Draca v Formtec Group (NSW) Pty Limited
[2016] NSWWCCPD 53
•7 November 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Draca v Formtec Group (NSW) Pty Limited [2016] NSWWCCPD 53 | |
| APPELLANT: | Dragoslav Draca | |
| RESPONDENT: | Formtec Group (NSW) Pty Limited | |
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited | |
| FILE NUMBER: | A1-2096/15 | |
| ARBITRATOR: | The Honourable L Ashford | |
| DATE OF ARBITRATOR’S DECISION: | 1 July 2016 | |
| DATE OF APPEAL DECISION: | 7 November 2016 | |
| SUBJECT MATTER OF DECISION: | Application of Schedule 8, clause 11 of the Workers Compensation Regulation 2016 | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | NSW Compensation Lawyers |
| Respondent: | Kemp & Co Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated I July 2016 is revoked. 2. In substitution the following orders are made: “1. The respondent is to pay the following sums to the applicant, by way of additional lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987, resulting from injury on 28 November 2001: (a) $2,000 in respect of an additional five per cent permanent impairment of the neck, and (b) $3,750 in respect of an additional five per cent permanent loss of use of the right leg at or above the knee.” | |
INTRODUCTION
This appeal involves s 66(1A) of the Workers Compensation Act 1987 (the 1987 Act) and Sch 8, cl 11 of the Workers Compensation Regulation 2016 (The Regulations), (formerly Sch 8, cl 11A of the Workers Compensation Regulation 2010 [the 2010 Regulations]), where claims for lump sum compensation were made both prior to, and on or after, 19 June 2012. The former cl 11A was inserted into the 2010 Regulations by the Workers Compensation Amendment (Lump Sum Compensation Claims) Regulation 2015, which commenced from 13 November 2015.
BACKGROUND
Dragoslav Draca (the appellant) suffered injury (the occurrence of which is not in dispute) in the course of his employment with Formtec Group (NSW) Pty Limited (the respondent), on 28 November 2001.
The appellant attached a chronology to his Application to Appeal, which recites various claims for lump sum compensation over the years since the injury, and the events leading to their resolution. The respondent, in its Notice of Opposition, did not attach a competing chronology, and stated that it did “not wish to add to the Appellant’s chronology”. The appellant lodged an amended chronology on 23 August 2016. The respondent lodged no document that competed with the amended chronology. The chronologies describe various claims for lump sum compensation and the basis on which they were dealt with:
25 January 2006 Letter of claim for lump sums in respect of the back, neck, left arm, left leg and right leg.
29 August 2006 Settled by way of s 66A agreement for 10% permanent impairment of the back, 9% permanent loss of the left leg at or above the knee and 9% permanent loss of the left arm at or above the elbow, together with a sum pursuant to s 67 of the 1987 Act.
27 July 2007 Letter of claim for additional compensation in respect of the left arm and right leg.
4 October 2007 Application to Resolve a Dispute (No 7503/07) lodged.
7 December 2007 Proceedings No 7503/07 discontinued.
27 March 2008 Application to Resolve a Dispute (2196/08) lodged claiming additional compensation in respect of the right leg.
19 June 2008 Proceedings No 2196/08 settled by way of agreement to pay compensation for 5% loss of use of the right leg, and a further sum pursuant to s 67.
20 December 2011 Proceedings No 11406/11 lodged claiming additional lump sums and resolution of a ‘threshold dispute’.
3 April 2012 Settlement by way of complying agreement for additional 5% permanent impairment of the neck
27 July 2012 MAC of Dr Beer certifying additional loss of use of the left leg of 1%, together with 14% WPI on a threshold dispute.
3 September 2012 Proceedings No 11406/11 settled by way of an award for additional 1% permanent loss of the left leg at or above the knee.
30 October 2012 Letter of claim for lump sum in respect of bowel and digestive systems.
13 December 2012 Proceedings No 16012/12 lodged claiming a lump sum for the bowel and resolution of a threshold dispute.
9 October 2013 MAC of Dr Kumar – 0% bowel function, 14% whole person impairment in threshold dispute (cervical spine, lumbar spine, left upper extremity, both lower extremities).
18 February 2014 Letter of claim for additional lump sum compensation, incorrectly “based on WPI instead of the old Table”.
24 February 2014 Medical Appeal Panel confirms MAC of Dr Kumar, in proceedings no 16012/12.
7 March 2014 Application for reconsideration of MAC by the Medical Appeal Panel, lodged in proceedings no 16012/12.
14 April 2014 Letter of claim for additional lump sum compensation under Table of Disabilities, for back, neck, left arm at or above the elbow, and both legs at or above the knee.
17 April 2014 Medical Appeal Panel declines to reconsider the MAC in proceedings no 16012/12.
26 May 2014 Matter 16012/12 finalised on the basis there was 0% permanent loss of bowel function.
10 November 2014 Letter regarding further threshold dispute based on additional WPI for digestive system.
The current proceedings, number 2096/15 (the proceedings) were commenced by an Application to Resolve a Dispute lodged on 15 April 2015 (the Application). They claim additional lump sum compensation in respect of further permanent impairment of the neck and back, permanent loss of the left arm at or above the elbow, permanent loss of both legs at or above the knee, and bowel injury/impairment, together with a threshold dispute.
On 16 June 2015 the matter was listed for telephone conference before a Commission Arbitrator. Consent Orders were made referring the matter to two Approved Medical Specialists (AMS’s) for:
(a) Assessment under the Table of Disabilities of permanent impairment of the neck, permanent loss of efficient use of the right leg at or above the knee and permanent loss of bowel function as a result of injury on 28 November 2001.
(b) Assessment for the purpose of resolution of a threshold dispute of Whole Person Impairment in respect of the cervical spine, right lower extremity (knee) and digestive system as a result of injury on 28 November 2001.
A Medical Assessment Certificate (MAC) of Dr Beer and Dr Kumar, dated 11 September 2015, assessed an additional 5% permanent impairment of the neck and 7% of the right leg at or above the knee, together with 16% WPI on the threshold dispute.
The Commission issued a Certificate of Determination in the proceedings, dated
25 November 2015, awarding a further 7% permanent loss of the right leg at or above the knee, and 10% permanent impairment of the neck.The respondent’s solicitors wrote to the Commission on 23 December 2015 setting out a summary of the history of lump sum claims. The respondent sought a reconsideration of the Certificate of Determination dated 25 November 2015, on the bases that:
(a) the respondent had written to the Commission on 6 October 2015 asking that the matter be listed for telephone conference prior to issue of a Certificate of Determination, and this had not occurred;
(b) the Certificate of Determination did not take into account the prior settlement in respect of the neck, and
(c) consistent with the decision in Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250; 13 DDCR 281 (Cram Fluid) (delivered on 27 August 2015), the proceedings could not be maintained by the appellant.
The matter was listed for arbitration hearing on 24 March 2016. It did not conclude, and was again listed on 2 June 2016. Mr G Young of counsel appeared for the appellant, and Mr P Perry of counsel appeared for the respondent. No oral evidence was adduced. Counsel spoke to written submissions previously lodged by both parties. The Arbitrator reserved her decision.
THE ARBITRAL DECISION
The Arbitrator said that the appellant had made a claim for lump sum compensation in respect of the digestive tract, by letter dated 30 October 2012. He had issued an Application to Resolve a Dispute, for lump sum compensation for the bowel and digestive tract, on
13 December 2012. Dr Kumar, an Approved Medical Specialist (AMS) assessed “zero per cent loss of bowel function” and “zero per cent whole person impairment of the digestive tract”. The appellant asserted that the claim made on 30 October 2012 was “an invalid claim”. The respondent asserted that it was a valid claim. The appellant, the respondent submitted, was limited to “one claim after the new legislation was enacted on 19 June 2012 and that claim was made on 30 October 2012 and completed to finality”.The Arbitrator summarised the procedural background of the matter, and the submissions of the parties. She referred to the decision of Roche DP in Woolworths Ltd v Stafford [2015] NSWWCCPD 36 that a ‘claim’ should be made in accordance with, and be capable of payment in accordance with, the 1987 Act. ‘Claim’ should be interpreted “to mean at the least, a valid claim”. The claim in respect of bowel function, if the AMS had attributed a permanent loss, was capable of payment. The loss, on assessment by an Approved Medical Specialist (AMS), was zero. An appeal did not succeed. A Certificate of Determination was issued. The Arbitrator said “The matter had proceeded to finality, and thus in my view constitutes ‘one claim’ for the purposes of s 66(1A).” The further lump sum claim made in April 2014 “offends section 66(1A) and is not saved by the Regulations”. There was an award for the respondent on the claim pursuant to s 66.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The appellant, in his Application to Appeal at 2.3, has marked the box “No”, indicating the matter cannot be decided solely on the basis of the written application and notice of opposition. However the appellant did not include any submissions going to why the appeal should not be determined on the papers, and why a hearing is necessary. The respondent, in its Notice of Opposition, indicated that the appeal can be determined solely on the basis of the written material.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submission by the respondent that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
THE DECISION IN CRAM FLUID
In Cram Fluid Gleeson JA (Beazley ACJ & Emmett JA agreeing) at [91] said:
“In short, the 2013 Claim which Mr Green sought to pursue before the Commission does not answer the description in cl 11 of a claim that ‘specifically sought compensation under s 66 ... made before 19 June 2012’. The fact that the 2010 Claim may have answered that description is not to the point. Once it is accepted, as it must be, that the 2013 Claim although arising out of the same injury was a different claim to the 2010 Claim, the effect of cl 15 of Pt 19H is that Mr Green’s 2013 Claim is subject to the operation of the amending provisions, including the one claim limitation in s 66(1A).”
THE LEGISLATION
Section 66(1A) of the 1987 Act provides:
“(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.”
Schedule 8, cl 11 of the Regulations (cl 11) provides:
“11 Lump sum compensation: further claims
(1) A further lump sum compensation claim may be made in respect of an existing impairment.
(2) Only one further lump sum compensation claim can be made in respect of the existing impairment.
(3) Despite section 66 (1) of the 1987 Act, the degree of permanent impairment in respect of which the further lump sum compensation claim is made is not required to be greater than 10%.
(4) For the purposes of subclauses (1) and (2):
(a)a further lump sum compensation claim made, and not withdrawn or otherwise finally dealt with, before the commencement of subclause (1) is to continue and be dealt with as if section 66 (1A) of the 1987 Act had never been enacted, and
(b)no regard is to be had to any further lump sum compensation claim made in respect of the existing impairment:
(i)that was withdrawn or otherwise finally dealt with before the commencement of subclause (1), and
(ii)in respect of which no compensation has been paid, and
(c)section 322A of the 1998 Act does not operate to prevent an assessment being made under section 322 of that Act for the purposes of a further lump sum compensation claim.
(5) The following provisions are to be read subject to this clause:
(a)section 66 of, and clause 15 of Part 19H of Schedule 6 to, the 1987 Act,
(b)section 322A of the 1998 Act,
(c)clauses 10 and 19 of this Schedule.
(6) In this clause:
existing impairment means a permanent impairment resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012.
further lump sum compensation claim means a lump sum compensation claim made on or after 19 June 2012 in respect of an existing impairment.
lump sum compensation claim means a claim specifically seeking compensation under section 66 of the 1987 Act.”
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
GROUND NO 1 – THE CLAIM ON 14 APRIL 2014: S 66(1A) AND CL 11
The Appellant’s Submissions
The appellant submits that, even if the October 2012 claim was valid, the Arbitrator erred in failing to apply cl 11(4). He submits that cl 11(4)(a) does not apply to the October 2012 claim, as it was “finally dealt with” prior to the commencement of cl 11. He submits that, consistent with cl 11(4)(b), “no regard” is to be had to the October 2012 claim, as it was “finally dealt with” prior to the commencement of cl 11(1), and no compensation was paid in respect of it.
The appellant submits that, pursuant to cl 11(4)(c), s 322A of the 1998 Act does not prevent an assessment under s 322 of that Act, “for the purposes of a further lump sum compensation claim”. The matter has been assessed, in the combined MAC of Dr Beer and Dr Kumar dated 11 September 2015. The appellant submits that an award should be entered consistent with that assessment.
The appellant submits that there is “no ambiguity in the plain language used in Clause 11A(4), especially Clause 11A(4)(b)”. He submits that if there is any ambiguity in the language used, it should be subject to a beneficial construction, given its purpose of saving further lump sum claims made after 19 June 2012. Reference is made to Military Rehabilitation and Compensation Commission v May [2016] HCA 19, Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 (Alcan).
The Respondent’s Submissions
The respondent submits that the Arbitrator noted the appellant’s submissions on cl 11(4) at [17], [23] and [24] of her reasons. It submits that the Arbitrator correctly dealt with the appellant’s argument based on cl 11, at [38] of her reasons. The October 2012 claim had been finally dealt with. Additionally, it is submitted that the regulation deals with an “existing impairment”. The claim in respect of the bowel and digestive systems, made in October 2012, was not “an existing impairment”.
Consideration
The letter dated 30 October 2012, said (in the appellant’s amended chronology) to claim “s 66 re bowel & digestive systems”, is not in the material before me. The chronology indicates that it appears at page 195 of the Application, but this is not so. It is not referred to in Part 6 of the Application, which lists the supporting documentation relied on. The respondent has not challenged the description of the document in the appellant’s amended chronology. The respondent’s letter to the Commission dated 23 December 2015 (exhibit ‘J’) describes the letter dated 30 October 2012 as “duly making a claim for further lump sum compensation pursuant to Section 66 and Section 67 with[er] respect to 7% WPI of the digestive tract together with 20% pursuant to Section 67”. This is consistent with the appellant’s submissions at [2.9.17] and I accept it as an accurate description for the purposes of this appeal.
The appellant submits that, given the date of injury was 28 November 2001 (that is, before 1 January 2002), the letter dated 30 October 2012 was “not a valid claim in Terms of the Table of Disabilities”. However, the appellant then concedes that “a claim was later made for the bowel as AMS Dr Kumar assessed 0% under the old Table in the MAC dated 9 October 2013”. This concession is a practical one. Dr Kumar assessed the appellant in Commission proceedings no 16012/12 (commenced on 13 December 2012), pursuant to a referral based on consent orders dated 8 July 2013. The Commission’s jurisdiction to entertain that dispute, regarding bowel function, was dependent on the existence of a claim (s 289(3) of the 1998 Act).
Thus the appellant concedes a claim was made at some point in time prior to commencement of those proceedings, although not necessarily on 30 October 2012. The precise date does not assume importance, on the parties’ submissions. The parties have referred to it as “the October 2012 claim”, and I will adopt the same description.
The proceedings no 16012/12 were, according to the appellant’s amended chronology, commenced on 13 December 2012 and finally concluded on 26 May 2014. The appellant did not recover any lump sum compensation in those proceedings, his loss of bowel function having been assessed at zero by the AMS Dr Kumar (MAC dated 9 October 2013), and this assessment having been confirmed by the Medical Appeal Panel (decisions dated 24 February 2014 and 17 April 2014).
The current proceedings were based on a claim made on 14 April 2014, which claimed pursuant to the Table of Disabilities in respect of the neck, back, left upper extremity at or above the elbow, and both lower extremities at or above the knee.
The appellant argues that the October 2012 claim was not a valid claim, and was a nullity due to the operation of s 66(1A) of the 1987 Act. I will approach the issue of whether cl 11 permits the appellant to pursue the current claim on the assumption, contrary to the appellant’s position, that the October 2012 claim was valid, and was not a nullity.
Regulations are to be construed according to ordinary principles of construction: Master Education Services Pty Limited v Ketchell [2008] HCA 38; 236 CLR 101at [19]. The operation of cl 11was recently considered by Keating P in Avni v Visy Industrial Plastics Pty Ltd [2016] NSWWCCPD 46 (Avni).
Clause 11 (clause 11A as it was originally styled) commenced on 13 November 2015. The claim made on 14 April 2014 clearly falls within the definition of a “further lump sum compensation claim” in cl 11(6). Sub-clauses (1) and (2) of cl 11 permit one further lump sum compensation claim to be made. The claim made on 14 April 2014 was made, and not “withdrawn or otherwise finally dealt with before the commencement of subclause (1)”. In those circumstances cl 11(4)(a) provides that the claim should “continue and be dealt with as if s 66(1A) of the 1987 Act had never been enacted”. Thus the claim made on 14 April 2014 is available to the appellant as his “one further lump sum compensation claim”.
The only potential argument against this proposition, is that the appellant previously had his one further claim, when he pursued the October 2012 claim. However, that argument is inconsistent with the application of cl 11(4)(b), which provides that, for the purposes of subclauses (1) and (2):
“(b) no regard is to be had to any further lump sum compensation claim made in respect of the existing impairment:
(i)that was withdrawn or otherwise finally dealt with before the commencement of subclause (1), and
(ii)in respect of which no compensation has been paid,”
The October 2012 claim was finally dealt with when it was finalised (according to the appellant’s amended chronology, which is not challenged) on 26 May 2014, on the basis of “0% re bowel”, consistent with the MAC of Dr Kumar. For the purposes of cl 11(1) and cl 11(2), no regard is to be had to the October 2012 claim, due to the application of cl 11(4)(b).
It follows that the claim made on 14 April 2014 is available as if section 66(1A) “had never been enacted”. This does not depend on the status of the October 2012 claim, whether it was valid, whether it was a nullity. If it was a nullity, the claim made on 14 April 2014 is the one further lump sum compensation claim. If the October 2012 claim was valid, no regard is had to it, as it was finally dealt with before 13 November 2015, and no compensation was paid in respect of it.
The above application of cl 11 is consistent with the approach taken by Keating P in Avni. It is consistent with the clear words of the clause, interpreted according to their “ordinary and grammatical sense”: Alcan at [4].
The beneficial nature of the provision is plain. It permits workers, in certain circumstances, to make one further lump sum compensation claim which would otherwise be precluded by s 66(1A) of the 1987 Act. Whilst I do not detect ambiguity, if there was ambiguity in the language, it would be appropriate to give the provision a beneficial construction in favour of the injured worker (ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 13 DDCR 90 at [28]–[29]). I note also that this is consistent with the Explanatory Note to the Workers Compensation Amendment (Lump Sum Compensation Claims) Regulation 2015 (which inserted the clause). It provided:
“The object of this Regulation is to make further transitional arrangements consequent on the enactment of the Workers Compensation Legislation Amendment Act 2012 with respect to claims for permanent impairment compensation. The Regulation will enable a worker who made a claim before 19 June 2012 for permanent impairment compensation in respect of an injury to make one further claim for compensation in respect of the permanent impairment that results from the injury.”
The respondent additionally submits that the October 2012 claim in respect of “bowel and digestive systems” was not “a claim in respect of the existing impairment”. This is irrelevant to the additional compensation claimed pursuant to s 66 of the 1987 Act, the only assessments relevant to the further lump sum compensation claim were in respect of the neck (10 per cent) and the right leg at or above the knee (12 per cent) in the MAC of Dr Beer dated 7 July 2015. I also note that the consolidated MAC dated 7 July 2015, dealing with a threshold dispute, included assessments of “0” in respect of both upper digestive tract and lower digestive tract.
It follows that the first ground of appeal is made out. It is not necessary to deal with ground no 2.
DECISION
The appellant submits that, after allowing for compensation previously paid, the appropriate awards pursuant to s 66 of the 1987 Act are for additional amounts of:
(a) $2,000 in respect of an additional five per cent permanent impairment of the neck, and
(b) $3,750 in respect of an additional five per cent permanent loss of use of the right leg at or above the knee.
I do not understand the respondent to make a submission contrary to this, as regards the sums to be awarded (if the appellant is otherwise entitled to succeed) by way of additional lump sum compensation.
The appellant additionally submits that the orders should include an order that the appellant has satisfied the threshold dispute with 16 per cent whole person impairment. Section 314(2) of the 1998 Act makes provision for when there is considered to be “no dispute” as to whether “an injury is sufficient for an award of damages”. Section 314(2)(b) provides that this is so if an AMS has given a MAC certifying whole person impairment of “at least 15%”. This provision is not dependent on an award of the Commission, and consequently it is not the Commission’s usual practice to make orders going to whether the relevant threshold has been satisfied.
The Certificate of Determination dated 1 July 2016 is revoked.
In substitution the following orders are made:
“1. The respondent is to pay the following sums to the applicant, by way of additional lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987, resulting from injury on 28 November 2001:
(a)$2,000 in respect of an additional five per cent permanent impairment of the neck, and
(b)$3,750 in respect of an additional five per cent permanent loss of use of the right leg at or above the knee.”
Michael Snell
Deputy President
7 November 2016
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