Frick v Commonwealth Bank of Australia - [2016] NSWWCCPD 6

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Frick v Commonwealth Bank of Australia [2016] NSWWCCPD 6
APPELLANT:	Peter Frick
RESPONDENT:	Commonwealth Bank of Australia
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-4501/15
ARBITRATOR:	Ms A Britton
DATE OF ARBITRATOR’S DECISION:	19 October 2015
DATE OF APPEAL DECISION:	3 February 2016
SUBJECT MATTER OF DECISION:	Claim for compensation for pain and suffering for injury received before 1 January 2002; whether repeal of s 67 of the Workers Compensation Act 1987 by the Workers Compensation Legislation Amendment Act 2012 applies to pre-2002 injuries; cls 3 and 15 of Pt 19H of Sch 6 to Workers Compensation Act 1987; cl 11 of Sch 8 to the Workers Compensation Regulation 2010; BP Australia Ltd v Greene [2013] NSWWCCPD 60 discussed and distinguished
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Turner Freeman
Respondent:	HWL Ebsworth Lawyers
ORDERS MADE ON APPEAL:	The Arbitrator’s determination of 19 October 2015 is confirmed.

INTRODUCTION

Prior to the amendments introduced by Sch 2 to the Workers Compensation Legislation AmendmentAct 2012 (the 2012 amendments/the 2012 amending Act), workers who received an injury that resulted in a degree of permanent impairment of 10 per cent or more were entitled to receive, in addition to any other compensation, compensation for pain and suffering resulting from the permanent impairment (s 67 of the Workers Compensation Act 1987 (the 1987 Act)).
Among other things, the amendments introduced by Sch 2 to the 2012 amending Act repealed s 67. Therefore, subject to certain specific exceptions, and subject to the application of the relevant savings and transitional provisions, which are discussed in this decision, the amendments abolished workers’ rights to receive compensation for pain and suffering. This appeal concerns the interpretation and application of the relevant savings and transitional provisions.
The issue is whether the repeal of s 67 prevents a worker who was injured in 1997 from recovering compensation for pain and suffering, in circumstances where he did not claim permanent impairment compensation until after 19 June 2012. The relevance of 19 June 2012 is that, under the relevant savings and transitional provisions, amendments introduced by Sch 2 to the 2012 amending Act apply to claims made before that date, but not to a claim that specifically sought compensation under ss 66 or 67.
The Arbitrator determined that, applying the savings and transitional provisions, the repeal of s 67 prevented the worker from recovering compensation for pain and suffering. For the reasons set out below, that decision involved no error and is confirmed.

BACKGROUND

On 10 August 1997, the appellant worker, Peter Frick, injured his back and legs in the course of his employment with the respondent employer, the Commonwealth Bank of Australia. He claimed compensation under the 1987 Act in September 1997. The respondent’s insurer accepted liability and paid weekly compensation and compensation for medical expenses.
On 10 October 2014, Mr Frick claimed lump sum compensation in respect of various impairments and losses said to have resulted from the 1997 injury.
On 18 December 2014, the insurer accepted that, as a result of the 1997 injury, Mr Frick had a 35 per cent permanent impairment of his back, five per cent permanent loss of use of his right leg at or above the knee and 10 per cent permanent loss of use of his left leg at or above the knee. It made an offer of settlement consistent with those impairments and losses.
On 27 January 2015, Mr Frick claimed $25,000 compensation for pain and suffering under s 67.
On 25 February 2015, the insurer asserted that as the claim (for lump sum compensation) was “lodged after 19 June 2012”, Mr Frick was not entitled to compensation for pain and suffering, as s 67 was repealed by the 2012 amendments.
On 5 August 2015, Mr Frick commenced proceedings in the Commission claiming $25,000 compensation for pain and suffering under s 67.
On 19 October 2015, a Commission Arbitrator determined, after considering the various savings and transitional provisions, that it was abundantly clear the legislature intended to remove entitlements to lump sum compensation for pain and suffering, except in very specific circumstances ([21]). As Mr Frick’s claim did not come within those circumstances, his claim failed and the Arbitrator made an award for the respondent.
Mr Frick has appealed.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 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.”
Counsel for Mr Frick, Mr McManamey, has requested an oral hearing in the appeal as he wishes to make submissions that have not previously been made in similar appeals dealing with whether (following the 2012 amendments) a worker is entitled to lump sum compensation under s 67 for injuries received prior to 1 January 2002. Counsel for the respondent, Ms Wood, has consented to the matter being determined on the papers.
I do not accept that there is any need for an oral hearing in this matter. The parties have had every opportunity to provide submissions on the issues involved and have done so. Those submissions, together with the oral submissions made at the arbitration, have comprehensively articulated the relevant issues. Having regard to those submissions, and the narrow issue on appeal, I do not believe there is a need for further oral submissions or that I would be assisted by such submissions.
In addition to the submissions filed in the present matter, I have also had regard, in favour of Mr Frick, to all the submissions made by Mr McManamey in Cicuto v Terrafirma Terrazzo Pty Ltd [2016] NSWWCCPD 7 (Cicuto) and Suine v Area Refrigeration Pty Ltd [2016] NSWWCCPD 8 (Suine), cases which involve the same issue as in the present matter.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions 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.

ISSUE IN DISPUTE

The issue in dispute in the appeal is whether the Arbitrator erred in refusing to award Mr Frick lump sum compensation for pain and suffering under s 67.

RELEVANT TRANSITIONAL PROVISIONS

The relevant transitional provisions are cls 3 and 15 of Pt 19H of Sch 6 to the 1987 Act and cl 11 of Sch 8 to the Workers Compensation Regulation 2010 (the Regulation). Clauses 3 and 15 of Pt 19H relevantly provide:
“3 Application of amendments generally
(1)Except as provided by this Part or the regulations, an amendment made by the 2012 amending Act extends to:
(a)an injury received before the commencement of the amendment, and
…
(2)An amendment made by the 2012 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.
…
15 Lump sum compensation
An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.”
Clause 11 of the Regulation provides:
“11 Lump sum compensation
(1)The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.
(2)Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).”

SUBMISSIONS

Mr McManamey submitted that an entitlement to lump sum compensation vests upon the happening of the injury (Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318). Therefore, under cl 3(2), the 2012 amendments do not apply to Mr Frick’s claim unless there is another transitional provision that has that effect.
He contended that “claim” in cl 15 is a reference to any type of claim (Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 (Goudappel No 1); Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34 and Cram Fluid Power Pty Ltd v Green [2014] NSWWCCPD 84). In Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 (Cram Fluid), the Court of Appeal confirmed (at [102]) that Goudappel No 1 held that an extant claim for compensation subsumed a later specific claim for compensation. It follows that the interpretation of cl 15 explained in Goudappel No 1 remains good law.
As Mr Frick made a general claim for compensation prior to 19 June 2012, the current claim for permanent impairment compensation is “subsumed in the earlier claim” and his right to s 67 lump sum compensation is not affected unless there is another provision that has that effect.
Dealing with cl 11 of the Regulation, Mr McManamey submitted that the “important aspect of the provision is that the totality of the amendments made by schedule 2 [to the 2012 amending Act] are treated as a single entity”. Either all of the amendments apply or none of them apply. That is because the clause refers to “[t]he amendments made by Schedule 2 …”. This is to be contrasted to the wording in cl 15, which commences “[a]n amendment made by Schedule 2 to the 2012 amending Act …”. Therefore, cl 15 allows for each of the amendments to be considered individually, whereas cl 11 of the Regulation does not.
Mr McManamey added, in his submissions in reply in Cicuto, that the relevant savings and transitional provisions “always refer to the amendments as the amendments in schedule 2” and there is no transitional provision that refers to any individual part of the schedule. This is evidence of an intent that the schedule applies either in its entirety or not at all. The same approach is adopted in the Regulations, with the exception of cl 19, which deals with a specific amendment. Clause 19 is “an acknowledgment that the transitional provisions had exceptions where the amendments did not apply because the amendments of the schedule as a whole could not operate in all circumstances”.
If it was intended that the repeal of s 67 could be considered in isolation from the other amendments in Sch 2, it would have been a simple matter to say so in the transitional provisions or by a regulation similar to cl 19. To apply the amendments “piecemeal will result in inconsistent conclusions”.
Mr McManamey argued that BP Australia Ltd v Greene [2013] NSWWCCPD 60 (Greene) established that the 2012 amendments to s 66 do not apply to injuries received before 1 January 2002 and it followed that none of the amendments apply. As observed in Greene, the provisions have a harmonious operation if it is accepted that the legislature intended for the 2012 scheme to apply to injuries received on and after 1 January 2002 and apply the pre-2002 scheme, as saved by cl 3 of Pt 18C, to injuries received before that date.
There is no inconsistency if persons injured before 1 January 2002 continue to get the benefit of s 67. There is nothing unusual about people having different compensation rights depending upon the date of injury. It would be inconsistent to find the amendments do not apply to s 66, because the resulting section has no meaning, and to then say the repeal of s 67 applies even though that results in sections of the amended Act that have no meaning. The difficulty can only be avoided by finding that either all the amendments apply or none of them apply.
This conclusion clearly becomes the case, so Mr McManamey contended, when the other changes introduced in the 2012 amendments are considered. Because of the operation of cl 3 of Pt 18C of Sch 6, the pre-2002 forms of the lump sum compensation provisions survive (for injuries received before 1 January 2002) and the amendments in Sch 2 of the 2012 Act must be applied to those provisions as they were prior to 2002.
When that is done, many of the amendments in Sch 2 of the 2012 amending Act cannot be applied to the 1987 Act. Mr McManamey gave, as an example, the first amendment to s 65(3), which was to omit “all pain and suffering compensation”. That amendment cannot apply to s 65(3), as it was before 1 January 2002, because those words did not appear in the subsection at that time. That indicates that none of the Sch 2 amendments were intended to apply to pre-2002 injuries. (Mr McManamey listed other examples in his submissions in Suine.)

Further, Mr McManamey submitted that:
“when the amendments are applied, there still remains, in the form of the sections for injuries prior to 1 January 2002 (as notionally amended by the 2012 amendments), 3 separate references to an entitlement pursuant to section 67. These appear in sections 65(3), 66B(1) and 67A(4). Those references only have work to do if section 67 has been preserved. If it was intended to be otherwise, either the original transitional provisions or the regulation would have operated to delete those references.”
Mr McManamey said, in his submissions in reply in Suine, that the references to s 67 in ss 65(3), 66B(1) and 67A(4) “must have work to do and that can only occur if section 67 has not been repealed for injuries prior to 2002”.
In his submissions in reply in the present matter, Mr McManamey submitted that the parts of Adco Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 (Goudappel No 2) relied upon by the respondent, which deal with the interpretation of cl 11, do not assist because the injury in that case occurred after 1 January 2002 and the High Court did not consider if the clause captures injuries before that date. Mr McManamey contended that, to the extent that Goudappel No 2 did not differentiate between the various amendments in Sch 2, it is consistent with his approach.
Mr McManamey said that it was settled (presumably by Greene) that the 2012 amendments do not apply to s 66. It could be demonstrated that many of the other amendments cannot be applied to the pre-2002 version of the 1987 Act (see [30] above). The question is whether, in these circumstances, cl 11 can be read to apply to only some of the amendments and not others. The ordinary meaning of the words used in cl 11 is that the amendments in Sch 2 are “a single entity”. This is so because of the opening words, which say “[t]he amendments” made by Schedule 2 to the 2012 amending Act extend …”. Either they all apply or none apply.
The legislation has a harmonious reading if it is accepted that there is one scheme for compensation applicable for injuries prior to 1 January 2002 and another for after that date. Otherwise, it is necessary to explain unnecessary references to s 67. It is also necessary to explain why some amendments apply, and not others, when the transitional provisions do not make such a distinction.

DISCUSSION AND FINDINGS

I do not accept Mr McManamey’s submissions.
Even if, without deciding it, Mr McManamey’s submissions about the effect of cls 3 and 15 of Pt 19H are correct, that does not assist Mr Frick. That is because cl 15 “is to be read subject to subclause (1)” of cl 11 (cl 11(2)). In other words, by its express terms, cl 11 is the leading provision (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70]). (In his submissions in Suine, Mr McManamey conceded that the question is whether cl 11, when read with the 1987 Act as a whole, operates to remove Mr Frick’s right to compensation for pain and suffering.)
The appeal therefore turns on whether, when dealing with cl 11, the “totality of the amendments made by schedule 2 [to the 2012 amending Act] are treated as a single entity”. As the Arbitrator said, there is no grammatical warrant for the “all or nothing” ([19]) approach to cl 11 (the Arbitrator said cl 15, but having regard to the submissions made and the context of the decision, clearly meant cl 11). The Arbitrator added that the plural “amendments” in cl 11 is intended only to ensure that the clause is read to include all the amendments in Sch 2 to the 2012 amending Act “insofar as each of them is applicable to claims for compensation made before 19 June 2012” ([19]).
Mr McManamey has presented no persuasive argument as to why the above statements by the Arbitrator were wrong. They were not. As with all amendments to legislation, “[t]he amendments” introduced by Sch 2 to the 2012 amending Act only apply as far as they are applicable or relevant. That is determined by the application of the savings and transitional provisions. There is no basis for the assertion that they either all apply or none apply. That is especially so where one of the amendments introduced by Sch 2 is the repeal (as opposed to the amendment) of a provision. The effect and operation of that repeal depends on the interpretation of cl 11.
The text of cl 11 is tolerably clear and “there is little room for debate about” its construction (Goudappel No 2 at [25], per French CJ, Crennan, Kiefel and Keane JJ). By operation of cl 11, the effect of which is to “override cl 15” (Goudappel No 2 at [42], per Gageler J), the amendments made by Sch 2 to the 2012 amending Act extend to “a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act”. On this point, the meaning of cl 11, it does not matter that Goudappel No 2 concerned an injury received after 1 January 2002. The fact that Goudappel No 2 did not differentiate between the various amendments in Sch 2 does not advance Mr Frick’s position. The issue of differentiating between the various amendments did not come up.
As Mr Frick claimed compensation before 19 June 2012, but had not specifically sought compensation under s 66 or s 67 prior to that date, the amendments introduced by Sch 2 to the 2012 amending Act apply to him, unless there is a sound reason why they should not. The critical amendment is the repeal of s 67. Mr Frick therefore has no entitlement to compensation under that section because, by the time he made his claim for that compensation, the section had been repealed and he does not come within any of the applicable exemptions.
The repeal applies to him because he had made a claim for compensation before 19 June 2012 and had not made a claim that specifically sought compensation under s 66 or s 67. No amount of legal sophistry can overcome that conclusion, which follows from the clear and unambiguous language used in cl 11. This point is sufficient to dispose of the appeal. For completeness, I make the following additional observations.
There is nothing in the context of the legislation, or the history of the relevant provisions, that points to a different conclusion.
Mr McManamey’s reliance on Greene is misplaced. That case concerned the operation of cl 3 of Pt 18C of Sch 6 of the 1987 Act and its application to a pre-2002 industrial deafness injury. That clause provides that the lump sum compensation amendments introduced on 1 January 2002 by Sch 3 of the Workers Compensation Legislation Amendment Act 2001 and Sch 2 of the Workers Compensation Legislation Further Amendment Act 2001 (the 2001 amendments) do not apply in respect of an injury received before that date, even if the injury is the subject of a claim after that date.
Greene concerned the effect of the 2012 amendments on s 66. The amendments could only apply to that injury if they were read with s 66 in its form saved by cl 3 of Pt 18C. When one attempted to do that, the provision did not work and was nonsense (see Greene at [125]–[126]).

Greene held that there was no clear intention to abolish “entirely” the pre-2002 scheme and that the inclusion of cls 18 and 19 of Sch 8 of the Regulation, which deal expressly with injuries received before 1 January 2002 in the context of claims under s 66, suggested the opposite ([128]). It followed that, contrary to the employer’s argument, there was no implied repeal of cl 3 of Pt 18C. Therefore, for the purposes of a claim for compensation under s 66 for injuries received before 1 January 2002, cls 3 and 15 of Pt 19H had to be read subject to cl 3 of Pt 18C ([150]). This meant that the pre-2002 version of s 66 applied and that the amendments to that section introduced by the 2012 amending Act did not apply.
There is no provision similar to cls 18 or 19 of the Regulation, which deal only with s 66 entitlements, that points to s 67 being saved for pre-2002 injuries. Rather than supporting Mr McManamey’s position, that fact undermines it. It was not necessary to include such a provision in circumstances where the Parliament did not amend s 67, but repealed it. Unlike s 66, s 67 has no continuing operation (save for that provided by the savings and transitional provisions and relevant exemptions) because it has been repealed. The effect of the repeal depends on when the worker claimed compensation. That depends on the operation of cl 11.
The argument that cl 19 is evidence that the legislature intended the 2012 amendments to operate in their entirety or not at all cannot be accepted. It was not necessary for a special provision in the Regulation stating that the repeal of s 67 applies to injuries received before 1 January 2002. That fact is apparent from the text of cl 11. Section 67 is not being considered in isolation from the other amendments in Sch 2. It is being considered in terms of the words used in cl 11 and the savings and transitional provisions overall.
The respondent in the present appeal has not challenged the reasoning in Greene or argued that it was wrongly decided. It submitted that the entitlements for pre-2002 injuries are only “saved” in respect of the 2001 amendments and do not extend to saving any s 67 entitlement repealed by the 2012 amendments. (I note that, somewhat surprisingly, the respondent in Suine did challenge the correctness of Greene. In view of the outcome in the present appeal, which determines the result in Suine, it is not necessary to decide that challenge.)
The respondent’s submissions are correct. Greene expressly noted (at [99]) that the 2012 amendments did not repeal s 66, but only amended it. That meant that the amended version of s 66 had to be reconciled with the pre-2002 version of that section, which was saved by cl 3 of Pt 18C. As noted above, when one attempted to do that it resulted in a section that made no sense.
The present case is different. It concerns the repeal of s 67, not its amendment. It therefore does not matter that some of the amendments in Sch 2 of the 2012 amending Act cannot apply to the lump sum provisions as they existed before the 2001 amendments took effect on 1 January 2002. That fact does not affect the repeal of s 67. The repeal of s 67 can be applied and, in the absence of an applicable exception, must be applied.
Whether the repeal of s 67 applies to workers in Mr Frick’s circumstances depends on the relevant savings and transitional provisions, namely, cl 11. There being little room for debate about the construction of cl 11, or its application to workers in Mr Frick’s circumstances, it follows that the repeal of s 67 applies and prevents the recovery of compensation for pain and suffering in the present case, and in Suine and Cicuto.
In light of the repeal of s 67, and in the absence of any clear statement that the entitlement to compensation for pain and suffering for pre-2002 injuries has been saved, the references to s 67 in the pre-2002 forms of ss 65(3), 66B(1) and 67A(4) are irrelevant and simply have no work to do. The express terms of the statute, as amended by the 2012 amendments, read with cl 11 of Sch 8, provide “very strong grounds” (Saraswati v The Queen [1991] HCA 21; 172 CLR 1 per Gaudron J at 17) for the conclusion that the legislature intended the repeal of s 67 to apply to pre-2002 injuries, regardless of the fact that the pre-2002 versions of ss 65(3), 66B(1) and s 67A(4) still refer to s 67.
As explained in BHP Billiton Ltd v Bailey [2015] NSWWCCPD 48 (Bailey), the entitlement to compensation for pain and suffering under s 67 continues where an exception is made. Such an exception is made in cl 11 of Sch 8. However, that exception only applies where a claim was made before 19 June 2012 that specifically sought compensation under s 66 or s 67. That does not apply here. (As to the operation of the exception in cl 11 generally, see Cram Fluid.)
There are also exceptions in cls 25 and 26 of Pt 19H. Clause 25 states that the 2012 amendments do not apply to police officers, paramedics and fire fighters and cl 26 makes a similar provision for coal miners. There is no equivalent provision for s 67 for pre-2002 injuries.
Mr McManamey’s approach involves imputing to the Parliament an intention that is not only not supported by the words used, but is inconsistent with those words. When it is said that the legislative “intention” is to be ascertained, “what is involved is the ‘intention manifested’ by the legislation” (emphasis included) (Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [31]; 241 CLR 252 at 264).
In other words, the purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions (Certain Lloyd’s Underwriters v Cross [2012] HCA 56 per French CJ and Hayne J at [26]; 248 CLR 378, at 390). Moreover, “[h]istorical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text” (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41 at [47]; 239 CLR 27 at 46–7).
The intention manifested by the words in cl 11 is clear. For a worker in Mr Frick’s circumstances, the right to recover compensation for pain and suffering has been abolished. As there are no distinguishing features between this case and Suine and Cicuto, the same result follows in those matters.

CONCLUSION

It follows that the Arbitrator’s decision involves no error and is confirmed.

DECISION

The Arbitrator’s determination of 19 October 2015 is confirmed.

Bill Roche
Deputy President

3 February 2016

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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