Goudappel v ADCO Constructions Pty Limited - [2012] NSWWCCPD 60

WORKERS COMPENSATION COMMISSION
REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
*Status: High Court overturned decision of Court of Appeal - ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18*
CITATION:		Goudappel v ADCO Constructions Pty Limited & anor [2012] NSWWCCPD 60
APPLICANT:		Ronald Goudappel
RESPONDENT:		ADCO Constructions Pty Limited
INSURER:		GIO General Limited
INTERVENER:		WorkCover Authority of NSW
FILE NUMBER:		7810/12
DATE OF DECISION:		22 October 2012
SUBJECT MATTER OF DECISION:		Question of Law; s 351 of the Workplace Injury Management and Workers Compensation Act 1998 application of savings and transitional provisions of the Workers Compensation Legislation Amendment Act 2012 with respect to claims for lump sum compensation
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		Oral
REPRESENTATION:		Applicant:	Mr L King SC with Mr L Morgan, instructed by LHD Lawyers
Respondent:	Mr A Bartley SC with Mr R Stanton, instructed by Rankin Nathan
Intervener:	Mr S Flett, for the WorkCover Authority of NSW
ORDERS MADE:		1. The answer to the question of law referred for determination is: The amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012, apply to claims for compensation pursuant to s 66 made on and after 19 June 2012, where a worker has made a claim for compensation of any type in respect of the same injury before 19 June 2012. 2. Costs reserved. I grant the parties liberty to apply within 14 days.

INTRODUCTION

This matter raises a question of law concerning the interpretation of the savings and transitional provisions of the Workers Compensation Legislation Amendment Act 2012 (the Amending Act) with respect to claims for lump sum compensation.

THE QUESTION OF LAW REFERRED FOR DETERMINATION

“Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for compensation pursuant to s 66 made on and after 19 June 2012 where a worker has made a claim for compensation of any type in respect of the same injury before 19 June 2012?”

BACKGROUND TO THE REFERRAL OF THE QUESTION OF LAW

Mr Goudappel was employed by ADCO Constructions Pty Limited (ADCO) as the State Manager.
Whilst on a building site on 17 April 2010, a bundle of steel “purlins” fell from a forklift crushing his left foot and ankle. It is agreed that Mr Goudappel made a claim for compensation on 19 April 2010. An amended Application to Resolve a Dispute was filed, by consent, at the hearing to reflect that fact.
On 14 July 2011, Mr Goudappel was assessed by Dr James Bodel, Orthopaedic Surgeon, as having six per cent whole person impairment with respect to the injuries he sustained.
On 20 June 2012, Mr Goudappel’s solicitors made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (WCA) for $8,250 representing six per cent whole person impairment resulting from the injury on 17 April 2010.
Section 66(1) WCA was amended by Sch 2 cl 2.1 [5] of the Amending Act. The amendment provided that a worker who receives an injury which results in a permanent impairment greater than 10 per cent is entitled to receive compensation from the worker’s employer. Prior to the amendment there was no impairment threshold limiting the entitlement to lump sum compensation under s 66.
Clause 15 of Sch 12 of the Amending Act, (amendments relating to savings and transitional provisions) provides that the Sch 2 amendment “extends to a claim for compensation made on or after 19 June 2012 but not to such a claim made before that date”.
On 3 July 2012, ADCO through its insurer GIO General Limited (GIO) rejected Mr Goudappel’s claim on the basis that the compensation claimed fell below the whole person impairment threshold in s 66 of the WCA, introduced by Sch 2 of the Amending Act.
As a result of the dispute, Mr Goudappel lodged an Application to Resolve a Dispute (the Application in the Commission) seeking $8,250 in respect of six per cent whole person impairment to the left lower extremity resulting from injuries sustained on 17 April 2010.
There is no dispute that Mr Goudappel sustained a compensable injury on 17 April 2010 nor is there any dispute that he is entitled to receive weekly benefits compensation in respect to the injury.
On 9 August 2012, GIO lodged a Reply to the Application setting out the matters in dispute.
The dispute was referred to a Commission Arbitrator who held two telephone conferences with the parties and their legal representatives on 17 August 2012 and 29 August 2012. A legal representative for the WorkCover Authority (WorkCover) participated in those teleconferences and indicated WorkCover’s intention to intervene in the proceedings pursuant to s 106 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM).
The issue before the Arbitrator is whether the applicant is precluded from claiming lump sum compensation which has been assessed to be less than 11 per cent whole person impairment because his claim for compensation was made on or after 19 June 2012, even though he had previously made a claim for weekly compensation in respect of the same injury.
The Arbitrator considered that the issue involved a novel and complex question of law concerning the statutory construction of the amendments made by the Amending Act. The parties were in agreement that the question of law should be referred for determination pursuant to s 351 of the WIM.
The Arbitrator lodged an Application for leave to Refer a Question of Law on 9 September 2012. The application was of the Arbitrator’s own motion.
On 10 September 2012, I convened a telephone conference of the parties and WorkCover. The terms of the question of law to be determined were settled and directions were made for the filing of submissions.

LEAVE

Before granting leave to refer the question of law, I am required to be satisfied that the question meets the requirements of s 351(3) of the WIM, which provides:
“(3)The President is not to grant leave for the referral of a question of law under this section unless satisfied that the question involves a novel or complex question of law.”
The question of law concerns a question of statutory construction of the application of the recent amendments to the lump sum compensation provisions in s 66 of the WCA.
On one construction of the words “claim for compensation” in cl 15 of Sch 12 of the Amending Act, a worker would only be entitled to bring a claim for compensation for permanent impairment after 19 June 2012 for less than 11 per cent permanent impairment compensation if he or she had made a valid claim for lump sum compensation for permanent impairment before 19 June 2012. (Construction A)
On the alternative construction, a worker would be be entitled to bring a claim for compensation for permanent impairment after 19 June 2012 for less than 11 per cent permanent impairment compensation if he or she had validly made a claim for any form of compensation in respect of the injury before 19 June 2012. (Construction B)
A resolution of that question will not only determine whether or not Mr Goudappel is entitled to any lump sum compensation in respect of his injuries but will have wider application to many workers who have sustained compensable injuries before 19 June 2012 but, for whatever reason, have not made a claim for lump sum compensation for permanent impairment in respect of those injuries before 19 June 2012. I am aware that there are a number of applications lodged in the Commission which involve the same issue identified in this matter. Many of those applications have been adjourned pending the resolution of this application which is being viewed as a test case.
It is submitted, and I agree, that previous Presidential decisions concerning the meaning of “a claim” including Warwick Hobart t/as Terry White Chemists v Pietrzak [2006] NSWWCCPD 315; Toll Pty Limitd v Bartimote [2007] NSWWCCPD 153; Visy Board Pty Ltd v Nguyen [2010] NSWWCCPD 101 and Shoalhaven City Council v Schutz [2012] NSWWCCPD 14, do not assist in the resolution of the question referred. Those decisions were principally concerned with the application of the time limitation provisions (and in particular s 261 of the WIM) in respect of claims for lump sum compensation for impairments relating to body parts that were not claimed as part of the initial claim, and were decided before the Amending Act.
The parties and WorkCover submit, that the question is novel and complex and should be determined pursuant to s 351 of the WIM.
For these reasons I am satisfied that the requirements of s 351(3) of the WIM are met. Accordingly, leave to refer the question of law is granted.

THE LEGISLATION

Schedule 2 to the Amending Act amended s 66 of the WCA. It states:
“Schedule 2 Amendments relating to lump sum compensation
2.1 Amendment of the workers compensation Act 1987 No 70
“ [5] Section 66 Entitlement to compensation for permanent impairment
Omit section 66(1). Insert instead:
(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.”

Schedule 12 of the Amending Act contains savings and transitional provisions. The transitional provisions relevant to this proceeding are:
“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
(b)a claim for compensation made before the commencement of the amendment, and
(c)proceedings pending in the Commission or a court immediately before the commencement of the amendment.
(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.
...”
Schedule 12 of the Amending Act has since been repealed. The amendments it introduced are now found in Sch 6, Pt 19H of the WCA. For convenience, unless otherwise stated, where I refer to cl 3 and cl 15 I am referring to those clauses in Sch 12 of the Amending Act.

THE REGULATIONS

The Workers Compensation Amendment (Transitional) Regulation 2012 (the Transitional Regulation) came into operation on 1 October 2012.
According to the explanatory note the object of the Transitional Regulation is to prescribe savings and transitional provisions for the purposes of the Amending Act and to prescribe other miscellaneous matters. Relevantly, Sch 1 cl 11 of the Transitional 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 s 66 or s 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).”

APPLICANT’S SUBMISSIONS

Claims Generally

Mr Goudappel submits that the reference to “a claim for compensation” as referred to in cl 15 of the Amending Act must be examined in terms of the definitions contained in the Act.
Section 4(1) of the WIM Act defines:
“claim” as:
Means a claim for compensation or work injury damages that a person has made or is entitled to make.
“compensation” as:
Means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.
“lump sum compensation” as:
Means compensation under Division 4 (Compensation for non-economic loss) of Part 3 of the 1987 Act.
The applicant submits that the transitional provisions do not refer to a claim for lump sum compensation but rather any “claim” for compensation. The WIM does not differentiate between claims for weekly compensation, medical and hospital assistance, domestic assistance or lump sum compensation. A claim for compensation means, as defined, a claim for compensation under either Act and includes any monetary benefit under those Acts.
The entitlement to compensation and the measure of that entitlement pursuant to s 66 is fixed by the date of injury. The submission that “there is a claim as soon as there is an entitlement” (Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318; 8 NSWCCR 601), was withdrawn at the hearing.
He submits that the definition of compensation does not limit the types of benefits that fall within the meaning of compensation. It therefore follows that when the word “compensation” is used it is a reference to all types of benefits and not just one type.
Part 3 of the WCA (Compensation – Benefits) gives the word “compensation” a very wide meaning, which is consistent with the definitions including Compensation Payable on Death (Div 1), Weekly Compensation by Way of Income Support (Div 2), Compensation for Medical, Hospital and Rehabilitation Expenses (Div 3) and Compensation for Non-Economic Loss (Div 4).
A claim for compensation, as defined in the amending legislation, must then have the same meaning as in the Act it seeks to amend and must mean all forms of benefits provided under the Acts or at large. This rationale is consistent with the transitional provisions which limit the payment of hospital and medical expenses incurred more than 12 months after “a claim for compensation in respect of the injury was first made”.
The applicant observes that pursuant to Sch 12, cl 17(2) of the Amending Act, which deals with the limitation on the payment of medical, hospital and rehabilitation expenses, claims are deemed to have been made immediately before the commencement of that section.
There is a specific reference to claims for “lump sum compensation” referred to in Ch 7, Pt 3, Div 4 of the WIM (Compensation Dispute Determination). It is submitted that whilst that division refers an entitlement to lump sum compensation, it is also provides, at s 280A of the WIM, that a claim for compensation is a pre-condition for establishing an entitlement to work injury damages.
Section 282 of the WIM does not require a claim (for lump sum compensation or work injury damages) to be made, simply that particulars be provided. It is submitted that the particulars required by s 282 and, relevantly, the form of those particulars are contained in the claim form, that is, a description of the nature of the injury received, the impairments from the injury and whether there was any previous injury. In this matter those particulars were contained in a claim form prepared on 19 April 2010.
Additionally, the worker submits that s 282(1)(g) states that a claimant provide such other matters (particulars) as the guidelines may require.
Part 5.1 of the WorkCover Guidelines for Claiming Compensation Benefits (the Guidelines) is in these terms:
“if a claim is already in progress for the injury and the insurer has sufficient information regarding the injury sustained and is satisfied that the injury has resulted in permanent impairment and that it has reached maximum medical improvement, then the permanent impairment claim form is not required. If this claim proceeds as a dispute to the Workers Compensation Commission, a claim form is not to be required.
A permanent impairment claim form is required if a worker is initiating a claim for permanent impairment and pain and suffering (if applicable) related to an injury and has not previously made a claim in respect of the injury or if the insurer does not have sufficient information about the injury for which the claim is being made”.
In this instance a claim was made on 19 April 2010 and, if it subsequently became a dispute within the jurisdiction of the Commission, a further claim form would not be required. The Guidelines do require a claim form where the claim for permanent impairment is made pursuant to ss 66 and 67 and there has been no previous claim. It follows that the Guidelines are based on the premise that there is in fact only one claim for compensation in respect of the injury.
It is submitted that these matters form the basis for understanding the operation of the transitional provisions.

