Cram Fluid Power Pty Ltd v Green - [2014] NSWWCCPD 84

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*Status: Appeal to the Court of Appeal allowed* – Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250
CITATION:	Cram Fluid Power Pty Ltd v Green [2014] NSWWCCPD 84
APPELLANT:	Cram Fluid Power Pty Ltd
RESPONDENT:	Michael George Green
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-999/14
ARBITRATOR:	Mr J Harris
DATE OF ARBITRATOR’S DECISION:	8 August 2014
DATE OF THE APPEAL HEARING	25 November 2014
DATE OF APPEAL DECISION:	17 December 2014
SUBJECT MATTER OF DECISION:	Application of the amendments introduced by the Workers Compensation Legislation Amendment Act 2012; cl 15 of Pt 19H of Sch 6 to the Workers Compensation Act 1987; cl 11 of Sch 8 to the Workers Compensation Regulation 2010; whether the amendments apply only to claims that are “pending” or “on foot”; Goudappel v ADCO Constructions Pty Ltd[2013] NSWCA 94; ADCO Constructions Pty Ltd v Goudappel[2014] HCA 18 considered and applied; whether the limitation on claims referred to in s 66(1A) of the Workers Compensation Act 1987 applies only in respect of claims made after 19 June 2012
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr S Flett, instructed by Hicksons
Respondent:	Mr M Boulton, instructed by RMB Compensation
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 8 August 2014 is confirmed. 2. No order as to costs.

INTRODUCTION

This appeal concerns the effect of the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 (the amending Act) and the Workers Compensation Amendment (Miscellaneous) Regulation 2012 (the amending Regulation) on workers’ entitlements to pursue subsequent claims for permanent impairment compensation under s 66 and s 67 of the Workers Compensation Act 1987 (the 1987 Act).
In particular, the issues concern whether the transitional provisions, which are expressed to exempt certain claims from the application of the amending Act, apply only to claims that are pending or unresolved as at 19 June 2012. The appeal also concerns the question of whether the limitation of “only one claim” contained in s 66(1A), is intended to mean one claim in respect of an injury or one claim following the introduction of the amending Act and amending Regulation.
The question requires a consideration of the High Court’s decision in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 (Goudappel No 2), the transitional provisions introduced by the amending Act and the amendments to the Workers Compensation Regulation 2010 (the 2010 Regulation).
This appeal also challenges the correctness of the decision in Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34 (Caulfield), where Deputy President Roche held that the amendments to s 66 introduced by the amending Act, do not apply to workers who had specifically sought permanent impairment compensation prior to 19 June 2012.

BACKGROUND

Mr Green was employed by Cram Fluid Power Pty Ltd (the appellant) as a maintenance fitter. On 24 May 2005, Mr Green injured his lower back when he was crouching down to lift parts off a hose assembly. It is accepted that Mr Green was injured in compensable circumstances.
In 2010, Mr Green made a claim for lump sum compensation pursuant to s 66 of the 1987 Act. He claimed $8,750 in respect of seven per cent whole person impairment which I assume related to his back condition. The claim was accepted and the parties entered into a Complying Agreement pursuant to s 66A of the 1987 Act on 22 December 2010. The terms of the agreement noted that the claim had been paid.
Mr Green’s condition deteriorated and on 21 September 2012 he had spinal surgery, in the form of a lumbar fusion.
On 29 October 2013, through his solicitors, Mr Green made a claim for further compensation pursuant to s 66 and a claim for compensation under s 67. He claimed a further sum of $23,750 pursuant to s 66 representing a total of 22 per cent whole person impairment (with credit for the $8,750 paid as a result of the 2010 claim). He also claimed $25,000 pursuant to s 67 for pain and suffering.
On 6 January 2014, Allianz Australia Workers Compensation (NSW) Ltd (Allianz), acting as workers compensation insurer for the appellant, acknowledged Mr Green’s claim and made a counter offer in the sum of $18,750 in respect of 20 per cent impairment of the lumbar spine (less the previous compensation of $8,750) and the sum of $12,000 representing 24 per cent of a most extreme case under s 67 of the 1987 Act. Apparently the offer was rejected.
On 3 March 2014, Mr Green filed an Application to Resolve a Dispute. He sought lump sum compensation in accordance with his solicitor’s letter of demand of 29 October 2013.
On 24 March 2014, the appellant filed a Reply to the application. The appellant did not dispute that Mr Green had sustained an injury as alleged and agreed that the matter be referred to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of the impairment. The appellant denied liability in relation to Mr Green’s claim for weekly compensation because of a lack of information to assess the claim and an alleged overlapping of claims for “make up pay” during periods where compensation for total incapacity had been paid.
On 10 June 2014, Allianz, belatedly, served a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Notwithstanding the previous acceptance of Mr Green’s claim for permanent impairment compensation, Allianz denied liability for further impairment compensation. It alleged Mr Green had no entitlement to claim further compensation under s 66 or s 67 of the 1987 Act.
Allianz alleged that the repeal of s 67 of the 1987 Act by the amending Act extinguished Mr Green’s entitlement to claim benefits under s 67, as he had not made a claim for benefits under that provision by 19 June 2012. With respect to the claim under s 66, Allianz contended that by reason of s 66(1A) of the 1987 Act (as amended), Mr Green was precluded from bringing a further claim for lump sum compensation. It maintained that the claim now sought to be made by Mr Green was a second claim for permanent impairment made after 19 June 2012, which could not be sustained because of the operation of the amending Act and Sch 6 Pt 19H of the 1987 Act.
On 7 August 2014, a conciliation/arbitration hearing was listed before a Commission Arbitrator.
The dispute in relation to Mr Green’s entitlement to weekly compensation was resolved between the parties. The proceedings before the Arbitrator were limited to the dispute in relation to Mr Green’s entitlement to further lump sum compensation under s 66 and his entitlement to compensation under s 67 of the 1987 Act.
In an ex tempore decision the Arbitrator concluded that Mr Green was not precluded from bringing his claims for lump sum compensation. He ordered that the matter be remitted to the Registrar for referral to an AMS for an assessment of the impairment of Mr Green’s lumbar spine and scarring.
In reaching his conclusion the Arbitrator applied binding authority, namely the decision in Caulfield. In Caulfield Deputy President Roche held, for reasons I will come to in due course, that the 2012 legislative amendments did not preclude a further claim in circumstances similar to those in the present claim.
In the present matter, the Commission issued a Certificate of Determination on 8 August 2014 in the following terms:
“The determination of the Commission in this matter is as follows:
1.       The That [sic] the matter be remitted to the Registrar for referral to an Approved Medical Specialist as follows:
Dates of Injury:                 24 May 2005
Body Parts/Systems:         Scarring
Lumbar Spine
Method of Assessment:     Whole person impairment
2.       The documents to be sent to the AMS are:
(a)The Application to Resolve a Dispute and all attached documents;
(b)The Reply and all attached documents;;
(c)Application to Admit late documents filed by the Respondent and dated 24 April 2014;
(d)Application to Admit late documents filed by the Respondent and dated 10 June 2014;
(e)Application to Admit late documents filed by the Applicant and dated 14 July 2014.”
The appellant has appealed the Arbitrator’s determination.

PRELIMINARY MATTERS

Before proceeding to deal with an appeal, the Commission must determine whether the Application meets the requirements of s 352 of the 1998 Act. There is no dispute 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.

INTERLOCUTORY

The parties are at odds as to whether the Arbitrator’s determination to remit the matter to the Registrar for referral to an AMS is interlocutory. The appellant submits that it is not an interlocutory decision because although final compensation has not been awarded on the basis of the Arbitrator’s decision, pursuant to s 326 of the 1998 Act the AMS’s determination of the level of impairment will be binding upon the appellant in circumstances where it contends that the Arbitrator was in error permitting the claim for permanent impairment to be referred to the Registrar for referral to an AMS. I do not accept that submission.
The Arbitrator’s determination in the present matter has not determined any rights but has merely referred the issue of the extent of Mr Green’s permanent impairment to an AMS for assessment. The test of whether a court’s order, determination or ruling is ‘interlocutory’ “...depends on the nature of the order made; the test is: does the judgment or order, as made, finally dispose of the rights of the parties?” (per Gibbs J (as his Honour then was) in Licul v Corney[1976] HCA 6; 50 ALJR 439 at 443–444). The Commission has consistently held that an order by an Arbitrator, such as the order made in this matter, is an interlocutory decision (see Tozanis v KU Children’s Services[2010] NSWWCCPD 51 and Moore v Greater Taree City Council [2009] NSWWCCPD 17).
Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. 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.”
Mr Green submits that leave should be refused as the Arbitrator’s decision applied recent binding authority in Caulfield which provides a complete answer to the issue before the Arbitrator. The appellant has challenged the correctness of the decision in Caulfield, which it alleges was wrongly decided.
The issues raise important questions of statutory construction concerning the effect of the amendments introduced by the amending Act in light of the decision of the High Court in Goudappel No 2.
The outcome of these proceedings will determine whether the amendments introduced by the amending Act and the amendments to the 2010 Regulation only preserve entitlements to workers who have made a specific claim for permanent impairment compensation, that is on foot and unresolved as at 19 June 2012, or whether it preserves entitlements to such compensation in circumstances where a prior claim had been made and resolved.
The resolution of that issue will not only affect Mr Green’s entitlements but will affect the entitlements of many injured workers, some of whom have applications pending in the Commission.
Moreover, if leave is refused, the matter would, pursuant to the Arbitrator’s orders, be remitted to the Registrar and then referred to an AMS for a binding assessment of Mr Green’s permanent impairment. At that point final orders would be made which would be appellable under s 352. If the question is ultimately answered favourably to the appellant, that referral would be unnecessary and the time and expense of referring the matter to an AMS would be wasted.
For these reasons, it is both necessary and desirable for the proper and effective determination of the dispute that leave be granted. I therefore grant leave to appeal.

GROUNDS OF APPEAL

The appellant’s grounds of appeal are:
“(a) The arbitrator made an error of law in finding that cl 15 of Part 19H of Sch 6 of the 1987 Workers Compensation Act (‘1987 Act’) and cl 11 of the Workers Compensation Regulations (‘Regulation’) permitted a further claim for permanent impairment to be made on or after 19 June 2012 in respect of an injury for which a claim for compensation for permanent impairment was made and resolved before 19 June 2012.
(b) The arbitrator made an error of law in finding that s 66(1A) of the 1987 Act permitted one claim for compensation for permanent impairment in respect of an injury to be made on or after 19 June 2012 where a claim for compensation for permanent impairment in respect of the same injury had already been made and resolved before 19 June 2012.”

LEGISLATION

As a result of the amendments introduced by Sch 2 of the amending Act, ss 66(1) and (1A) were amended to read:
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note: No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”
Prior to the amendments introduced by the amending Act, excluding claims for hearing loss, there was no threshold for the recovery of lump sum compensation for permanent impairment under s 66. The effect of the amendments is that no permanent impairment compensation is payable for a permanent impairment unless the injury has resulted in a degree of permanent impairment greater than 10 per cent. In addition, only one claim can be made under the 1987 Act for permanent impairment compensation in respect of permanent impairment that results from an injury.
The amending Act also introduced extensive transitional provisions. It is necessary to consider cl 3 and cl 15 of Pt 19H of Sch 6 to the 1987 Act which provide:
“3      Application of amendments generally
(1)     Except as provided by this Part or the regulations, an amendment made by the 2012 amending Act extends to:
(a) an injury received before the commencement of the amendment, and
(b) a claim for compensation made before the commencement of the amendment, and
(c) proceedings pending in the Commission or a court immediately before the commencement of the amendment.
(2)     An amendment made by the 2012 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.”
“15    Lump sum compensation
An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.”

The Workers Compensation Regulation 2010

The 2010 Regulation was amended by the Workers Compensation Amendment (Transitional) Regulation 2012, pursuant to the regulation-making power conferred by the 1987 Act.
Clause 11 of Sch 8 to the amended Regulation, which commenced operation on 1 October 2010, provides:
“(1) The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.
(2) Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).”

THE FINDINGS IN CAULFIELD

Mr Caulfield suffered an accepted injury to his right knee on 9 August 2005. On 2 February 2009 he underwent surgery in the form of a meniscectomy.
In 2010, Mr Caulfield claimed lump sum compensation pursuant to s 66 of the unamended 1987 Act in respect of 15 per cent whole person impairment. On 19 November 2010 the Commission issued a Certificate of Determination ordering the respondent to pay Mr Caulfield lump sum compensation under s 66 in the sum of $10,000 in respect of eight per cent whole person impairment as a result of the injury on 9 August 2005.
On 6 December 2011, Mr Caulfield was reassessed by Dr Guirgis who stated that the original injury had initiated the onset of post traumatic osteoarthritis of the knee joint. He then assessed Mr Caulfield’s impairment at 17 per cent whole person impairment. There was a dispute in relation to the use of the combined charts for assessing various impairments in the knee which is not currently relevant.
On 29 August 2012, that is after the 2012 legislative amendments came into operation, Mr Caulfield made a further claim for lump sum compensation of $13,000 in respect of 17 per cent whole person impairment ($23,000 less $10,000 previously paid). On 18 September 2012 Mr Caulfield lodged an Application to Resolve a Dispute in the Commission concerning the insurer’s refusal to pay the claim. The respondent disputed liability, among other grounds, on the basis that the worker was not entitled to pursue a claim for further lump sum compensation pursuant to s 66(1A) of the 1987 Act (as amended by the amending Act) as he had received lump sum compensation on 19 November 2010 in respect of the injury sustained on 9 August 2005.
In Caulfield Deputy President Roche applied the binding authority from Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 (Goudappel No 1) and Goudappel No 2 to the facts. It is convenient to extract the relevant passages from the Deputy President’s decision (at [31]–[42]):
“The Court of Appeal’s decision
31. The Court of Appeal held in Goudappel No 1 that ‘a claim’ in cl 15 of Pt 19H includes any claim for compensation made before 19 June 2012 and that cl 11 of Sch 8 was invalid and did not apply. It followed that, as Mr Goudappel had made a claim for weekly compensation in 2010, the amendments to s 66 introduced by the 2012 amending Act did not apply to his later claim for lump sum compensation, even though he did not make that claim until 20 June 2012.
The High Court’s decision
32. In the High Court, there was no challenge to the Court of Appeal’s finding that ‘a claim’ in cl 15 of Pt 19H means any claim. However, overturning the Court of Appeal, the High Court held that cl 11 of Sch 8 is valid and applies according to its terms.
33. The Court therefore held that the amendments to Div 4 of Pt 3 of the 1987 Act (which deal with compensation for non-economic loss) introduced by Sch 2 of the 2012 amending Act apply to claims for compensation pursuant to s 66 of the 1987 Act made on or after 19 June 2012, where ‘the worker has not made a claim specifically seeking compensation under s 66 or s 67 before 19 June 2012’ (emphasis added) ([36]).
34. As Mr Goudappel had not made a claim specifically seeking compensation under s 66 or 67 before 19 June 2012, the 2012 amendments applied to him and he had no entitlement to lump sum compensation because his claim did not meet the threshold in the new s 66.
The present claim
35. The present matter is different. Mr Caulfield ‘specifically sought’ compensation under s 66 prior to 19 June 2012. Given the High Court’s ruling, Mr McManamey submitted, and I accept, that the ‘clear words of the High Court are that the amendments do not apply where the worker has made a claim for s 66 prior to 19 June 2012’.
36. This submission is supported by the following statement by the plurality, French CJ, Crennan, Kiefel, and Keane JJ, at [29]:
‘The purpose of cl 11, ... , was clear enough. It applied the new s 66 to entitlements to permanent impairment compensation which had not been the subject of a claim made before 19 June 2012 that specifically sought compensation under the old s 66.’
37. It is clear, as Mr McManamey contended, that their Honours did not limit the exclusion from the operation of cl 11 to one set of proceedings for s 66 compensation, but expressed the exclusion as occurring when there has been a claim (before 19 June 2012) under that section. In other words, the exclusion is not limited to any specific claim.
38. This conclusion is consistent with the combined effect of cl 15 of Pt 19H and cl 11 of Sch 8. This is because, as accepted by the Court of Appeal, and not challenged in the High Court, the amendments do not apply to claims for compensation made before 19 June 2012.
39. As cl 15 must be ‘read subject to’ cl 11, the proper interpretation of the two provisions is that the permanent impairment amendments apply to claims made on and after 19 June 2012, but not where a worker has claimed before that date. However, cl 11 modifies that position to make the amendments apply to claims made before 19 June 2012 but not if the worker made a claim that ‘specifically sought’ compensation under s 66 or 67.
40. It follows that, applying the text of the legislation, having regard to its context and history, as Mr Caulfield ‘specifically sought’ compensation under s 66 before 19 June 2012, the amendments to s 66 in the 2012 amending Act do not apply to him and his claim is entitled to be determined without regard to the restrictions in the new s 66. In other words, he is not caught by the new threshold and not restricted to making only one claim for permanent impairment compensation.
41. It follows that, though this is Mr Caulfield’s second claim for permanent impairment compensation, he is entitled to make the claim. Though the combined value of his claims is over 10 per cent, as the amendments do not apply to him, it would not matter if they were not.
42. The end result ‘produces the greatest harmony and the least inconsistency’ (Australian Alliance Assurance Co Ltd v Attorney-General (Qld) and Goodwyn [1916] St R Qd 135 at 161 per Cooper CJ; T v T[2008] FamCAFC 4; (2008) 216 FLR 365 at 394) in the legislation overall. The interpretation construes the provisions so they are ‘consistent with the language and purpose of all the provisions of the statute’ (Project Blue Sky Inc v Australian Broadcasting Authority[1998] HCA 28; 194 CLR 355 at [69]) and in a way that preserves rights accrued before 19 June 2012, except where the legislature has used clear language to remove those rights, as it did with respect to workers in Mr Goudappel’s situation.”

THE ARBITRATOR’S DETERMINATION

Mr Flett of counsel, who appeared for the appellant in the proceedings before the Arbitrator, argued that the decision in Caulfield was wrongly decided. His submissions to the Arbitrator reflect in substance the submissions that are made on this appeal which I shall come to in due course.
Mr Flett conceded that the Arbitrator was bound by the decision in Caulfield and that there was no sufficient divergence between the facts of this case and those in Caulfield such that it could be distinguished. The Arbitrator found that that was sufficient to dispose of the matter before him.
The Arbitrator then went on to make a number of observations concerning the interpretation of s 66(1A) of the 1987 Act. The Arbitrator rejected Mr Flett’s submissions to the effect that the amendments introduced by the 2012 amending Act are retrospective and the words “only one claim” mean that only one claim can be made at any time. He held (at T31.6):
“I do not agree with this submission. In my view, even if Mr Flett is correct in respect of his submission as to the construction of clause 11, the words ‘only one claim’ under subsection (1A) mean only one claim for lump sum compensation from the date of the amendment. It is clearly arguable on the material before me that the applicant has a claim for lump sum compensation which is greater than 10 per cent, although the exact quantification is a matter for an Approved Medical Specialist.
General principles of construction mean that rights accrued – that legislation is interpreted to preserve accrued rights accrued unless the contrary intention applies. I do not read subsection (1A) as applying retrospectively and, accordingly, I do not accept the secondary submission that Mr Green could not bring one further claim after 19 June 2012.”

GROUND A

Did the Arbitrator err in allowing the appellant’s further claim for permanent impairment compensation?

The appellant’s submissions

Clause 3 of Pt 19H of Sch 6 of the 1987 Act provides that the amendments made by the amending Act are generally retrospective.
Retrospectivity of the amendments is subject to various exceptions given in Pt 19H, the first of which is cl 15.
Clause 11 of Sch 8 of the 2010 Regulation later clarified the operation of cl 15. Mr Flett submitted that in Goudappel No 2, the High Court held that cl 11 of Sch 8 was a valid regulation. At [29] of its decision, the Court stated that cl 11:
“applied the new s 66 to entitlements to permanent impairment compensation which had not been the subject of a claim made before 19 June 2012 that specifically sought compensation under the old s 66.”
In Caulfield, Deputy President Roche made findings of law at [25] to [42]. In particular, he made the following finding based on his construction of Goudappel No 2:
“[37] It is clear …, that their Honours did not limit the exclusion from the operation of cl 11 to one set of proceedings for s 66 compensation, but expressed the exclusion as occurring when there has been a claim (before 19 June 2012) under that section. In other words, the exclusion is not limited to any specific claim.” (emphasis in original)
Mr Flett submits that the Deputy President erred. He submits that cl 3 and cl 15 of the transitional provisions and cl 11 of the 2010 Regulation cannot be read in isolation. They must be read together. He submitted:
“When read together, the critical words are ‘such [a] claim’ in clause 15. These words make it clear that the exception provided in cl 15 extends to claims that are on foot on or after 19 June 2012 but that have been commenced before 19 June 2012. Clause 11 of the regulations narrows the exemption provided in cl 15 to apply to claims that are on foot on or after 19 June 2012 but that were commenced and specifically sought compensation under ss 66 and 67 of the 1987 Act before 19 June 2012.”
The Deputy President’s decision in Caulfield has the consequence that where “a” claim specifically seeking compensation under ss 66 and 67 of the 1987 Act has been made and resolved, a further claim seeking compensation under s 66 or s 67 may be brought on or after 19 June 2012 even though the amending Act repealed s 67 of the 1987 Act. This result, the appellant submits, is entirely inconsistent with the purpose of the amending Act enunciated in the second reading speech introducing the amending Act.
At the hearing of the appeal, Mr Flett argued that the Deputy President’s comments in Caulfield (at [35]) were taken out of context. He submitted (at T10.21):
“The 2012 amendments on Gazette became part of the 1987 Act. They appear in Schedule 6 [of part] 19H, and clause 3 clearly gives a retrospective operation to how the section is to be read. Clause 15 is an exemption to the retrospective operation. Regulation 11 is a direction of how to read clause 15, so in other words, the three of them have got to be read together, not in isolation. In other words when you look at the sections and read them together, the interpretation which we say is the correct, is that you then read clause 15 which says, ‘An amendment made by Schedule 2 of the 2012 Amending Act extends to a claim for compensation made before 19 June.’ So in other words, there's a retrospective operation. ‘But not to such a claim made before that date.’
Then clause 11 comes to say that that claim exception is that if it specifically sought compensation under section 66 or 67. So in other words as claim is now, the centre point of the 2012 amendments that the claim which they're referring to is not an earlier claim, but the claim to which is being pressed.
Now in paragraph 8 of the amended submissions, I set out how the section should be read, and I've identified that the critical words are ‘such [a] claim’ in clause 15. Then I've said that, ‘These words make it clear that the exception provided in clause 15 extends to a claim that are on foot on or after 19 June, but have been commenced before 19 June. Clause 11 of the Regulation narrows the exception because it only deals with 66 and 67, are provided in clauses 15 to apply to apply to claims that are on foot on or after 19 June, but they were commenced and specifically sought compensation under 66 or 67 before 19 June.”
Mr Flett argued (at T17.20), that notwithstanding the absence of the words “on foot” in the legislation, that having regard to the context and grammar used in Part 19H and cl 11, the exemption provided for in cl 15 of pt 19H and cl 11 would be read as meaning:
“but not if there was a claim specifically seeking compensation made before 19 June, but hadn’t been determined. That class of case was exempted, and that’s all that the Regulation at 19 and 15 and 11 read backwards, 15 read with the aid of 11, really does. It just says, ‘Those sorts of cases are excused from the retrospective operation of clause 3’.”
Mr Flett submitted:
“Further, applying the findings of the High Court in Goudappel [No 2] to the facts of Caulfield was problematic for the following reasons:
(a)     in Goudappel [No 2], the worker had not made a previous claim for lump sum compensation;
(b)     the High Court was referring to a claim with the consequence that the amendments apply in the circumstances where there had not been a previous claim for compensation for permanent impairment in respect of that injury, and
(c)     it follows from (b.) above that a claim for deterioration in respect of an injury for which a previous claim for compensation for permanent impairment has been made and resolved, is a new claim in respect of the same injury and is thereby caught by the amendments.”
Mr Flett further submitted that in Goudappel No 2 the High Court (at [29]) considered whether or not cl 11 of Sch 8 needed to be construed beneficially to the worker. The Court concluded that although the legislation is beneficial, not every amendment made to it must be construed beneficially. The purpose of the amendment has to be identified. The Court found that the purpose of cl 15 of Pt 19H of Sch 6 was to allow the making of regulations that could affect acquired rights. In this context, cl 11 was “patently not beneficial”. It follows that the proper reading of cl 15, subject to cl 11, may result in a construction that is not beneficial to workers and that adversely affects their acquired rights.
The appellant further submits that on this appeal, because a decision of a Deputy President is at issue, the Commission should be satisfied that the Deputy President’s decision was “plainly wrong” before overturning it.

Mr Green’s submissions

Mr Green’s counsel, Mr Boulton, submits that Caulfield is not plainly wrong. He submits that the conventions relating to members of the same tribunal in respect of comity should be applied and that the decision in Caulfield should be followed by Presidential members.
Deputy President Roche correctly applied the High Court’s decision in Goudappel. The words “such a claim” in cl 15 of Pt 19H of Sch 6 to the Act do not clearly refer to a claim for compensation that was on foot but not resolved as at 19 June 2012. If cl 15 were intended to apply to claims for compensation that had been made but had not been resolved before 19 June 2012, that could have been stated in those terms in the provision but it was not.
Similarly, if the intention of cl 11 was to extend the 2012 amendments only to unresolved claims that specifically sought compensation under ss 66 or 67, that could have been specifically stated.
In Goudappel No 1 the Court found it unnecessary to consider the scope and operation of cl 3(1) of Pt 19H of Sch 6 because it was expressed as a general provision subject to exceptions provided by Pt 19H and cl 15 constituted such an exception (at [10]).
With respect to cl 15 the Court held that the reference to “claim” in that clause was a reference to any claim and not a reference to a claim that specifically sought lump sum compensation. It followed that the amended s 66 did not apply to a lump sum claim in respect of an injury that had been the subject of any claim for compensation before 19 June 2012.
Whether the claim was resolved or unresolved as at 19 June 2012 was irrelevant. A claim for weekly compensation that had been discontinued or resolved adversely to the worker would have been sufficient to exclude the 2012 amendments relating to lump sum compensation.
The appellant’s submissions seek to have a Presidential member of the Commission overturn the interpretation placed on cl 15 by the Court of Appeal in Goudappel No 1, which interpretation was not in any way challenged in the High Court and cannot be overturned by the Commission.
Because cl 11 of the 2010 Regulation is a refinement of cl 15 of Pt 19H, the reference to “claim” in cl 11 ought to be interpreted as having the same meaning as it bears in cl 15. It means plainly what it says, that is, a claim whether resolved or unresolved. That meaning inevitably flows from that part of the decision of the Court of Appeal in Goudappel No 1 that was not overturned by the High Court.

Consideration

It is submitted on this appeal that the matter of Caulfield was wrongly decided. I reject that submission. I respectfully adopt Deputy President Roche’s reasoning in Caulfield and I agree with his conclusions for the following reasons.
Contrary to Mr Flett’s submissions, the Deputy President in Caulfield did not read cl 3 and cl 15 of the transitional provisions and cl 11 of the 2010 Regulation in isolation. He read them together. That much is clear from the Deputy President’s reasoning at [38] and [39] of Caulfield (see [40] above).
Mr Flett challenged the Deputy President’s conclusions in Caulfield concerning the meaning of “a claim” as found by the Court of Appeal in Goudappel No 1. He argued that in Goudappel No 1 the Court of Appeal was not concerned with the determination of whether “a claim” meant any claim for compensation or whether it meant an unresolved or pending claim.
Basten JA in Goudappel No 1 noted (at [11]):
“had it been intended to require an extant claim for lump sum compensation as at the specified date, cl 15 could have so stated, but it did not.”
Mr Flett argued that his Honour’s statement (at [11]) was not part of his consideration of the issue, but merely recorded the submissions that had been put by the applicant on appeal. Whether or not that is the case, his Honour concluded (Bathurst CJ and Beazley P agreeing) (at [36]) that, for the reasons given by his Honour, the applicant’s arguments should be accepted.
It follows that the Court of Appeal accepted the proposition that had cl 15 been intended to exclude only extant claims or pending claims for lump sum compensation from the amendments introduced by Sch 2 of the amending Act, cl 15 could have so stated, but did not. It follows that I do not accept Mr Flett’s submissions.
As Deputy President Roche pointed out in Caulfield (at [32]) there was no challenge in Goudappel No 2 to the Court of Appeal’s finding that “a claim” in cl 15 of Pt 19H means any claim for compensation and was not otherwise confined.
In Goudappel No 2, the plurality held (at [13]):
“In summary, cl 15 protected entitlements the subject of claims made before 19 June 2012 from the general application of cl 3 and, therefore, from the disentitling effect of the new s 66(1). The Court of Appeal found that, subject to the effect of the challenged regulation, cl 15 protected Mr Goudappel's entitlement to permanent impairment compensation. As noted earlier in these reasons, that conclusion was not in issue on this appeal…”
Mr Flett also sought to distinguish the findings of the High Court in Goudappel No 2 on the basis that the Court was not directing its attention to whether “a claim” in cl 15 of Pt 19H and cl 11 of Sch 8 of the 2010 Regulation, was a reference to any claim for compensation or a reference to a pending or unresolved claim made before 19 June 2012 that specifically sought compensation under the former s 66. I reject that submission
After considering the validity and effect of cl 11 of Sch 8, the High Court answered the question before it in the following terms (at [36]):
“Clause 5(4) of Pt 19H of Sched 6 to the Workers Compensation Act 1987 (NSW) (introduced by Sched 12 [1] to the Workers Compensation Legislation Amendment Act 2012 (NSW)) enabled the making of cl 11 of Sched 8 to the Workers Compensation Regulation 2010 (NSW) (introduced by Sched 1 [5] to the Workers Compensation Amendment (Transitional) Regulation 2012 (NSW)), with the effect that the amendments to Div 4 of Pt 3 of the Workers Compensation Act introduced by Sched 2 to the Workers Compensation Legislation Amendment Act apply to claims for compensation pursuant to s 66 of the Workers Compensation Act made on and after 19 June 2012, where the worker has not made a claim specifically seeking compensation under s 66 or s 67 before 19 June 2012.” (emphasis added)
If Mr Flett’s submissions were accepted, the outcome would be contrary to the combined effect of that much of Goudappel No 1 that was not challenged in the High Court and the findings in Goudappel No 2, which are binding on the Commission. It would have the effect that only claims for lump sum compensation made prior to 19 June 2012 that were pending or unresolved when the amendments became operative, would be excluded from the operation of Sch 2 of the amending Act. That outcome is not consistent with the Court of Appeal’s finding as to the meaning of “a claim” in the relevant provisions, nor is it consistent with the High Court’s determination of the validity and effect of cl 11 of Sch 8 of the 2010 Regulation. Nor is it consistent with the words used in the relevant provisions.
In Goudappel both the Court of Appeal and the High Court based their consideration upon the agreed facts, namely that Mr Goudappel had submitted a claim for compensation, not being a claim for lump sum compensation, on 19 April 2010, that is, more than two years before submitting his claim for lump sum compensation on 20 June 2012. It may reasonably be inferred that both the Court of Appeal and the High Court were treating the prior claim as a claim which had been made and resolved and not as an extant claim or a claim that was still “on foot”.
Mr Flett readily conceded (at T17.16 of the appeal hearing) that neither cl 15 Pt 19H, nor cl 11 of the 2010 Regulation, use the word “on foot” in identifying those claims that are to be exempt from the amendments introduced by Sch 2 of the amending Act. However, in order to accept his construction of the provisions it would be necessary to read those words into either or both of the transitional provisions and the 2010 Regulation. As a matter of statutory construction that is not permitted.
The correct approach is to interpret statutory provisions so that they are “consistent with the language and purpose of all the provisions of the statute” (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]). Whilst it is permissible to give effect to the purpose of a provision, that purpose must be derived from what the legislation says and not from any assumption about the desired or desirable reach or operation of the relevant provisions: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56 (per French CJ and Hayne J at [26]). The task remains the construction of the words the legislature has enacted (Taylor v The Owners-Strata Plan No 11564 [2014] HCA 9 (at [39])), and it is not permissible to add words to achieve what is perceived to be the desired outcome.
Mr Flett submitted that the findings of the High Court in Goudappel No 2 are “problematic” for the reasons referred to at [52] above. I reject that submission for the following reasons.
First, in Goudappel No 2 it was the fact that the worker had not made a claim for lump sum compensation prior to 19 June 2012, that was fatal to his entitlement to pursue a claim under the amended s 66. That is not the case here. Mr Green has made a prior claim for permanent impairment compensation in which he “specifically sought” compensation under s 66. Far from being “problematic”, the fact of the prior claim puts Mr Green precisely in the category of claimants who, by reason of the findings of the High Court in Goudappel No 2 (at [36]) are exempt from the application of the amending Act. It is prudent to keep in mind the use of the past tense – “specifically sought” – rather than the present tense – “specifically seeking”.
Second, contrary to Mr Flett’s submission, it does not follow from the High Court’s finding, referred to above, that a claim for additional lump sum compensation arising from a deterioration of an injury, that had been the subject of a prior claim that had been made and resolved, is a “new claim” in respect of the same injury and is thereby caught by the amendments. The findings in Goudappel No 2 are expressly to the contrary.
Third, had the legislature intended that the application of the amendments apply to “new claims” it could readily have so stated. Neither the amending Act nor cl 11 of Sch 8 of the 2010 Regulation use the words “new claim”. For the reasons I have given, an acceptance of Mr Flett’s submission can only be achieved by writing words into the legislation, which for the reasons explained above, is not open.
The concept of distinguishing entitlements to benefits by characterising certain claims as new claims is not unfamiliar in workers compensation legislation. The transitional amendments which accompanied the Workers Compensation Legislation Amendment Act 2001 are a good illustration of the use of the terms “existing claim” and “new claim” to differentiate entitlements to benefits following a suite of benefit reforms. No such attempt was made by the legislature with respect to the amendments under consideration.
Whether the provisions under consideration are to be construed beneficially is not to the point. The relevant amendments in Pt 19H and cl 11 of Sch 8 have been interpreted by the Court of Appeal and the High Court. Those decisions clearly cover the situation before me and are binding on me.

As the High Court made clear, the amendments introduced by the amending Act apply to claims for compensation under s 66 made on or after 19 June 2012 “where the worker has not made a claim specifically seeking compensation under s 66 or s 67 before 19 June 2012” ([36] quoted in full at [72] above). On the facts in this case, Mr Green made a claim specifically seeking compensation under s 66 before 19 June 2012. It is clear, on that basis, that the amendments to s 66 and s 67 introduced by the amending Act do not apply to him and therefore he is free to pursue his claim. It follows that, as that was the conclusion reached by the Arbitrator, no error has been demonstrated and therefore this ground of appeal fails.

GROUND B

Does s 66(1A) of the 1987 Act permit one claim for compensation for permanent impairment in respect of injury to be made on or after 19 June 2012, where a claim for compensation for permanent impairment in respect of the same injury had already been made and resolved before 19 June 2012?

The appellant’s submissions

The 2012 amendments to the workers compensation legislation have made the concept of “claim” central to the construction of the availability of relief under s 66 of the 1987 Act as amended.
The effect of the 2012 amendments as reflected in the new s 66(1A), is that the issue of the number of claims made by an injured worker is relevant to entitlement to compensation so that a pre-19 June 2012 claim for injury may well prejudice a post-19 June 2012 claim for the same injury.
Section 260 of the 1998 Act deals with the making of a claim for compensation and s 261 deals with the time in which a claim for compensation must be made. Neither provision derogates from the plain words of s 66(1A) of the 1987 Act.
The Arbitrator erred in his interpretation of s 66(1A) by concluding (at T31.7-24 of the arbitration) that even if the amendments introduced by the amending Act do apply to Mr Green, he could bring one further claim after 19 June 2012 under s 66(1A). He erred because:
(a) the High Court in Goudappel, as already stated above, has held that there is no “general principle” that the amendments should be read beneficially to the worker;
(b) clause 3 of Pt 19H of Sch 6 has the effect, contrary to the Arbitrator’s finding, that the amendments to the 1987 Act are retrospective, and
(c) the Arbitrator gave no reasoning why, in the face of the plain words of s 66(1A), the worker can make one claim “from the date of the amendment”, being 19 June 2012.
As at 19 June 2012, a worker may make only one claim for permanent impairment compensation in respect of the permanent impairment that results from an injury. There is no support in the plain words of the legislation, or in the High Court’s decision in Goudappel No 2, for the proposition that an injured worker may bring another claim “from the date of the amendment”, being 19 June 2012, for the same injury in respect of which the injured worker has brought a claim before 19 June 2012 and that this second claim is considered to be the “one claim” contemplated by s 66(1A) of the 1987 Act.
On the present facts, the appellant submits that Mr Green has brought a fresh claim after 19 June 2012 specifically seeking compensation for permanent impairment in respect of an injury for which he has already received compensation for permanent impairment prior to 19 June 2012. This is not permissible. He is caught by the amendments introduced by the amending Act. The only relevant exception is where a worker has a claim on foot on or after 19 June 2012 in circumstances where he or she has made a claim specifically seeking compensation under ss 66 and 67 of the 1987 Act before 19 June 2012. In that case the worker may continue to prosecute his claim as s 66(1A) is not engaged. The applicant in this case cannot avail himself of this exception, as s 66(1A) is engaged as no such claim was on foot.

Mr Green’s submissions

Section 66(1A) of the 1987 Act should be interpreted as applying prospectively. Prior to the amendments there was no requirement to make a claim for permanent impairment in order to be entitled to it, nor was there any limit on the number of claims that could be made in respect of the permanent impairment that resulted from an injury.
Workers had no reason to be concerned with the number of claims that they could make. They could legitimately make claims knowing that if their condition worsened, they could make further claims.
A provision limiting workers to one claim is a significant measure affecting accrued rights. The accrued right was a right to compensation for permanent impairment as it existed from time to time.
A provision restricting that accrued right should, in the event of ambiguity, be construed as beneficially to the worker as possible (see Goudappel No 2 at [29]).
The question is, does s 66(1A) operate prospectively so that a worker is restricted to one claim after the commencement of the amendment, or does the subsection extend to a claim made before the commencement? The legislation could have clearly stated that the one claim should extend to any claim made before the commencement of the section but it did not do so.
The objects of the Act, which are to restrict the number of claims a worker may make for permanent impairment compensation, are achieved by reading the section as applying only prospectively. Mr Boulton submitted:
“The objects achieved to a far greater extent by construing the subsection as extending to a claim made before the commencement of the subsection, but there is no canon of construction compelling courts to construe provisions as harshly as possible and the construction most favourable to the worker should be applied where the words permit a constructional choice.”

Mr Boulton further submits:
“If resort is had to the transitional provisions to ascertain how the subsection affects claims made before the commencement of the section, then for the reasons set out in response to ground (a), the subsection does not affect Mr Green’s current proceedings, if they be regarded as a claim.”
Additionally, cl 11 of the 2010 Regulation provides that the amendments do not extend to a claim that specifically sought compensation under s 66. It follows that the amendments do not apply to Mr Green’s 2010 claim in which he specifically sought compensation under s 66. It therefore cannot qualify as the one claim he can make. On a literal reading of cl 11, “any claim that specifically sought compensation under s66 cannot be treated on [sic] the one claim to which a worker is restricted by sub-s (1A)”.

Consideration

Having regard to the findings in relation to ground one, it is unnecessary to deal with ground two. However I make the following observations about it.
This issue turns partly on whether s 66(1A) is to be read prospectively, so that a worker is restricted to one claim after the commencement of the amendment, or whether it applies retrospectively by construing the sub-section as extending to claims made before its commencement.
The right to receive compensation is an accrued right which accrued on the happening of the injury: Bresac Pty Ltd v Starr (1992) 29 NSWLR 318. In the circumstances of this case, if Mr Flett’s arguments are accepted, the accrued right would be extinguished by the making of his claim in 2010. When Mr Green made his claim in 2010, he made it in the knowledge that it was not his one and only claim. He was entitled to make subsequent claims if his impairment level increased. Therefore, unlike claimants who claim compensation after 19 June 2012, he was not required to carefully select the timing of his claim in the knowledge that it would be his only claim.
Pursuant to s 30(1)(c) (when read with s 5(2)) of the Interpretation Act 1987 the amendment or repeal of an Act or statutory rule does not “affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule” except in so far as a contrary intention appears in the Act or instrument.
It is generally accepted at common law that in the absence of clear words to the contrary, an Act will be assumed not to have retrospective operation. In Maxwell v Murphy [1957] HCA 7; 96 CLR 261, Dixon CJ stated (at [267]):
“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applied to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights of liabilities which the law had defined by reference to past events.”
In Goudappel No 2 Gageler J stated (at [52]):
“A contrary intention sufficient to displace s 30 of the Interpretation Act must ordinarily appear with the same reasonable certainty as is needed to displace the general common law rule. A contrary intention need not be express and its implication, although sometimes referred to as ‘necessary implication’, has not been confined to those extreme circumstances in which alteration of an existing right or liability ‘cannot be avoided without doing violence to the language of the enactment’. The cases, rather, demonstrate that a contrary intention will appear with the requisite degree of certainty if it appears ‘clearly’ or ‘plainly’ from the text and context of the provision in question that the provision is designed to operate in a manner which is inconsistent with the maintenance of an existing right or liability.” (references omitted)
The High Court held that the contrary intention was clear in Mr Goudappel’s circumstances, namely, where he had not previously sought compensation under s 66 or s 67. However, there is no clear statement in either the text or context of the legislation, nor the transitional provisions in Pt 19H and cl 11 of Sch 8 of the 2010 Regulation, to support the proposition that it was intended that the one claim referred to in s 66(1A) is intended to refer to a claim or claims made before 19 June 2012.
That s 66(1A) is not intended to have retrospective effect is evidenced by the fact that the clear words of cl 15 of Pt 19H which expressly provides that an amendment introduced by Sch 2 of the amending Act, which includes s 66(1A), extends to claims for compensation made on or after 19 June 2012, but not to such a claim made before that date. It follows that the “one claim” referred to in s 66(1A) cannot be a reference to a claim or claims made before 19 June 2012.
This conclusion is reinforced by cl 11 of Sch 8 of the 2010 Regulation. As I have discussed with respect to ground one, cl 11 clearly provides that the amendments introduced by the amending Act, including s 66(1A) and the one claim limitation, do not apply to claims that specifically sought lump sum compensation under s 66 or s 67 before 19 June 2012.
It must follow from the plain reading of these provisions that the one claim limitation referred to in s 66(1A) is a limitation that applies to claims for lump sum compensation made on or after 19 June 2012. That is, the provision applies prospectively to claims made on or after 19 June 2012 and claims made under s 66 or s 67 are not counted as the one claim for the purposes of the amended provision.
For these reasons, it follows that, if I am in error in my consideration of ground one, Mr Green would in any event be entitled to pursue one claim for compensation for permanent impairment after 19 June 2012, provided the threshold in s 66(1) is satisfied.

ORDERS

The Arbitrator’s determination of 8 August 2014 is confirmed.

COSTS

No order as to costs.

Judge Keating
President

17 December 2014

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE