Gilliana v Souvenir World (Airport) Pty Ltd - [2018] NSWWCCPD 5

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Gilliana v Souvenir World (Airport) Pty Ltd [2018] NSWWCCPD 5
APPELLANT:	Samera Gilliana
RESPONDENT:	Souvenir World (Airport) Pty Ltd
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-3023/17
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	12 September 2017
DATE OF APPEAL HEARING:	8 February 2018
DATE OF APPEAL DECISION:	19 February 2018
SUBJECT MATTER OF DECISION:	Subclauses 4(b)(i) and (ii) of cl 11 of Sch 8 to the Workers Compensation Regulation 2016; rules 16.2(12) and 16.2(13) of the Workers Compensation Commission Rules 2011 –extension of time to appeal; s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 – admission of late documents; application of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501.
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr L Robison, instructed by Sanford Legal
Respondent:	Mr J Beran, instructed by Hall & Wilcox
ORDERS MADE ON APPEAL:	1. Time to appeal the Arbitrator’s decision of 12 September 2017 is extended to 19 October 2017. 2. The respondent’s application to adduce further evidence on the appeal is refused. 3. The Certificate of Determination dated 12 September 2017 is revoked. 4. The remaining issue as to whether the resolution in 2014 was an amended claim first made on 25 October 2011 or whether the gastrointestinal claim was a new claim made after 19 June 2012 is remitted for determination by another Arbitrator.

INTRODUCTION

Ms Gilliana received entitlements pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in 2007 (12% of the lumbar spine) and in 2014 (an additional 2% with respect to a consequential upper gastrointestinal loss) flowing from injury on 9 September 2003.
By way of report dated 1 November 2016, Ms Gilliana was assessed by Dr Warwick Stening, Neurosurgeon, on behalf of the insurer who assessed her at 25% whole person impairment (WPI) pursuant to s 66. It appears Ms Gilliana received a copy of that report.
By letter dated 11 April 2017, Ms Gilliana’s legal representative wrote to Allianz Australia Workers Compensation (NSW) Limited (the insurer) “accepting an assessment” of 25% WPI of her lumbar spine in respect of injury incurred in the course of her employment with Souvenir World (Airport) Pty Ltd (Souvenir World) on 9 September 2003.
Included in that letter were particulars of the two past payments made to Ms Gilliana pursuant to s 66 of the 1987 Act and a calculation of the balance of her monetary entitlement after deducting the compensation previously received pursuant to s 66.
The insurer declined liability on the basis of s 66(1A) of the 1987 Act. It asserted that the previous (second) claim brought by Ms Gilliana, which was concluded in 2014, was her “one claim” and that Ms Gilliana was not entitled to a further claim.
The matter proceeded to arbitration on 11 September 2017. In an extempore decision, the Arbitrator determined that Ms Gilliana’s claim brought in 2017 was “statute barred” because of the operation of subcl (4)(b)(i) of cl 11 of Schedule 8 of the Workers Compensation Regulation 2016 (cl 11), that is, that only one further lump sum claim can be made after 19 June 2012. The Arbitrator found that Ms Gilliana had exhausted her entitlement to one further claim by the concluded 2014 claim.
Ms Gilliana appeals from the decision of the Arbitrator.

BACKGROUND

Ms Gilliana was employed by Souvenir World as a shop assistant. On 9 September 2003, in the course of her employment, she lifted an old heavy cash register and suffered injury to her low back. The injury was reported and liability was accepted by the insurer.
On 25 May 2007, Ms Gilliana and the insurer entered into a complying agreement pursuant to s 66A of the 1987 Act. The complying agreement recorded the WPI as 12% and the body part as the lumbar spine. There was also an allowance for pain and suffering pursuant to s 67 of the 1987 Act.
On 25 October 2011, Ms Gilliana made a further claim for an additional 1% WPI based on an assessment by Dr Sheikh Habib, who assessed the impairment as 13% WPI, including 3% for Activities of Daily Living (ADLs). An additional claim for s 67 entitlements was also made.
The insurer declined liability for the additional 1% WPI in a s 74 notice dated 25 November 2011.
Ms Gilliana then sought approval for medical investigations to be performed with respect to her gastrointestinal symptoms. Those investigations were approved, said by the insurer to be without admission of liability.
Ms Gilliana was examined and assessed on two occasions in 2012 by Dr Bolin, gastroenterologist, who assessed the WPI of her upper digestive tract as 5% and her lower digestive tract as 4% (9% WPI in total). The condition was said to be as a consequence of ingestion of medication taken to relieve her lumbar symptoms.
On 12 December 2012, Ms Gilliana wrote to the insurer claiming 21% WPI under the Combined Values Chart with respect to 12% lumbar spine (already agreed in 2007), 9% for the gastrointestinal loss and the additional 1% for ADLs (previously claimed in 2011 but never dealt with). A claim was also made pursuant to s 67 for $15,500, an increase in the amount claimed in the letter of 25 October 2011.
On 19 December 2012, the insurer wrote in response to that claim. It asserted that as Ms Gilliana had previously been compensated pursuant to s 66, s 66A(1) precluded a further claim.
On 8 January 2013, Ms Gilliana filed an Application to Resolve a Dispute (2013 ARD) claiming a further 1% whole person impairment for the additional ADLs.
Souvenir World filed a Reply to Application to Resolve a Dispute (2013 Reply) on 25 January 2013 annexing the Presidential decision in Goudappel v ADCO Constructions Pty Ltd.[1]
[1] [2012] NSWWCCPD 60 (Goudappel).
By way of an Amended Application to Resolve a Dispute (Amended 2013 ARD) filed on 10 May 2013, Ms Gilliana amended the pleadings to add the 9% whole person impairment for the gastrointestinal loss.
Following a teleconference on 16 August 2013 before Arbitrator Phillips SC, a direction was issued to Souvenir World to file an Amended Reply, which it failed to do.
That claim proceeded to arbitration on 5 March 2014. Arbitrator Phillips SC issued a Certificate of Determination (COD) with reasons on 14 April 2014. It was determined that leave pursuant to s 289A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) would not be granted to the insurer to raise a late issue with respect to liability for the gastrointestinal condition. The matter was referred to an Approved Medical Specialist (AMS) for assessment.
The AMS assessed Ms Gilliana’s loss at 14% WPI (12% for the lumbar spine and 2% for the upper digestive tract). A further COD was issued on 18 July 2014 ordering Souvenir World to pay $3,000 with respect to the further 2% WPI. A third COD was issued on 29 October 2014 dealing with an additional s 67 payment, agreed between the parties.
At the request of the insurer, Ms Gilliana attended the Independent Medical Examination by Dr Stening on 26 September 2016. Dr Stening reported to the insurer on 1 November 2016 that Ms Gilliana’s WPI was assessed at 25%, consisting of 22% for the lumbar spine, adding 2% for ADLs and 1% for scarring associated with surgical intervention.
It appears the report was also sent to Ms Gilliana who was then prompted to consult her legal representative, Mr Chidiac. Mr Chidiac forwarded the letter dated 11 April 2017 referred to at [3] above to the insurer, accepting the assessment and quantifying the claim.
By letter dated 27 April 2017, the insurer declined liability, relying on s 66(1A) of the 1987 Act.
Mr Chidiac responded to the insurer on 12 May 2017, drawing the attention of the insurer to subcl (4)(a) of cl 11.
On 15 June 2017 the insurer accepted the claim and forwarded a complying agreement to Ms Gilliana. Before the complying agreement was signed the insurer through its legal representatives withdrew the offer, disputing the claim again on the basis of s 66(1A) of the 1987 Act.
Ms Gilliana then commenced proceedings in the Commission to pursue her potential further s 66 entitlements, based on the assessment of Dr Stening.
The matter proceeded to arbitration at which Ms Gilliana argued that the Commission should give effect to the agreement to pay the further 25% WPI as recorded in the unsigned complying agreement (the ‘contract’ submission) or in the alternative, that the claim resolved in 2014 was first made on 25 October 2011 (that is prior to 19 June 2012) and the claim on 12 December 2012 was not a new claim but an amendment of the 2011 claim. Therefore the claim was exempt because of the operation of subcl 1 of cl 11.
During submissions, Part 5.6 of the 2013 ARD was amended. That amendment arose out of a rather confused discussion between the Arbitrator and counsel for Ms Gilliana as to what had previously been claimed and what was being claimed in the current proceedings. At the arbitration, the Arbitrator indicated that there was, in his view, an inconsistency between Part 4 (injury description) and the WPI claim at Part 5.6. At the Arbitrator’s suggestion, counsel for Ms Gilliana curiously amended Part 5.6 to claim 1% WPI for the lumbar condition and 10% for upper gastrointestinal symptoms.[2]
[2] Transcript of Arbitration of 11 September 2017 (T1), 18.16–19.21.
That amendment clearly did not reflect the basis of the claim in these proceedings.

ON THE PAPERS

Ms Gilliana submits that the Appeal raises a “new and important legal issue” and requests an oral hearing.
Souvenir World requests that the Appeal to be dealt with ‘on the papers’.
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
In accordance with Practice Direction No 1, the factors that I am required to consider include whether an oral hearing has been requested, whether the parties have addressed on all issues and the complexity of the legal and/or factual issues.
There are matters arising out of the arbitration and issues raised in the appeal that, in my view, have not been adequately addressed in the written submissions before me. Ms Gilliana requests the opportunity to make oral submissions, the matter has a complex history and Souvenir World has not had the opportunity to respond to submissions made by Ms Gilliana in her Reply to the Opposition to Appeal.
In order to afford both parties procedural fairness[3] and in order to properly address those matters, I formed the view that the appeal required an oral hearing. An oral hearing was held on 8 February 2018.
[3] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirement as to quantum pursuant to s 352(3) of the 1998 Act has been met.

