging the import of the definition as a whole and the threshold set by paragraphs (a) and (c). The contents of paragraph (b), so it was contended, need to be interpreted in harmony with paragraphs (a) and (c), and with the legislative intent behind the introduction of the category of seriously injured worker – to provide greater benefits to workers who have been more seriously injured than others.
If paragraph (b) of the definition is to be read as entitling a worker with a modest injury to qualify as a seriously injured worker, simply on the basis that an AMS is not satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable, the effect would be to introduce anomalies that could not be in keeping with the plain meaning of “seriously” and the clear legislative intent behind the introduction of the category of seriously injured worker.
Mr Tanner argued that paragraph (b) was included in the definition to avoid prejudice to workers whose injuries were significant, but had yet to stabilise – and may well, in due course, satisfy the threshold set by paragraphs (a) and (c). He said there had to be a “prospect” that the threshold would be reached and that an AMS should say that it is “probable” that it will be reached. He said there was no logical reason why a worker who has suffered a relatively minor injury, which has not yet stabilised, can have the status and entitlements of a worker who is indeed seriously injured, and exceeds the high thresholds set by the legislature.
Discussion and findings
Mr Tanner’s submissions, which I have interpreted (in favour of the appellant) to be generally applicable, with appropriate modifications, to cl 28(2), though that clause is not in the same terms as the definition of seriously injured worker, are inconsistent with the terms of the Regulation and cannot be accepted.
As explained by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] (Alcan Alumina) “the task of statutory construction must begin with a consideration of the text itself”. If the words are clear and unambiguous, and can be intelligibly applied to the subject-matter, the provision must be given its ordinary and grammatical meaning, even if the result may seem inconvenient or unjust (The Treasurer of Vic v Tabcorp Holdings Limited [2014] VSCA 143, applying Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297, 305).
After quoting the above sentence from Alcan Alumina, Leeming JA (Basten and Gleeson JJA agreeing) observed in Valuer-General v Fivex Pty Ltd [2015] NSWCA 53, at [26]:
“It is wrong to approach the question of construction by confining attention to the legislative purpose and disregarding the text. No particular theory or ‘rule’ of statutory interpretation, including that of ‘purposive’ construction, can obviate the need for close attention to the text and structure of the relevant provision.”
The plurality explained in Project Blue Sky, at [78]:
“the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.” (footnote omitted)
When considering the purpose of the legislation, it is not for courts to determine what is a desirable policy and impute that to the legislature as a matter of construction (SAS Trustee Corporation v Woollard [2014] NSWCA 75 at [59]). Moreover, it is also important to keep in mind that “[i]t is no part of the function of the Court to construe the statutory language in order to achieve what it perceives to be the desirable outcome or to avoid a ‘draconian’ outcome” (Australian Building & Construction Commissioner v McConnell Dowell Constructors (Aust) Pty Ltd [2012] FCAFC 93 at [50] emphasis in original).
Applying the text of cl 28(2) in the present case leads to only one conclusion: Mr Jovanovski comes within the terms of the clause. That is because the Arbitrator found, as it was open to her to do, that Mr Jovanovski’s injury has resulted in permanent impairment. In addition, an assessment of the degree of permanent impairment is “pending” and has not been made because an AMS (Dr Kumar) has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable. (The assessment is “pending” because the Commission has, in the Certificate of Determination issued on 6 December 2012, given either party leave to “restore proceedings when [Mr Jovanovski] has attained maximum medical improvement”. Mr Tanner did not suggest otherwise.) Thus, Mr Jovanovski’s claim is “exempt from the operation” of s 59A.
Mr Tanner’s submissions seek to impute to the legislation a policy that is desired by the employer, regardless of the words used. There is nothing in the text or context of cl 28 that justifies that approach. The use of “or” between paragraphs (a), (b) and (c) of cl 28(2) demonstrates a clear intention that those paragraphs are to be interpreted disjunctively and not conjunctively. That is, each paragraph stands on its own.
The submission that the meaning of paragraph (b) is to be determined by the meaning of (a) and (c) is untenable. It introduces a qualification to paragraph (b) that is not there, namely, that to satisfy paragraph (b) a worker must establish that it is “probable” or that there is a “prospect” that, when the worker’s condition has reached maximum medical improvement, the degree of permanent impairment will be greater than 20 per cent. That approach reads words into the legislation that are not there and is not open.
As the plurality (French CJ, Crennan and Bell JJ) explained in Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9 (Taylor), at [38]:
“The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.” (footnotes omitted)
Consistent with the authorities quoted earlier in this decision, their Honours added (at [40]) that “the task remains the construction of the words the legislature has enacted”. McHugh J’s observations in Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 at 113, quoted in Taylor with apparent approval, are also relevant in the present case. His Honour said “[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances”.
We are not dealing here with simple, grammatical, drafting errors that, if uncorrected, would defeat the object of cl 28. If it is considered that paragraph (b) creates a “gap” in the legislation, it is for the legislature to fill that gap. I should add that I do not believe paragraph (b) creates a gap. It is designed to cover a very specific and limited “state of affairs”, namely, where the injury has resulted in permanent impairment but, in the circumstances outlined, an AMS has not determined the degree of that permanent impairment. That is the situation in the present matter. It does not matter that Mr Jovanovski’s ultimate impairment may be below 20 per cent.
There is nothing about the context of cl 28(2), the consequences of a literal or grammatical construction, the purpose of the statute, or the canons of construction that require the words of paragraph (b) to be read in a way that does not correspond with the literal meaning. Clause 28 commenced operation on 3 September 2014, well after the introduction of s 59A in 2012. It was introduced as part of “special provisions for existing claims” (see the heading to Pt 2 of Sch 8). It is reasonable to conclude that it was introduced to reduce the potentially unfair impact of s 59A (on claims made before s 59A was introduced) where a worker has a permanent impairment, but the degree of that impairment cannot be assessed. It does so in a very clear, specific, and limited way.
There is nothing in the purpose or objectives of the legislation that supports Mr Tanner’s construction. The objectives of the workers’ compensation system are to, among other things, provide for prompt treatment of injuries and provide payment for reasonable treatment and other related expenses (s 3 of the 1998 Act). Clause 28 is consistent with these objectives and with the beneficial purpose of the legislation overall. It is therefore entitled to a beneficial construction (ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 308 ALR 213 at [29]). (I note in passing that the Minister for Finance and Services, The Hon. Dominic Perrottet, in a letter to the Clerk of the Legislative Assembly dated 9 September 2014, described the changes introduced by Pt 2 of Sch 8 as “beneficial enhancements” to the 2012 Scheme.)
Clause 28 provides a window of relief from the operation of s 59A in the precise circumstances of this case. That is because where there is permanent impairment but the degree of permanent impairment cannot be assessed, because (in the opinion of an AMS) maximum medical improvement has not been reached, the worker remains entitled to the cost of reasonably necessary treatment until an assessment is made.
A further reason for not restricting the operation of cl 28 in the manner urged by Mr Tanner is that the only substantive benefit Mr Jovanovski receives by virtue of the clause is that, for a period, he is not caught by the 12-month limit in s 59A. He gets no additional compensation or benefit. That benefit only applies until an AMS has assessed the degree of his permanent impairment (see the note to paragraph (b)).
For the reasons explained above (see [58] above), the canons of construction do not support Mr Tanner’s approach.
It follows that, for the reasons given in this decision, Mr Jovanovski is entitled to an order that the appellant pay for the cost of the proposed surgery.
OTHER MATTERS
Two final observations should be made.
Even if Mr Tanner’s arguments had been accepted, it would not have relieved the appellant of liability for the cost of the proposed surgery. That is because, under s 59A(3), if a worker becomes entitled to weekly payments of compensation after ceasing to be entitled, he or she is once again entitled to compensation under Div 3 of Pt 3, but only in respect of treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
As Mr Jovanovski will have to stop work to have the proposed surgery, and will, based on the Arbitrator’s unchallenged findings, be entitled to weekly compensation while recovering from that surgery, he will be entitled to have the cost of his treatment, service or assistance paid during the period that weekly compensation is payable to him (see Collet at [74] where the same issue arose).
Last, under cl 5 of Pt 1 of Sch 8 of the Regulation, a claim made before 1 October 2012, such as Mr Jovanovski’s, is deemed to have been made immediately before 1 January 2013 and the 12-month time limit in s 59A does not expire until 31 December 2013. Therefore, had the appellant accepted Dr Kumar’s opinion in his MAC dated 31 October 2012, Mr Jovanovski would (most likely) have had the recommended treatment before 31 December 2013 and none of the issues argued in this case would have arisen.
CONCLUSION
Mr Tanner’s contentions are without substance. They involve reading words into the legislation when there is no justification for doing so. The words and effect of cl 28 are clear and, for the reasons explained, apply to this case. By operation of that clause, Mr Jovanovski’s claim is exempt from the operation of s 59A, and he is entitled to an order that the appellant pay for the cost of the proposed surgery. Subject to amending the Certificate of Determination to clarify that the exemption applies because of the operation of Pt 2 of Sch 8, and not because of the definition of a seriously injured worker, the Arbitrator’s reasons and conclusions are confirmed.
DECISION
Paragraphs 1 and 2 and the second sentence of paragraph 3 of the Certificate of Determination of 16 April 2015 are confirmed.
Paragraph 3 of the Certificate of Determination of 16 April 2015 is amended by deleting the first sentence in that paragraph and inserting the following in its place:
“By operation of Pt 2 of Sch 8 of the Workers Compensation Regulation 2010, the applicant worker’s claim is an existing claim and, by operation of cl 28, is exempt from the operation of s 59A of the Workers Compensation Act 1987.”
Bill Roche
Deputy President
31 July 2015
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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