Davison v State of New South Wales - [2015] NSWWCCPD 47

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Davison v State of New South Wales [2015] NSWWCCPD 47
APPELLANT:	Deneice Davison
RESPONDENT:	State of New South Wales
INSURER:	Employers Mutual Ltd as agent for the NSW Self Insurance Corporation
FILE NUMBER:	A1-2436/14
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	31 March 2015
DATE OF APPEAL HEARING	5 August 2015
DATE OF APPEAL DECISION:	12 August 2015
SUBJECT MATTER OF DECISION:	Statutory interpretation; meaning of “seriously injured worker” in s 32A of the Workers Compensation Act 1987; whether that section permits multiple injuries to be aggregated to reach the impairment threshold for seriously injured worker; s 8(b) of the Interpretation Act 1987; whether singular includes the plural; whether contrary intention appears in the legislation
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr McManamey instructed by Slater & Gordon Lawyers
Respondent:	Mr Rickard instructed by Moray & Agnew
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 31 March 2015 is confirmed.

INTRODUCTION

This appeal concerns the construction of the term “seriously injured worker” in s 32A of the Workers Compensation Act 1987 (the 1987 Act). In particular, the issue on appeal concerns whether it is permissible to aggregate impairments that have resulted from injuries to different body parts, in a series of unrelated incidents, to meet the required permanent impairment threshold of more than 30 per cent to be characterised as a “seriously injured worker”.
For the reasons explained below, and in Merchant v Shoalhaven City Council [2015] NSWWCCPD 13 (Merchant), it is not possible to aggregate such impairments.

BACKGROUND

The appellant, Ms Deneice Davison, was employed by Greater Southern Area Health Service as an administration officer. In 1996 Ms Davison suffered an injury to her neck and right arm as the result of an unsatisfactory work station.
In 1999 Ms Davison was awarded compensation under s 66 and s 67 of the 1987 Act as follows:
(a)     $6,000 in respect of 15 per cent permanent impairment of the neck;
(b)     $4,500 in respect of a 6 per cent loss of efficient use of the right arm at or above the elbow, and
(c)     $9,000 in respect of pain and suffering.
In a separate and unrelated incident on 1 July 2002, Ms Davison suffered an injury at work to her back when she fell from a chair, the wheels of which had become entangled in a rubber mat.
As a result of the injuries to her back Ms Davison was awarded further compensation under ss 66 and 67 on 7 January 2008 as follows:
(a) $35,000 in respect of 23 per cent whole person impairment, and
(b) $20,000 in respect of pain and suffering.
On 25 November 2011, Ms Davison was made redundant from her position with the Greater Southern Area Health Service.
Ms Davison was paid voluntary weekly payments of compensation from 29 November 2011 until 31 December 2012.
On 21 October 2013, Dr Hopcroft, a general surgeon retained by Ms Davison’s solicitors, assessed that Ms Davison suffered from the following impairments:
“1.     She has a DRE Cervical Category III impairment of her neck with a whole person impairment of 15%. No subtraction from that impairment is required as she had no pre-existent problems with her cervical spine.
2.      She has a DRE Lumbosacral Category IV impairment of her back with a whole person impairment of 20%.
3.     With recurrent post-operative radicular symptoms and signs developing she accrues a further 3%.
4.     With restrictions in activities of daily living she accrues a further 2%.
Using the Combined Values Chart this patient, therefore, has an overall whole person impairment of 35%.”
On 30 October 2013, Ms Davison’s solicitors served on the employer’s insurer, Employers Mutual Ltd (EML), a copy of Dr Hopcroft’s report and sought a concession that Ms Davison is a “seriously injured worker” as defined by the 1987 Act. The letter of 30 October 2013 is not in evidence.
In an undated letter, Ms Davison’s solicitors wrote to EML seeking weekly compensation from 1 January 2013. She relied on a medical certificate from Dr Hopcroft, dated 2 October 2013, which certified her totally unfit for work.
On 21 March 2014, EML issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). EML claimed that Ms Davison was able to perform the duties that she was performing at the time she accepted a voluntary redundancy. It alleged that Ms Davison had no entitlement to weekly compensation. Further, EML alleged that Ms Davison did not qualify as a “seriously injured worker” within the meaning of s 32A of the 1987 Act, because she could not aggregate impairments resulting from the injuries sustained in 1996 and 2002 in order to reach a combined whole person impairment of more than 30 per cent.
Although it has not been clearly articulated in the s 74 notice, the relevance of a finding that the worker is a “seriously injured worker” is the impact such a finding has on the quantum of weekly compensation payable to the worker. Where the claim for compensation was made before 17 September 2012, as it was in this case, pursuant to cl 2 of Sch 8 of the Workers Compensation Regulation 2010 (the 2010 Regulation), the amount of the weekly payments of compensation payable to a “seriously injured worker” is to be no less than the amount of compensation payable to the worker had the weekly payments amendments pursuant to the Workers Compensation Legislation Amendment Act 2012 (the Amendment Act) not been made.
On 15 May 2014 Ms Davison lodged an Application to Resolve a Dispute (the Application) in the Commission. Ms Davison sought an order for weekly payments of compensation from 17 September 2012, based upon the injuries sustained in both the 1996 and 2002 incidents.
On 10 June 2014, by an Application to Admit Late Documents, the respondent sought to rely upon a Reply to the Application. The Reply alleged that Ms Davison had no entitlement to ongoing compensation payments because “the applicant’s injuries cannot be aggregated to enable her to satisfy the WPI threshold to be considered a ‘seriously injured worker’” (emphasis in original).
The Application was listed before a Commission Arbitrator sitting in Albury on 13 February 2015. Ms Davison was represented by Mr McManamey, of counsel, and the respondent was represented by Mr Rickard, of counsel.
The issue before the Arbitrator was whether Ms Davison could aggregate the impairments arising from two separate and distinct injures (one in 1996 and one in 2002) in order to satisfy the definition of “seriously injured worker” referred to in s 32A of the 1987 Act.
After hearing argument the Arbitrator reserved his decision.
On 31 March 2015, the Arbitrator issued a Certificate of Determination and a Statement of Reasons for the decision. The Arbitrator found in favour of the respondent.
Applying Merchant, which was decided after the arbitration hearing, the Arbitrator held that impairments resulting from separate and distinct injuries could not be aggregated for the purposes of satisfying the threshold in s 32A.
Ms Davison appeals the Arbitrator’s decision.

PRELIMINARY MATTERS

The respondent employer was wrongly sued as “Greater Southern Area Health Service”. Following an inquiry from the Commission, on 30 July 2015, the respondent employer’s legal representative advised that, pursuant to State of New South Wales v Bishop [2014] NSWCA 354 at [26]–[28] and the Crown Proceedings Act 1988, the correct legal identity of the respondent employer is “State of New South Wales”.
By consent the respondent seeks an order to amend the pleadings to correctly describe the employer by deleting “Greater Southern Area Health Service” and substituting “State of New South Wales”. I so order.
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.

SUBMISSIONS BEFORE THE ARBITRATOR

Mr McManamey argued that, having regard to the provisions of s 8(b) of the Interpretation Act 1987 (Interpretation Act), the words “whose injury” referred to in s 32A must refer to the worker’s “injuries” plural. Mr McManamey argued that in order for a claimant to be categorised as a “seriously injured worker”, the injury must have resulted in permanent impairment and the permanent impairment must be assessed “for the purposes of” Div 4 of the 1987 Act. Division 4 relates to compensation for non-economic loss and includes ss 65–73 of the 1987 Act. The reference in s 65 to impairment assessed under Pt 7 (Medical assessment) of Ch 7 of the 1987 Act incorporates s 322. Section 322 deals with the manner of assessing impairments resulting from the same injury, or impairments that result from one or more injury arising out of the same incident.
The terms of s 32A of the 1987 Act demonstrate that the reference to Div 4 was not intended to create any entitlement to lump sum compensation but was merely a procedural device for determining ongoing entitlements to hospital, medical, other treatment expenses and weekly payments.
Section 22, dealing with the apportionment of liability, assisted Mr McManamey’s construction (so it was argued) as it provided a mechanism to the Commission to apportion liability from impairments resulting from multiple injuries and was consistent with an interpretation that the Act did not evidence a contrary intention to an interpretation of the words “whose injury” meaning the plural “injuries”. Mr McManamey further argued that the capacity to combine injuries using the combined values chart in the Guides to Evaluation of Permanent Impairment, 5^th edition, AMA Press, was consistent with his argument in that it was designed to calculate the appropriate whole person impairment where different impairments from different injuries to different body parts needed to be combined to create a single whole person impairment.
The Minister’s second reading speech was consistent with his argument in that it created a category of injured people who were seriously injured for whom greater income support and extended treatment would be provided. He submitted that nothing in the Minister’s speech suggested that the category should be limited to the effects of a single injury.
Mr Rickard submitted that the terms of s 322 of the 1987 Act are clear and demonstrate that there was a contrary intention to the application of s 8(b) of the Interpretation Act. Mr Rickard submitted that s 322(2) was clear in its terms that impairments that resulted from the same injury were to be assessed together. There was no provision for assessing impairments from different injuries together.
Mr Rickard argued that s 322(3) was only applicable in restricted cases, as explained in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288 (Edmed). Mr Rickard also relied on cl 13 of Sch 8 of the 2010 Regulation which does not prevent a worker who has received an injury before the commencement of the 2001 lump sum amendments from being assessed for the purposes of determining whether the worker is a seriously injured worker under Div 2 of Pt 3 of the 1987 Act. He submitted that this was further evidence that there was no intention that the plural was to be included as the singular, as it spoke of only a singular injury.

THE ARBITRATOR’S DECISION

The Arbitrator noted that many of the same submissions argued before him had been put before me and rejected in Merchant. He also noted that since the case was heard in Albury, my decision in Merchant was delivered.
The Arbitrator considered the correct approach to be taken to the question of determining whether a contrary intention to that dictated by the terms of s 8(b) of the Interpretation Act had been demonstrated. He referred to Chief Commissioner of State Revenue v Timbs [2006] NSWADTAP 25 and Blue Metal Industries Ltd v Dilley [1969] UKPCHCA 2; 117 CLR 651; 3 ALL ER 437 (Dilley).
The Arbitrator stated that after examining the relevant statutory provisions and the approach to determining the question of contrary intent in Merchant, I had concluded that the statutory provisions in the workers compensation legislation pointed unequivocally to the contrary intention to that expressed by s 8(b) of the Interpretation Act.
The Arbitrator stated that the arguments put before him were slightly different to those argued in Merchant. At arbitration it was argued that the purpose of the reference to Div 4 in s 32A was to provide a procedural means to identify a seriously injured worker, those references within Div 4 that referred to “injury” in the singular were concerned with entitlement and had no application to the purpose for which the reference to Div 4 was incorporated into s 32A.
Notwithstanding that subtle distinction, the Arbitrator found that, based on the decision in Merchant, it is “quite clear that such a nice distinction is unsupportable in the context of both the language used and the legislative purpose of the Act”.
The Arbitrator rejected the balance of Mr McManamey’s submissions for the reasons stated in Merchant.

THE LEGISLATION

The term “seriously injured worker” is defined in s 32A of the 1987 Act as follows:
“seriously injured worker means a worker whose injury has resulted in permanent impairment and:
(a)     the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
(b)     the degree of permanent impairment has not been assessed because an approved medical specialist has declined to make an assessment until satisfied that the impairment is permanent and the degree of permanent impairment is fully ascertainable, or
(c)     the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.”
The relevant provisions of the Interpretation Act are as follows:
“5 Application of Act
…
(2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.
…”
“6 Definitions to be read in context
Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires.”

“8 Gender and number

In any Act or instrument:
…
(b) a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form,
…”

Section 322 of the 1998 Act provides:
“(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.”

ISSUE ON APPEAL

The sole ground of appeal is whether the Arbitrator erred when he considered that impairments arising from different distinct injuries could not be aggregated to determine if Ms Davison was a seriously injured worker.

SUBMISSIONS ON APPEAL

Ms Davison’s primary submissions

Mr McManamey’s submissions are substantially the same as the submissions in Merchant, in which he also appeared. The submissions may be summarised as follows.
The definition of a seriously injured worker in s 32A broadly requires the worker to have an impairment of more than 30 per cent. The requirement that it results from injury means the question is limited to injuries within the meaning of s 4.
The question is whether the definition requires the impairments to result from only one injury. The critical words are “whose injury”.
The words must be read in context taking into account the legislation as a whole. Section 8(b) of the Interpretation Act provides that in any Act, “a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form”. Applying the Interpretation Act to the definition of “seriously injured worker” produces the result that the reference to “injury” is a reference to “injuries” unless a contrary intention can be found in the legislation.
Mr McManamey submits that “in effect” the definition reads that a “seriously injured worker” means a worker whose injury or injuries has resulted in permanent impairment of greater than 30 per cent. This, he submits, is consistent with the use of the term elsewhere in the legislation and consistent with the intent of ensuring that seriously injured workers are cared for.
When making the second reading speech, the Treasurer said, “there will be no time cap on benefits for those seriously injured workers who have been assessed as having a level of impairment of over 30 per cent except for the Commonwealth retirement age”. He later said, “consistent with the recommendation of the parliamentary joint committee, seriously injured workers whose whole person impairment is more than 30 per cent will not be required to have work capacity assessments”. Mr McManamey submits that these statements by the Minister are consistent with the construction for which he contends.
The term “seriously injured worker” appears in two places in the legislation. In s 59A, a seriously injured worker is entitled to receive reasonably necessary medical treatment without the restrictions imposed by that section.
If a worker has an impairment of greater than 30 per cent, regardless of how many injuries it resulted from, he or she would have a significant need for ongoing treatment. The need for the treatment is not a function of how many injuries have been suffered either in the sense of pathology or injurious event. It is a function of the overall impairment suffered.
The second reference to “seriously injured worker” is in s 38(5) of the 1987 Act which states:
“An insurer is not to conduct a work capacity assessment of a seriously injured worker unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a seriously injured worker without conducting a work capacity assessment.”
Mr McManamey submits that the purpose of this section is to ensure that workers with an impairment of greater than 30 per cent are so incapacitated that a work capacity assessment is likely to be futile and they are therefore relieved of the necessity to submit to such an assessment unless requested. He submits that the purpose of the provision is met by including impairments resulting from all work injuries.
It is submitted that it would be “a strange result, and contrary to the intention of the legislation” to restrict the more sympathetic treatment of workers who have greater than 30 per cent impairment to only those who have the requisite impairment resulting from a single injury.
Mr McManamey further submitted that the considerations concerning aggregation as set out in Edmed and the following cases do not assist in the interpretation of s 32A. Those cases deal with the interpretation of different sections with different wording and a different purpose. Section 66 is concerned with a worker who suffers “an injury” and section 67 uses the same term. The use of “an” indicates that it is concerned with injury singular. Section 32A is in different terms.
Satisfying the definition of seriously injured worker does not create the original liability to pay compensation. Liability for medical expenses will depend on the body part being treated, the liability falling upon the employer or insurer responsible for the injury to that body part. In cases where liability results from more than one injury, s 22 (the apportionment provisions) would apply.

This approach, it is submitted, is consistent with Clarke JA’s comments in Sutherland Shire Council v Baltica General Insurance Co Ltd & Ors (1996) 12 NSWCCR 716 which provide that the correct approach is to first determine the entitlement of the injured worker and then consider the questions of apportionment.
Mr McManamey submits that the correct approach is to consider the overall impairment resulting from work injuries and then to consider to what extent each employer or insurer is liable to pay the compensation.

The respondent’s submissions

The respondent submits that, as Ms Davison’s submissions have been considered and rejected by me in Merchant, it was open to the Arbitrator to conclude that impairments resulting from multiple unrelated injuries could not be aggregated for the purposes of satisfying the threshold in s 32A.

Submissions at the direction of the Commission

As Ms Davison’s submissions did not touch upon the discussion in Merchant, I issued a Direction on 3 July 2015, requiring submissions on any relevant distinction between this appeal and Merchant.
In response to that Direction, further submissions were lodged on 13 July 2015, the substance of which may be summarised as follows.
Whilst it is conceded, as was pointed out in Merchant, that s 65 and s 66 require an assessment of the impairment resulting from a single injury or a single incident it is submitted that:
“there is no explanation as to why that would exclude those various impairments being combined, using the combining tables, to determine whether or not there is an overall impairment of greater than 30 per cent.”
Further, it is submitted that to exclude a combination of impairments imports into the concept of seriously injured worker, “an illogical and artificial distinction being that workers with the same or similar levels of impairment are treated differently depending upon how such impairment arose”. It is submitted that while such an approach may have been intended, or even desirable, where the issue is access to work injury damages, it has no utility in issues to which the “seriously injured worker” concept is directed.
In approaching the matter in the manner described above, it is submitted that there is a failure to consider s 8(b) of the Interpretation Act. Further, “there is no explanation as to why the contrary intent in s 65 should be imported into the definition of a seriously injured worker”.
At [125] in Merchant, I said:
“Had the legislature intended that the definition of ‘seriously injured worker’ in s 32A have the meaning for which the appellant contends namely, ‘a worker whose injury or injuries have resulted in permanent impairment’, it could easily have said so but did not.”
It is submitted that by virtue of the import of s 8(b) of the Interpretation Act, that is exactly what Parliament has said. Further it is submitted that no contrary intention can be identified in the statute to displace this “legislative outcome”.
It is further submitted that in Merchant I placed reliance upon the terms of s 322A. In doing so, it is submitted that, I concluded that the section only allowed for one assessment of permanent impairment in respect of an injury. The reasoning adopted failed to take into account the practicality that it would not be necessary to have a further medical assessment to determine whether a worker was a seriously injured worker.
In respect of each of the individual claims for permanent impairment benefits, there would have been a Medical Assessment Certificate which certifies a degree of permanent impairment resulting from each of those separate injuries or injurious events. In order to determine whether the total impairments were greater than 30 per cent, it is simply a matter of applying the combining tables in AMA 5. There is no need for any further assessment of the individual impairments as they have already been determined. Accordingly, s 322A has no part to play in determining whether or not a worker is seriously injured in the circumstances of this case.

DETERMINATION

Mr McManamey’s primary submissions are rejected for the reasons discussed in Merchant.
The supplementary submissions filed in response to my Direction are also rejected for the following reasons.
I accept that, applying s 8(b) of the Interpretation Act, the reference to “injury” in s 32A includes a reference to injury in the plural form. However, the presumption created by s 8(b) applies “…except in so far as the contrary intention appears…” either in the Interpretation Act or the instrument concerned, which in this case is a reference to the Workers Compensation Acts. In Merchant, I found that such a contrary intention was evidenced in the legislation for the reasons stated. I remain of that view.
In determining if a contrary intention appears, it is relevant to note, among a range of other factors, that the legislature adopted the reference to “injury” in the singular form when it could readily have referred to “injuries” plural, when enacting s 32A. Whilst that is not decisive it is a relevant matter.
In Merchant I noted two authorities relevant to determining whether a contrary intention appears, namely Dilley and Pfeiffer v Stevens [2001] HCA 71; 209 CLR 57; 185 ALR 183; 76 ALJR 269 (Pfeiffer). In Dilley, the Privy Council stated (at 656,846)
“…in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.”
In Pfeiffer, McHugh J (Gleeson J and Hayne J agreeing) said (at [56]), in considering the application of s 32(c) of the Acts Interpretation Act 1954 (Qld), the Queensland equivalent of s 8(b) of the Interpretation Act (NSW):
“An intention contrary to the Acts Interpretation Act may appear not only from the express terms or necessary implication of a legislative provision but from the general character of the legislation itself.”
In Merchant I discussed the scheme of the workers compensation legislation that results in entitlements to receive workers compensation. The starting point is the consideration of s 9 of the 1987 Act which creates the liability of employers for compensation for injuries received by workers. Section 9 speaks in terms of “a worker who has received an injury…”, that is an injury in the singular form.
Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, (singular) the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Relevantly, “injury” is defined in s 4 of the 1987 Act and s 4 of the 1998 Act, as a “personal injury arising out of or in the course of employment”, again a reference to the singular form of injury.
The concept of entitlements that are available only to seriously injured workers was introduced into the legislation by the Amendment Act and in particular by the introduction of s 32A.
It is important to observe that the definition of “seriously injured worker” requires that the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30 per cent.
Division 4 of the 1987 Act, which comprises ss 65–73, deals with compensation for non-economic loss. Section 65 provides that for the purposes of the Division, the degree of permanent impairment that results from an injury is to be assessed as provided by that section and Pt 7 (Medical assessment) of Ch 7 of the 1998 Act.
Section 65(2), provides that where a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purpose of Div 4.
Section 66(1) provides that a worker who receives an injury that results in a degree of permanent impairment greater than 10 per cent is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. In a recent decision in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35 (Barnes), Deputy President Roche held, applying the Interpretation Act, that “injury” in s 66(1) can, in an appropriate case, include “injuries”. However, the circumstances in Barnes are distinguishable from those in the present case.
In Barnes the worker had suffered an injury to her back in three separate work incidents. Roche DP held (at [66]), relying on Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354, that, in a claim for permanent impairment compensation under s 66, a single impairment can result from more than one injury, although the worker is restricted to one claim. However, it is important to note that, in that case the single impairment resulted from three separate injuries to the back, not separate and unrelated injuries to different body parts. The facts in this case are quite different. The impairment claimed arises from two separate and distinct injuries: one in 1996 to the neck and right arm, and one in 2002 to the back. Thus, the interpretation of “injury” in s 66 in Barnes does not assist Ms Davison.
Part 7 of Ch 7 of the 1998 Act includes s 322(2). That sub-section provides the mechanism for the assessment of permanent impairments that result from the same injury. That is, impairments from “the same injury” are to be “assessed together” to assess the degree of permanent impairment of the injured worker.
Section 322(3) provides the mechanism for assessing impairments that result from more than one injury arising out of the same incident. Under this sub-section impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
At the hearing of the appeal Mr McManamey argued that s 322 was an “authorising provision” for the assessment of injuries as outlined in the immediately preceding paragraphs. He argued that s 322 did not prohibit the aggregation of injuries arising from separate and unrelated events resulting in injuries to different body parts. He submitted (T27.31):
“MR McMANAMEY: Well, one of the - let's got back in - prior to the enactment of section 322 and we're dealing with the total disability, there's a body of law about how one can apply assessments of losses. And it wasn't based in the Act, it was based upon general law. It's the matters which were discussed at some length by Deputy President Roche in Richardson v Warrie Grazing. And the question there was always ultimately, if I'm dealing with one loss or different losses, one can aggregate. Now permanent impairment is a different thing, because a permanent impairment is always ultimately one impairment.”
In Richardson v Warrie Grazing Pty Ltd [2006] NSWWCCPD 159 (Richardson) the question to be determined concerned whether the worker’s injuries had resulted in one loss or two under the “Table – Compensation for permanent injuries” (the Table of Disabilities), applicable to injuries sustained before 1 January 2002. Acting Deputy President Roche (as he then was) found that where the worker sustained only one loss, which had resulted from multiple injuries, then the cumulative effect of the injuries could be considered for the purposes of determining the worker’s s 66 entitlements ([43]). If that entitlement met the s 67(2) threshold, as it then was, the worker was entitled to compensation for pain and suffering even though the loss had resulted from more than one injury. The Acting Deputy President further held that whether a worker suffered one loss or two was a question of fact determined on the evidence in each case.
Mr McManamey conceded that in a subsequent case, Kolak v Hunani Pty Ltd [2008] NSWWCCPD 60, Deputy President Roche held (at [18]) that the principles discussed in Richardson have no application to disputes involving injuries sustained after the amendments to the legislation in 2001. That was because, as a result of the amendments introduced in the Workers Compensation Legislation Amendment Act 2001, ss 65, 66 and 67 were substantially amended and the previous approach to aggregating the effect of multiple injuries is no longer applicable. Mr McManamey submitted that to the extent that Deputy President Roche found that the enactment of s 322 was a repeal of the previous law he was incorrect (T27.13).
Mr McManamey submits that s 322 should be read as complementing the existing legal principle (as found in Richardson) (T33). As the Arbitrator stated (at [63]), Mr McManamey appears to suggest that legislation is presumed not to alter common law doctrines unless expressly intended. I reject the submission for the following reasons.
First, Richardson does not establish a general legal principle; it considered the interpretation of the law as it existed at the time that case was determined in view of the unique circumstances of the case. That law has subsequently been substantially amended, particularly with the enactment of s 65 of the 1987 Act and s 322 of the 1998 Act.
Second, the definition of “seriously injured worker” in s 32A requires that the degree of permanent impairment has been assessed, for the purposes of Div 4, to be more than 30 per cent. The reference to Div 4 in turn directs attention to s 65, which requires that, for the purposes of Div 4, the degree of permanent impairment that results from an injury is to be assessed as provided in that section and Pt 7 Ch 7 of the 1998 Act. Part 7 Ch 7 includes s 322 of the 1987 Act which, as I have indicated, sets out how impairments that result from the same injury, or impairments that result from more than one injury arising out of the same incident, are to be assessed. Section 322 does not provide for the aggregation of whole person impairments caused by multiple unrelated incidents to different body parts involving different pathology.
Third, even accepting Mr McManamey’s submission regarding the application of Richardson, it does not assist Ms Davison. In Richardson the worker suffered two unrelated injuries to his back resulting in a single loss (under the Table of Disabilities). In the instant case, the injuries sought to be aggregated involve different body parts, that is, injuries to the neck, right arm and back. I do not accept that, even if Richardson was applicable to the current statutory regime (which it is not), there is anything that can be drawn from that authority that would support the aggregation of impairments arising from unrelated injuries to different body parts in order to meet a statutory threshold provision such as that found in s 32A.
Mr McManamey also submitted that because the legislature has used the words “whose injury” in s 32A, thereby deliberately choosing different terminology to that used elsewhere in the legislation, the legislature has chosen words that are amenable to the plural form. Therefore, it is submitted that this is an indicator that something different from what was said in s 65 is intended.
I do not accept that submission. When one considers the terms of ss 4, 9, 33, 65 and 322, it is abundantly clear that, considering s 32A in its setting in the legislation and the substance and tenor of the legislation as a whole, a contrary intention to the presumption created by s 8(b) of the Interpretation Act is powerfully demonstrated.
Mr McManamey submitted that no explanation had been provided as to why it is not simply a matter of applying the “combining tables” in order to determine whether an overall impairment of greater than 30 per cent has been reached. The Combined Values Chart does not apply because, in terms of multiple impairments, s 322 does not permit multiple impairments arising from separate and unrelated injuries being assessed as one single whole person impairment. To accept Mr McManamey’s proposition would be to introduce into the legislation a mechanism for aggregating impairments that is simply not permitted.
Although there may be instances where the Combined Values Chart can be used by an independent medical examiner (see Wynyard Properties Pty Ltd v Reyes [2013] NSWWCCPD 23) to determine the degree of permanent impairment that has resulted from an injury, that is only in the circumstances dealt with in s 322.
Even accepting that it is not necessary to have an Approved Medical Specialist use the Combined Values Chart, that does not assist Ms Davison. That is because it is not open to aggregate the different impairments in the circumstances of this case.

CONCLUSION

The Arbitrator was correct to conclude that the aggregation of impairments resulting from injuries to different body parts, in a series of unrelated incidents, to meet the required permanent impairment threshold as required by s 32A is not permitted.

ORDER

The Arbitrator’s determination of 31 March 2015 is confirmed.

Judge Keating
President

12 August 2015

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