Time

The Certificate of Determination was issued on 12 September 2017.
The Appeal was filed on 19 October 2017. It was not lodged within the time required by s 352(4) of the 1998 Act and r 16.2(1) of the Workers Compensation Rules 2011 (the 2011 Rules).
Ms Gilliana submits that while the Arbitrator’s determination was delivered extempore on 11 September 2017 (the date of arbitration) a written version was not received until 11 October 2017. She says that date was two days after the expiration of the appeal period and that the appeal submissions were drafted within nine days of its receipt.
She submits that there was no delay in the preparation of the appeal that is attributable to her or her legal representatives. Further, there was no prejudice to Souvenir World as it was put on notice of an intention to appeal on 20 September 2017.
At the hearing, counsel for Ms Gilliana indicated that a request for the transcript of the decision was made by 29 September 2017, but could not submit further as to when approaches were first made to the Commission. Unfortunately, and inappropriately, he was not assisted by the absence of an instructing solicitor at the hearing.
In oral submissions, counsel for Ms Gilliana further submitted that the failure to grant an extension of time would work a substantial injustice in that Ms Gilliana would be deprived of an entitlement to pursue her further lump sum claim which may result in rights and entitlements she might otherwise not have.
Without citing any authority, counsel submitted that the delay does not have to be “unprecedented or completely extreme in nature, just something out of the ordinary.”[4]
[4] Transcript of Appeal proceedings of 8 February 2018 (T2) 19–21.
Souvenir World submits that time should not be extended.
It submits that Ms Gilliana has failed to comply with r 16.2(13) of the 2011 Rules in addition to r 16.2(12). That is, she failed to give notice to Souvenir World of an application to extend time as soon as practicable. It says that the only notice received by it was email correspondence of 20 September 2017 notifying it that Ms Gilliana had an intention to consider an appeal, which was insufficient to comply with the rule.
Souvenir World further submits that Ms Gilliana has failed to identify any exceptional circumstance as required by 16.2(12) that would provide a basis for the extension of time. Clearly, Souvenir World was not appraised of any efforts made to obtain both the audio recording and the transcript of the decision.
The application to extend time is governed by r 16.2(12) which provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
Rule 16.2(12) requires me to consider whether “exceptional circumstances” exist. Whether there are exceptional circumstances and whether the party seeking an extension can show demonstrable or substantial injustice would occur if leave were not granted, is “a composite expression in the rule to be dealt with within jurisdiction.”[5]
[5] Bryce v Department of Corrective Services [2009] NSWCA 188, [8]–[10] (per Allsop P (Beazley and Giles JJA agreeing)).
Exceptional circumstances are circumstances that are out of the ordinary course or unusual, special, or uncommon.[6]
[6] Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, [66] (per Campbell JA).
It is expected that legal practitioners take proper notes of what occurs in a court or tribunal, including proper notes of a decision or judgment.[7]
[7] Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287, [14]–[16] (per Allsop P (as his Honour then was)).
Counsel for Ms Gilliana confirmed in the oral hearing that he was present during delivery of the Arbitrator’s extempore decision.
The Certificate of Determination in these proceedings was issued by the Commission on 12 September 2017 and time within which an appeal was to be lodged commenced on the following day.
In the absence of a statement from Ms Gilliana’s legal representatives detailing any efforts made by them to obtain a transcript, I requested a search of the Commission’s records. The records disclose that an email request for the sound recording was made on 12 September 2017; however, it is not clear whether the sound recording was provided.
On 21 September 2017, Ms Gilliana requested by email the transcript of both the arbitration hearing and the reasons for determination. There was some delay in obtaining the transcripts and having the transcript of the decision verified. The transcripts were provided to Ms Gilliana’s legal representatives on 11 October 2017, after the time to appeal had expired.
It is apparent that counsel for Ms Gilliana was not appraised of the steps taken by those instructing him to obtain the transcript of the decision. It is most unsatisfactory he was not provided with statement evidence sufficient to address the application for an extension of time. It was clearly identified in my direction dated 8 December 2017 as a matter to be addressed at the oral hearing.
Had Ms Gilliana’s legal representatives taken proper notes, the appeal could have been lodged in time and she would not have been precluded from providing further submissions on receipt of the transcript of the decision and/or arbitration in accordance with Practice Direction No 1 – Determination of Matters “On the Papers” Without a Conciliation Conference or Arbitration Hearing or Hearing on Appeal Against a Decision of the Commission Constituted by an Arbitrator (Practice Direction No 1).
The paucity of reasons provided by Ms Gilliana could not constitute exceptional circumstances.
The delay in provision of the transcript identified by the Commission’s search is a mitigating factor, but not of itself sufficient to extend time.
I am also required to consider whether declining to extend the period would cause a demonstrable or substantial injustice.
I note Souvenir World’s submission that Ms Gilliana has failed to comply with rr 16.2(12) and 16.2(13).
At the hearing, counsel for Ms Gilliana submitted that it had notified Souvenir World of an intention to consider an appeal by its letter dated 20 September 2017. Souvenir World submits that notification of consideration of an appeal is insufficient compliance with the rule. Rule 16.2(13) requires the prospective appellant to notify the respondent of its intention to seek an extension of time to appeal, not an intention to appeal. The letter of 20 September 2017 does not express that intention.
In accordance with r 1.6(2) I have the power to dispense with the need to comply with the rules if I see fit.
In order to proceed to such a consideration, as well as to determine whether Ms Gilliana would suffer a substantial injustice if leave was not granted, it is necessary to assess the merits of the appeal.
For the reasons set out below, I determined the Arbitrator erred in law in finding that Ms Gilliana was precluded from bringing a further claim because of the operation of cl 11.
If the application is refused, Ms Gilliana will be deprived of a potentially significant right to pursue a claim for additional impairment. If successful it would not only entitle her to additional compensation but may also entitle her to other benefits under the legislation.
Having regard to the factors set out in Gallo v Dawson[8] frequently referred to in the Commission, the delay in provision of the transcript, the short period between the expiration of time and the filing of the appeal, the absence of any identified prejudice to Souvenir World and weighing the rights of the parties to have justice done, I extend time to appeal to 19 October 2017.
[8] [1990] HCA 30; 64 ALJR 458 (Gallo).

Fresh evidence

Souvenir World seeks to adduce further new documentary evidence. The documents comprise the pleadings in matter number 188 of 2013, namely the 2013 ARD with attachments, the Amended 2013 ARD with attachments and the 2013 Reply with attachments.
Souvenir World submits that a failure to admit those documents would cause a substantial injustice. It relies on the Presidential appeal decision of Avni v Visy Industrial Plastics Pty Ltd[9] wherein Keating P admitted documents that were not fresh evidence in similar circumstances.
[9] [2016] NSWWCCPD 46 (Avni), [23]–[31].
Ms Gilliana objects to the admission of the documents.
She submits that there is a distinction between “fresh” evidence and “new” evidence, without making reference to the workers compensation legislation. She further submits that their admission would allow Souvenir World to “expand” the argument put at arbitration and leave should be refused.

Ms Gilliana says that there must be substantial injustice to Souvenir World if the documents are to be admitted, relying on CHEP Australia Ltd v Strickland.[10]
[10] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
Souvenir World concedes the documents do not constitute fresh evidence.
A large number of the attachments to the pleadings are either already in evidence or are not relevant to the issue on appeal.
At the hearing I identified six documents not already in evidence that, in my view, would have been relevant to the determination of whether the claim for a further 9% made on 12 December 2012 was or was not an amendment to the claim for 1% additional loss made on 25 October 2011.
I have identified those documents (in date order) as follows:
(a)    section 74 notice issued by the insurer to Ms Gilliana dated 25 November 2011 disputing the additional 1% as Ms Gilliana had been “fairly compensated”;
(b) letter from the insurer to Ms Gilliana dated 19 December 2012, confirming receipt of the claim for a further 9% and disputing the claim on the basis of s 66(1A);
(c)    the 2013 ARD, claiming at Part 5.6 a further 1% impairment of the lumbar spine;
(d) the 2013 Reply, confirming the matters in dispute, relying on s 66(1A) and the Presidential appeal decision in Goudappel;
(e)    letter from Sanford legal to the insurer dated 10 May 2013, serving the Amended 2013 ARD, advising that the 9% WPI had been omitted from the original 2013 ARD, and relying on the Court of Appeal decision in Goudappel v ADCO Constructions Pty Ltd[11] (by then determined), and
(f)    the Amended 2013 ARD, amending the compensation claimed at Part 5.6 to add 9% WPI for the consequential gastrointestinal condition.
11 [2013] NSWCA 94.
Counsel for Souvenir World advised that all the remaining documents would not be pressed.
Ms Gilliana maintained her objection to the documents identified above.
Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
All of the documents the subject of this application pre-date the arbitration hearing. They were available to both parties to adduce into evidence at the arbitration. Clearly the documents do not satisfy s 352(6).
It is therefore is necessary to determine whether failure to grant leave to admit the documents would cause substantial injustice in the case.[12]
[12] Strickland.
Ms Gilliana’s opposition to the admission of those documents seems to be somewhat inconsistent with her submission that “to determine whether the Regulation is engaged turns on a determination of how many claims were made and when they were made.”[13]
[13] Ms Gilliana’s submissions in reply to the Opposition, [7].
The documents identified above are, in my view, very relevant to a proper understanding of the somewhat complicated history of Ms Gilliana’s s 66 claims, in particular, the claim or claims for permanent impairment compensation made by Ms Gilliana that were resolved in 2014.
In Strickland, Barrett JA discussed the test to be applied in consideration of whether the failure to admit late documents would cause a substantial injustice.
At [30]–[31] of the decision, his Honour said:
“Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
The issue at arbitration was whether, because of the 2014 resolution of her claim, Ms Gilliana is precluded from bringing a further claim, or whether she is entitled to the relief from the prohibition in s 66(1A) of the 1987 Act because of the operation of cl 11.
What constituted the claim resolved in 2014 was a live issue between the parties. To determine that issue it is necessary to identify the substance of that claim and the documents identified above are, in my view, germane to that determination.
The Arbitrator did not turn his mind to that issue because he determined that the claim before him was precluded by subcl 4(b)(i) as the 2014 lump sum entitlement had been finally dealt with by the COD dated 18 July 2014.
For the reasons expressed below, the Arbitrator erred in his construction of subcl 4(b)(i). That error stemmed from his failure to take into account the words of the subclause and the conjunctive subcl 4(b)(ii). When read together, subcl 4(b) requires that in consideration of whether one further claim had been made, no regard is to be had to a claim for which no compensation was paid.
The Arbitrator had before him the Medical Assessment Certificate (MAC) from 2014 and the COD of 18 July 2014. That information ought to have been sufficient for him to correctly construe subcl 4(b). The late documents sought to be tendered on this appeal would not, in my view, have altered the course of his decision making process.
For the further reasons set out below, I have declined to decide the outstanding issue on appeal and have remitted the matter back to another Arbitrator for determination. No doubt one or other of the parties may avail themselves of the opportunity to adduce further evidence and make submissions on that evidence at that level.
For those reasons, I can see that no substantial injustice to either party would occur by declining to admit the documents listed at [76] above.

THE EVIDENCE

Ms Gilliana relies on documents annexed to the 2013 ARD and an Application to Admit Late Documents (AALD) dated 8 September 2017 with annexures.
The medical evidence annexed to the 2013 ARD is largely relevant only to the background of the claim, save for the report of Dr Stening of 1 November 2016 assessing Ms Gilliana’s WPI at 25%.
The balance of the evidence in the 2013 ARD is documentary, and relevantly includes:
(a)    the complying agreement;
(b)    Certificate of Determination dated 18 July 2014 in matter no 188 of 2013;
(c)    letters dated 11 April 2017, 27 April 2017 and 11 May 2017 (referred to in [23]–[25] above, and
(d)    statement of the worker dated 11 September 2013.
Further relevant correspondence was annexed to Ms Gilliana’s AALD comprising the following:
(a) Letter dated 12 May 2017, detailing the history of the claim and asserting that the 2011 claim was not withdrawn or otherwise finally dealt with before the commencement of what now is subcl (1) of cl 11. The letter of 12 May 2017 annexed the letters date 25 October 2011 and 12 December 2012 (discussed in [10] and [14] above);
(b)    An email and letter dated 28 July 2017 from Mr Chidiac to the insurer’s legal representative detailed the history of the matter and attaching copies of the earlier correspondence;
(c)    A further letter of the same date from Mr Chidiac indicating Ms Gilliana relied on the decision of Keating J in Woolworths Ltd v Wagg.[14] It was asserted that Ms Gilliana’s claim was exempt from the 2012 lump sum amendments because she had first made the claim pursuant to s 66 on 25 October 2011, prior to 19 June 2012, and
(d)    The response by Souvenir World (through its legal representatives) on 2 August 2017 indicating that Ms Gilliana had already exhausted her one further claim and disputing the relevance of Wagg.
[14] [2017] NSWWCCPD 13 (Wagg).
Souvenir World relied on the same documentary evidence but also annexed to its Reply the COD dated 14 April 2014 (referral to the AMS for assessment of the lumbar spine and the gastrointestinal condition), and the COD dated 29 October 2014 (recording an agreed additional s 67 amount).

THE ARBITRATOR’S REASONS

The matter proceeded to arbitration on 11 September 2017. Following submissions from both parties, the Arbitrator delivered an extempore decision.
The Arbitrator noted the 2007 complying agreement with respect to 12% WPI, the letter of claim for a further 1% dated 25 October 2011 and the subsequent letter of claim dated 12 December 2012 claiming both the additional 1% WPI for the lumbar spine and the gastrointestinal condition.
The Arbitrator recorded that the claim for 1% made in 2011 “did not appear to have been dealt with until after the further claim was made on 12 December 2012.” He described the 12 December 2012 claim as being referrable to the upper digestive tract.
He referred to the amendment that was made to Part 5.6 of the 2013 ARD at arbitration. He further recorded the ‘contract’ argument and set out the history of correspondence dealing with the claim based on the assessment by Dr Stening, as well as the submissions of both parties as to whether the conduct constituted the essential elements of a contract.
The Arbitrator did not make any determination with respect to that issue as he decided that Ms Gilliana’s claim was “statute barred” because of the operation of subcl (4)(b)(i). He reasoned that if a claim is precluded by legislation, parties cannot confer upon itself “jurisdiction they do not have.”[15]
[15] Transcript of Decision of 11 September 2017 (T3) 11.23.
For the same reasons, he also declined to determine the issue of whether the claim for 9% WPI (gastrointestinal) was an amendment to the claim made on 25 October 2011 and therefore exempt from constituting “one further claim” for the purposes of cl 11.
In turning his mind to cl 11, the Arbitrator said: “The Regulation, to which I shall shortly come, provides that if a claim is withdrawn or finally dealt with, there is no further claim for the applicant.”[16]
[16] T3, 4.28–31.
He referred to submissions made by Ms Gilliana’s counsel that the claim for 1% WPI made on 25 October 2011 was not “withdrawn or otherwise finally dealt with”. He rejected that submission. He determined that on the basis of the consent orders made in 2014 and because the AMS has to assess the whole person impairment, he could not accept that the further 1% was not before the AMS or that it had not been finally dealt with.
He determined that with respect to the proceedings before Arbitrator Phillips SC in 2014, “all matters raised by all letters of claim up to that time were available to be dealt with.”
The Arbitrator found as follows:
“I am satisfied that this present claim is caught by clause 11 sub-paragraph (4)(b)(i) of the 2016 Regulation. The claim has been finally dealt with as a permissible claim pursuant to the relevant legislation.
Accordingly the claim made in this case is statute barred.”
The Certificate of Determination issued on 12 September 2017 records:
“1. There will be an award in favour of the respondent.”

GROUNDS OF APPEAL

Ms Gilliana raises one ground of appeal expressed as:
“That the arbitrator erred in his construction of clause 11(4)(b)(i), schedule 8, Workers Compensation Regulation 2016.”

LEGISLATION

Section 66 of the 1987 Act provides as follows:

“66 Entitlement to compensation for permanent impairment

(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note. No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.

(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.
…”

Clauses 10 and 11 of Schedule 8 of the 2016 Regulation provide:
“10 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).

11     Lump sum compensation: further claims
(1)     A further lump sum compensation claim may be made in respect of an existing impairment.
(2)     Only one further lump sum compensation claim can be made in respect of the existing impairment.
(3) Despite section 66 (1) of the 1987 Act, the degree of permanent impairment in respect of which the further lump sum compensation claim is made is not required to be greater than 10%.
(4)     For the purposes of subclauses (1) and (2):
(a) a further lump sum compensation claim made, and not withdrawn or otherwise finally dealt with, before the commencement of subclause (1) is to continue and be dealt with as if section 66 (1A) of the 1987 Act had never been enacted, and
(b)     no regard is to be had to any further lump sum                   compensation claim made in respect of the existing                impairment:
(i) that was withdrawn or otherwise finally dealt with before the commencement of subclause (1), and

(ii) in respect of which no compensation has been paid, and

(c) section 322A of the 1998 Act does not operate to prevent an assessment being made under section 322 of that Act for the purposes of a further lump sum compensation claim.

(5)     The following provisions are to be read subject to this clause:
(a) section 66 of, and clause 15 of Part 19H of Schedule 6 to, the 1987      Act,
(b)     section 322A of the 1998 Act,
(c)     clauses 10 and 19 of this Schedule.
(6)     In this clause:

existing impairment means a permanent impairment resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012.

further lump sum compensation claim means a lump sum compensation claim made on or after 19 June 2012 in respect of an existing impairment.

lump sum compensation claim means a claim specifically seeking compensation under section 66 of the 1987 Act.”

WRITTEN SUBMISSIONS

Ms Gilliana submits that cl 11 overcomes what would otherwise be the effect of s 66(1A) of the 1987 Act by permitting one further claim. She says that “such claims” are to be ignored if they have been otherwise finally dealt with prior to the commencement of the provision.
Ms Gilliana referred to the passage from the Arbitrator’s reasons quoted as follows:
“The argument was that the letter of 25 October 2011 was the initial claim and that accordingly the claim on 12 December 2012 was a legitimate amendment to that claim which, by virtue of the authority in Woolworth Limited v Wagg [2017] NSWWCCPD 13, brought itself under the umbrella of being a claim that was made prior to the commencement of the amendments on 19 June 2012.
That was an attractive argument, although I did during submissions discuss the meaning of the words ‘specifically sought’. However, in the end it was not a relevant consideration, because of the proceedings in matter number 188/13 before Arbitrator Phillips, in which all matters raised by all letters of claim up to that time were available to be dealt with.”
Ms Gilliana contends that a matter being “available to be dealt with” is not sufficient to engage with the exception to the one further claim provision on the basis of having been “otherwise finally dealt with”.
For it to be otherwise finally dealt with, Ms Gilliana says it must actually have been considered in its terms and disposed of by the Commission on a final basis.
Ms Gilliana relies on the authorities of Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[17] and Project Blue Sky Inc v Australian Broadcasting Authority[18] as to proper statutory construction, and that the actual language in its broader context must mean that for a particular claim to have been finally dealt with, the claim must have been actually considered on a final basis.
[17] [2009] HCA 41; 239 CLR 27.
[18] [1998] HCA 28; 194 CLR 355.
Ms Gilliana maintains that the additional 1% for the lumbar spine and 10% for the upper digestive tract were not determined by Arbitrator Phillips SC and therefore the phrase “no regard is to be had” in subcl (4) “does not arise”.
As a result, it is said that Ms Gilliana is entitled to a further claim as particularised in the amended 2013 ARD.
Souvenir World submits that on its understanding, the appeal is limited to a contention that the Arbitrator erred in determining that the 2011 was ‘finally dealt with’.
It maintains that the claim in 2011 and the claim in December 2012 were separate claims (said to be the second and third claims) and the Arbitrator dealt with them as such in his reasons. The classification of the letters of claim as two separate claims, it is said, is not the subject of the appeal.
Souvenir World submits that the “third claim” was finally dealt with by the issue of the COD in 2014 awarding lump sum compensation issued on 18 July 2014.
It says that because no compensation was awarded in respect of additional claim for the lumbar spine in the 2014 COD, that claim is to be disregarded because of subcl (4)(b), but that because Ms Gilliana received compensation for the “third claim”, that claim has been finally dealt with. By virtue of subcl (4)(b). Therefore, it is said the Arbitrator was correct in determining that Ms Gilliana is “statute barred”.
In reply to the Opposition, Ms Gilliana maintains the position taken at arbitration that the claim for further impairment made in December 2012 (gastrointestinal) was an amendment to the 2011 claim (additional loss for ADLs). She further says that the Arbitrator misconstrued cl 11 and misapplied Wagg.

ORAL SUBMISSIONS

At the hearing of this appeal, I asked counsel for Ms Gilliana as to whether he submits the Arbitrator was correct with respect to his analysis of cl 11 quoted in [100] above, that “the Regulation … provides that if a claim is withdrawn or finally dealt with, there is no further claim for the Applicant.”[19] He submitted the reasoning was inconsistent with the Arbitrator’s later finding that the claim had been finally dealt with.
[19] T3, 4.28–31.
Counsel for Souvenir World submitted that the Arbitrator’s interpretation of cl 11 was correct and relied upon his written submissions. He confirmed that Souvenir World’s position is that the 2011 claim was a separate claim and is excluded on the basis it was a claim made before 19 June 2012, and also on the basis that it was finally dealt with but no compensation was paid.
He submitted that both the 2011 and 2012 claim had been finally dealt with by the issue of the Certificate of Determination in 2014.
Further, the 2011 claim is prevented by the 2012 claim because the 2011 claim is not protected by subcl 4(b).It is not a “further claim” as defined because it was not made after 12 June 2012.
Souvenir World concedes that subcll (4)(b)(i) and 4(b)(ii) are to be read together.

DISCUSSION

Ms Gilliana has challenged the Arbitrator’s construction of subcl (4)(b)(i).
To address the ground of appeal, it is necessary to examine cl 11 in its entirety, taking into account the definitions of “existing impairment” and “further lump sum compensation claim” as defined within cl 11. Those definitions are recited at [111] above, but it is useful to repeat them here:
(a) An ‘existing impairment’ is an impairment for which lump sum compensation was claimed before 19 June 2012.
(b) A ‘further lump sum claim’ is one where a later claim has been made after 19 June 2012 for that existing impairment.

The clause makes available only one further lump sum claim for those who received s 66 entitlements before 19 June 2012 and that further claim does not need to reach the 10% threshold in s 66(1).[20] Prior to the introduction of cl 11 such claimants were precluded from bringing any further claim because of the operation of s 66(1A).
[20] Subclauses 11(1)–(3).
Subclause (4)(a) enables any unresolved claim made before 13 November 2015 (the date of commencement of cl 11 in its previous form) to be not effected by the preclusion in s 66(1A).
Subclause (4)(b) effectively means that if a claim was made after 19 June 2012 and it did not result in compensation (either because it was withdrawn or because it resulted in a nil assessment) then that claim does not count as “one further claim” referred to in subcl (1).
In order to determine whether the Arbitrator misconstrued the subclause, it is also relevant to consider the claims history.
It is abundantly clear that the claim that was assessed by the AMS in 2014 included an assessment of the lumbar spine (which included ADLs as part of that assessment) and the gastrointestinal condition. These were the body parts referred for assessment noted on the first page of the Medical Assessment Certificate (MAC) of Dr Sundaraj dated 14 June 2014 and in Table 2 annexed to the MAC.[21] This resulted in the second payment to Ms Gilliana of s 66 entitlements, consequent upon her upper gastrointestinal symptoms only.
[21] ARD pp 1–10.
As part of that assessment, Ms Gilliana received no further compensation for her lumbar spine and no compensation for her lower gastrointestinal claim.[22]
[22] Table 2 of the Medical Assessment Certificate and COD at 2013 ARD p 38.
The Arbitrator determined that:
“The proceedings before Arbitrator Phillips in matter number 188 of 2013 constitute the prohibition set out under subclause 4, paragraph (b)(i). In other words this is a further lump sum claim that was withdrawn or finally dealt with before the commencement of subclause (1)”.[23]
[23] T3, 8.32–9.4.
There is no “prohibition” in subcl 4(b)(i) other than to exclude from consideration of “one further claim” a claim where no compensation was paid (subcl 4(b)(ii)).
If Souvenir World’s submission was accepted that the 2011 lumbar claim and the 2012 gastrointestinal claim are separate claims, then the 2011 claim would be excluded from consideration of whether it is one further claim on two bases:
(a) because cl 10(1) provides that the 2012 amendments do not apply to claims that specifically sought compensation pursuant to s 66 prior to the amendments, and
(b) because of subcll 4(b)(i) and (ii), even if it had been made after 19 June 2012, no compensation was paid.
On the same note, if the 2012 claim was a separate claim, then because the claim was made after 19 June 2012 and Ms Gilliana received compensation, it is her one further claim and she is excluded from bringing the current claim. Subclause 4(b)(i) does not apply because it is irrelevant to the claim for upper gastrointestinal symptoms as Ms Gilliana received compensation for that condition.
If Ms Gilliana’s submission is correct that the resolution in 2014 was of a claim made in 2011 and amended in 2012, then because the claim was before 19 June 2012, by operation of cl 10, s 66(1A) does not apply to that claim. Her entitlement to one further claim has not been exhausted by the 2014 resolution and she has a further claim open to her.
Putting aside whether that resolved one amended claim or separate claims, in 2014 Ms Gilliana had a further claim for s 66 that resulted in payment of compensation to her, which takes the claim outside of the ambit of subcl 4(b)(i).
In the circumstances of this case, subcl 4(b)(i) is not determinative of whether the claim finalised in 2014 for which compensation was paid constituted a further claim. Subclause 4(b)(i) is to be read together with subcl 4(b)(ii). Ms Gilliana contends that the Arbitrator erred in respect of his consideration of the phrase “finally dealt with” reproduced at [107] above.
I accept that being available to be dealt with is insufficient to establish that the claim has been finally dealt with, I do not accept Ms Gilliana’s submission that for a claim to have been finally dealt with, it must have been considered in its terms by the Commission requiring a determination by (in this case) Arbitrator Phillips SC.[24]
[24] Ms Gilliana’s submissions on appeal, [13] and [15].
Matters resolved by complying agreement are clearly a resolution of a claim on a final basis.
Except in cases of an appeal being lodged or an application for reconsideration, a s 66 claim is finally dealt with when it is the subject of:
(a)    a Medical Assessment Certificate certifying 0% WPI;
(b)    a Certificate of Determination ordering payment with respect to losses assessed in a Medical Assessment Certificate, or
(c)    a Complying Agreement.
Contrary to Ms Gilliana’s submissions, it is apparent that from the AMS Medical Assessment Certificate and the COD issued on 18 July 2014, the s 66 claim or claims for upper and lower gastrointestinal conditions and additional lumbar spine loss were finally determined in 2014. Ms Gilliana cannot rely on the 2011 claim as being an extant claim now available to be relied upon in these proceedings. I reject Ms Gilliana’s submission that the 2011 claim had not been finally dealt with in the 2014 determination.
However, the Arbitrator’s summation of cl 11 quoted at [102], [104] and [107] above is incorrect and clearly tainted his reasons leading to determination.
For the above reasons, the Arbitrator erred in his construction and application of subcl 4(b)(i). That is sufficient to set aside the Arbitrator’s determination.
The Arbitrator did not turn his mind to the two primary arguments raised by Ms Gilliana at the arbitration and those issues remain at large.
The first remaining issue is the ‘contract’ argument. No submissions were made on appeal as to the manner in which the Arbitrator dealt with that issue. Ms Gilliana’s counsel advised during the hearing that that aspect of the case was not being pursued, so that it is unnecessary to deal with that argument on this appeal.
I do make the observation, however, that even if the correspondence passing between the parties could constitute a binding contract (which I doubt), the remedy sought by Ms Gilliana is not available in this jurisdiction. In matters that resolve by way of complying agreement, the Commission does not, and has no jurisdiction to, consider and enter an award.
The other remaining issue is whether the resolution in 2014 was of an amended claim that was first made on 25 October 2011. Alternately, was the gastrointestinal claim a new claim not made until after 19 June 2012 and therefore constituted the one further claim permitted by cl 11, thus precluding the current claim.
Ms Gilliana relied on Wagg at arbitration and on appeal. As recorded above, she submits that the letter of claim dated 12 December 2012 was an amendment of the claim made on 25 October 2011. She says the Arbitrator “misapplied” that authority. She makes no written submissions on the application of that authority or how it was misapplied.
The transcript of arbitration records that counsel for Ms Gilliana submitted that cl 10 of the 2016 Regulation provides:
(a)    the 2012 amendments do not apply to a claim made before 19 June 2012;
(b)    that Wagg is authority that a claim can be amended;
(c)    that the chronology in Wagg points to the claim being made prior to 19 June 2012 and amended after that date, which is factually the same as Ms Gilliana’s case, and
(d)    the claim was held to have been amended and the applicant was entitled to an award.[25]
[25] T1, 10.23–11.29.
In oral submissions on appeal, Ms Gilliana relied on Woolworths Ltd v Stafford[26] at [93] and [96] as authority for the proposition that as pleadings can be amended prior to a determination (subject to any prejudice to the respondent) a claim can also be amended. She further submitted that amendment can include adding an additional body part referrable to the same injury.
[26] [2015] NSWWCCPD 36 (Stafford).
Souvenir World submits that the 2012 claim was a separate and distinct claim to the 2011 claim, was made after 19 June 2012 and resulted in compensation. It says that was Ms Gilliana’s one further claim.
In its oral submissions on appeal, Souvenir World sought to distinguish Stafford and Wagg on the basis that in both those cases, the amendment to the claim was to increase the impairment flowing from the same pathology. It says, relying on Wagg at [98], the claim cannot be amended to add an assessment for a different body part.
Souvenir World acknowledged that the amendment in Wagg was to add an additional injury, but submits that amendment was available because the loss assessed stemmed from the same pathology, that is the right knee.
Unfortunately, neither Avni nor Stafford was brought to the attention of the Arbitrator. Those authorities may have assisted in consideration of the proper construction of cl 11 and in the determination of the question of an amended claim.
Curiously, the CODs issued on 18 July 2014 and 29 October 2014 respectively ordered payment of compensation for less than 10% WPI for the upper gastrointestinal condition and a further s 67 amount. Those orders seem to be at odds with Souvenir World’s position in these proceedings that the gastrointestinal claim was subject to the 2012 amendments.
The undetermined issue identified in [153] above (whether the upper gastrointestinal assessment was an amendment to the 2011 claim) is a significant issue that, at arbitration, became clouded by tangential considerations that, in my view, lacked merit.
The proper determination of that issue has the potential to substantially affect both parties. Such a determination requires an assessment of the factual material, some of which is not before the Commission and consideration of comprehensive submissions on the relevant presidential authorities.
It is my view that in order to protect the interests of both parties and to ensure justice is achieved, it is appropriate to remit the matter to a different Arbitrator, rather than determine the matter on appeal.
It is to be noted that at the oral hearing of this appeal, the parties agreed that the amendment to Part 5.6 of the Application to Resolve a Dispute referred to in [29] above was an error and that amendment was withdrawn. It is understood by both parties that Ms Gilliana relies on the assessment made by Dr Stening of 25% whole person impairment and claims an additional 11% whole person impairment with respect to the lumbar spine and scarring.

DECISION

Time to appeal the Arbitrator’s decision of 12 September 2017 is extended to 19 October 2017.
The respondent’s application to adduce further evidence on the appeal is refused.

The Certificate of Determination dated 12 September 2017 is revoked.
The remaining issue as to whether the resolution in 2014 was an amended claim first made on 25 October 2011 or whether the gastrointestinal claim was a new claim made after 19 June 2012 is remitted for determination by another Arbitrator.

Elizabeth Wood

Deputy President

19 February 2018