Collingridge v IAMA Agribusiness Pty Ltd
[2011] NSWWCCPD 31
•3 June 2011
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31 | ||
| APPELLANT: | Paul Gregory Collingridge | ||
| RESPONDENT: | IAMA Agribusiness Pty Ltd | ||
| INSURER: | CGU Workers Compensation (NSW) Limited | ||
| FILE NUMBER: | A1-5710/10 | ||
| ARBITRATOR: | Ms E Beilby | ||
| DATE OF ARBITRATOR’S DECISION: | 2 February 2011 | ||
| DATE OF APPEAL HEARING: | 10 May 2011 | ||
| DATE OF APPEAL DECISION: | 3 June 2011 | ||
| SUBJECT MATTER OF DECISION: | Disease; deemed date of injury; relevance of findings in earlier proceedings of injury and deemed date of injury; application for additional lump sum compensation due to deterioration; ss 4 and 16 of the Workers Compensation Act 1987; cl 3 of Pt 18C of Sch 6 to the Workers Compensation Act 1987; Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246 distinguished; leave to appeal interlocutory decision; s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | Oral | ||
| REPRESENTATION: | Appellant: | Mr P Perry, instructed by McCabe Partners | |
| Respondent: | Mr B Stringer, solicitor, Moray and Agnew | ||
ORDERS MADE ON APPEAL: | Leave to appeal is granted. The Arbitrator’s determination of 2 February 2011 is revoked and the following orders made in its place: “1. The applicant worker’s deemed date of injury is 12 June 1998. 2. The claim for additional lump sum compensation is remitted to the Registrar for referral to an Approved Medical Specialist for assessment under the Table of Disabilities applicable to injuries received prior to 1 January 2002. 3. The respondent employer is to pay the applicant worker’s costs under Pt 2 Table 1 Item F Column 2 of Sch 6 to the Workers Compensation Regulation 2010. The matter is certified as complex with an uplift of 15 per cent.” The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200 plus GST. | ||
INTRODUCTION
This appeal concerns the disease provisions in ss 15 and 16 of the Workers Compensation Act 1987 (the 1987 Act) and the determination of the correct deemed date of injury in a claim for additional lump sum compensation made on 15 March 2010 where, in proceedings in 2002, the former Compensation Court of NSW determined the deemed date of injury to be 12 June 1998.
BACKGROUND
Between 1989 and June 1998, the appellant, Mr Collingridge, worked as a truck driver for two different employers. He worked for J O’Malley Pty Ltd (O’Malley) from March 1989 until June 1996 and then for the respondent employer, IAMA Agribusiness Pty Ltd (IAMA), from June 1996 until June 1998. In addition to driving a truck, his duties with both employers required him to regularly lift and carry heavy weights.
Mr Collingridge felt pain in his back on various occasions in the course of his employment in the 1990s and had a short period off work in 1995. After returning to work in October 1995 and performing selected office duties until December 1995, he resumed his normal duties. His back symptoms deteriorated and, by June 1998, he had stopped working overtime.
On a weekend in June 1998, his back locked while he was bending to put on his socks at home. He worked for four more days and stopped work until 17 August 1998, when he returned to work with IAMA doing clerical duties only. He underwent a spinal fusion in February 2001. Sometime after the operation, Mr Collingridge returned to work and worked in light duties involving customer service. At the end of 2001, Mr Collingridge stopped work for IAMA.
In proceedings commenced in the former Compensation Court of NSW in 1999, Mr Collingridge claimed weekly and lump sum compensation. In a decision delivered on 10 May 2002 (as amended on 11 June 2002), McGrowdie ACCJ (as he then was) found, among other things:
(a) that Mr Collingridge suffered from a degenerative disc disease in his lumbosacral spine;
(b) that his employment with O’Malley and IAMA was a substantial contributing factor to the aggravation and exacerbation of that disease;
(c) IAMA was the employer who last employed Mr Collingridge in employment that was a substantial contributing factor to the aggravation and exacerbation of the disease;
(d) that, as a result of the aggravation and exacerbation, Mr Collingridge was incapacitated for employment as a truck driver;
(e) the deemed date of injury under s 16(1)(a)(i) of the 1987 Act was 12 June 1998 (the last day on which Mr Collingridge worked in employment that was a substantial contributing factor to the aggravation/exacerbation injury), and
(f) Mr Collingridge had been incapacitated from 12 June 1998 and was entitled to weekly compensation for various periods of total and partial incapacity.
The judge also found Mr Collingridge to have, as a result of his aggravation injury, a 25 per cent permanent impairment of his back and a 10 per cent permanent loss of efficient use of each leg at or above the knee. After deducting 10 per cent for a “pre-existing problem”, he awarded the following lump sum compensation under the Table of Disabilities:
(a) $11,250 in respect of the permanent impairment of the back;
(b) $6,750 in respect of the loss of efficient use of each leg at or above the knee, and
(c) $17,500 in respect of pain and suffering.
There is no evidence, and it was never argued, either before McGrowdie ACCJ or before the Commission, that the work Mr Collingridge did in customer service was employment to the nature of which the disease was due, or was employment that was a substantial contributing factor to any further aggravation injury. I will return later in this decision to this critical point.
By letter dated 15 March 2010, Mr Collingridge claimed additional lump sum compensation. In the absence of a response to that claim, he commenced proceedings in the Commission on 16 June 2010, in which he claimed:
(a) $7,500 in respect of an additional 12.5 per cent permanent impairment of his back;
(b) $8,250 in respect of an additional 11 per cent permanent loss of efficient use of his right leg at or above the knee;
(c) $4,500 in respect of an additional six per cent loss of efficient use of his left leg at or above the knee;
(d) $28,200 in respect of a 60 per cent loss of use of sexual organs, and
(e) $30,000 for additional pain and suffering.
The pleadings are of little assistance in determining the issue or issues in dispute. That is most unsatisfactory. Parties are again reminded that pleadings should provide a short and succinct statement of the circumstances of the injury and relevant particulars of the claim. The Application to Resolve a Dispute (the Application) filed by Mr Collingridge named CGU Workers Compensation (NSW) Ltd (CGU) as the relevant insurer and referred to several dates of injury that were completely irrelevant to the claim. It also alleged a deemed date of injury, namely 30 June 2001, that was inconsistent with the findings by McGrowdie ACCJ, or any view of the evidence and legislation. Such sloppy pleadings are unacceptable and unnecessarily add to the time and effort required to determine cases.
The Reply filed by IAMA on 18 August 2010 asserted that CGU was not on risk as at “the date of injury pleaded in the application” and had no liability for the claim. It also disputed the assessment of the extent of any loss or further loss within ss 66 and 67 of the 1987 Act.
It was not until the teleconference on 19 October 2010 that the parties identified the real issue in dispute. The solicitor for Mr Collingridge, Mr McCabe, clarified that the deemed date of injury on which he relied was 12 June 1998, as found by McGrowdie ACCJ. The respondent’s solicitor said that, under the disease provisions, the correct deemed date of injury was the date on which Mr Collingridge claimed additional lump sum compensation, that is, 15 March 2010. If that date was the deemed date of injury, then, under s 18 of the 1987 Act, the insurer liable was the insurer on risk when Mr Collingridge ceased work with IAMA at the end of 2001. That insurer was not CGU.
The Commission listed the matter for conciliation and arbitration on 6 December 2010. The only issue for determination was whether, in respect of the claim for additional lump sum compensation, the deemed date of injury was 12 June 1998, as found by McGrowdie ACCJ, or 15 March 2010, the date on which Mr Collingridge claimed additional lump sum compensation.
In a reserved decision delivered on 2 February 2011, the Arbitrator found that, in a claim for additional lump sum compensation, the correct deemed date of injury is the date on which the claim is made. She therefore found the deemed date of injury to be the date of claim, namely, 15 March 2010.
Mr Collingridge has appealed the above decision.
PRELIMINARY MATTER
As the Arbitrator issued her decision after 1 February 2011, the appeal provisions introduced by the Workers Compensation Legislation Amendment Act 2010 apply. I discussed the Commission’s general approach to the new s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25. Appeals against Arbitrators’ decisions decided on and after 1 February 2011 are restricted to the determination of whether the decision was or was not affected by any error of fact, law or discretion, and to the correction of any such error. There is no right of appeal against interlocutory decisions, except with leave of the Commission and the Commission is not to “grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute” (s 352(3A) of the 1998 Act).
The Arbitrator’s decision was interlocutory because it did not finally dispose of the parties’ rights but merely determined the deemed date of injury (P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87, 6 DDCR 12; Licul v Corney [1976] HCA 6, 50 ALJR 439). As a result, the appellant must seek leave to appeal. As the appeal documents were silent on the question of leave to appeal, at the hearing of the appeal, counsel for the appellant, Mr Perry, who did not appear at the arbitration, sought leave to appeal under s 352(3A) of the 1998 Act. The solicitor for IAMA, Mr Stringer, did not oppose that application.
Parties are reminded that, when leave to appeal is required because the decision appealed is interlocutory, the application for leave should be made in the documents filed when the appeal is lodged. The Commission is not to grant leave to appeal “unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute”. This requires a consideration of the nature of the dispute and the orders sought on appeal.
The Commission issued a Certificate of Determination on 2 February 2011 in the following terms:
“The Commission determines:
1. The applicant sustained an injury arising out of or in the course of employment with the respondent.
2. For the purposes of the Workers Compensation Act 1987 the injury is deemed to have happened on the date of the claim, ie 12 [sic, 15] March 2010”.
The issue in dispute is the determination of the correct deemed date of injury. If the appeal is successful, the Arbitrator’s determination will be revoked and the matter remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of the claim for additional compensation under the Table of Disabilities. If the appeal is unsuccessful, and I determine that the correct deemed date of injury is 15 March 2010, Mr Perry conceded that I should dismiss the Application under s 354(7A)(b) of the 1998 Act as being “misconceived” or “lacking in substance” (White v Sylvania Lighting Australasia Pty Ltd [2011] NSWWCCPD 7 at [63]–[73] (White)). Either way, the issue in dispute will be resolved. It is therefore appropriate for the “proper and effective determination of the dispute” that I grant leave to appeal.
I grant leave to appeal.
THE LEGISLATION
Section 4 of the 1987 Act defines “injury” as follows:
“4 Definition of ‘injury’
(cf former s 6(1))
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) …”
Relevantly, s 16 provides:
“16 Aggravation etc of diseases – employer liable, date of injury etc
(cf former ss 7(4A), (5), 16 (1A))
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) …
(3) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.
(4) This section does not apply to an injury to which section 17 applies.”
Clause 3 of Pt 18C of Sch 6 to the 1987 Act provides:
“3 Lump sum compensation amendments
(1) The lump sum compensation amendments do not apply in respect of an injury received before the commencement of the amendments (even if the injury is the subject of a claim made after the commencement of the amendments) except as follows:
(a)…”
THE AUTHORITIES
In GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 (GIO), the worker was exposed to sunlight in the course of his employment over 19 years. As a result, he developed a melanoma on his right cheek. Doctors removed the melanoma in 1983. This treatment resulted in a short period of incapacity. The worker subsequently developed a number of metastases of the melanoma. In 1993, he died from a brain tumour, which was a metastatic melanoma that had resulted from his original melanoma in 1983. His widow claimed compensation under the 1987 Act and succeeded. The insurer on risk in 1993 appealed. It argued that, as the operation on the melanoma in 1983 had caused a period of incapacity and, as the worker’s death had resulted from the 1983 melanoma and there was no evidence that exposure to sunlight since 1983 had played any role in the worker’s death, s 15(1) deemed the injury to have happened at the time of the incapacity in 1983.
Sheller JA said (at 195F–G) (Priestley and Clarke JJA agreeing):
“But, if the injury resulted in incapacity for work and the worker’s death, is it deemed to have happened at the time of the worker’s death or at the time of the worker’s incapacity for work? The appellant submitted that the answer was incapacity for work if that resulted. The injury is only deemed to have happened at the time of the worker’s death if it did not result in incapacity for work before death. In 1983, the operation on the melanoma resulted in incapacity for work. The appellant submitted that, pursuant to section 15(1), the injury was deemed to have happened at that time and that, accordingly, within the meaning of Part 3, clause 2(1), the worker’s death resulted from an injury received before the commencement of Division 1 of Part 3 and the amount payable was that under the former Act.” (emphasis added)
In rejecting this argument, Sheller JA held at 196G that “for the purpose of the widow’s claim, the worker’s injury is deemed to have happened at the time of his death”. His Honour said at 196B:
“In the case of the worker’s claim, the injury, being a disease of such a nature as to be contracted by a gradual process, is deemed to have happened at the time of incapacity. I have no doubt that is a reference to the incapacity for which compensation is claimed. Section 15(1)(b) provides that ‘compensation is payable by the employer in whose employment the worker is or who last employed the worker’. That means the employer in whose employment the worker is at the time the injury is deemed to have happened, or who last employed the worker before the injury is deemed to have happened; Fisher v Hebburn [1961] HCA 16; 105 CLR 177 at 196 and 199.” (emphasis added)
In Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246 (Antaw), the worker was a motor mechanic who was injured in 1976 while working for Alto Ford when a metallic particle struck his left eye. He settled his claim under s 16 of the Workers’ Compensation Act 1926 (the 1926 Act) for 10 per cent loss of sight in the left eye. The worker moved to different employers and, in 1992, he had further surgery to his eye and was incapacitated for a period but returned to work. In April 1996, he ceased full-time work as a mechanic because of his loss of vision. He claimed weekly and lump sum compensation on 29 July 1996 against Alto Ford and was awarded weekly compensation from 10 August 1993 (incapacity having arisen in January 1992 when he had time off work for surgery and was paid voluntary compensation) and lump sum compensation in respect of a further 40 per cent loss of sight in his left eye calculated on a deemed date of injury of 29 July 1996.
Alto Ford appealed. It argued three points: first, that it was not the employer who last employed Mr Antaw in employment to the nature of which the disease was due; second, that the injury should have been deemed to have happened on or before 30 June 1987 and lump sum compensation calculated under s 16 of the 1926 Act, and; third, as the trial judge found an incapacity in January 1992, that was the deemed date of injury under s 15(1)(a)(i) and the section did not permit her Honour to deem the date of injury for the purpose of s 66 to be 29 July 1996.
Before considering the Court of Appeal’s decision, it is important to understand that, though the initial injury was a one-off traumatic event that occurred when a piece of metal entered the worker’s left eye, the injury was, for the purposes of s 15(1), deemed to be a disease of such a nature as to be contracted by gradual process (s 15(3)).
Sheller JA (Meagher JA and Cole AJA agreeing) delivered the judgment of the Court.
The first point (dealt with second by Sheller JA, at [19]–[23]) turned on the meaning of the expression “employment to the nature of which the disease was due”. That expression means “an employment of such a kind as to involve a risk to the employee of contracting the gradual process disease which is disabling him” (Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269 at 272). The employment did not have to cause the disease. It followed that, though it was difficult to conceive that employment as a motor mechanic was employment of such a kind as to involve a risk to the employee of suffering a loss of vision, that had to be so or the subsection could not work. It was irrelevant to the question of who was responsible to pay the compensation whether the deterioration of the worker’s condition was the result of any subsequent employment. The only question was “whether any subsequent employment was of such a kind as to involve a risk to the employee of suffering loss of vision” (at [22]). Alto Ford therefore succeeded on the first point and the matter was remitted to the Compensation Court to determine the last relevant employer. (This is a critical difference with Mr Collingridge’s matter. At no time after 12 June 1998 was he employed in employment to the nature of which the disease was due, or that caused an aggravation to a disease to which employment was a substantial contributing factor.)
As to the second point, counsel for the appellant argued that no practical purpose was to be served by applying s 15 of the 1987 Act where the worker had suffered a frank traumatic injury and there was no difficulty in identifying the date of the injury from which the incapacity arose. It was also argued that the evidence established a deemed date of injury under s 15 before 30 June 1987 because the worker had been incapacitated for work in 1976 and when he first stopped work because of his vision in 1985.
The Court held that the trial judge’s finding that the injury was deemed to have happened at the time of incapacity in 1992, when the worker was unable to work as a motor mechanic, was open to her. By 1996, the worker had sustained a further 40 per cent loss of vision. The worker’s incapacity had not resulted from that additional loss of vision and the appropriate date to determine the further lump sum entitlements was the time when the worker made his claim for lump sum compensation.
In rejecting the employer’s second point, Sheller JA said at [15]:
“Section 15(4) [which is in the same terms as s 16(3)] provides that in s 15 a reference to an injury includes a reference to a loss or impairment for which compensation is payable under Div 4 of Pt 3 [of the 1987 Act]. Loss of vision is such a loss; see s 66 and the Table to Div 4 of Pt 3 therein referred to. The combined effect of subs (3) and (4) means that the condition for the application of subs (1) of s 15 is met. The respondent suffered an injury within the meaning of s 15, namely, loss of vision which was a disease which was of such a nature as to be contracted by a gradual process. Accordingly, the injury is, for the purposes of the Act, if incapacity has resulted, and since the respondent is alive, deemed to have happened at the time of incapacity; s 15(1)(a)(i). Her Honour found that this incapacity occurred, other than for the purpose of s 66, in 1992 and for the purpose of s 66 in 1996.” (emphasis added)
His Honour observed (at [18]) that s 15(1)(a) speaks of incapacity that has resulted from “the injury”, that is, “the injury referred to in the condition which makes the subsection applicable”. His Honour added:
“Thus, if the injury is loss of vision measured by Dr Higgins in September 1991, and the incapacity is that described by Dr Higgins in March 1992 when he said that the respondent found himself unable to work on motor vehicles, then that is the incapacity which determined fictionally when the injury happened. That must have been after 30 June 1987.”
Dealing with the third point, his Honour said (at [25]) that, because the relevant incapacity had not resulted from the additional loss of vision, the trial judge had not erred in finding a deemed date of injury in 1996 in respect of the claim for additional lump sum compensation. His Honour rejected the argument that the purpose of s 15(1)(a) was to fix “one date for the happening of the injury” (the injury being a loss of vision of such a nature as to be contracted by a gradual process). If that argument were correct, his Honour observed that compensation for the further loss of vision after 1992 would be denied. The trial judge correctly fixed the date of injury for the claim for additional lump sum compensation:
“on the basis contemplated by s 15(1)(a)(ii) that incapacity had not resulted from that additional loss of vision and accordingly the appropriate time was the time that the respondent made his claim for compensation with respect to the injury.”
In P & O Berkeley Challenge Pty Ltd vAlfonzo [2000] NSWCA 214; 49 NSWLR 481 (Alfonzo), the worker developed pain in her arms and neck in the early 1990s while working for the first employer. Her doctor put her off work in 1993 and the insurer paid weekly compensation (the first incapacity). She moved to the second employer, where her symptoms worsened and she again had time off work in 1995 and was paid compensation (the second incapacity). She worked for two weeks in February 1996 but ceased work again and did not return (the incapacity for which the worker claimed compensation). The second employer changed insurers after 31 December 1995.
Mrs Alfonzo claimed weekly and lump sum compensation from both employers in an application filed in the Compensation Court on 30 July 1997. The trial judge held that the incapacity for which compensation was claimed occurred when the worker ceased work in February 1996, and that was the deemed date of injury for both weekly and lump sum compensation. The issue on appeal was which of the second employer’s insurers should bear its liability. The Court of Appeal upheld the trial judge’s decision. The relevant deemed date of injury was not the date of the first incapacity but was the date of the incapacity for which compensation was claimed or entitled to be claimed. The relevant deemed date of injury for the claim for lump sum compensation was not the date of claim (30 July 1997) but the date of incapacity for which compensation was claimed or entitled to be claimed (February 1996).
