Colefax v Secretary, Department of Education and Communities - [2015] NSWWCCPD 24

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Colefax v Secretary, Department of Education and Communities [2015] NSWWCCPD 24
APPELLANT:	Margaritte Joanne Colefax
RESPONDENT:	Secretary, Department of Education and Communities (wrongly sued as Department of Education and Communities)
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-16938/12
ARBITRATOR:	Mr M McGrowdie
DATE OF ARBITRATOR’S DECISION:	2 December 2014
DATE OF APPEAL DECISION:	9 April 2015
SUBJECT MATTER OF DECISION:	Challenge to quantification of entitlement to weekly compensation; claim said to have been brought pursuant to the former s 38 of the Workers Compensation Act 1987; whether appellant advanced argument upon reliance of the former s 38 of the Workers Compensation Act 1987; raising new point on appeal; consideration of Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68
PRESIDENTIAL MEMBER:	Acting President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Maurice Blackburn Lawyers
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. Amend the name of the respondent by deleting what presently appears and substituting “Secretary, Department of Education and Communities”. 2. The Arbitrator’s orders and awards found in Certificate of Determination dated 2 December 2014, as amended on 4 December 2014, are confirmed. 3. No order as to costs.

INTRODUCTION

Ms Margaritte Joanne Colefax is a qualified ESL (English as a Second Language) teacher. Ms Colefax commenced employment with the Department of Education and Communities (the respondent) in 1985. It is not disputed that, by reason of bullying and harassment to which Ms Colefax was subjected in the course of that employment, she suffered psychological injury. By reason of incapacity, Ms Colefax ceased work in August 2008. A claim seeking compensation benefits was made by Ms Colefax which was accepted by the respondent. Compensation benefits were paid up until 21 April 2011.
Since cessation of compensation payments, Ms Colefax has, on occasions, taken up offers of suitable employment with the respondent as well as other, occasional, work. The evidence establishes that relations between Ms Colefax and the respondent were strained and Ms Colefax alleges that she has suffered four subsequent injuries which either arose in the course of her employment or arose out of that employment. The respondent does not dispute the occurrence of three subsequent injuries which occurred on 10 October 2011, 20 February 2012 and 8 November 2012. Each of those injuries, it seems to have been determined, gave rise to an aggravation or exacerbation of Ms Colefax’s psychiatric condition which had resulted from the 2008 injury (deemed date 20 August 2008). Ms Colefax alleges that a further injury occurred on or about 28 January 2013. That last injury was, again, said to have been an exacerbation of Ms Colefax’s psychiatric condition. The occurrence of such injury was denied by the respondent and the reasons for such denial were communicated to Ms Colefax by the respondent’s insurer as is required by the provisions of s 74 of the Workplace Injury Management and Workers CompensationAct 1998 (the 1998 Act).
Ms Colefax made claims in respect of further compensation benefits, which claims were rejected by the respondent’s insurer. In December 2012, the present proceedings were commenced by Ms Colefax, who then did not have the benefit of legal representation, by the filing of an Application to Resolve a Dispute. Ms Colefax subsequently obtained legal representation and, on 25 May 2014, an amended Application was filed. The matter came before Arbitrator Michael McGrowdie on 28 August 2014 at which time the matter proceeded to hearing. The matter did not conclude on that day and was heard on two subsequent days being 28 October 2014 and 26 November 2014. The Arbitrator delivered his reasons for his determination extempore on the third day of hearing, following which, on 2 December 2014, a Certificate of Determination was issued by the Commission. That Certificate was the subject of amendment on 4 December 2014. That amended Certificate records, relevantly, the following matters:
“The determination of the Commission in this matter is as follows:
1 Awards for weekly compensation in the Applicant’s favour in respect of injury on 20/08/2008:
(a)at the rate of $1,299.50 per week from 22/04/2011 to 24/04/2011 pursuant to section 38 (as preserved);
(b)at the rate of $417.40 per week from 25/04/2011 to 30/09/2011 pursuant to section 40 (as preserved); and,
(c)$424.50 per week from 01/10/2011 to 09/10/2011 pursuant to section 40 (as preserved).
2 Award for weekly compensation in the Applicant’s favour in respect of the injury on 10/10/2011 at the rate of $424.50 from 10/10/2011 to 27/02/2012 pursuant to section 40 (as preserved).
3 Award for weekly compensation in the Applicant’s favour in respect of injury on 20/02/2012:

(a)at the rate of $424.50 per week from 28/02/2012 to 31/03/2012 pursuant to section 40 (as preserved);
(b)$432.50 per week from 01/04/2012 to 16/07/2012 pursuant to section 40 (as preserved);
(c)$50.00 per week from 17/07/2012 to 27/09/2012 pursuant to section 40 (as preserved);
(d)$310.00 per week from 28/09/2012 to 31/10/2012 pursuant to section 40 (as preserved); and,
(e)$430 per week from 01/11/2012 to 07/11/2012 per week pursuant to section 40 (as preserved).

4 Award for weekly compensation in the Applicant’s favour in respect of the injury on 08/11/2012 at the rate of $1,336.58 pursuant to section 38 (as preserved) from 08/11/2012 to 31/12/2012 pursuant to section 40 (as preserved) [sic].
5 I find that the Applicant suffered injury on 28/01/2013 but, upon a jurisdictional basis, make no Award in respect of weekly compensation in respect of that injury.
6 I grant liberty to the parties to apply in respect of the above orders.
…”

It is convenient to note at this point that the particular award noted at [4] of the Certificate reflects a revision of the Arbitrator’s earlier statements, recorded at T61 of 26 November 2014, concerning entitlement following the fourth injury (8 November 2012). It is to be noted that the respondent raised no objection to the claim as ultimately presented to the Commission.

THRESHOLD MATTERS

Ms Colefax submits that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met. The respondent has put no submission in opposition to that assertion.

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.

ISSUES IN DISPUTE

The grounds relied upon by the appellant assert error on the part of the Arbitrator in the following respects:
(a) calculating entitlement to weekly compensation by reference to s 40 of the Workers Compensation Act 1987 (the 1987 Act);
(b) failing to take into account particular findings made which were relevant to the determination of entitlement to weekly compensation, and
(c) failing to take into account that “it was not necessary for [Ms Colefax] to take reasonable steps to obtain suitable employment from some other person in circumstances where the issue of entitlement pursuant to s 38 was before the Commission.”
The respondent, in reply, asserts that Ms Colefax is “bound by the case she ran at arbitration” and that the appeal “seeks to raise a new point not ventilated during the hearing of the arbitration”.

THE PROCEEDINGS BEFORE THE ARBITRATOR

Having regard to the matters in dispute on this appeal there is, in my view, no need for a detailed review of the enormous volume of documentary evidence which was before the Arbitrator. As earlier noted, there was no dispute as to the occurrence of injury as alleged except in the case of the injury said to have been received on 28 January 2013. That question was decided by the Arbitrator in Ms Colefax’s favour.
No oral evidence was adduced before the Arbitrator. The substantial issue agitated at the hearing concerned the question as to whether incapacity had resulted from the various injuries, and, if so, the proper means of determining any entitlement to weekly compensation.
An attempt was made at the hearing, as is recorded in the transcript, to ascertain the relevant chronology concerning work performed by Ms Colefax after cessation of voluntary weekly payments in April 2011. The matter was adjourned for a short period following which the Arbitrator was informed of certain periods of part-time employment provided by the respondent to Ms Colefax during 2011.
The particulars of Ms Colefax’s claim were not explicitly set out in her amended Application, which stated at Part 5.2, “please refer to the attached spreadsheet”. Confusingly, that “spreadsheet” was not attached to the Application, but rather was to be found between pages 79 and 82 of an Application to Admit Late Documents. That application also had the proposed amended Application annexed to it. The “spreadsheet” was, again confusingly, described in the schedule of documents as “wages schedule”. The form and content of that document are discussed below.
It is apparent that the Arbitrator had been informed by the parties, during the conciliation process which preceded the arbitration, that Ms Colefax’s claim was limited to one for a “closed period” being between 24 April 2011 and 31 December 2012. It is recorded by the Arbitrator that the claim was so limited by reason of a “jurisdictional” matter. It is reasonably clear that the jurisdictional question concerned the application of the provisions of the Workers Compensation Legislation Amendment Act 2012 (the amending Act) and the transitional provisions which accompanied those amendments.
During the course of submissions it became reasonably clear that Ms Colefax had been paid weekly benefits up until 21 April 2011 pursuant to the former s 38 of the 1987 Act and that there remained a number of days thereafter during which, if successful, she would be entitled to payment in accordance with that section by reason of ongoing partial incapacity. Mr Flett, counsel appearing on behalf of the respondent, conceded that there were four days, being between 21 April 2011 and 25 April 2011, which period would, as stated by counsel, exhaust the statutory entitlement to payment pursuant to the former s 38. I note that the award entered by the Arbitrator includes such an award which is limited to the period 22 April 2011 to 24 April 2011.
Submissions put by Mr Flett were directed to the question as to whether the medical evidence supported a finding of partial incapacity beyond April 2011. Also addressed was the relevance of a non-work related condition, being transverse myelitis, suffered by Ms Colefax concerning the exercise of discretion pursuant to the former s 40 of the 1987 Act.
On 28 October 2014, submissions were put on behalf of Ms Colefax by Mr Hanrahan of counsel. Given the relatively complex chronology, the Arbitrator is recorded in the transcript as seeking clarification concerning relevant periods, and the basis upon which compensation was being claimed. Other than the claim with respect to a number of days in April 2011 and, as argued later, concerning entitlement between 8 November 2012 and 31 December 2012, there is no explicit argument recorded concerning entitlement pursuant to the former s 38 of the 1987 Act. I note that the relevant chronology was further complicated by the fact that Ms Colefax reached her statutory retirement age (s 52 of the 1987 Act) on 8 January 2011.
During submissions the Arbitrator raised the subject of the relevance, to the question of incapacity, of the conceded injury which occurred on 20 February 2012. The following exchange is recorded (at T19, 28 October 2014):
“ARBITRATOR: Do you say that the incapacity simply continues or - - -
MR HANRAHAN: It simply continues. In other words - - -
ARBITRATOR: - - - at a greater level or - - -
MR HANRAHAN: No. I think it continues probably at a more extreme level, but it wouldn't make any difference to the rate of compensation payable. We wouldn't be claiming two payments. I think the difference would still entitle her to the statutory maximum. When you referred to 20 October, I think that was a letter from the respondent talking about there being insufficient medical evidence (indistinct).
ARBITRATOR: Yes.
MR HANRAHAN: So that incident would also entitle her to 12 months’ worth of compensation from 10 October 11 through to 10 or 9 October 12 which is after her retirement date.”
Counsel proceeded to address each injury, following which submissions were put concerning the question of incapacity. During the course of argument the Arbitrator acknowledged that the occurrence of the first four injuries were not in dispute and that the question thus “becomes capacity” (at T36, 28 October 2014). The Arbitrator acknowledged Ms Colefax’s submission that “any award should be at the max stat rate because even on a demonstrated capacity of 24 hours a week there’s still a substantial difference” (T36, 28 October 2014). Counsel is recorded as saying that such would remain the case notwithstanding the existence of medical certificates that indicate that Ms Colefax was capable of performing 40 hours of work per week.
The Arbitrator then directed counsel’s attention to the relevance, or otherwise, of the non-work related condition of transverse myelitis which was suffered by Ms Colefax. In response counsel addressed the concept of suitable employment as defined in the legislation. The Arbitrator responded by drawing counsel’s attention to the question being Ms Colefax’s “ability to engage in employment on the labour market reasonably accessible to [her]” (T37, 28 October 2014). That proposition was accepted by counsel, with the rider that such work “still has to be suitable employment”.
The argument advanced on behalf of Ms Colefax included submissions concerning the exercise of the Commission’s discretion when determining the quantum of entitlement pursuant to the former s 40 of the 1987 Act (at T40, 28 October 2014). The transcript of the second day of hearing contains numerous references made by the Arbitrator to the terms of s 40. It is to be noted that, when concluding submissions in reply, Mr Flett stated:
“The only thing I should say, to be perfectly fair to the submission, there is that four days of the s 38.”
Mr Flett made it clear that the respondent did not “cavil” with such entitlement.
Upon resumption of the hearing on 26 November 2014, counsel for Ms Colefax again addressed the Arbitrator concerning the relevance, or otherwise, of the fact that Ms Colefax suffered a non-work related condition being transverse myelitis. It was in that context that reference was made by counsel to the obligation upon the respondent to provide suitable employment, as is provided by those provisions found in Ch 3 of the 1998 Act. The Arbitrator acknowledged Ms Colefax’s “willingness and desire” to return to suitable employment. Counsel responded to the Arbitrator as follows (at T9, 26 November 2014):
“… In those circumstances, we say that it’s inappropriate to apply any discretion in reduction of the compensation payable. In fact, there’s not such a statutory warrant to exercise a discretion. No word like ‘may’ is used in the s 40, but what you are required to find in accordance with s 40 is a rate of compensation which is appropriate in all the circumstances of the case. This is an unusual case, in our submission, because there’s an unusual expression of desire on the part of the worker to do a full week work and the incapacity arises because of the respondent’s refusal to provide that. In our submission, there should be no reduction in the circumstances…”
The Arbitrator proceeded to draw counsel’s attention to the argument advanced on behalf of the respondent that there should be a reduction of weekly compensation ordered pursuant to the Commission’s discretion granted under s 40 of the 1987 Act, by reason of Ms Colefax’s incapacity which arose following her participation in proceedings before the Federal Magistrate’s Court of Australia in 2012. The stressful experience of that litigation, which was not relied upon as a relevant injury in the present proceedings, had caused a worsening of Ms Colefax’s condition. Counsel for Ms Colefax conceded that there was a period of unfitness during the course of 2012 caused by that litigious experience (at T11, 26 November 2014).
The transcript of proceedings records lengthy exchanges between the Arbitrator and both counsel concerning various matters including the operation of the amending Act and its relevance to the present facts, the statutory maximum rate of compensation from time to time as indexed and the relevance of the injury said to have occurred on 8 November 2012. Counsel for Ms Colefax is recorded as stating, “if that’s considered a new injury, then all of her rights under s 36, 38 and 40 arise again, we say”.
Counsel proceeded to argue concerning entitlement following injury in November 2012, that, by reason of the failure of the respondent to provide suitable employment, the provisions of s 38 as it stood before the amendments “applies”. Counsel indicated to the Arbitrator that Ms Colefax would thus be entitled to 80 per cent of the agreed weekly amount, being $1,336.58 per week. Counsel proceeded to put submissions concerning the occurrence of the injury alleged to have occurred, but disputed by the respondent, on 28 January 2013.

The Arbitrator’s decision

Following submissions and a short adjournment on 26 November 2014, the Arbitrator resumed conduct of the hearing and delivered his reasons extempore. The Arbitrator proceeded to note the documentation which was before the Commission and briefly summarised the relevant facts. The Arbitrator recorded the following matters (at T50, 26 November 2014):
“There is no real dispute between the parties that the applicant has been, since 20 August 2008, unfit to resume her pre-injury duties at the John Purchase Public School. There is no real dispute that the effects of that injury still continue in some fashion and that the applicant continues to be incapacitated to return to employment at John Purchase Public School. The applicant has been ready, willing and able to take up employment at any school otherwise within a radius of 30 minutes’ drive from her home, and took up whatever work was available at the Asquith Public School when provided by the respondent.”
Following a summary of expert medical evidence which was before the Commission, the Arbitrator noted that Ms Colefax had been paid compensation up until 21 April 2011. It was recorded (at T51, 26 November 2014) that:
“There are a few days remaining, pursuant to s 38 as preserved, that are claimed at the applicant’s then award rate of $1,624.40… The claim then becomes one pursuant to s 40 in respect of the first injury date at the maximum statutory rate for a worker without dependants from 25 April 2011 through to 9 December 2011, being the day before the second injury relied upon.”

The Arbitrator’s reasons as stated thereafter address the question of Ms Colefax’s entitlement to weekly compensation pursuant to s 40 of the 1987 Act following subsequent proven injuries. Attention was given to the relevance or otherwise of Ms Colefax’s response to the stressful proceedings conducted before the Federal Magistrates Court of Australia.
The Arbitrator turned his attention to the operation of s 52 of the 1987 Act and incorrectly recorded that Ms Colefax’s retirement age was reached on 8 January 2012. Whilst there is considerable confusion concerning this date found in the transcript, it is clear, having regard to Ms Colefax’s date of birth and the Table in s 23(5C) of the Social Security Act 1991 (Cth), the correct date is 8 January 2011. Particular attention was given to s 52(2)(b) which provides for entitlement, in the case of injury on or after reaching retirement age, to payment for a further period of 12 months.
The Arbitrator proceeded to quantify weekly compensation throughout the period claimed. That quantification included a number of days at the commencement of the claim during which Ms Colefax was to be compensated pursuant to s 38 as it stood before the 2012 amendments. Findings concerning Ms Colefax’s entitlement to compensation thereafter were then made. The Arbitrator’s reasons demonstrate that such calculation, in respect of most of that period, was founded upon an entitlement determined by reference to s 40 of the 1987 Act as it stood before the 2012 amendments.
As the Arbitrator approached the conclusion of his Reasons, he raised with Mr Hanrahan the question of Ms Colefax’s entitlement “in relation to injury number four”. Counsel agreed with the Arbitrator’s summary of Ms Colefax’s submission that the award should be “pursuant to s 38 from 8 November 2012 to 31 December 2012, which is $1,336.58 per week” (T63, 26 November 2014). The Arbitrator proceeded to state (at T64–65, 26 November 2014):
“I consider that the applicant is entitled to compensation pursuant to s 38 in respect of the injury on 8 November 2012, which was when the respondent directed the applicant to resume employment at Willoughby Public School, notwithstanding that there had been an order made by Senior Arbitrator Snell in August of 2012 that the applicant be provided with suitable duties within 30 minutes’ drive of her home and following an application to appeal being rejected against the decision of Senior Arbitrator Snell on 31 October 2012.
Accordingly, there’s an award for the applicant pursuant to s 38 from 8 November 2012 to 31 December 2012, in respect of the injury on 8 November 2012. Generally, in relation to all of those injuries after the initial injury of 20 August 2008, they compounded and continued the effect of that injury through to 31 December 2012, the period in respect of which the applicant is entitled to claim compensation. That is my determination.”
It is relevant, in my view, to record an exchange between the Arbitrator and counsel representing Ms Colefax which appears at T65–66 of 26 November 2014, which followed immediately after the Arbitrator’s statement noted above:
“ARBITRATOR: Mr Hanrahan, could I just ask you to prepare a schedule so that we’re all on the same page in terms of the - - -
MR HANRAHAN: I can do that.
ARBITRATOR: - - - mechanics of the order - - -
MR HANRAHAN: I can do that forthwith.
ARBITRATOR: - - - and show it to Mr Flett and then the applicant can know precisely what it is that she’s entitled to set out on one piece of paper.
MR HANRAHAN: All right. I’ll do that.
ARBITRATOR: Yes, thank you.”
As earlier noted, a Certificate of Determination was issued on 2 December 2014, following which, an amended Certificate was issued dated 4 December 2014.

DISPOSITION OF THE APPEAL

Ms Colefax challenges those findings made by the Arbitrator concerning quantification of her entitlement pursuant to s 40 of the 1987 Act. The first complaint made is that the Arbitrator erred in failing to take into account findings made which “were relevant to [Ms Colefax’s] claimed entitlement pursuant to s 38”. Those findings are identified as being:
(a) that Ms Colefax was at all relevant times ready, willing and able to accept an offer of suitable employment as required by s 38A(2)(a);
(b) that Ms Colefax had supplied the employer with relevant medical certificates as required by s 38A(2)(b), and
(c) that Ms Colefax had either requested suitable employment as required by s 38A(2)(c) or it was apparent from the circumstances that she was ready, willing and able to accept such an offer.
It is further asserted by Ms Colefax that:
“It was not necessary for [Ms Colefax] to seek employment elsewhere by reason of s 38A(2)(d) because there was no evidence that the respondent had pursuant to s 38A(3) either:
(i)notified the appellant in writing that she was required to do so, or
(ii)failed to take action as recommended by Arbitrator Robichaud which required it be to [sic, to be] arranged or explore the possibility of suitable employment.”
It is also asserted that the Arbitrator “had failed to take into account that it was not necessary for [Ms Colefax] to take reasonable steps to obtain suitable employment from some other person in circumstances where the issue of entitlement pursuant to s 38 was before the Commission”.
The matters enumerated above each constitute a “ground” upon which Ms Colefax relies.
It is abundantly clear from the evidence that Ms Colefax has always wished to return to employment with the respondent. It is also correct, as argued by Ms Colefax in submissions in reply, that there are numerous references to s 38 and to Ch 3 of the 1998 Act recorded in the transcript of proceedings. Ms Colefax has stated in evidence that it is her wish to work until she is aged 70 years. The evidence includes a copy of a photograph of Ms Colefax standing outside the electoral office of the then Premier of New South Wales, Mr O’Farrell, holding a placard stating that she was a teacher and wished to work. Ms Colefax commenced proceedings in the Commission in 2012 (matter 3295/2012) in which she secured an order made by Senior Arbitrator Snell that the respondent was to provide suitable duties to her pursuant to Ch 3 of the 1998 Act. Ms Colefax has not resumed duty with the respondent.
The respondent, in opposition to the appeal, submits that Ms Colefax is “attempting to have her matter reheard on the basis of arguments not put before the Arbitrator”. Reliance is placed upon relevant authority which, it is argued, supports the proposition that Ms Colefax is bound by the manner in which the proceedings were conducted at first instance and no circumstances exist to permit departure from the general rule that a party is bound by the case presented at first instance. Reliance is placed upon the decision of the High Court in Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 where the Court stated (at 71):
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
The respondent’s submissions should, in my view, be accepted. My reasons for so concluding appear below.
Having considered the contents of the transcript of the proceedings, which occupied three days, I conclude that a fair reading of that material does not reveal any plainly stated nor argued claim made pursuant to s 38, except those concerning the few days conceded by the respondent as was awarded and recorded at [1(a)] of the Certificate of Determination noted at [3] above, and concerning entitlement following injury received on 8 November 2012 which was awarded and recorded, in a confusing manner, at [4] of that Certificate of Determination.
It is important to note that there is no reliance upon the provisions of s 38 particularised in the amended Application upon which Ms Colefax relied.
The claim appears to have been presented, in the amended Application, by placing reliance upon the “spreadsheet” or “wages schedule” referred to at [13] above. That document, by reason of the poor quality of copying and the infinitesimal font of the numerals contained in the four pages of the document, is virtually illegible to the naked eye. Difficulty is encountered deciphering that document notwithstanding the use of magnification. It is significant that no express reference was made to, nor was reliance placed upon, that document in the course of submissions. When doubt as to relevant earnings and wage rates was raised by the Arbitrator, efforts were made by counsel to determine the appropriate figures without any express reference being made to that document.
Whilst the matters recorded in the transcript often give rise to confusion concerning relevant dates, it is clear that counsel took specific instructions concerning earnings and wage rates as recorded at T16–18 of 28 August 2014. Reference is made by the Arbitrator to the “balance of the s 38 period of four days from 10 October 2011 [sic] to 14 October 2011 [sic]”. Those dates were plainly stated in error given that the Arbitrator was then dealing only with the claim in respect of the period between the first and second injury. What is clear is that it was agreed by counsel that following the four days compensated pursuant to s 38, the claim was one pursuant to s 40 at the “max stat rate” (T18).
The respondent’s counsel, who has very extensive experience in matters such as the present, conceded that there remained four days of s 38 payment, subject to proof of incapacity, and he then proceeded to address the questions of incapacity and quantification of s 40 entitlement during the balance of the period of claim. It is of significance, in my view, that no attention was given by Mr Flett to any other s 38 claim. Given the facts, including the relevant chronology, the question of “revival” of s 38 entitlement following subsequent injuries and the health consequences of the Federal Magistrates Court proceedings, it is clear that any s 38 claim, if it had been a live issue, would have given rise to considerable debate before the Arbitrator. No such argument is recorded.
I have earlier (at [17] above) made reference to exchanges between the Arbitrator and counsel concerning entitlement following the first injury, as recorded at T8–9 of 28 October 2014. Counsel’s submissions concerning entitlement following the second (10 October 2011) and third (20 February 2012) injuries may, in my opinion, be construed only as a claim for entitlement pursuant to s 40 in respect of partial incapacity.
Submissions in reply have been provided by counsel appearing on behalf of Ms Colefax. I note that those submissions include a suggestion that the Arbitrator has erred by reason of failure to provide adequate reasons for his decision not to make an order pursuant to s 38 in respect of identified periods of the claim. Leaving aside the fact that such argument has, for the first time, been raised in reply to the respondent’s submissions on appeal, the submissions fail to address the respondent’s assertion that a new point cannot be raised on appeal given the circumstances and manner in which the case was presented before the Arbitrator. In my opinion, the present circumstances fall outside any permissible exception to the general rule as was summarised in the joint judgment of Mason CJ and Wilson, Brennan and Dawson JJ in Water Board v Moustakas (1988) 180 CLR 491 (at 497 omitting footnotes):
“More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.”
I reject each of the grounds raised on behalf of Ms Colefax and the appeal must fail. An appropriate order appears below.
Having regard to the matters stated in Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102, it is necessary to amend the name of the respondent by deleting what presently appears and substituting “Secretary, Department of Education and Communities”.

DECISION

The Arbitrator’s orders and awards found in Certificate of Determination dated 2 December 2014, as amended on 4 December 2014, are confirmed.

COSTS

No order as to costs.

Kevin O'Grady
Acting President

9 April 2015

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE