Favetti Bricklaying Pty Limited v Benedek

[2017] NSWSC 417

Supreme Court

New South Wales

Medium Neutral Citation:

Favetti Bricklaying Pty Limited v Benedek and Anor [2017] NSWSC 417

Hearing dates:

22 July 2016

Date of orders:

24 April 2017

Decision date:

24 April 2017

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

1. The decision of the second defendant to refer the assessment of permanent impairment of the first defendant to Approved Medical Specialist is set aside.

 

2. The second defendant, and its officers, servants and agents, are restrained from acting upon, or taking any further step, to refer the assessment of the first defendant’s whole person impairment to an Approved Medical Specialist until such time as liability in respect of the first defendant’s claimed injury to the thoracic spine has been determined by the Workers Compensation Commission of New South Wales.

 3. The parties are to provide any written submissions as to costs within seven (7) days, such submissions not to exceed two pages in length.

Catchwords:

STATUTORY INTERPRETATION – Workers Compensation Legislation – Where first defendant alleged that he had sustained an injury at work – Where liability was denied by the insurer – Where Deputy Registrar of the Workers Compensation Commission referred the matter to an Approved Medical Specialist in circumstances where liability remained in issue – Where insurer asserted that the matter should be referred to the Commission for determination of liability – Necessity to construe relevant provisions of Workers Compensation legislation – Application of principles of statutory interpretation – Necessity to consider the text of the provision pursuant to which the determination was made – Meaning of text plain on its face – Where alternative construction would lead to consequences which were clearly unintended by the legislature - Error established

Legislation Cited:

Workers Compensation Act 1987 (NSW)
Workers Compensation Regulation 2010 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Federal Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503; [2012] HCA 55
Jonson v R [2016] NSWCCA 286
Junsay v Uncle Toby’s Company Limited [2009] NSWWCCPD
K. & S. Lake City Freighters Pty Limited v Gordon & Gotch Limited (1985) 157 CLR 309; [1985] HCA 48
Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; [2013] HCA 35
Michael v State of New South Wales [2011] NSWSC 231
Minister for Immigration and Citizenship v Szizo & Ors (2009) 238 CLR 627; [2009] HCA 37
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Category:

Principal judgment

Parties:

Favetti Bricklaying Pty Limited – Plaintiff
Milan Benedek – First Defendant
Registrar of the Workers Compensation Commission of New South Wales – Second Defendant

Representation:

Counsel:

   

S Pritchard SC and G Barter – Plaintiff
R Goodridge – First defendant
A Rao – State Insurance Regulatory Authority (as Amicus Curiae)

 

Solicitors:

  Sparke Helmore Lawyers – Plaintiff
Firths – First Defendant
Ms M Snell, Dept of Finance Services and Innovation – State Insurance Regulatory Authority (as Amicus Curiae)

File Number(s):

2016/00012035

Publication restriction:

Nil

Judgment

INTRODUCTION

1. By a summons filed on 13 January 2016 Favetti Bricklaying Pty Limited (“the plaintiff”) seeks the following orders:

1. An order in the nature of certiorari, or a declaration, setting aside or declaring invalid the decision of the Second Defendant dated 15 December 2015 to refer the assessment of permanent impairment of the First Defendant to an Approved Medical Specialist.

2. An order in the nature of prohibition or an injunction, preventing the Second Defendant, or any of its officers, servants or agents, from acting on or taking any further step to refer the assessment of whole person impairment to an Approved Medical Specialist until such time as liability in respect of the First Defendant’s claimed injury to the thoracic spine has been determined by the Workers Compensation Commission of New South Wales.

3. Any further or other orders as the Court thinks fit.

4. Costs.

2. The summons pleads the following particulars of the second defendant’s decision:

1. The decision maker is the Deputy Registrar of the Worker’s Compensation Commission of NSW (“the Commission”), Annette Farrell, acting as a delegate of the Registrar of the Commission.

2. The decision to be reviewed was made on 15 December 2015 which confirms earlier decisions of the Deputy Registrar made on 9 December 2015 and 2 December 2015, and a decision of a delegate of the Second Defendant, Padmini Sundaraj dated 7 December 2015, which purports to refer a claim for whole person impairment by the First Defendant for assessment by an Approved Medical Specialist pursuant to s. 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

3. The summons was supported by an affidavit of Greg Guest, solicitor of 26 May 2016, which was read without objection. The factual summary below is drawn largely from the contents of that affidavit.

4. The State Insurance Regulatory Authority (“the Authority”) made submissions to the Court as Amicus Curiae.

THE FACTS

5. On 5 October 2005, Milan Benedek (“the first defendant”) was injured whilst employed by the plaintiff as a bricklayer. On 5 November 2008 a complying agreement under s. 66A of the Workers Compensation Act 1987 (NSW) (“the WCA”) was entered into between the plaintiff, the first defendant and QBE Workers’ Compensation (NSW) Limited (“QBE”). That agreement noted that the first defendant had suffered a 14% whole person impairment as a consequence of his injuries, and recorded the following amounts of compensation payable to him as follows:

1. permanent impairment pursuant to s. 66 of the WCA - $18,500.00.

2. pain and suffering pursuant to s. 67 of the WCA - $10,000.00.

6. The first defendant executed the agreement on 13 November 2008.

7. On 6 April 2015 the first defendant’s solicitor wrote to QBE enclosing a report of Dr Patrick of 4 April 2015, which was prepared following Dr Patrick’s examination of the first defendant on 9 March 2015. Dr Patrick recorded the nature of the first defendant’s injury to be a work related back injury, with effect on the lower limbs, mainly the right lower limb. Dr Patrick stated (inter alia):

At the time Milan Benedek was employed with Favetti’s and was working at Westpoint in Blacktown laying blocks. While laying a block he became aware of a sudden sharp pain, sudden and severe at low lumbar region, but also widespread at lumbar and lower thoracic spine. Pain was quite severe. He attempted to continue working but with increasing difficulty and about a week later he collapsed with severe pain when just attempting to put on his shorts.

8. Having recorded his findings on examination, Dr Patrick concluded (inter alia):

Mr Milan Benedek presents as genuine. He has sustained significant back injury during the course of his work on 5 October 2005 as described. There is no history of relevant prior symptoms and it is likely that at this time he has sustained disc injuries particularly at two lower levels at lumbar spine and with development of some early right sided nerve root compromise at least two levels.

…

I do believe that it is clear that there has been deterioration in his condition since the previous settlement in respect of 14% whole person impairment. Such deterioration is as a consequence of effects of workplace injuries of 5 October 2005.

9. In his letter of 6 April 2015, based upon the report of Dr Patrick, the first defendant’s solicitor particularised a further claim for compensation as follows:

1. $12,650.00 with respect to an additional 7% whole person impairment; and

2. $20,000.00 with respect to additional pain and suffering.

10. The first defendant’s solicitor sought a concession from QBE that in light of the findings of Dr Patrick, the second defendant’s level of whole person impairment now exceeded 15%. The letter concluded:

We advise that at the expiration of eight weeks, we will immediately forward this claim to the Workers Compensation Commission for resolution of this dispute.

11. On 7 May 2015, the first defendant’s solicitor wrote to QBE and advised that he had been instructed to bring a claim for work injury damages. QBE responded by letter of 28 May 2015 denying liability for the first defendant’s claim under s 74 of the Workplace Injury Management and Workers Compensation Act 1988 (NSW) (“the WIMA”). In short, QBE asserted that the injury to the thoracic spine asserted by the first defendant was not related to his employment as required by s. 9A of the WCA and further, that the first defendant had not sustained any permanent impairment over and above that for which he had already been compensated. The letter noted that the first defendant had been assessed at QBE’s request by Dr Casikar on 8 May 2015 who had formed the view that the first defendant’s condition was due, in the main, to degenerative disease of the lumbar spine and diabetes. The letter went on to explain that Dr Casikar had assessed the first defendant’s whole person impairment at 10%.

12. On 28 October 2015 the solicitor for the first defendant served an application for assessment of the first defendant’s injury by an Approved Medical Specialist (“AMS”). On 11 November 2015, the plaintiff’s solicitor wrote to the solicitor for the first defendant, and to the second defendant, in the following terms:

Please find attached our response for filing/by way of service.

We request that this matter be referred for a teleconference on the basis that liability for the worker’s alleged thoracic spine injury is in dispute.

(The plaintiff) submits that pursuant to section 321(4)9a) (sic) of the WIM Act the Registrar has no power to refer this matter to an AMS until the issue of injury to the thoracic spine has been determined.

We respectfully request that this matter is referred to an Arbitrator for determination of this injury issue, unless the Applicant formally withdraws the allegation of injury to the thoracic spine.

13. In his response of 19 November 2015, the solicitor for the first defendant took issue with the proposition that the second defendant did not have power to refer the matter to an AMS until the issue of liability had been determined, and asserted that the Workers Compensation Commission (“the Commission”) had no jurisdiction to hear and determine matters for the purposes of a work injury damages claim.

14. On 20 November 2015 the solicitor for the plaintiff responded by taking issue with the proposition that the Commission did not have jurisdiction. Having set out a number of legislative provisions, including the provisions of s. 321 of the WIMA, the plaintiff’s solicitor stated:

(The plaintiff) maintains that as there is an issue of injury in this matter, the Registrar has no power to refer the dispute to an AMS until the injury issue is determined by an Arbitrator. (The plaintiff) submits that (the first defendant’s) submission would lead to the perverse result that issues of injury arising under the Act would be dealt with by the District Court rather than the Commission and that this is inconsistent with the jurisdiction provided by s105 of the WIMA which gives the Commission exclusive jurisdiction to determine matters of injury under the Act.

The Registrar should refuse to refer the application for assessment to an AMS or alternatively refer the matter to an Arbitrator for determination of the injury issue first.

15. On 2 December 2015 the second defendant wrote to the parties in the following terms:

Section 105(2) of the 1998 Act limits the Commission’s jurisdiction with respect to claims for work injury damages to Part 6 of Chapter 7. This Part provides for the resolution of threshold disputes, pre-filing disputes and pre-court mediation only. Section 105(3) further limits the Commission’s role where the District Court has jurisdiction to examine, hear or determine a matter. A number of Presidential decisions issued since 2005, including Junsay v Uncle Toby’s Company Limited [2009] NSWWCCPD 71, confirm that the Commission has no jurisdiction to hear or determine matters for the purposes of a work injury damages claim.

Ultimately, the issue as to what constitutes injury for the purposes of a work injury damages claim, will be determined by a court of competent jurisdiction, rather than the Commission, should the claim be pursued.

Whilst I note your submission with respect to section 321(4)(a), I consider that section can only apply to a claim for permanent impairment compensation. The section contemplates a power of the Commission to determine liability, which is clearly not a power that can be exercised when the dispute arises from a work injury damages claim.

(The first defendant) has proceeded (sic) the work injury damages claim on the basis of injury that includes the thoracic spine. The matter will be referred to the AMS in accordance with that claim.

16. On 2 December 2015 the plaintiff’s solicitor wrote to the second defendant seeking a reconsideration of the matter, and taking issue with the second defendant’s interpretation of the legislation. In particular, the plaintiff’s solicitor took issue with the proposition that s.321(4)(a) of the WIMA prevented the referral of a medical dispute concerning permanent impairment, suggesting that if the legislature had intended this to be the case it could have said so clearly. It was pointed out that under the legislation, a “medical dispute” was not limited to a claim for permanent impairment. It was further submitted that “the plain reading” of s. 321(4)(a) of the WIMA applied to a broader class of claims than those for permanent impairment compensation. The letter concluded by asserting that the Commission had the necessary jurisdiction and that the decision to refer the matter to an AMS was an error.

17. On 7 December 2015, Padmini Sundaraj, the Co-ordinator of Dispute Management at the Commission, forwarded the plaintiff a referral to an AMS. That referral was in the following form:

WORKERS COMPENSATION COMMISSION

REFERRAL FOR ASSESSMENT OF PERMANENT IMPAIRMENT TO APPROVED MEDICAL SPECIALIST

Matter No: 006113/15

Claimant: milan benedek

defendant: favett (sic) bricklaying pty ltd

Date of request: 7 december 2015

medical dispute referred for assessment (s 319 1998 Act)

the degree of permanent impairment of the worker as a result of an injury (s 319(c)).

whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s 319(d)).

whether impairment is permanent (s 319(f)).

whether the degree of permanent impairment of the injured worker is fully ascertainable (s 329(g)).

DATE OF INJURY: 5 OCTOBER 2005

Body Part/s referred Lumbar Spine, Thoracic Spine, scarring (TEMSKI)

Method of assessment: WHOLE PERSON IMPAIRMENT

Note: This matter is referred as a threshold dispute only – the AMS is to assess as the whole person impairment regardless of the date of the injury.

BRIEF

The brief provided to the Approved Medical Specialist includes:

the Application and documents attached to the Application.

the Response and the documents attached to the Response.

ARRANGEMENTS

The parties request the Registrar to choose the AMS(s 321(1)):

DR PETER HOLMAN, PARRAMATTA

Referred by:

Padmini Sundaraj

Coordinator Dispute Management

AS DELEGATE OF THE REGISTRAR

18. On 7 December 2014 the solicitor for the plaintiff wrote to Ms Sundaraj objecting to the referral on the basis that (inter alia):

liability was declined in relation to the alleged injury to the thoracic spine; and

the Registrar had no power to refer the dispute to an AMS when there is was an issue as to liability which had not been determined pursuant to Section 321(4) of the WIM Act.

19. On 9 December 2015 the second defendant responded to the plaintiff’s solicitors and confirmed her earlier decision. In doing so, the second defendant stated (inter alia):

Whilst I note your comments about section 314(2), the Court has a power to refer a matter for further assessment pursuant to section 329(1)(b). As such, should the Court at a later date find for the defendant with respect to injury, the Court can refer the matter back to the Commission. A MAC issued from the further assessment prevails over the previous certificate (s. 329(2)).

As advised, the Commission does not have power to hear or determine matters for the purposes of a work injury damages claim and as such, your request to refer the matter to an Arbitrator to determine injury is declined.

20. The plaintiff’s solicitor responded to the second defendant on 9 December 2015, addressing the second defendant’s observations regarding s. 329 of the WIMA, and re-stating his position as to the proper interpretation of s. 321(4)(a). On 11 December 2015 the solicitor for the first defendant wrote to the second defendant, effectively submitting to her that her decision should stand, and that the matter should be referred to an AMS. The solicitor for the plaintiff responded on the same day by referring the second defendant to further authority, before again confirming his position regarding the interpretation of s. 321(4)(a).

21. On 15 December 2015 the second defendant wrote to the plaintiff’s solicitor rejecting his submissions and confirming that the matter would proceed to an assessment by an AMS. The present proceedings were then commenced on 13 January 2016.

THE RELEVANT STATUTORY PROVISIONS

22. The scheme of workers compensation in New South Wales is governed by two statutes, namely the WCA and the WIMA. The WCA contains (inter alia) provisions relating to a worker’s entitlement to compensation, the benefits payable, common law remedies and other related matters. The WIMA provides for (inter alia) the effective management of work-related injuries. The WCA is to be construed with, and as if it formed part of, the WIMA.

23. I was taken to a number of the provisions of each of the WCA and WIMA in the course of argument. Those provisions are set out below.

The Workers Compensation Act 1987

24. Part 2 of the WCA includes s. 9 which is in the following terms:

Liability of employers for injuries received by workers – general

(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.

(2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.

25. Section 4 defines the term “injury”:

“injury”

(a) means personal injury arising out of or in the course of employment,

(b) includes a

"disease injury" , which means:

(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.

26. Under s. 9 of the WCA no compensation is payable in respect of an injury other than a disease injury unless the relevant employment was a substantial contributory factor to the injury.

27. Provisions are made for compensation benefits in Part 3 of the WCA. In particular, s. 66 is in the following terms:

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.

(2) The amount of permanent impairment compensation is to be calculated as follows:

(a) if the degree of permanent impairment is greater than 10% but not greater than 30%, the amount of permanent impairment compensation is to be calculated as follows:

(b) if the degree of permanent impairment is greater than 30% but not greater than 50%, the amount of permanent impairment compensation is to be calculated as follows:

(c) if the degree of permanent impairment is greater than 50% but not greater than 55%, the amount of permanent impairment compensation is $242,010,

(d) if the degree of permanent impairment is greater than 55% but not greater than 60%, the amount of permanent impairment compensation is $309,020,

(e) if the degree of permanent impairment is greater than 60% but not greater than 65%, the amount of permanent impairment compensation is $376,030,

(f) if the degree of permanent impairment is greater than 65% but not greater than 70%, the amount of permanent impairment compensation is $443,030,

(g) if the degree of permanent impairment is greater than 70% but not greater than 74%, the amount of permanent impairment compensation is $510,040,

(h) if the degree of permanent impairment is greater than 74%, the amount of permanent impairment compensation is $577,050,

where

"D" is the number derived by expressing the degree of permanent impairment as D%.

(2A) To the extent to which the injury results in permanent impairment of the back, the amount of permanent impairment compensation calculated in accordance with subsection (2) is to be increased by 5%.

Example 1 : A person suffers 12% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $25,420. If the whole of the impairment is to the back, the compensation payable in relation to the back will be the whole $25,420. Under this subsection, that $25,420 will be increased by 5%, yielding $26,691.

Example 2 : A person suffers 50% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $175,000. If two-thirds of the impairment is to the back, the compensation payable in relation to the back will be two-thirds of $175,000, or $116,666.67. Under this subsection, that $116,666.67 will be increased by 5%, yielding $122,500. The total compensation payable for the impairment will therefore be $180,833.33.

(3) The amount of permanent impairment compensation is to be calculated under this section as it was in force at the date the injury was received.

28. Part 5 of the WCA deals with common law remedies. Section 150B is the following terms:

Claims to which Division applies

(1) This Division applies only to a claim for damages against a worker’s employer in respect of an injury that was caused by:

(a) the negligence or other tort (including breach of statutory duty) of the worker’s employer, or

(b) a breach of contract by the worker’s employer.

(2) Subsection (1) (a) applies even if damages resulting from the negligence or other tort are claimed in an action for breach of contract or other action.

(3) A reference in this Division to a worker’s employer includes a reference to:

(a) a person who is vicariously liable for the acts of the employer, and

(b) a person for whose acts the employer is vicariously liable.

29. Section 151 preserves common law and other liability, except to the extent that the WCA Act otherwise expressly provides, in the following terms:

Common law and other liability preserved

This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides.

30. Modified common law damages are dealt with in Division 2 of Part 5, which includes s. 151H in the following terms:

No damages unless permanent impairment of at least 15%

(1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%.

Note : Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with Workers Compensation Guidelines. That section also provides that impairments that result from the same injury are to be assessed together.

(2) In assessing whether the 15% threshold has been met (that is, whether the degree of permanent impairment resulting from an injury is at least 15%):

(a) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and

(b) in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury, and

(c) the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%.

Note : This does not prevent an award of damages in respect of both psychological and physical injuries together once the 15% threshold has been met for one or the other.

(3) In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury.

(4) The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

(5) In this section: 

"psychological injury" includes psychiatric injury. 

"secondary psychological injury" means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.

The Workplace Injury Management and Workers Compensation Act 1988

31. One of the objects of the WIMA is to provide for the effective management of work-related injuries, and compensation for workers in respect of such injuries. The Act establishes processes for making claims for compensation, mediating disputes and determining whether the degree of whole person impairment resulting from an injury is sufficient to meet the threshold to enable a worker to recover damages (namely a whole person impairment of at least 15%).

32. Part 2 of Chapter 4 of the WIMA contains provisions in relation to notice of injury and claims for compensation. The term “claim” is defined in s. 70 as follows:

"claim" means a claim for compensation under this Act or any claim for damages to which a policy of insurance applies, whether the claim was made before or after the commencement of this Division. 

33. Division 6 of Chapter 4 of the WIMA sets out the jurisdiction of the Commission and of a Court. Under s. 105, and subject to the Act, the Commission is given exclusive jurisdiction to examine, hear and determine all matters arising under the two Acts as follows:

105 Jurisdiction of Commission and Compensation Court

(1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.

(2) The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act.

(3) The Commission does not have jurisdiction in respect of matters that the Compensation Court or (after the repeal of the Compensation Court Act 1984) the District Court has jurisdiction to examine, hear and determine.

(4) Subject to this Act and the Compensation Court Act 1984 , the Compensation Court has exclusive jurisdiction to examine, hear and determine all existing claim matters except matters arising under Part 5 of the 1987 Act. .

(4A) After the repeal of the Compensation Court Act 1984 , the District Court has exclusive jurisdiction to examine, hear and determine all coal miner matters (except matters arising under Part 5 of the 1987 Act).

(5) Despite section 17 (4) of the Compensation Court Act 1984 , the Compensation Court does not have jurisdiction to reconsider a matter, or to rescind, alter or amend any decision previously made or given by the Court in relation to a matter, once the matter has become a new claim matter. .

(6) For the purposes of giving effect to subsections (4) and (4A), references in this Act to the Commission are to be read as references:

(a) to the Compensation Court, to the extent that the reference relates to a matter that the Compensation Court has jurisdiction to examine, hear and determine, or

(b) to the District Court, to the extent that the reference relates to a matter that the District Court has jurisdiction to examine, hear and determine.

34. Chapter 7 of the WIMA contains various definitions including the definition of “work injury damages” which is in the following terms:

"work injury damages" means damages recoverable from a worker’s employer in respect of:

(a) an injury to the worker caused by the negligence or other tort of the employer, or

(b) the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer,

whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages.

Note : However, "work injury damages" generally extends to damages recoverable from a worker’s employer in the case of an injury to a coal miner where the injury is caused by an off-road motor accident and there is no motor accident insurer on risk (see section 3D of the Motor Accidents Act 1988 and section 3B of the Motor Accidents Compensation Act 1999 ).

35. Division 4 of Part 3 is entitled “Claims for lump sum compensation and work injury damages”. Section 280A is in the following terms:

Claim for lump sum compensation a pre-condition to damages claim

A claim for work injury damages in respect of an injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages.

36. Section 280B is in the following terms:

Lump sum compensation to be paid before damages recovered

(1) An injured worker cannot recover damages in respect of an injury from the employer liable to pay compensation under this Act in respect of the injury unless and until any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid.

(2) This section does not prevent a claim for damages from being made before any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid.

Note : This section ensures that an injured worker receives the compensation to which the worker is entitled before damages are recovered (because section 151A of the 1987 Act would prevent the payment of compensation after damages are recovered).

37. Further, s. 281 is in the following terms:

Liability to be accepted and settlement offer made

(1) The person on whom a claim for lump sum compensation or work injury damages is made must, within the time required by this section, determine the claim by:

(a) accepting liability and making a reasonable offer of settlement to the claimant, or

(b) disputing liability.

(2) A claim must be so determined:

(a) within 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by an approved medical specialist, or

(b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim,

whichever is the later.

Note : Section 283 makes failure to comply with this section an offence. Section 74 requires notice of a dispute to be given. If an offer of settlement is not made as required by this section, the claim can be referred for assessment as soon as the time for making the offer has expired.

(2A) The determination of a claim cannot be delayed beyond 2 months after the claimant has provided to the insurer all relevant particulars about the claim (that delay being on the basis that the degree of permanent impairment of the injured worker resulting from the injury is not fully ascertainable), unless the insurer has within that 2-month period notified the claimant that the degree of permanent impairment of the injured worker resulting from the injury is not fully ascertainable.

(2B) When the person on whom a claim is made accepts or disputes liability, the person must notify the claimant as to whether or not the person accepts that the degree of permanent impairment of the injured worker resulting from the injury is sufficient for an award of damages.

(3) An offer of settlement is to specify an amount of compensation or damages or a manner of determining an amount of compensation or damages.

(4) If an offer of settlement is made on the basis that the insurer accepts only partial liability for the claim, the offer is to include details sufficient to ascertain the extent to which liability is accepted.

(5) An employer is not required to determine a claim as provided by this section if:

(a) the employer has duly forwarded the claim to an insurer who the employer believes is liable to indemnify the employer in respect of the claim, and

(b) the employer has complied with all reasonable requests of the insurer with respect to the claim.

Note : A claim forwarded to the insurer is taken to have been made on the insurer.

(6) This section does not apply to a claim for work injury damages in respect of the death of a person, except as the Workers Compensation Guidelines may otherwise provide.

38. Section 282 is in the following terms:

Relevant particulars about a claim

(1) The "relevant particulars about a claim" are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim:

(a) the injury received by the claimant,

(b) all impairments arising from the injury,

(c) any previous injury, or any pre-existing condition or abnormality, to which any proportion of an impairment is or may be due (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act),

(d) in the case of a claim for work injury damages, details of the economic losses that are being claimed as damages and details of the alleged negligence or other tort of the employer,

(e) information relevant to a determination as to whether or not the degree of permanent impairment resulting from the injury will change,

(f) in addition, in the case of a claim for lump sum compensation, details of all previous employment to the nature of which the injury is or may be due,

(g) such other matters as the Workers Compensation Guidelines may require.

(2) If the employer requires the claimant to submit himself or herself for examination by a medical practitioner provided and paid for by the employer, the claimant is not considered to have provided all relevant particulars about the claim until the worker has complied with that requirement.

(3) The insurer is not entitled to delay the determination of a claim under this Division on the ground that any particulars about the claim are insufficient unless the insurer requested further relevant particulars within 2 weeks after the claimant provided particulars.

(4) In this section,

"injury" is not limited by the meaning given by section 4.

39. Part 4 of Chapter 7 includes provisions in relation to the determination of disputes in connection with claims for compensation. Section 288 is in the following terms:

Referral of disputes to Commission

(1) Any party to a dispute about a claim may refer the dispute to the Registrar for determination by the Commission. However, if the dispute is about lump sum compensation, only the claimant can refer the dispute.

Note : A medical dispute concerning the claim can also be referred for assessment under Part 7 (Medical assessment).

(2) The Registrar may not accept a dispute for referral for determination to the Commission if the dispute is a dispute that, under this Part, cannot be referred for determination by the Commission.

40. Section 289(3) is in the following terms:

Restrictions as to when dispute can be referred to Commission

(3) A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:

(a) wholly disputes liability for the claim, or

(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or

(c) fails to determine the claim as and when required by this Act.

Note : The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim.

41. Further, s. 293 is in the following terms:

Medical assessment

(1) When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may, in accordance with this section, refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment.

(2) If the dispute concerns the degree of permanent impairment (including hearing loss) of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Part 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment.

(3) The Registrar may not refer for assessment:

(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or

(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).

42. Under s. 312 of the WIMA proceedings in respect of a claim for work injury damages may be taken in any court of competent jurisdiction, subject to other provisions in Part 6. Division 2 of Part 6, entitled “threshold for awards of damages” contains provisions in relation to the threshold for the commencement of court proceedings. The threshold is that a worker must have been assessed as suffering from at least 15% degree of permanent impairment under Part 7 of Chapter 7 of the WIMA: s 313 of the WIMA and s. 151H of the WCA. Section 313 of the WIMA is in the following terms:

Threshold dispute prevents service of pre-filing statement and commencement of court proceedings

If there is a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages, the claimant cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Division 3 unless the degree of permanent impairment has been assessed by an approved medical specialist under Part 7.

43. Section 314 of the WIMA is in the following terms:

What constitutes threshold disputes

(1) For the purposes of this Part, there is considered to be a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if:

(a) the person on whom the claim is made has not accepted that the degree of permanent impairment of the injured worker resulting from the injury is at least 15%, or

(b) there is a dispute as to whether the degree of permanent impairment resulting from the injury is fully ascertainable.

Note : Under section 322 (4), an approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until satisfied that the degree of permanent impairment is fully ascertainable.

(2) There is considered to be no dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if:

(a) the person on whom the claim is made has accepted that the degree of permanent impairment of the injured worker is at least 15%, or

(b) an approved medical specialist has given a medical assessment certificate certifying that the degree of permanent impairment of the injured worker is at least 15%.

(3) For the purposes of this Part, acceptance by the person on whom a claim for work injury damages is made of the degree of permanent impairment of the injured worker for the purposes of a claim against the person by the injured worker for permanent impairment compensation also constitutes acceptance of the degree of permanent impairment for the purposes of the claim for work injury damages.

44. Part 7 of Chapter 7 of the WIMA makes provision for medical assessment. Section 319 contains a number of definitions including the definition of the term “medical dispute”:

"medical dispute" means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:

(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),

(b) the worker’s fitness for employment,

(c) the degree of permanent impairment of the worker as a result of an injury,

(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,

(e) the nature and extent of loss of hearing suffered by a worker,

(f) whether impairment is permanent,

(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.

45. Section 321 makes provision for the referral of a medical dispute for assessment:

Referral of medical dispute for assessment

(1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.

(2) The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.

(3) The Commission may not refer for assessment under this Part a medical dispute concerning permanent impairment (including hearing loss) of an injured worker.

(4) The Registrar may not refer for assessment under this Part:

(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or

(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).

46. The Commission is established by s. 366 of the WIMA and exercises jurisdiction conferred by both Acts, as well that conferred by subordinate legislation in the form of the Workers Compensation Regulation 2010 (NSW).

47. There are various provisions of the WIMA (notably s. 368 and s. 375) which set out the constitution of the Commission. In particular, s. 375 is in the following terms:

Constitution of Commission for particular proceedings

(1) For the purposes of any proceedings, the Commission is to be constituted by an Arbitrator except as provided by this section.

(2) The Registrar may give directions as to which Arbitrator is to constitute the Commission for the purposes of any particular proceedings or class of proceedings.

(3) For the purposes of any proceedings on an appeal against a decision of the Commission constituted by an Arbitrator, the Commission is to be constituted by a Presidential member.

(4) The Registrar does not constitute, and does not exercise functions as, the Commission (except when acting as an Arbitrator pursuant to the Registrar’s power to exercise the functions of an Arbitrator).

48. As to the role of an Arbitrator, s. 355(1) is in the following terms:

Arbitration to attempt conciliation

(1) The Commission constituted by an Arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination without first using the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement acceptable to all of them.

49. Pursuant to s. 294(1) of the WIMA, if a dispute is determined by the Arbitrator, the Arbitrator must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.

THE ISSUES IN THE PRESENT CASE

50. The principal issues raised in the present case centre upon the proper construction of s. 321(4)(a) of the WIMA, and the powers of the Registrar of the Commission to refer a medical dispute concerning the degree of whole person impairment of a worker for assessment, in circumstances where there is an issue of liability which has not yet been determined.

51. These issues, in turn, give rise to further questions concerning the relationship between:

1. a “threshold dispute” about the degree of permanent impairment of an injured worker resulting from an injury within the meaning ss. 313 and 314 of the WIMA; and

2. the powers of the Registrar under ss. 319 and 321 of the WIMA to refer a “medical dispute” about “the degree of permanent impairment of the worker as a result of an injury” for assessment under Part 7 of Chapter 7 of the WIMA, in circumstances where liability is an issue and has not been determined by the Commission.

SUBMISSIONS OF THE PARTIES

Submissions of the plaintiff

52. In short, it is the plaintiff’s position that:

1. in circumstances where liability for the first defendant’s injury was in issue, the second defendant erred in referring, for assessment by an AMS, the issue of the degree of whole person impairment suffered by the first defendant, in advance of the issue of liability being determined;

2. in a threshold dispute in a work injury damages claim where liability is in issue, the Commission has jurisdiction under s. 105 which extends to jurisdiction to determine any issues as to liability and, following any such determination, to refer to an AMS for assessment, the degree of permanent impairment of the worker as a result of the injuries for which liability has been found to exist.

53. The plaintiff further argues that the construction of the legislation adopted by the second defendant in the present case would, if followed, produce one or more perverse results. The plaintiff submitted that such a construction could lead to a conclusion that where a matter proceeded to the District Court due to the worker having reached the threshold of at least 15% for an injury for which liability has been declined, a defendant would be left without any ability to raise a threshold issue by relying on s. 151H of the WCA. It is also the plaintiff’s position that would be perverse for the District Court to find itself effectively bound by a certificate issued by an AMS in relation to the degree of permanent impairment, without any opportunity to refer the matter back for further assessment.

54. In written and oral submissions in support of the plaintiff’s position, senior counsel took the court through the legislative provisions which are set above. It will be apparent that of all of those provisions, it is the construction of s. 321(4)(a) of the WIMA which is primarily in issue.

55. Senior counsel submitted that the construction of s. 321(4)(a) should necessarily begin with a consideration of its text, as well as a consideration of the context in which it appears in the WIMA. It was submitted that such an approach required that s. 321(4)(a) be read, not in isolation from the WIMA of which it forms a part, but in the context of the WIMA as a whole. Senior counsel stressed that a primary objective of statutory construction is to construe the relevant provision so that it is consistent with the language and the purpose of all of the provisions of the statute, thus avoiding irrational, unjust and absurd consequences.

56. Senior counsel submitted that the WCA and the WIMA should be regarded as beneficial or remedial legislation and that as a consequence, it was necessary to construe such provisions liberally. It was submitted that any anomalies or ambiguities in the legislation should be resolved in favour of a construction which achieved the fundamental purpose of providing compensation to injured workers in full measure.

57. With these general principles in mind, senior counsel for the plaintiff made a number of submissions as to the proper construction of s. 321(4)(a) of the WIMA.

58. Firstly, it was submitted that the second defendant’s construction of s. 321(4)(a) of the WIMA was inconsistent with its plain text. It was submitted that such text prohibited referral of a matter to an AMS in circumstances where:

1. there was a medical dispute “concerning” permanent impairment; and

2. liability was in issue; and

3. liability had not been determined by the Commission.

59. Senior counsel submitted that the language of the section should be given its natural and ordinary meaning, and that the word “concerning” as it was used in the section was indicative of a broader rather than narrower class of dispute. It was submitted that the text of the section made it clear that there could be no referral to an AMS for assessment of a medical dispute concerning permanent impairment where there was an issue as to liability that had not been determined by the Commission, constituted by an Arbitrator.

60. It was further submitted that there was nothing in the context in which s. 321(4)(a) appeared in the WIMA which suggested any other construction. On the contrary, it was submitted that the immediate context of s. 321(4)(a) was one which was consistent with the construction which was urged.

61. It was further submitted that there was nothing in the context of the legislative regime as a whole (i.e. the regime constituted by the WCA and the WIMA) which suggested any alternative construction, and that a dispute as to injury was plainly a matter within the jurisdiction of the Commission.

62. Further, it was submitted that such a construction of s. 321(4)(a) was consistent with the language and purpose of s. 322A(2) of the WIMA, which provided that the certificate given by the AMS in connection with an assessment of the degree of permanent impairment of an injured worker was the only certificate which could be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury.

63. It was further submitted that having regard to the overall purpose of the legislative scheme, the construction of s. 321(4)(a) which was advanced by the plaintiff was one which avoided the perverse result of:

1. an employer being required to meet a common law claim that passed the threshold of WPI of at least 15%, but which was based upon an injury not related to employment;

2. the District Court being asked by a defendant employer to determine liability in respect of injuries that had not been accepted, but which had nevertheless been considered as giving rise to a WPI assessment of at least 15%;

3. in the event that the District Court found that there was no liability for the injury, the Court being bound by the certificate issued by the AMS, and being unable to refer the matter again for assessment by an AMS based on those injuries for which the employer was found liable; and

4. the District Court being asked to assess common law damages on the basis of an assumption that it had jurisdiction, namely a WPI of 15%, even though that assumption had effectively been disproven.

64. Senior counsel for the plaintiff further submitted that the determination of the second defendant was beyond power. It was submitted that s. 151H(4) of the WCA provided, in relation to work injury damages claims, that the degree of permanent impairment resulting from an injury was to be assessed as provided by that section, along with Part 7 of Chapter 7. It was submitted that the term “results from an injury” pre-supposed that liability for such “injury” within the meaning of s. 4 of the WCA had been determined or was not disputed, such that the permanent impairment to be assessed was that which resulted from the relevant injury. It was submitted that in the present case, the effect of the determination of the second defendant in terms of the proposed referral was to direct the AMS to assess permanent impairment, regardless of such statutory requirements.

65. It was submitted that in all of these circumstances, I should conclude that in a work injury damages claim where liability is in issue, the Commission had jurisdiction under s. 105 of the WIMA to determine such issue and, following any such determination, had jurisdiction to refer the degree of permanent impairment of the worker as a result of the injuries for which liability had been determined to exist to an AMS for assessment.

Submissions of the first defendant

66. The essence of the submission made by counsel for the first defendant was that properly viewed, the decision of the second defendant was not one which was made pursuant to s. 321 of the WIMA at all, but was in fact one which was made pursuant to s. 151H of the WCA (set out at [30] above).

67. Counsel for the first defendant further submitted that in dealing with the issues raised, it was necessary to focus on the nature of the assessment carried out by an AMS. He emphasised, in particular, that an AMS does not assess the injury as such, but rather assesses the extent of the impairment(s) resulting from it. In this respect, it was submitted that some analogy was to be drawn between the present circumstances and those considered by Fullerton J in Michael v State of New South Wales [2011] NSWSC 231 which, it was said, supported the first defendant’s position.

Submissions of the Authority

68. Counsel for the Authority did not take issue with the plaintiff’s outline of the general principles applicable to the task of statutory construction. However, it was submitted that the application of those principles led to a different conclusion for a number of reasons.

69. Firstly, in terms of the text of s. 321(4)(a) of the WIMA, it was submitted that the effect of the plaintiff’s submission was that it was incumbent upon the Commission to determine liability to pay statutory compensation, even if that liability was not in issue. In this regard, it was submitted that the position advanced on behalf of the plaintiff was contradicted by the plain words of s. 321(4)(a), which applied a restriction only where liability was an issue and had not been determined by the Commission.

70. Secondly, it was submitted that contextual considerations presented difficulties in terms of the construction advanced on behalf of the plaintiff. It was submitted, in particular, that the division between the Commission’s functions as arbitrator of entitlements to statutory compensation, and the traditional role of the courts in determining rights and liabilities at common law, provided an important matter of context. It was submitted that no express provision had been made in the legislation that would bind the court in determining a claim for work injury damages to respect, or adhere to, the Commission’s view as to whether or not there was an injury, where the only claim being pursued was one for damages. It was submitted that the absence of an express provision as to the status, in court proceedings, of the Commission’s determination of liability was a matter telling against the plaintiff’s suggested construction.

71. Thirdly, it was submitted that s. 321(4)(a) of the WIMA did not contemplate that the Commission should determine the initial question of whether the injured worker was, in fact, suffering from an injury. Rather, it was submitted that the provision referred to the determination of a different and wider inquiry, and that the question of liability was not to be equated with the question of whether an injury had occurred.

72. It was further submitted that the legislative history of the relevant provision also tended to confirm the interpretation which had been adopted by the decision maker.

73. Finally, it was submitted that the construction advanced on behalf of the Authority, far from producing an unintended or absurd result, in fact produced a result which reflected the intended operation of the legislation, namely to have the threshold issue determined by an AMS. It was submitted, in particular, that this was the express effect of s. 151H(4) of the WCA which required that, for the purposes of s. 151H(1), the degree of permanent impairment resulting from an injury was to be assessed as provided by that section, and Part 7 of Chapter 7 of the WIMA. It was submitted that this being so, an employer was nevertheless entitled to contend before a court that the alleged injury was not an injury for the purposes of the legislation.

ANALYSIS

74. The competing positions of the parties obviously give rise to an issue of statutory construction. The principles to be applied to the task of statutory construction may be summarised as follows:

1. the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute: Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at 381; [69] (per McHugh, Gummow, Kirby and Hayne JJ);

2. the task of statutory construction begins and ends with a consideration of the (statutory) text: FederalCommissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503; [2012] HCA 55 at [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ;

3. the text must not be read in isolation from the enactment of which it forms a part. To do so offends against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context: K. & S. Lake City Freighters Pty Limited v Gordon & Gotch Limited (1985) 157 CLR 309; [1985] HCA 48 at 315 per Mason J (as his Honour then was).

4. accordingly, the meaning of the provision must be determined by reference to the language of the instrument when viewed as a whole: Project Blue Sky at 381; [69];

5. a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, such conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve the result which will best give effect to their purpose and language, while maintaining the unity of the provisions as a whole: Project Blue Sky at 382; [70];

6. legislative history and extrinsic materials cannot displace the meaning of the statutory text, nor is their examination an end in itself: Consolidated Media Holdings at [39];

7. it is preferable to adopt a construction of legislation that will avoid a consequence which appears irrational or unjust: Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; [2013] HCA 35 at 509; [48] per French CJ, Hayne, Crennan and Kiefel JJ;

8. it is also preferable to adopt a construction that will avoid an absurd outcome or consequences: Minister for Immigration and Citizenship v Szizo & Ors (2009) 238 CLR 627; [2009] HCA 37 at 640; [35] per French CJ, Gummow, Hayne, Crennan and Bell JJ.

75. Section 319 of the WIMA (set out at [44] above) defines the term “medical dispute”. In light of the correspondence sent on behalf of QBE on 28 May 2015 (referred to at [11] above) there is, in the present case, clearly a medical dispute within the meaning of s. 319(c).

75. The effect of s. 321(1) of the WIMA is to confer a power on a Court, the Commission or the Registrar, to refer a medical dispute for assessment. However the discretionary power conferred on the Registrar to do so is limited by (inter alia) s. 321(4)(a) which prohibits the power to refer such a dispute from being exercised in respect of a medical dispute “concerning permanent impairment” if:

1. liability is in issue; and

2. liability has not been determined by the Commission.

77. The word “concerning” within the phrase “concerning permanent impairment” is necessarily a wide one. It is defined in the Concise Oxford Dictionary as meaning “about”. There is no warrant, in my view, to ascribe a narrow meaning to the phrase. It connotes a broad class of dispute.

78. Section 321 of the WIMA forms part of an enactment, the objects of which are directed, in part, to the establishment of a scheme of management of work related injuries. As senior counsel for the plaintiff pointed out, the issue of liability to which s. 321(4)(a) refers must, given the context in which the provision appears, be an issue of liability arising under either WCA or the WIMA. Issues of liability may arise in a number of different circumstances under the legislation. They include the fundamental liability to pay compensation.

79. In the present case, QBE gave notice under s. 74 of the WIMA denying liability. In doing so, QBE took the position that the plaintiff was not entitled to any compensation over and above that which he had already received. The effect of that notice was to put in issue QBE’s liability to pay compensation to the first defendant. There was no subsequent determination of liability by the Commission.

80. In these circumstances, the relevant criteria having been met, the plain text of s. 321(4)(a) did not allow the second defendant to determine that the matter should be referred to an AMS.

81. The conclusion reached by the second defendant as to the construction of s. 321(4)(a) would, if adopted, lead to results which in my view are unlikely to have been intended by the Parliament. For example, such a construction could result in an employer being forced to defend a work injury damages claim in respect of an injury for which it was not liable on the basis that it had no connection at all with the worker’s employment. Further, pursuant to s. 322A, only one assessment can be made of the degree of permanent impairment of an injured worker. Adoption of the second defendant’s construction of s. 321(4)(a) would mean that a court could find itself bound by a certificate issued by an AMS which related to injuries for which the employer was not found to be liable, in circumstances where there was no power to refer the matter for a further assessment.

82. I am unable to accept the submission advanced on behalf of the first defendant that the second defendant’s determination should be viewed as having been made pursuant to s. 151H of the WCA. This is so for a number of reasons. Firstly, s. 151H of the WCA does not incorporate a power of referral. Secondly, the correspondence between the parties is completely inconsistent with the proposition that the matter was referred by the second defendant to the AMS pursuant to s. 151H. Thirdly, the decision in Michael upon which counsel for the first defendant referred is of no assistance, for the simple reason that Fullerton J was giving consideration to a completely different legislative scheme than that which I have been required to consider.

83. The submissions of the Authority were based, at least in part, on the proposition that the construction advanced by the plaintiff impermissibly elided liability to pay statutory compensation and liability to pay work injury damages. On this basis, it was submitted that the plaintiff’s construction of s. 321(4)(a) of the WIMA was contradicted by the plain words of the section.

84. In my view, that approach tends to overlook both the facts of the present case and the scheme which is created by the legislation. It is apparent from the correspondence referred to at [11] above that QBE denied liability on the basis that the first defendant did not sustain any injury to his thoracic spine on 5 October 2005. Liability under the legislation can only arise if there is an injury. The liability referred to in s. 321(4)(a) is not, as was submitted on behalf of the Authority, limited to liability to pay statutory compensation. As I have noted, liability can arise in a number of different ways. The construction of s. 321(4)(a) advanced by the plaintiff simply recognises the obvious, namely that the existence of an injury is a fundamental prerequisite to any liability under the legislation.

85. In reaching her determination, the second defendant made reference to the decision in Junsay v Uncle Toby’s Company Limited [2009] NSWWCCPD 71 as authority for the proposition that the Commission has no jurisdiction to determine matters which are related to a claim for work injury damages. Contrary to the position adopted by QBE, the employer in Junsay accepted liability (at [5]). The present issue of statutory construction which is before me simply did not arise for consideration in that case. In any event, I am not able to conclude that the Commission has no such jurisdiction. That the Commission has that jurisdiction is evident from an analysis of the relevant statutory provisions.

86. Section 105(1) of the WIMA (set out at [33] above) confers upon the Commission exclusive jurisdiction to examine, hear and determine matters arising under the WIMA and the WCA. Section 105(2) provides that the Commission does not have such jurisdiction in respect of matters arising under Part 5 of the WCA (dealing with common law remedies) except for the purposes of, and connection with, the operation of Part 6 of Chapter 7 of the WIMA (my emphasis).

87. Sections 313 and 314 of the WIMA (set out at [42] and [43] respectively above) prevent the commencement of court proceedings for damages where there is a dispute as to the degree of permanent impairment of the injured worker, unless the degree of permanent impairment has been assessed by an AMS. For that purpose, there will be a threshold dispute if:

1. the person upon whom the claim is made has not accepted that the degree of permanent impairment is at least 15%; and

2. there has been no assessment that the degree of permanent impairment is at least that level.

88. Unless and until that dispute is resolved, the District Court has no jurisdiction. The resolution of the dispute depends upon the issue of a certification by an AMS assessing a degree of permanent impairment of at least 15%.

89. Under s. 319 of the WIMA, the “medical dispute” in the present case is a dispute concerning the degree of permanent impairment of the first defendant. Pursuant to s. 321(4)(a), the Registrar has no power to refer the matter for an assessment by an AMS where liability is in issue and has not been determined by the Commission. That necessarily presupposes that the Commission has the jurisdiction to resolve the issue of liability prior to the matter being referred to an AMS. The AMS, in turn, is called upon to assess the level of permanent impairment for the injury for which liability has been determined.

90. In exercising that jurisdiction the Commission is, pursuant to s. 105(2) of the WIMA, exercising its jurisdiction to “examine, hear and determine” matters for the purposes of, and in connection with, the operation of Part 6 of Chapter 7 of the WIMA. In my view, there is nothing contained in either the WCA or the WIMA which reflects an intention on the part of the Parliament to restrict the jurisdiction of the Commission in the way determined by the second defendant.

91. As I have noted, the Authority relied on the legislative history to support the construction it advanced. Legislative history cannot displace the meaning of the statutory text, nor is the legislative history and end in itself: Jonson v R [2016] NSWCCA 286 at [18] per Bathurst CJ (the other members of the court agreeing) citing Consolidated Media Holdings (supra). For the reasons that I have already set out, the meaning of the statutory text is in my view plain and not displaced by any aspect of the legislative history to which I was taken.

92. Finally, I accept the submissions of the plaintiff that the second defendant’s referral was beyond power. Such a referral was, in my view, clearly inconsistent with the provisions of s. 151H(4) of the WCA. The term “injury” as it appears in that section can only mean injury for which liability has been determined. To conclude to the contrary would lead to the unintended consequence of allowing an assessment of permanent impairment of an injury to be undertaken, in circumstances where no liability for that injury may ever attach to an employer.

93. For all of these reasons, the relief sought by the plaintiff should be granted.

ORDERS

94. I make the following orders:

1. The decision of the second defendant to refer the assessment of permanent impairment of the first defendant to an Approved Medical Specialist is set aside.

2. The second defendant, and its officers, servants and agents, are restrained from acting upon, or taking any further step, to refer the assessment of the first defendant’s whole person impairment to an Approved Medical Specialist until such time as liability in respect of the first defendant’s claimed injury to the thoracic spine has been determined by the Workers Compensation Commission of New South Wales.

3. The parties are to provide any written submissions as to costs within seven (7) days, such submissions not to exceed two pages in length.

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Decision last updated: 24 April 2017