Priestley JA (Clarke JA agreeing) referred (at [32]) to s 16(3) of the 1987 Act and said that it:
“appears reasonably plainly to serve the function of fixing dates for injuries entitling a worker to compensation payable under Division 4 of Pt 3, that is, necessarily including amounts payable under ss 66 and 67.”
The Court of Appeal considered GIO, Alfonzo and Antaw in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701 (Stone). In Stone, the worker developed skin cancer as a result of prolonged exposure to sun in the course of his employment with the respondent up to 16 December 1985, when he stopped work for unrelated reasons. Prior to stopping work, he was aware of sunspots, which his doctor burnt off. The worker’s condition deteriorated and he claimed lump sum compensation in respect of severe facial disfigurement in December 2001, which he amended on 10 June 2003. The trial judge held that the treatment given before 30 June 1987 would have involved some incapacity for work and therefore the deemed date of injury was before 30 June 1987 and the provisions of s 16 of the 1926 Act applied in assessing the quantum of compensation recoverable.
The Court of Appeal held that the trial judge had erred. As there was no claim or entitlement to claim weekly compensation, s 16(1)(a)(i) did not fix a date on which the impairment injury happened. That date was, in the circumstances of the case, fixed when the worker claimed lump sum compensation in December 2001 or on 10 June 2003. Handley JA noted (at [8]) that Antaw is authority for the proposition that s 16 of the 1987 Act “may fix different dates for incapacity and impairment injuries” (emphasis added).
In respect of Alfonzo, his Honour noted at [9] and [10]:
“... the appeal did not require the Court to choose between 11 February 1996 and 30 July 1997 as the date of injury for the purposes of the ss 66 and 67 claims but between dates before and after 31 December 1995 when the appellant insurer came on risk.
10 In the present case where there was and could be no claim for weekly compensation s 16(1)(a)(i) did not fix a date on which the impairment injury happened. Accordingly s 16(1)(a)(ii) applied and this injury is deemed to have occurred when the claim for lump sum compensation was made. Even if s 16(1)(a)(i) was capable of operating in this case to fix a date for the worker’s incapacity injury we should nevertheless follow the Alto Ford [Antaw] case where this Court specifically held that s 16(1) could fix different dates for incapacity and impairment injuries and, in the latter case the relevant date was the date of the claim.” (emphasis added)
Hodgson JA (Mason P agreeing) reached the same conclusion, noting at [37] and [38]:
“37 Berkeley Challenge [Alfonzo] shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s 16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation. Thus, in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had previously been incapacity in the Arnotts sense, not resulting in any loss of wages.
38 In the present case, the claim for facial disfigurement is a claim for a loss of a thing as the result of an injury, within s 66(1), which loss is itself to be treated as an injury within s 16(1), as provided by s 16(3). The same applies to the claim in respect of bodily disfigurement. Each such loss or injury was the disfigurement assessed by Dr Lobel on 5 March 2003, and included in the amended claim on 10 June 2003; and thus could not have caused incapacity prior to 30 June 1987: in my opinion, this plainly follows from Antaw at par [18]. For that reason, in my opinion the primary judge did make an error of law, and the appeal must be upheld.” (emphasis added)
Applying the principles in Antaw, as explained in Stone, s 16 can “fix different dates for incapacity and impairment injuries”. However, the question in the present case is not the same as that posed in the above decisions. It is whether, once McGrowdie ACCJ determined the deemed date of injury to be 12 June 1998, the mere making of a claim for additional lump sum compensation because of a deterioration in the worker’s condition creates a new deemed date of injury, without any further period of work in employment to the nature of which the disease was due, or an aggravation to which employment was a substantial contributing factor.
THE ARBITRATOR’S DECISION
The Arbitrator referred to the above authorities and to Whitehead v Kassagrove Pty Ltd t/as Moorebank Hotel (No 2) [2008] NSWWCCPD 38 (Whitehead). Applying Antaw and Whitehead, the Arbitrator said that, as Mr Collingridge had made no claim for weekly compensation, s 16(1)(a)(ii) applied to determine the deemed date of injury and the correct date was the date on which Mr Collingridge claimed additional lump sum compensation. She added, consistent with Handley JA’s decision in Stone, that even if s 16(1)(a)(i) was capable of operating to fix the date for Mr Collingridge’s incapacity, it was nevertheless appropriate to follow Antaw where the Court of Appeal held “that s 16(1) could fix different dates of incapacity impairment injuries, and in the later [sic] case the relevant date was the date of the claim” (Statement of Reasons at [27]).
SUBMISSIONS
References to the transcript in this decision are references to the appeal transcript (AT).
Mr Perry submitted that the Arbitrator misinterpreted Antaw. He argued that Antaw can be distinguished because Mr Antaw suffered a “personal injury” under s 4(a) of the 1987 Act in 1976 when a piece of metal struck his left eye. In 1978, he settled his claim for lump sum compensation under s 16 of the 1926 Act for a 10 per cent loss of vision as a result of that injury. The compensation he later sought was determined by the Court of Appeal to be a different injury which attracted the operation of s 15 because of the application of Bohanna & Appleton v Bohanna (1996) 13 NSWCCR 724, where Meagher JA said (at 729) that the finding of an injury at the later date was “the ineluctable result of a combination of cl 1 of Pt 6 of Sch 6, s 15 and s 71 of the [1987] Act”. Mr Antaw’s disease injury under s 15 was distinct from the injury which he settled for a 10 per cent loss of vision in 1978 and that is completely different from Mr Collingridge’s claim.
The Commission regularly deals with claims for additional lump sum compensation (where a worker’s condition has deteriorated over time) on the basis that the worker has only suffered one injury and the deterioration has resulted from that injury (Lourdes House Hospital v Wheeler (1996) 13 NSWCCR 495; Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128). Though there is a worsening of the original condition, and an increase in the impairment resulting from that condition, the worsening does not constitute an additional or new injury. Additional lump sum compensation will be payable if the additional loss or impairment has resulted from the original injury.
Mr Perry submitted that the Commission should only consider the date of claim if death or incapacity has not resulted from “the injury” (s 16(1)(ii)). McGrowdie ACCJ found “injury” and determined the deemed date of injury for the purpose of Mr Collingridge’s claim for weekly compensation and for the purpose of lump sum compensation. Given that McGrowdie ACCJ determined the date of “injury”, it is neither necessary nor appropriate for the Commission to find a further or different date of injury because Mr Collingridge’s condition has deteriorated. It has not been suggested that Mr Collingridge’s condition has deteriorated because he continued in employment to the nature of which the disease was due, or because of any further aggravation injury to which his employment was a substantial contributing factor. It has deteriorated as a result of the original injury.
Whilst Mr Perry conceded that the disease provisions can give different deemed dates of injury in claims for lump sum compensation (impairment claims) and in claims for weekly compensation (incapacity claims), that did not mean that each time there is a worsening of a worker’s condition, and a consequential claim for additional lump sum compensation, there must be a further “injury” giving rise to a different deemed date of injury. The Arbitrator’s approach means that each time there is a worsening of a worker’s condition and a claim for additional lump sum compensation, there is a new deemed injury and, potentially, a liability in a new insurer who was not on risk at the time of the original injury. That is simply not so.
We are not dealing with the creation of an injury under s 16(3) because McGrowdie ACCJ determined the issue of injury and made a finding of permanent impairment. That is the “injury” and, in the absence of a further period of employment in employment to the nature of which the disease is due, or a further aggravation to which employment was a substantial contributing factor (neither of which is present in this case), there is no new or separate injury when a worker makes a new claim because of a deterioration. McGrowdie ACCJ established the injury and the date of injury. There is no warrant for finding a different or later injury than that found by McGrowdie ACCJ.
The Act requires that a date of injury be determined. That is important to determine the level of compensation payable, given the changed rates and changing schemes that have been in place over the years, and to determine which employer or insurer is liable. Therefore, one looks to an “injury” and finds a date for it. In Mr Antaw’s case, his traumatic injury occurred in 1976 when a piece of metal entered his eye, but, on the Court of Appeal’s finding, he sustained a second injury, namely a s 15 injury, and the date for that injury was then established. This approach does not “countenance a successive setting of dates of injury which is what Arbitrator Beilby has done here” (AT10.40). It was never put that Mr Collingridge had sustained a second injury. He had not. He sustained an injury on the date found by McGrowdie ACCJ.
Mr Perry submitted that s 16(3) does not apply to “shift the date of injury” (AT12.27) but only applies to make a reference to an injury a reference to a permanent impairment for which compensation is payable under Div 4 Pt 3 of the 1987 Act. Once the date of “injury” is fixed, as it was by McGrowdie ACCJ, it is neither appropriate nor necessary to fix a second or third date as and when a worker makes subsequent claims for lump sum compensation because of a deterioration in his or her condition. It is only if death or incapacity has not resulted from “the injury” that the date of claim applies.
He added that Mr Collingridge’s case stands apart from GIO, Antaw, Alfonzo and Stone because McGrowdie ACCJ fixed the date of injury. It is a “complete misapplication of that line of authority” to say that you have to do it (find a new deemed date) again and again (AT17.3). He said it was trite that there is a level of artificiality about it (the disease provisions), but “we’ve applied the artificiality enough once we have deemed a date of injury” (AT17.15) and you do not “re-deem and re-deem the date” of injury (AT17.19).
Mr Stringer conceded that Mr Perry would be correct if Mr Collingridge’s 1998 injury had been found to be a s 4(a) “personal injury”. It was not. Even if Mr Antaw’s first injury was treated as a “personal injury” followed by a finding of a disease injury, that makes no difference to the principles involved. In respect of disease injuries, the application of ss 16(1)(a)(ii) and 16(3), and the effect of Antaw and Stone, means that the Arbitrator’s decision is not affected by any error. The relevant date of injury for a claim for lump sum compensation is the date of claim. The fact that there can be multiple dates of injury under the disease provisions is not a new thing. The disease provisions sometimes lead to nonsensical conclusions. There is no relevant difference in the facts in Antaw to those in the present matter and the deemed date of injury is 15 March 2010.
If Mr Perry’s submission were correct, the fact that there had been a finding of disease in Antaw “could have been disregarded because it wouldn’t have been relevant having regard to an earlier finding of [a personal] injury” on an earlier date (AT20.32). He added (at AT20.36) that “that couldn’t have happened because section 15, in that case and 16 in this case, deems the injury to have occurred on a different date being the date of the claim”.
At the conclusion of the oral hearing of the appeal, I directed the parties to file submissions on:
(a) the relevance of cl 3 Pt 18C of Sch 6 to the 1987 Act;
(b) the general purpose of ss 15 and 16 of the 1987 Act, and
(c) any principles of statutory construction they felt were relevant to the determination of the issue in dispute.
Mr Perry’s supplementary submissions may be summarised as follows:
(a) because Mr Collingridge received an injury before the commencement of the Workers Compensation Legislation Amendment Act 2001 and the Workers Compensation Legislation Further Amendment Act 2001 (the amending Acts), that is, before 1 January 2002, the effect of cl 3 of Pt 18C is that his claim for additional lump sum compensation is to be assessed under the Table of Maims;
(b) neither s 15 nor s 16 creates new rights or new classes of injury. The task of identifying compensable injury is undertaken by ss 4 and 9A. The general purpose of ss 15 and 16 is to enable a worker who has sustained an injury by a gradual process, or alternatively an injury in the form of an aggravation of a disease, to identify an employer or insurer from whom that worker may be entitled to seek compensation (Smith v Mann (1932) 47 CLR 426 (Smith); Kelly v Glenrock Pastoral Co Pty Ltd (1994) 10 NSWCCR 178 at 187 (Kelly); Crisp v Chapman (1994) 10 NSWCCR 492 at 513–4 (Crisp)). The intention of the legislature was to use an arbitrary provision to address a potential mischief, namely that a worker otherwise entitled to compensation would fail through an inability to identify precisely the employer, from a series of employers, who was responsible for his condition. In the present case, the date of injury, for the purpose of lump sum compensation, was fixed by McGrowdie ACCJ and it is contrary to the general purpose of the section that the date of injury, having been fixed, should be fixed again each time a worker seeks additional compensation should there be a worsening of that worker’s impairment, and
(c) in context, s 16(3) did not intend a re-fixing of the date of injury when there was a claim for further compensation following a worsening of a worker’s condition (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69]; 194 CLR 355 (Project Blue Sky); Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 (Agalianos)).
Mr Stringer submitted that:
(a) cl 3 of Pt 18C has no relevance because, if an employer becomes liable under s 15 or s 16 to pay compensation to a worker in respect of an injury and “the time at which the injury is deemed to have happened” is after the worker ceased to be employed by the employer, the liability of the employer is, despite ss 15 and 16, taken to have arisen immediately before the worker ceased to be employed by the employer (s 18 of the 1987 Act). As CGU was not the insurer at the time Mr Collingridge ceased to be employed by IAMA, it has no liability if the deemed date of injury is 15 March 2010. If the deemed date of injury is 15 March 2010, then, for the purposes of cl 3 of Pt 18C, the Commission would find “that the injury was received on the date of the claim” (AT21.23);
(b) the Arbitrator’s findings do not subvert the purpose of the provisions but provide consistency and clarity in their operation. Any ambiguity arising as a result of the operation of a notional date of injury after Mr Collingridge ceased work with IAMA is cured by operation of s 18. Section 18 applies to ensure that, notwithstanding the notional date of injury found by the Arbitrator, the purpose of the disease provisions prevails, so the relevant employer (IAMA) remains liable for the compensation payable. The issue in the present matter is not whether IAMA continues to be liable but, rather, which insurer is liable to indemnify the employer in respect of Mr Collingridge’s claim;
(c) for the purposes of s 16(1), s 16(3) provides that a permanent impairment for which compensation is payable is an “injury”. It is beyond argument that a claim for lump sum compensation made by a worker in respect of a disease injury is deemed to have happened at the time the worker makes a claim for compensation in respect of that injury. The appellant’s submission has overlooked the use of the indefinite article in s 16(1)(a)(ii) and the meaning of “injury” in s 16(1) by operation of s 16(3). Section 33 of the Interpretation Act 1987 requires that a purposive approach be adopted in interpreting statutory provisions. This reflects the modern approach to statutory interpretation described in Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 (Wilson). The interpretation sought by IAMA is consistent with the manner in which the disease provisions have been applied by the courts for many years and does not conflict with the purpose of the disease provisions described in Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365 (Grate Lace). It does no mischief to Mr Collingridge’s claim to give effect to the ordinary meaning of the words in s 16(1)(a)(ii), but simply means that he must bring his claim in accordance with the current scheme for lump sum compensation against his employer who will be indemnified by a different insurer.
DISCUSSION AND FINDINGS
For the following reasons, I find that, in the circumstances of the present matter, the correct deemed date of injury is 12 June 1998.
In interpreting s 16, I must apply the principles of statutory construction explained by Allsop P (Giles and Hodgson JJA agreeing) (at [12]) in Wilson. It is convenient to set out his Honour’s statement in point form (excluding citations):
(a) “[i]t is the language of Parliament that must be interpreted and construed”;
(b) “in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context”;
(c) “[c]ontext is to be considered in the first instance, not merely when some ambiguity is discerned”;
(d) “[c]ontext is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed”;
(e) “[f]undamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose”, and
(f) “general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect”.
Applying the above principles, I must interpret and construe the words in s 16 having regard to their legal and historical context, giving close attention to the text and structure of the Act. I also have regard to the fact that the workers compensation legislation is “beneficial legislation” and that entitlements under such legislation should not depend on “distinctions which are too nice” (per Mahoney JA in Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751 at 765). At the same time, the principle that beneficial legislation should be given a liberal construction does not entitle a court to give it a construction that is unreasonable or unnatural (per McColl JA in Amaca Pty Ltd v Cremer [2006] NSWCA 164, citing IW v City of Perth [1997] HCA 30; 191 CLR 1 (at 11–12) per Brennan CJ and McHugh J).
The objects of the disease provisions were explained by Kirby P (as his Honour then was) in Grate Lace to be:
“• to avoid unnecessary litigation;
• to simplify the assignment of liability;
• to remove the highly disputatious debate about ‘true’ causation; and
• to fix the last relevant employer with the primary liability (subject to the limited contribution right provided in section 15(2)).”
Priestley JA also touched on the purpose of the disease provisions in Alfonzo. His Honour said, at [26] and [27]:
“26 Because some s 4(b)(i) disease injuries are contracted by a gradual process which can cause difficulties in establishing the date of injury, s 15 specifies defined times at which such injuries are deemed to have happened. Section 16 serves the same function in regard to s 4(b)(ii) aggravation disease injuries. Both sections also nominate which employer, if the worker had had more than one during the progress of the disease, is liable to pay compensation, and, in certain cases, regulate the entitlement of the liable employer to obtain contributions from former employers.
27 Sections 15 and 16 reduce the need to analyse in detail at what stage in the gradual process of disease injuries the stage of an injury, or incapacity, for the purposes of the Act, has been reached. The price paid for this is the imposition of rules which cannot altogether eliminate some arbitrariness in their operation.”
It is also appropriate to consider the structure of the legislation. The right to compensation under the 1987 Act only arises if a “worker” has received “an injury” (s 9 of the 1987 Act) arising out of or in the course of his or her employment (s 4 of the 1987 Act) and to which employment was a substantial contributing factor (s 9A of the 1987 Act). The right to weekly compensation only arises if incapacity for work (total or partial) results from the injury (s 33 of the 1987 Act). For injuries received before 1 January 2002, the right to lump sum compensation arose where the worker suffered a loss of a thing mentioned in the Table of Maims “as the result of an injury”. For injuries received after 1 January 2002, a worker who received an injury that results in permanent impairment is entitled to receive compensation for that permanent impairment (s 66(1)).
The Commission determines whether a worker has received “an injury” by applying s 4, not s 15 or s 16. Mahoney AP explained this point in Crisp. In that case, it was submitted that the worker’s case had been pressed on two alternative bases: “the section 15 basis and the section 16 basis”. In response to that submission, his Honour said (at 495):
“It is, I think, a confusion to treat section 15 or section 16 of the 1987 Act as, in the sense here relevant, creating liability for compensation. In general, each of the sections assumes that an injury has occurred and each provides the means of determining when the injury is deemed to have happened, by whom compensation is payable, and other ancillary matters. In principle, it remains for the worker to prove that an injury has occurred and accordingly that section 9(1) had been satisfied. To prove that, it is necessary for the worker to prove the ‘happening’ of an injury within section 4. However, section 15 applies essentially in the case of an injury of the second kind to which I have referred [a work-caused disease] and section 16 to an injury of the third kind [a work-aggravated disease]. It is, therefore, no doubt convenient to refer to injuries of those kinds as cases within section 15 and section 16 respectively. However it is necessary in doing so to recall that essentially the injuries are those provided for in section 4.”
This passage is consistent with the statement by Hodgson JA (Ipp JA and Hoeben J agreeing) in Gales v Lovett, McCracken & Bray [2008] NSWCA 171 (Gales) at [31] that “Antaw does not support a proposition that s 15 (1)(b) can in effect create an injury, simply by deeming an injury to have occurred on a particular date”. It is also consistent with Powell JA’s statement in Kelly, where his Honour said at 187G:
“While it may be that to describe a claim which is authorised by the combined operation of sections 4 (‘injury’ – (b)(i)), 15 and 33 of the Act is a convenient form of legal shorthand, it seems to me that, if that be done uncritically, and without regard to the fact that the source of the relevant worker’s entitlement is to be found in the combined operation of sections 4 and 33 – section 15 being procedural, or evidentiary in nature, identifying, for the purposes of a claim, the time at which the incapacity is to be taken as having arisen, and the employer against whom the claim may be made – one is apt to be led into confusion of thought.”
For present purposes, Mr Collingridge’s claim before McGrowdie ACCJ involved three main issues: first, what (if any) injury had he received (the injury issue), second, if the injury was a “work-caused disease” (s 4(b)(i)) or a “work-aggravated disease” (s 4(b)(ii)), what was the deemed date of injury, and, last, which of the two respondent employers was liable. The first issue required a consideration and application of s 4. His Honour determined that Mr Collingridge had suffered a “work-aggravated disease” (an aggravation injury) under s 4(b)(ii) as a result of the heavy work he performed for both employers over the several years up to June 1998.
To determine the deemed date of injury, and which of the two employers was liable, the judge applied s 16. As incapacity had resulted from the aggravation injury, the deemed date of injury under s 16(1)(a)(i) was 12 June 1998, that being the date of Mr Collingridge’s incapacity. As IAMA was the last employer who employed Mr Collingridge in employment that was a substantial contributing factor to the aggravation, it was liable to satisfy the award (s 16(1)(b)). That finding made CGU liable as IAMA’s insurer as at 12 June 1998.
Section 16 did not determine “the injury issue”. It merely determined the deemed date of injury and that IAMA was liable as the last relevant employer. The deemed date of injury was the same date for the incapacity claim and for the lump sum claim even though Mr Collingridge had not claimed lump sum compensation until (presumably) the filing of his application in the Compensation Court in 1999. The finding of one deemed date of injury was appropriate in the circumstances of the case and was consistent with the trial judge’s approach in Alfonzo, which was not disturbed on appeal. Whilst s 16 permits different deemed dates of injury for lump sum claims and for incapacity claims, it does not dictate that there must be separate deemed dates in all cases.
The above analysis is consistent with Crisp and Gales, and with Mr Perry’s submissions on appeal that, as McGrowdie ACCJ determined the issue of injury and the deemed date of that injury, it is not open to find a different deemed date of injury for the claim for additional lump sum compensation. Section 16 having fulfilled its purpose of determining the deemed date of injury for the claims made in 1999 (the incapacity claim and the lump sum claim), and determining which of two employers was liable, it has no more work in Mr Collingridge’s later claim for additional lump sum compensation as a result of a deterioration in his original “injury”.
In contrast to Antaw, the deterioration of Mr Collingridge’s condition did not occur during a further period of work in employment to the nature of which the disease was due. Nor did it occur as a result of a further aggravation injury to which employment after 12 June 1998 was a substantial contributing factor. The alleged increase in Mr Collingridge’s impairments and losses has resulted solely from a deterioration in his original injury.
GIO, Antaw, Alfonzo and Stone were all decided on their own facts. The facts in Antaw were unusual and this may have led to confusion in subsequent cases. Whilst Antaw concerned a claim for lump sum compensation because of a deterioration in the worker’s sight, it was not simply a matter of a specific traumatic event and a later claim for additional lump sum compensation as a result of a deterioration in the worker’s condition over time.
Because Mr Antaw’s condition was one of partial loss of sight by a gradual onset, it was deemed to be a disease of such a nature as to be contracted by gradual process (s 15(3)). As a result, liability fell on the employer who last employed Mr Antaw in employment to the nature of which the disease was due. The trial judge had wrongly determined that Alto Ford was liable. Whilst, as Sheller JA observed, it was difficult to conceive that employment as a motor mechanic was employment of such a kind as to involve a risk to the employee of suffering a loss of vision, that had to be so or the subsection could not work. Therefore, after the original injury in 1976, Mr Antaw had been employed in employment to the nature of which the disease was due and it was open to find a deemed date of injury by applying s 15. That critical feature is missing in Mr Collingridge’s case. McGrowdie ACCJ found that he suffered an aggravation injury with a deemed date of injury of 12 June 1998, but it has never been alleged that he suffered any further disease injury, either a work-caused disease or a work-aggravated disease, after that date.
I accept Mr Perry’s submission that Mr Antaw’s claim was (most likely) initially dealt with as a “personal injury” due to a piece of metal entering his eye. The disease provisions did not arise until he claimed weekly and lump sum compensation in July 1996. In applying those provisions, the trial judge was not constrained by any earlier findings on “injury” or “deemed date” of the kind made by McGrowdie ACCJ in the present matter, but applied the disease provisions for the first time. Because Mr Antaw continued to be employed into the 1990s in employment of such a kind as to involve a risk of suffering a loss of vision, the deemed date of injury was when he was incapacitated and/or claimed lump sum compensation. He was incapacitated in 1992 and claimed lump sum compensation in 1996. Because his further loss of vision in 1996 had not caused his incapacity, it was open to find, in the circumstances of that case, a different deemed date of injury for the claim for additional lump sum compensation.
In Stone, there had been no claim for compensation before the claim for lump sum compensation, let alone a prior determination of the issue of “injury” and “deemed date” of injury, and the date of claim for lump sum compensation therefore determined the deemed date of injury.
GIO did not concern a claim for additional lump sum compensation as a result of a deterioration in an accepted injury. Sheller JA’s statement that “incapacity” is a “reference to incapacity for which compensation is claimed” is undoubtedly correct, but it does not apply where a worker has made a claim, had that claim determined, suffered no further injury, and then brings a claim for additional lump sum compensation as a result of a deterioration of the original injury.
Alfonzo concerned a claim for lump sum and weekly compensation and the Court of Appeal did not suggest the trial judge had erred in finding only one deemed date of injury in the circumstances of that case.
The conclusion I favour is supported by the transitional provisions, which provide that the lump sum compensation amendments introduced in January 2002 (which provide for the assessment of whole person impairment as opposed to the application of the Table of Maims) do not apply to injuries received before the commencement of the amendments (1 January 2002), even if the claim is made after that date. Mr Stringer submitted that the transitional provisions make no difference because, under Antaw, the date of injury is 15 March 2010. However, this submission overlooks the fundamental point made in Crisp and Gales, namely, that s 16 does not “create an injury” by simply deeming it to have occurred on a certain date. The injury must have occurred before s 16 can operate. The injury in this case was an aggravation injury under s 4(b)(ii), which McGrowdie ACCJ found to have occurred on 12 June 1998 as a result of heavy work performed up to that time.
In Antaw, the Court of Appeal referred to s 15(4) (which is in the same terms as s 16(3)). However, that subsection only operates “[i]n this section”. It does not operate to modify the definition of “injury” in s 4. That does not mean that sub-ss 15(4) and 16(3) have no work to do. They operate where a worker has suffered a permanent impairment as a result of a disease injury under either s 4(b)(i) or s 4(b)(ii), but has suffered no incapacity (in the sense described in Alfonzo) and made no claim for weekly compensation or medical expenses. In such a case, if the worker only claims compensation for whole person impairment, it would not be possible to determine the deemed date of injury unless the reference to “injury” in s 16 includes (as it does) a reference to a permanent impairment for which compensation is payable under Div 4 Pt 3.
Given the history of the disease provisions, and the general problem they were intended to address, I do not believe s 16(3) was intended to create a new deemed injury in the circumstances of the present case. Creating a new deemed injury in the present matter would not avoid unnecessary litigation or simplify assignment of liability. It would create more unnecessary litigation and shift liability for the additional lump sum compensation to an insurer who was not on risk at any relevant time. That would occur after the Compensation Court determined all liability issues.
The interpretation contended for by Mr Stringer would lead to the anomalous result that, notwithstanding that McGrowdie ACCJ determined the deemed date of injury to be 12 June 1998, the making of a claim for additional lump sum compensation means that a new injury arises. This would occur every time the worker’s condition deteriorates and he or she claims additional lump sum compensation. It would occur regardless of whether the worker had again worked in employment to the nature of which the injury was due, or suffered any further aggravation to which employment was a substantial contributing factor. That is not consistent with the terms of s 4, the principles discussed in Crisp, Kelly, and Wilson, or the intention of the legislation.
Because the disease provisions do not determine liability on the basis of true causation, they often produce arbitrary results. However, once the arbitrary provisions are applied to determine the deemed date of injury (as they were by McGrowdie ACCJ), there is no scope for applying them again to produce the unintended result of shifting liability to an insurer who was not on risk when Mr Collingridge received his injury.
An interpretation that produces an unjust or capricious result is to be avoided, unless the statutory language is intractable (Tickle Industries Pty Ltd v Hann [1974] HCA 5; 130 CLR 321 at 331). I do not believe that the language of s 16 dictates the result contended for by Mr Stringer. Having regard to the purpose of s 16, the structure of the legislation, and the significant factual differences between Antaw and Mr Collingridge’s claim, I am satisfied that the correct deemed date of injury in the circumstances in the present matter is 12 June 1998.
I do not agree that a purposive approach to s 16 leads to the conclusion favoured by IAMA. The primary purpose of s 16 is to determine which of two or more employers is liable in circumstances where a worker has suffered either a work-caused disease or a work-aggravated disease. The section fulfilled that purpose when McGrowdie ACCJ made his findings. Contrary to Mr Stringer’s submission, the interpretation favoured by IAMA is not consistent with the way the provisions have been applied over the years.
I do not accept that the appellant’s approach has overlooked the use of the indefinite article in s 16(1)(a)(ii) and the meaning of “injury” in s 16(3). Incapacity resulted from Mr Collingridge’s “injury” and, correctly applying the disease provisions, McGrowdie ACCJ determined the deemed date of injury. That date does not change because of a later claim for lump sum compensation.
The current claim can be distinguished from the facts in Whitehead. In that case, the worker had not made a previous claim for lump sum compensation, but claimed that compensation for the first time in 2005 having previously suffered an incapacity as a result of an aggravation injury in May 2000. On the application of GIO, Antaw and Stone to the facts in that case, the correct deemed date of injury was the date on which the worker claimed lump sum compensation. Ms Whitehead did not seek additional lump sum compensation because of a deterioration of an earlier injury and there had been no prior determination of the date of injury.
COSTS OF THE ARBITRATION
The parties made submissions about the proper assessment of costs of the arbitration. Mr Perry did not press the order sought by counsel for Mr Collingridge at the arbitration. Mr Stringer conceded that costs of the arbitration would be the costs payable under Pt 2 Table 1 Item F Column 2 of Schedule 6 to the Workers Compensation Regulation 2010. Mr Perry agreed with that submission and that is the order that will be made.
CONCLUSION
For the reasons outlined above, I find that, in the circumstances of this case, the Arbitrator erred in her application of the disease provisions. The correct deemed date of injury is 12 June 1998. The matter will be remitted to the Registrar for referral to an AMS for assessment under Pt 7 of Ch 7 of the 1998 Act.
The result I have reached is inconsistent with the obiter observations I made in White. The additional submissions and authorities relied on in Mr Collingridge’s case, and the terms of the transitional provisions, which were not referred to in White, have persuaded me that the correct view is as I have stated above.
DECISION
Leave to appeal is granted.
The Arbitrator’s determination of 2 February 2011 is revoked and the following orders made in its place:
“1. The applicant worker’s deemed date of injury is 12 June 1998.
2. The claim for additional lump sum compensation is remitted to the Registrar for referral to an Approved Medical Specialist for assessment under the Table of Disabilities applicable to injuries received prior to 1 January 2002.
3. The respondent employer is to pay the applicant worker’s costs under Pt 2 Table 1 Item F Column 2 of Sch 6 to the Workers Compensation Regulation 2010. The matter is certified as complex with an uplift of 15 per cent.”
COSTS OF THE APPEAL
Without any further submissions being sought by the Commission, and without seeking leave, Mr McCabe made additional submissions in writing on 2 June 2011 as to the proper order for costs of the appeal. Without leave, parties are not permitted to make submissions after an appeal has concluded (Notaras v Waverley Council [2007] NSWCA 333; Bull v Lee (No 2) [2009] NSWCA 362; McCrohon v Harith [2010] NSWCA 67). It was therefore inappropriate for Mr McCabe to have made further submissions without first seeking leave.
Notwithstanding that leave was not sought, I have considered Mr McCabe’s submissions. He seeks an order that, because the Commission sought additional submissions on a question of statutory interpretation after the conclusion of the oral hearing of the appeal, he is entitled to an order for costs under Table 4 item 1 of $2,200 plus costs under Table 4 item 2 in the same amount. I do not accept that submission. Item 2 in Table 4 deals with costs in questions of law referred to the President under s 351 of the 1998 Act. The present matter was an appeal from an Arbitrator under s 352 of the 1998 Act.
If the above submission was unsuccessful, Mr McCabe submitted that I should make an order under Rule 9(2)(b) of Sch 6 of the Workers Compensation Regulation 2010 to the effect that the “resolutions are to be treated as separate resolutions for the purposes of the calculation or assessment of costs”. Rule 9(2)(b) of Sch 6 applies to the situation where “more than one claim or dispute is resolved in respect of a particular injury”. It has no application to s 352 appeals. I refuse the order sought.
The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200 plus GST.
Bill Roche
Deputy President
3 June 2011
I, PENELOPE FLEMING, 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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