The transitional provisions

Clause 15 of the Amending Act involves the application of the amendments in Sch 2 of that Act.
Schedule 2 only contains amendments with respect to permanent impairment compensation. Its application, however, is “by reference to a claim (read entitlement) to any of the benefits available under the Acts”.
In interpreting the provision (cl 15) it is necessary to give it a meaning that applies the Sch 2 amendments to circumstances where the only compensation that has been sought has been, for example, weekly compensation. It is submitted that for this to have application, the reference to “a claim for compensation” must be understood as the initial claim for compensation of any type resulting from the one injury. The concept is that there is in fact only one claim for compensation which is made when making the first claim for benefits resulting from the injury.
There may be further claims for different benefits but they are not different claims for compensation.
In enacting the transitional provisions, Parliament chose to refer to “a claim for compensation”. It did not refer to a limited aspect of a claim such as “a claim for permanent impairment benefits”, or “a claim for lump sum compensation”, when a definition of that entitlement was available in the Act, or some similar term which would be limited to a particular type of benefit.
By contrast, the language used in Sch 6, Pt 6, cl 18 of the WCA, dealing with the reduction in lump sum compensation following amendments to the legislation in 1996, expressly refers to “claim for compensation under either s 66 or s 67”. It is submitted that that was the terminology used on the only other occasion when permanent impairment compensation benefits were reduced with a transitional provision that relied upon a date of claim and not the date of injury.
By using a different expression on this occasion, Parliament must be taken to have had a different intent.

Scheme and legislative objectives

The objectives of the Workers Compensation Legislation are set out in s 3 of the WIM. It is submitted that those objectives essentially provide effective and proactive claims management.
The worker submits that the intent of the transitional provisions is to ensure that in circumstances where an insurer/employer is on notice as to the existence of a claim, then provision can be made with respect to potential liabilities whereas, if an insurer is not on notice of a claim, no such provision can be made.
A reading of cl 15 down to be a reference to lump sum compensation will create inherent difficulties where, for example, an impairment for a body part in respect of a notified claim is unstable or not capable of assessment until after 19 June 2002 in which case a worker would be denied compensation in respect of an injury for which notice had been given before the due date. It is submitted that this creates uncertainty and confusion both on the part of the employer and of the insurer which is contrary to the expressed overriding legislative purpose of the Acts.

The Act contemplates that it will not always be possible to bring all claims for lump sum compensation at the same time. Section 263 of the WIM recognises this by reference to a requirement for claims for lump sum compensation be brought at the same time “wherever possible”.
The appellant submits that the objectives and general scheme of the Act insofar it is designed to promote and resolve disputes quickly and cheaply was discussed in Orellana-Fuentes v Standard Knitting Mills Pty Ltd; Carey v Blasdom Pty Ltd t/as Ascot Freightlines [2003] NSWCA 146; 57 NSWLR 282 where Ipp JA observed at [72]:
“There are detailed provisions as to how a claim is to be made (s 260) and strict time limits are imposed for making a claim (ss 261, 263 and 264). There are detailed provisions concerning the information exchanged between the parties (s 290), the duties of insurers when disputes are referred to the commission (s 291), and the expedited assessment of disputes (s 292) as well as medical assessments (ss 293 and 294A). There are detailed provisions concerning the conciliation of claims (s 355).”
It is by reference to these provisions of the Act that the manner in which a claim is to be made is predicated.
The applicant submits “once it is established that a claim has been made and particulars provided, then a worker is not subject to the savings and transitional provisions”.
The applicant developed an alternative submission based on inconsistency between ss 66(1) and 66(3) of the WCA. However, that submission was abandoned at the hearing.

Removal of statutory rights

It is an established principle of statutory construction that the limitation or ouster of common law and statutory rights must be clearly stated: Buck v Comcare [1996] FCA 1485; 66 FCR 359 at 364-5; MIMIA, Re; Ex parte Ame [2005] HCA 36; 22 CLR 439 at [81].
Further, it is submitted that it is an established principle that legislation is presumed not to have retrospective operation unless the intention appears with reasonable certainty: Maxwell v Murray (1957) 96 CLR 261 at 267 (Maxwell).
The applicant submits that the primary difference between construction A and construction B in this case is the degree of retrospectivity each affords. Construction A imposes a more onerous ouster of pre-existing rights to lump sum compensation, because it removes those rights even if a worker has made a claim for compensation. The worker might be able to argue that the claim sufficiently identified permanent impairment, so as to amount to a claim for lump sum compensation, but is otherwise barred from recovery. This is despite the fact that, as explained in the applicant’s primary submissions, the legislation recognises that it is not always possible to bring claims for lump sum compensation at the same time as the initial claim.
In the absence of clear and unambiguous words to support the more onerous construction A, the Commission should prefer a construction which does not retrospectively remove, to the same extent, the statutory rights of a worker to compensation.
For these reasons it is submitted that construction B should be favoured.

THE RESPONDENT’S SUBMISSIONS

Submissions relating to cl 15 of Sch 12

The object of the now amended s 66 of the WCA is to restrict lump sum compensation to workers who suffer “a degree of permanent impairment greater than 10 per cent”. Therefore, it is consistent with the Act that the transitional provisions should be interpreted, as required by s 33 of the Interpretation Act 1987, in a manner that gives effect to this object.
Pursuant to s 34(2)(a) of the Interpretation Act 1987, the cl 15 heading “Lump sum compensation” would fall within the category of matters not forming part of the Act but which are part of the text of the material printed. Hence the heading can be “considered”. Once so considered, it gives weight to the argument that the term “claim for compensation” in cl 15 should be interpreted as meaning a claim for lump sum compensation.
The respondent’s submission involves cl 15 being interpreted as if it read:
“15 Lump sum compensation
An amendment made by Schedule 2 to the 2012 Amending Act extends to a claim for [lump sum] compensation made on or after 19 June 2012, but not to such a claim made before that date.”
With the words in square brackets being implied into that clause.
It is submitted that the omission of the words “lump sum” in the body of cl 15 is a drafting error. The respondent submits that it was presumably thought unnecessary to include the words “lump sum” in the body of cl 15 having regard to the heading “lump sum compensation”. The error was to overlook that s 35(1) and (2) of the Interpretation Act 1987 mean that the heading was not part of the Act.
Where it is obvious that a drafting error has been made, courts (including the Commission) can read the provision in such a way as to correct the obvious error (NSW Crime Commission v Kelly [2003] NSWCA 245; 58 NSWLR 71 at 77).
In the alternative, the purposive interpretation approach, required by s 33 of the Interpretation Act 1987, can permit missing words to be read into statutory provisions if certain conditions are present, Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292 at 302 (Bermingham).
The “mischief”, referred to in Bermingham, in the context of this Application, should be regarded as a reference to the subject matter the Amending Act was relevantly dealing with and its purpose, namely, to restrict lump compensation to workers who have sustained greater than 10 per cent impairment.
The purpose of the transitional provision was to clarify what claims for lump sum compensation would be so restricted. It is further submitted that the clear intention was to provide that claims for lump sum compensation made after 19 June 2012 were to be affected by the new restriction.
It can be stated with certainty that Parliament would have inserted the words “lump sum” before the word “compensation” if it had had its attention drawn to the fact that the words “lump sum compensation” in the heading did not form part of the Act.
Therefore, it is submitted that the missing words can properly be read into cl 15.

Submissions with respect to cl 3

The respondent submits that cl 3 is fairly obviously a transitional provision of general application to the various different types of potential entitlements created by the WCA.
If the legislature had intended that the modified entitlements (including s 66) were not to affect workers with past injuries and existing impairments, it could have clearly stated this. Instead, the general transitional provisions in cl 3 expressly provide that the amendments, unless otherwise provided, extend to “an injury received before” 19 June 2012.
The relevant impairments that are the basis for a s 66 lump sum compensation claim must result from an injury. In this matter the injury occurred before 19 June 2012. Having regard to the above, the amendments are said to expressly apply to any degree of permanent impairment that results from injury.
Clause 3(2) provides some exceptions to the general retrospectivity created by cl 3(1). It provides:
“(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”.
Leaving to one side the obvious meaning of the word “paid”, what meaning attaches to the word “payable”? The respondent submits that a sum for permanent impairment compensation is not “payable” simply because a medical practitioner has opined that there is a relevant degree of permanent impairment. To be payable within the meaning of cl 3, it is submitted that there must be either:
(a) an agreement reached prior to 19 June 2012 that a sum is payable, or
(b) a determination prior to 19 June 2012 that a sum is payable.
Hence the 2012 amendments apply in this matter as the lump sum compensation was not payable before 19 June 2012.

Submissions with respect to the term “claim for compensation”

If it is accepted that cl 15 should be interpreted as suggested at [67] then the term “claim for compensation” in cl 15 cannot be a reference to an initial claim for compensation of any kind.
In the alternative, the respondent submits that there are Parts of the Workers Compensation Acts where the term “claim for compensation” is a reference to a particular claim for a particular statutory benefit. For instance, s 283 of the WIM creates the offence of failing to determine “a claim for compensation” “as and when required by this Part”. The Part in question deals variously with claims for weekly payments, claims for medical expenses and claims for lump sum compensation, with different time periods within which the claims should be determined. As such, it is submitted that the term claim for compensation in this section contemplates and is referring to different claims for different benefits, made at different times.
As such, there is nothing in the WCA which requires the words “claim for compensation” to be regarded as being a reference to an initial claim for any kind of compensation entitlement for a particular injury.
In reply, the respondent submits that it may be accepted that the word “compensation” in the WCA and the WIM is obviously a reference to any type of compensation. However, it is submitted that this fact does not mean that it must be so interpreted whenever it appears.
Where there is a conflict between a general and a specific provision, the specific provision prevails. This principle of statutory interpretation has particular application where the conflict arises from different sections of the same Act (Smith & Ors v The Queen [1974] 181 CLR 338 at 348).
For the reasons advanced by the respondent, it is submitted that the question of law should be answered in the affirmative.

WORKCOVER’S SUBMISSIONS

General

WorkCover submits that, in general, legislation is read according to the plain ordinary and natural meaning of its words having regard to the context of the legislation as a whole (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (Project Blue Sky) at [69] and [78]).
The text of the legislation is the primary focus of construction and extrinsic materials cannot be used to displace the intent of the legislature revealed by the words of the statute (Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 (Alcan)).
An important aid to construction of the legislation is in s 33 of the Interpretation Act 1987:
“... a construction that would promote the purpose or object underlying the Act ... shall be preferred to a construction that would not promote that purpose or object.”
Further, pursuant to ss 34 and 35 of the Interpretation Act 1987, resort may be had to extrinsic material to confirm the meaning of a provision that is ambiguous or obscure.

Text of the legislation

Section 261 of the WIM Act states:
“261 Time within which claim for compensation must be made
(1)     Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
…”
WorkCover submits that the reference to “not relate to the particular compensation in question” as it appears in sub-s 261(3) indicates that “claim” is capable of encompassing claims for different types of compensation under the WCA including:
(a)     claims for weekly compensation;
(b)     claims for medical expenses;
(c)     claims for compensation for permanent impairment; and
(d)     claims for work injury damages.
However, the opening words of s 261(3) “for the purposes of this section” indicate that the broad definition of “claim” is confined to s 261 of the WIM which deals with the time limitations for making of claims for compensation. The broad definition has no application to cl 15 of the Amending Act.
Clause 15 contains a specific provision relating to “lump sum” compensation. The phrase “lump sum” is capable of bearing two meanings under the WCA and WIM Acts. The first meaning is contained in Pt 3 of Div 9 of the WCA relating to commutation of compensation. The Division provides for weekly payments of compensation and medical expenses to be commuted to a lump sum. Specifically, ss 87D, 87E, 87EA, 87F, 87G and 87K all refer to the effect of commutation as resulting in “a lump sum”.
The second meaning of the phrase “lump sum compensation” is contained in s 263, Pt 3 Div 1 of the WIM, headed “Dealing with Claims” and ss 280A, 280B and 281. Lump sum compensation in these sections refers to compensation for permanent impairment under ss 66 and 67 of the pre-amendment WCA.
In reply, WorkCover submits that the meaning of the phrase “claim for compensation” under the Amending Act will be the meaning Parliament intended it to have under the Amending Act. Recourse to the possible meaning of the phrase under the 1987 Act can only be had once the language of the text of the amending Act has been exhausted: Alcan.
Reference to the various sections referred to in the WCA and the WIM do not form the basis for understanding the operation of the transitional provisions contained in the Amending Act.
WorkCover’s contention is that the word “claim” in cl 15 does not mean “any claim”. The express wording and structure of the Amending Act give the meaning “claim for compensation for permanent impairment”.

APPLICANT’S SUBMISSIONS IN REPLY

The applicant’s submissions in reply reinforce the principal submission in that the wording used in cl 15 must be considered against similar wording in the WCA and WIM as a whole.
The applicant submits the following matters are apparent:
(a) the word “compensation” is defined in the WIM and is used throughout the legislation in a non-descriptive fashion. Where the legislation uses the word “compensation” in respect of a specific type of compensation or benefit, it makes this intention clear. Examples of this are found in ss 64A and 65A of the WCA and ss 280(A), 283 and 232(1) of the WIM.
(b) The legislation operates so that a right to lump sum compensation is not contingent upon a specific claim for such compensation but rather any claim for compensation in accordance with ss 260 to 263 of the WCA (sic, WIM). This is clear, it is submitted from s 261(3) of the WCA, the Presidential decisions referred to at [23] and the WorkCover Guides.
Against this background the construction favoured by the applicant, construction B, would be entirely consistent. In contrast, one would expect that if construction A was intended, Parliament would have adopted a clearer form of words in the clause itself.
An explanation of the alternatives is found at [20] and [21]. However, for convenience, based on construction A, a worker would only be entitled to bring a claim for compensation for permanent impairment after 19 June 2012 for less than 11 per cent permanent impairment compensation if he or she had made a valid claim for permanent impairment compensation before 19 June 2012.
Based on construction B, a worker would be entitled to bring a claim for compensation for permanent impairment after 19 June 2012 for less than 11 per cent permanent impairment compensation if he or she had validly made a claim for any form of compensation in respect of the injury before 19 June 2012.
The applicant submits that the respondent and WorkCover advance four arguments in favour of construction A.
The first is that, because cl 15 restricts the right to recover lump sum compensation, the reference to “a claim for compensation” in cl 15 must necessarily be a reference to a claim for lump sum compensation. The respondent focuses on the subheading “lump sum compensation”, whilst WorkCover focuses on the fact that Sch 2 to the Amending Act contains only amendments regarding lump sum compensation.
The fact that cl 15 delineates transitional rights to recover lump sum compensation is obvious. In the applicant’s submission, however, it does not follow, in the absence of clear words, that cl 15 must perform this delineation by reference to the timing of the claim specifically for lump sum compensation as opposed to the timing of any claim for compensation arising from that injury.
The applicant submits that in fact the subheading to cl 15 referring to lump sum compensation makes it less likely, not more likely, that the absence of those words in the clause itself was “an obvious drafting error” as submitted by the respondent. In circumstances where the legislation generally uses the word “compensation” in a non-restrictive fashion, it is not open to the Commission to find that, in this one case, by inadvertence, Parliament has overlooked an eventuality that must be dealt with if the purpose of the Act is to be achieved. It is submitted that, unless the Commission can be satisfied of such inadvertence, it should not read the extra words into the clause (Bermingham).
The second argument which is advanced by the respondent is based on cl 3 of the Amending Act.
It is submitted that, relevantly, cl 3(1)(b) provides that an amendment made by the Amending Act “extends to a claim for compensation made before the commencement of the amendment” (except as provided otherwise by Pt 19H). The respondent’s argument is that, in light of the general retrospectivity of cl 3, if construction B of cl 15 was intended by Parliament, one would have expected it to be expressed in clearer terms.
The applicant submits that the problem with this argument is that the general retrospectivity of cl 3 is expressly subject to any exceptions contained within Pt 19H. Clause 15 was clearly intended to act as one such exception. Whether one adopts construction A or construction B, cl 15 has work to do in limiting the retrospectivity of the amendments in respect of lump sum compensation. Hence the reference to cl 3 simply does not assist in choosing between the two possible constructions.
The applicant submits that the third argument, advanced only by WorkCover, is that the Commission should look only to the language of the Amending Act in seeking to construe cl 15. It is submitted that this argument should be rejected. Although cl 15 was originally inserted into the WCA by the operation of Sch 12 of the Amending Act (which has since been repealed), the present issue is how it should be understood as part of the WCA as a whole. Further, there is no authority for the proposition that the construction of words in a statute should be limited to the context in which those words were introduced as opposed to the context in which those words now operate. Alcan does not support the proposition advanced by WorkCover.
The fourth argument which was advanced only by WorkCover, was that the purpose of the Amending Act is favoured by construction A. The applicant submits that this submission should also be rejected.
There is no doubt that the purpose of the amendments to the WCA and the WIM is to restrict rights to compensation. This “underlying purpose” simply does not assist in determining how to construe a discrete transitional provision. In particular, the “underlying purpose” is not defeated by construction B, because with the passage of time there will be few, if any, claims for lump sum compensation based on claims for compensation made prior to 19 June 2012. It is submitted that this is a consideration, one of fairness, in favour of construction B which attributes to the legislature knowledge that claims for lump sum compensation are almost always preceded by claims for other compensation together with a willingness to treat the earlier claim as the relevant “foot in the door”.

It is for the reasons set out above the applicant submits that none of the arguments advanced either by the respondent or WorkCover assist the Commission in choosing between the two possible constructions of cl 15.

DISCUSSION AND FINDINGS

The legal principles

As WorkCover submits, as a general principle, legislation is read according to the plain ordinary and natural meaning of its words.
In Project Blue Sky McHugh, Gummow, Kirby and Hayne JJ held at [78]:
“... the duty of a Court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction (eg the presumption that, in the absence of unmistakeable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities: Coco v R (1994) 179 CLR 427 at 437) may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
In Project Blue Sky their Honours held at [69], any particular provision should be read in the context of the legislation as a whole:
“The primary objective of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all the provisions of the statute: see Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213 per Barwick CJ. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’: Cooper Brooks (Wollongong) Pty Limited v FCT (1981) 147 CLR 297 at 320 per Mason and Wilson JJ. See also South West Water Authority v Rumbles [1985] AC 609 at 617 per Lord Scarmon, ‘In the context of the legislation read as a whole’. Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, Dixon CJ pointed out that ‘the context, the general purpose and policy of the provision and its consistency in fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.”
More recently, in Alcan, in the context of interpreting a tax statute, his Honour the Chief Justice stated at [4]:
“The starting point ... is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 340 as:
‘dictated by elementary considerations of fairness, for, after all, those who are subject to the law’s commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage’.
In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.
[5] The provisions of the Interpretation Act (NT) as they stood at the time of the relevant transactions have to be taken into account. Section 62A of the Interpretation Act (NT) requires a construction promoting the purpose or object underlying the statute to be preferred to a construction that does not do so. Section 62B authorises recourse to extrinsic materials in the interpretation of statutes. The Interpretation Act (NT) has no equivalent of s 15AB(3) of the Acts Interpretation Act 1901 (Cth) (the Commonwealth Interpretation Act), which requires regard to be had to “the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act”. Despite the lack of such a provision in the Interpretation Act (NT), the established common law approach, which begins with the ordinary grammatical meaning of the text having regard to context and purpose, applies to like effect. The Court of Appeal in this case construed the Act by reference to an imputed legislative intention reflecting a revenue-maximising approach to taxing statutes which paid insufficient regard to the clear words of the Act.”
At [47] Hayne, Hayden, Crennan and Kiefel JJ stated:
“This Court has stated on many occasions the task of statutory construction must begin with the consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
I agree that, as WorkCover submitted, reading the remarks of the Chief Justice and the majority together, the text of the legislation is the primary focus of consideration. Extrinsic materials cannot be used to displace the intent of the legislature, revealed by the words of the statute.
Project Blue Sky and Alcan are consistent with the proposition that extrinsic materials cannot be used until the wording of the legislation has been exhausted. The meaning of the words contained in any part of a statute should be construed in the context of the whole of the statute.

Clause 15

Mr Goudappel’s application is concerned with the interpretation of cl 15 which commences with the subheading “Lump sum compensation”. The parties agreed that, as the heading “Lump sum compensation” is not a heading to a Chapter, Part, Division or Subdivision within the terms of s 35(1)(a) of the Interpretation Act 1987, nor is it a heading to a Schedule within the terms of s 35(1)(b) of the Interpretation Act, it therefore cannot be taken to be part of the Act. I accept that to be the position and accordingly I propose to disregard the heading.
However, cl 15 commences with the words “An amendment made by Schedule 2 to the 2012 amending Act”. Sch 2 is headed with the words; “Amendments relating to lump sum compensation” This is a heading to a Schedule within the meaning of s 35(1)(b) of the Interpretation Act 1987 and it is therefore taken to be part of the Act. Schedule 2 introduces the amendment to s 66(1) with which the question of law is concerned.
As a general principle, courts have pointed out that they are not at liberty to consider any word or sentence in a statute as superfluous or insignificant. In Project Blue Sky at [71], McHugh, Gummow, Kirby and Heyne JJ said:
“Furthermore a court construing a statutory provision must strive to give meaning to every word of the provision. In TheCommonwealth v Baume (1905) 2 CLR 405 at 414 Griffith CJ cited R v Berchet (1688) 1 Show KB 106 [89 ER 408] to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”
Clause 3 of the Amending Act, provides that amendments made by the Amending Act extend to injuries received and claims made before the commencement of the amendment, except as provided by that Part or the regulations. In other words, the Amending Act is retrospective, unless there is an exception. The only way an exception can be created for a claim for compensation under s 66 of the WCA (a claim for lump sum compensation), is if the words “An amendment made by Schedule 2” are omitted or ignored. There is no justification for reading cl 15 in that way and to do so is contrary to the principles discussed in Project Blue Sky at [71].
The intention of cl 15 is clear from its terms because it is defined by the subject matter to which it applies, namely, “An amendment made by Schedule 2 to the 2012 amending Act”. As Sch 2 of the Amending Act expressly deals with “Amendments relating to lump sum compensation”, it follows that an amendment by Sch 2 extends by virtue of cl 15 to a claim for lump sum compensation made on or after 19 June 2012, but not to such a claim made before that date.
Although I accept there is considerable force in the respondent’s argument that the words “lump sum” should be read into cl 15, I do not believe that is necessary to give effect to the clear meaning of the provision.
As counsel for the respondent Mr Bartley SC submitted, a right to lump sum compensation is a right that only crystallises on a specific date in respect of a defined level of permanent impairment that has a dollar value attached to it. The foundation for it, the injury, exists, but the claim to which cl 15 relates is the claim to which Sch 2 relates, namely, the claim for permanent loss compensation. That claim must have crystallised, and have been made in its terms, before 19 June 2012 to fall within the exception that cl 15 provides. As Mr Goudappel made no claim for permanent impairment compensation until after 19 June 2012, and as no such compensation was paid or payable to him before 19 June 2012, he has no entitlement to such compensation.
Senior Counsel for the applicant Mr King SC argued (at T 11.19) that, in the absence of more specific language, the generality of the words “a claim for compensation” in cl 15, “override” the proposition that the legislature was intending to refer to lump sum compensation. He argued that, as a matter of construction, to construe the words “An amendment made by Schedule 2” as only referring to lump sums can only be achieved by looking to provisions beyond the wording of cl 15 itself. If the words “An amendment made by Schedule 2” were intended to refer to lump sum provisions then the legislature could have been expected to have made that plain, but did not.
Implicit in the applicant’s submission is a prohibition on looking beyond the words of cl 15 to interpret its meaning. That submission is contrary to the principles of statutory construction stated in Project Blue Sky and I reject it. As I noted at [117], the meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. The primary objective of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (Project Blue Sky). As the authors D C Pearce and R S Geddes in the text Statutory Interpretation in Australia, 7^th ed at [7.23] said “The basic rule is that when any Act is amended by a later Act, the two are to be regarded as one connected and combined statement of the will of Parliament”. It is therefore appropriate to look beyond the wording of cl 15.
Without reference to all of the words of cl 15 the provision becomes meaningless. Contrary to the applicant’s argument the legislature has used plain language to prevent the recovery of lump sum compensation in circumstances where no claim for that compensation had been made prior to 19 June 2012.
Construing the text of cl 15, in the context of the Amending Act, the question referred for determination must be answered in the affirmative.

Legislative purpose

The above conclusion is reinforced when one considers the context and general purpose of the Amending Act and the mischief it is seeking to remedy (Alcan).
The context of cl 15 is that it forms part of an extensive range of amendments introduced to reduce the benefits payable to less seriously injured workers and, in limited circumstances, increase benefits payable to more seriously injured workers. In this context the interpretation of cl 15 that I favour is consistent with the overall purpose of the Amending Act.
Only if there is any ambiguity in cl 15, it is appropriate to then consider extrinsic material. While I do not believe there is any ambiguity in cl 15, the extrinsic material is instructive.
In Alcan, Chief Justice French was referring to context in a wide sense referable, among other things, to the existing state of the law and the mischief which the statute was intended to remedy. The “mischief” addressed in cl 15 must be read in the context of the purpose of the Amending Act.
Section 33 of the Interpretation Act 1987, dictates that, in the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule is to be preferred to a construction that would not promote that purpose or object.
For the reasons given above, the clear purpose of the legislation is to restrict lump sum compensation in the manner referred to at [134]. Applying s 33, the construction that promotes the purpose of the transitional provisions of the Act is one that limits access to lump sum compensation to claimants who have made a claim for lump sum compensation, as opposed to a claim for any form of compensation, before 19 June 2012.
The applicant submitted that the “underlying purpose” is not defeated by construction B, because with the “passage of what will be not much time there will not be any, or will be very few, claims for lump sum compensation based on claims for other compensation made prior to 19 June 2012”.
This submission is based on an assumption that the construction favoured by the respondent will have minimal overall impact on the WorkCover fund. That assumption is not sound. Construction B would permit any previous claimant who had made a claim for compensation of any kind, in respect of the same injury, at any time prior to 19 June 2012, to proceed with a claim for lump sum compensation irrespective of the impairment threshold and irrespective of whether any prior claim of permanent impairment compensation had been made. It is reasonable to infer that interpreting cl 15 in that manner would create a very substantial drain on the WorkCover fund and is in my view precisely the situation that the lump sum amendments are intended to avoid. For these reasons I reject the submission.
The applicant’s submission at [54] that the interpretation I favour would create uncertainty and confusion on the part of the employer and the insurer, which is contrary to the overriding legislative purpose of the Acts, is also rejected. In fact, the opposite is achieved. By clearly delineating those claims that may proceed, and those that may not, provides employers and insurers greater certainty in estimating claims liabilities, which is consistent with the purpose of the legislation.

Claiming compensation benefits

The applicant’s contention is that the Workers Compensation Acts do not differentiate between claims for different compensation types. He submits that once the initial claim was made, in this case on 19 April 2010, the provisions of cl 15 were satisfied and nothing further was required. The applicant’s counsel Mr King SC described it as “a foot in the door provision” (T13.1).
In his submission, compliance with the specific requirements for making a claim for lump sum compensation is irrelevant (T13.34). Indeed, counsel submitted it was wrong to regard compliance with those provisions a condition of satisfactory compliance with cl 15. I should say that, in my exchange with counsel, I mistakenly drew his attention to the provisions of ss 65 and 66 of the WIM which are only concerned with claims made prior to 1 January 2002. The specific requirements for making a claim for lump sum compensation after that date are found in s 282 of the WIM and the Guidelines. Notwithstanding that error, I reject the thrust of the submission for the following reasons.
The applicant referred to ss 260 and 263 of the WIM to support the submission that a right to lump sum compensation is not contingent on a specific claim for such compensation, but rather any claim for compensation (see [100] above). That is not correct. Section 260 is really nothing more than a provision enabling the making of guidelines with respect to the making of claims. It provides that a claim must be made in accordance with the applicable requirements of the guidelines. Section 263 of the WIM does not advance the issue for determination in this application. It merely provides that all claims for permanent impairment compensation must, as far as practicable, be made at the same time.
As Mr King observed, it is common place in this jurisdiction for there to be initial claims for compensation soon after an injury, which are followed after an interval by further or subsequent claims including claims for lump sum compensation for permanent impairment compensation. Often that is because the full extent of any impairment may not be fully assessable for months, and in some cases, years after the initial injury.
It is for this reason that the legislature has made very specific provision for the manner in which these further claims are to be made. The important point to note is that the legislative scheme for claiming lump sum compensation, dealt with in s 282, is quite distinct from the initial making of the claim dealt with in s 260.
Section 282 of the WIM Act states:
“282 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 WorkCover 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.”
At the time of Mr Goudappel’s claim for lump sum compensation, the Guidelines (referred to in s 282(1)(g)) in respect of claims for lump sum compensation under s 66 provided:
“Part 5MAKING AND HANDLING A CLAIM FOR LUMP SUM COMPENSATION (PERMANENT IMPAIRMENT AND PAIN AND SUFFERING)
To be eligible for lump sum compensation under s 66 of the 1987 Act a worker must have sustained an injury, as defined in s 4 of the 1998 Act that resulted in permanent impairment.
1.     Minimum Information Required for a Worker to Initiate a Claim
If a claim is already in progress for the injury and the insurer has sufficient information regarding the injuries sustained and is satisfied that the injury has resulted in permanent impairment and that it has reached maximum medical improvement, then the permanent impairment claim form is not required. If this claim proceeds to a dispute to the Workers Compensation Commission, a claim form is not to be required.
A permanent impairment claim form is required if a worker is initiating a claim for permanent impairment and pain and suffering (if applicable) related to an injury but has not previously made a claim in respect of the injury or if the insurer does not have sufficient information about the injury for which the claim is being made.
2.     Relevant Particulars about a Claim (refer to section 282 of the 1998 Act).
The claim must include relevant particulars about the claim.
[not reproduced 2.1 For injuries pre 1 January 2002]
2.2    For injuries from 1 January 2002:
•the injury received, as identified in claim for workers compensation. If no claim for compensation has been made, it will be necessary to separately make such a claim
•all impairments arising from the injury
•whether the condition has reached maximum medical improvement
•the amount of whole person impairment assessed in accordance with the WorkCover Guides for the evaluation of permanent impairment
•a medical report completed in accordance with the WorkCover Guides for the evaluation of permanent impairment by a medical specialist with qualifications and training relevant to the body system being assessed who has been trained in the WorkCover Guides
•If there is more than one impairment that requires assessment by different medical specialists, one specialist must be nominated as lead assessor and determine the final amount of whole person impairment
•if the claim is for permanent impairment of hearing, a copy of the audiogram used by the medical specialist in preparing the report that accompanies the claim.”

Under the Guidelines the following particulars must be provided that are additional to the requirements for making an initial claim:
(a)     whether the condition has reached maximum medical improvement;
(b)     the amount of whole person impairment assessed in accordance with the WorkCover Guides for the evaluation of permanent impairment;
(c)     a medical report completed in accordance with the WorkCover Guides for the evaluation of permanent impairment by a medical specialist with qualifications and training relevant to the body system being assessed who has been trained in the WorkCover Guides, and
(d)     if there is more than one impairment that requires assessment by different medical specialists, one specialist must be nominated as lead assessor and must determine the final amount of whole person impairment.
I accept the applicant’s submission that a separate claim form is not required to initiate a claim for lump sum compensation. However, that is merely a matter of form. In substance, a claim for lump sum compensation is not validly made until the requirements of s 282 of the WIM, and the particulars and supporting documents required by the Guidelines, are provided.
This is consistent with s 281(1), which requires that a person on whom a “claim” for lump sum compensation (or work injury damages) has been made to either accept the “claim” and make an offer of settlement or dispute liability within specified time limits.
Under s 281(2A) the determination of a “claim” for lump sum compensation cannot be delayed beyond two months after the claimant has provided to the insurer “all relevant particulars about the claim” (emphasis added).
When the person on whom “a claim” for lump sum compensation has been made accepts or disputes liability, the person must notify the claimant accordingly (s 281(2B)).
Under s 281(5), an employer is not required to determine “a claim” as provided by s 281 if it has forwarded the claim to an insurer and has complied with all reasonable requests of the insurer “with respect to the claim”.
As discussed at [128], a right to lump sum compensation is a right that only crystallises on a specific date in respect of a defined level of permanent impairment that has a dollar value attached to it. It is not until this has occurred that a valid claim for lump sum compensation has been made.
The applicant’s reliance on s 261(3) of the WIM to support the proposition that the legislation operates so that a right to lump sum compensation is not contingent upon a specific claim for such compensation, but rather any claim for compensation, is misplaced. The use of the expression “a claim for compensation” in that provision is limited to the application of the provisions dealing with the time limit in which claims are to be made. That much is clear from the qualifying words of the sub-section “For the purpose of this section”. It is in that limited context that the Presidential decisions referred to at [23] were decided.
It is clear from the above analysis that the WCA and the WIM operate very differently in respect of claims for lump sum compensation for permanent impairment compared to initial claims for compensation. It follows that I reject the applicant’s submission that the Guidelines operate on the premise that there is in fact only one claim in respect of an injury.
The applicant submitted that the word “compensation”, as defined, has a very wide meaning. The definition does not limit the types of benefits that fall within the term compensation, and is used to refer to all types of compensation, not just one type. Therefore the phrase “a claim for compensation” in cl 15 of the Amending Act, so it is argued, must have the same meaning as the Act it seeks to amend, that is, a claim for compensation generally.
However, as the respondent submits, the word “compensation”, wherever it appears in the WCA and the WIM, must be considered in the context in which it appears. For example, in s 65A(1) of the WCA, the reference to “compensation” is clearly a reference to lump sum compensation for impairments resulting from psychological injury. Another example, contained in the heading to s 64A of the WCA, is a reference to compensation for the cost of interpreting services. A further example is found in s 60 of the WCA which deals with compensation for the cost of medical, hospital and rehabilitation treatment.
The applicant’s submission again ignores the opening words to cl 15 “An amendment made by Schedule 2” which is a reference to the amendments to s 66 of the WCA which is located in Div 4 of Pt 3 of the WCA. That Division is only concerned with “compensation for non-economic loss”, that is, lump sum compensation for permanent impairment.
For these reasons, when read in context, the phrase “a claim for compensation” in cl 15 is clearly a reference to lump sum compensation and not a reference to compensation used in the wider sense.
The applicant submits that it is an established principle that legislation is presumed not to have retrospective operation unless the intention appears with reasonable certainty (Maxwell). In the circumstances of this application, the applicant submits that where there are two possible constructions, one of which involves a more onerous ouster of pre-existing rights, in the absence of clear and unambiguous words to support the more onerous construction, the less onerous construction should be preferred. For the reasons already given, I have concluded that the words used in cl 15 are clear and are open to only one interpretation.

Extrinsic material

The Minister’s second reading speech

Section 34(2)(f) of the Interpretation Act 1987 permits, among other things, the use of the Minister’s second reading speech to the Parliament as extrinsic material that may be considered in the interpretation of a provision.
The Workers Compensation Legislation Amendment Bill 2012 (the Bill) was introduced into the New South Wales Parliament on 19 June 2012 by the Treasurer, the Hon M Baird, MP.
Relevantly, the Treasurer said:
“The purpose of the Bill is to deliver urgently needed reforms to the New South Wales workers compensation scheme. With a deficit in excess of $4 billion, the scheme currently is unsustainable.”
The Treasurer went on to outline the government’s view that if it did not act immediately, based on actuarial advice, the scheme faced a prospect of a 28 per cent increase in workers compensation premiums. He added that this was likely to have a negative impact on the economy, businesses and job growth in New South Wales. The Treasurer explained that the Bill represents a fundamental shift towards properly meeting the needs of the most seriously injured workers in the scheme while strongly incentivising return to work for those workers who have a capacity to return to work.
The Treasurer specifically addressed the object of Sch 2 to the Bill. He said:
“Schedule 2 to the Bill reforms the scheme for lump sum payment of compensation by removing pain and suffering as a separate category of lump sum compensation and limiting lump sum payments to workers who meet an impairment threshold of greater than 10 per cent, which will be limited to only one claim. The amendment proposes only one assessment of the level of impairment for the purposes of permanent impairment commutation and common law work injury claims and allows workers to waive their requirement to obtain legal advice before agreeing to a lump sum. These initiatives will help to reduce disputes and reduce administration costs while allowing the scheme to focus on the more seriously injured workers.”
The Treasurer also addressed specifically Schs 11 and 12 to the Bill. He said:
“Schedules 11 and 12 to the Bill provide for various miscellaneous amendments and savings and transitional provisions... Changes to lump sum compensation and work injury damage will generally apply to claims from the date of the introduction of the Bill.”
Thus, the purpose of the Amending Act, as expressed by the Minister in his second reading speech, was to address an urgent and rapidly deteriorating deficit in the New South Wales workers compensation scheme. The Minister expressed the legislature’s intention to focus the distribution of benefits to those workers suffering more serious injuries. In respect of lump sum claims this was achieved by:
(a)     removing pain and suffering as a separate category of compensation for permanent impairment;
(b)     limiting compensation for permanent impairment to workers who meet a threshold of 11 per cent or greater, and
(c)     limiting the application of compensation for permanent compensation to just one claim.
The Minister’s reference to the timing of the introduction of the lump sum reforms was clearly stated to apply to claims “from the date of the introduction of the Bill”, that is, from 19 June 2012, which is the date identified in cl 15 as the operative date.
The Minister’s speech is, in my view, consistent with the conclusion I have reached applying the principles in Project Blue Sky and Alcan. That meaning is that the lump sum amendments are intended to apply to permanent impairment lump sum claims made on or after 19 June 2012, even if the injury happened before that date.
Such a construction is consistent with the expressed intention to take immediate action to address the burgeoning WorkCover deficit.
The applicant seeks to garner support for his position by contrasting the words used in the Amending Act with those used in Sch 6 Pt 6 cl 18 which introduced an amendment to s 66 of the WCA in 1996. That amendment had the effect of reducing the maximum compensation payable under s 66 at that time. The transitional provision, which accompanied the amendment to s 66, used the phrase “claim for compensation under either s 66 or s 67”. The import of the submission is that, by using a different expression on this occasion, Parliament must be taken to have had a different intent.
The reference to the 1996 amendments is unhelpful in determining the construction of cl 15 of the Amending Act. The construction of cl 15, as I have said, depends on the words used and the context in which they have been used. The particular words used in previous amendments to the legislation are irrelevant.

The Regulations

The Transitional Regulations commenced on 1 October 2012. The relevant extract is referred to at [30].
The applicant submitted that because the Regulation became operative before the date of its publication in the Gazette (5 October 2012), it could not operate in a manner prejudicial to the applicant by reason of Sch 6 Pt 20 sub-cl (3)(a) of the WCA. To that extent it was ultra vires and of no effect.
The respondent argued that s 34 of the Interpretation Act 1987 authorises the consideration of material not forming part of the Act, if that material is capable of confirming that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, or to assist in determining the meaning of a provision that is ambiguous or obscure. Thus reference may be made to the Regulation to assist in the interpretation of the meaning of cl 15.
My conclusion as to the effect of cl 15 does not depend on the effect of the Regulation. Therefore, even if the Regulation is ultra vires, as Mr King submitted, that makes no difference to the outcome. It is therefore not necessary to determine if the Regulation is ultra vires.

CONCLUSION

The answer to the question of law referred for determination is:
The amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012, apply to claims for compensation pursuant to s 66 made on and after 19 June 2012, where a worker has made a claim for compensation of any type in respect of the same injury before 19 June 2012.

COSTS

No submissions have been made with respect to costs. In the circumstances, I reserve the question of costs and grant the parties liberty to apply within 14 days.

Judge Keating

President
22 October 2012

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE