Gundelj v Brighton Australia Pty Limited
[2021] NSWPICPD 28
•17 September 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Gundelj v Brighton Australia Pty Limited [2021] NSWPICPD 28 |
| APPELLANT: | Zeljko Gundelj |
| RESPONDENT: | Brighton Australia Pty Limited |
| INSURER: | icare Workers Insurance |
| FILE NUMBER: | A1-5836/20 |
| PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
| DATE OF APPEAL DECISION: | 17 September 2021 |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 21 January 2021 is confirmed. |
| CATCHWORDS: | WORKERS COMPENSATION – prior deed of release entered into between the parties – later claim for further loss of hearing – construction of deed of release – Arbitrator’s construction of the deed unchallenged on the appeal – held the deed of release extended to the further loss of hearing injury |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr M Bechelli, solicitor | |
| Whitelaw McDonald | |
| Respondent: | |
| Mr G Barter, counsel | |
| Hicksons Lawyers | |
| DECISION UNDER APPEAL | |
| MEMBER: | Mr M Douglas |
| DATE OF MEMBER’S DECISION: | 21 January 2021 |
INTRODUCTION
This is an appeal against the decision of an Arbitrator of the Workers Compensation Commission involving the interpretation of a Deed of Release (the Deed) and the application of s 151A of the Workers Compensation Act 1987 (the 1987 Act).
The appellant, the respondent and the respondent’s insurer executed a Deed of Release on 30 January 2017. The appellant subsequently made a claim for compensation with respect to a “further loss of hearing” injury.
The dispute between the parties is whether the release contained within the Deed extended to the further loss of hearing injury. The Arbitrator found that it did and therefore, because of the operation s 151A(1) of the 1987 Act, the claim for additional compensation failed as the appellant had received damages in respect of the injury.
BACKGROUND
The facts are not in dispute. The following statement of background facts is taken from the Arbitrator’s Reasons.[1]
[1] Gundelj v Brighton Australia Pty Ltd [2021] NSWWCC 24 (reasons).
In 2007 Mr Gundelj recovered compensation for a 3% hearing loss sustained whilst employed by someone other than Brighton.
The appellant worked for Brighton Australia Pty Limited (Brighton) as a gyprocker. He was employed between 1 November 2011 and 7 December 2011 and again on 30 July 2012. His employment was terminated on 16 December 2014. The Arbitrator’s statement of “background” records that Mr Gundelj did not work between 30 July 2012 and 16 December 2012. It is likely that the date the “30 July 2012 should be 31 July 2012 as other material (for example the s 281/282 Notices) indicates that the appellant sustained injury on 31 July 2012. It appears to me that paragraph 1 should read “between 31 July 2012 and 16 December 2012” the appellant did not perform any duties. Nothing turns on this discrepancy which appears to originate in the “agreed” facts recorded at paragraph 13 of the reasons.
Mr Gundelj suffered an injury on 31 July 2012 to his low back, neck and shoulders as a result of his employment with Brighton and developed a consequential condition of depression and anxiety.
A Medical Panel issued a Medical Assessment Certificate on 29 January 2016 certifying that Mr Gundelj had a 15% whole person impairment (WPI) as a result of the injuries suffered on 31 July 2012.
On 26 May 2016, Mr Gundelj’s then solicitor gave notice under s 281 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that Mr Gundelj would be pursuing a claim for work injury damages against Brighton. That notice confirmed a claim had been made on Brighton for lump sum compensation for permanent impairment. The particulars provided in the notice related to an injury to Mr Gundelj’s lower back, neck and shoulders and consequential depression and anxiety.
In reply to that notice, Brighton served a draft Defence in which it admitted Mr Gundelj had suffered an injury at approximately 12 noon on 31 July 2012.
As at 30 January 2017, Brighton had not paid permanent impairment compensation to Mr Gundelj for his injury of further hearing loss.
The Deed of Release was executed on 30 January 2017.
On 25 June 2020, the appellant made a claim for permanent impairment compensation in respect of a 12% permanent impairment ($17,050) and for s 60 expenses in respect of hearing aids ($6,203.80). The claim was supported by a report from Dr J Scoppa dated 23 March 2020.
On 18 September 2020, Brighton’s insurer notified Mr Gundelj pursuant to s 78 of the 1998 Act that it disputed the entitlement to compensation for permanent impairment on the basis that the injury had not resulted in a permanent impairment of greater than 10%. The insurer relied upon the report of Dr Tamhane dated 14 August 2020. That report provided a whole person impairment of 6% which, after deduction for a previously compensated hearing loss of 3%, resulted in a revised whole person impairment of 3%.
The appellant brought an Application for Determination by the Workers Compensation Commission of the disputed claim for compensation (ARD). In the Reply to the ARD, Brighton resisted the claim on the basis that the appellant was not entitled to further compensation by virtue of s 151A(1) of the 1987 Act. It relied upon the Deed made between the parties on 30 January 2017.
On 26 November 2020, the Arbitrator, pursuant to s 298A(4) of the 1998 Act, permitted “in the interests of justice” the respondent to rely upon the Deed. Oral reasons for that decision were given. There is no appeal from that determination by the Arbitrator.
The appellant’s further hearing loss was the result of exposure to loud noise experienced whilst employed by Brighton.
The ARD initially identified the date of injury as 30 June 2013 but, by an amendment consented to by the respondent, the date of injury was changed to 16 December 2014, being the last day upon which Mr Gundelj was employed by Brighton. At the same time the description of the injury was changed to “further hearing loss as a result of exposure to loud [noise]”.
CERTIFICATE OF DETERMINATION
On 21 January 2021, the Workers Compensation Commission in accordance with s 294 of the 1998 Act issued a Certificate of Determination in the following terms:
“The Commission determines:
1. With the consent of the parties, the Application to Resolve a Dispute is amended as follows:
(a)the date of injury is changed to ‘16 December 2014’, and
(b)the description of injury is changed to ‘further loss of hearing as a result of exposure to loud noise’.
2. There is an award for the respondent.”
THE ARBITRATOR’S STATEMENT OF REASONS
The Arbitrator set out extracts from the Deed of Release at [14]–[16] of the reasons.
The Deed appears to be identical in form to that considered by the Workers Compensation Commission in Heidtmann v Rail Corporation NSW.[2]
[2] [2018] NSWWCCPD 23 (Heidtmann).
After summarising the parties’ submissions and his consideration of the authorities to which he had been referred, the Arbitrator said:
“I do not accept the submissions of Mr Gundelj to the effect that the parties’ failure to comply with the prescriptive procedural requirements of Chapter 7 of the 1998 Act, and in particular the parties’ failure to comply with s 280B, had the consequence that, firstly, Mr Gundelj had no entitlement for and could not consequently receive damages for his injury and, secondly, Brighton or its insurer had no liability to pay him work injury damages. The failure of the parties to comply with the procedural requirements of the 1998 Act did not extinguish Mr Gundelj’s entitlement to recover damages for his injury or his right to pursue Brighton for damages. It was open to the parties to negotiate and settle any claim or allegation that Mr Gundelj made against Brighton for work injury damages for such an injury notwithstanding that neither Mr Gundelj nor Brighton and its insurer had complied with the prescriptive procedural requirements of the legislation. If the situation had arisen whereby Mr Gundelj litigated a claim for work injury damages for his injury by instituting proceedings, then in such a hypothetical situation, his failure or Brighton’s failure to comply with any of the procedural requirements stipulated by the 1998 Act with respect to such a claim potentially could have resulted in his claim being defeated. But that would only be the case if Brighton had sought to defend his claim by raising as an issue his failure to comply with the procedural requirements. To repeat, this is a hypothetical situation, and will forever remain a hypothetical, because in my view Mr Gundelj has received damages for his injury of further hearing loss from Brighton by his receipt of the damages of $430,000 that Brighton was obligated to pay him pursuant to the Deed it made with him on 30 January 2017.”[3]
[3] Reasons, [52].
The Arbitrator rejected a submission that the Deed of Release was inconsistent with s 234 of the 1998 Act prohibiting contracting out; and, that the Deed could not apply to injury in the form of a further hearing loss because that injury could not have manifested until the extent of the further hearing loss had been assessed by Dr Scoppa.[4]
[4] Reasons, [53]–[54].
The Arbitrator said the construction of the Deed was to be undertaken by reference to what a reasonable person would understand by the language the parties used in the Deed having regard to the context in which the words appear, the purpose and object of the transaction.[5]
[5] Reasons, [55].
He concluded that the Deed extended to include “any injury arising from the nature and conditions of his employment with Brighton that affected the function of his hearing organs. Hence, it includes his further loss of hearing for which he seeks compensation from Brighton in the present proceedings.”[6]
[6] Reasons, [56].
The Arbitrator rejected the submission by Mr Gundelj that a “further hearing loss” injury was a “latent injury”.[7]
[7] Reasons, [59].
As will be discussed later, in my view it is critical to the disposition of the appeal that there is no challenge to the Arbitrator’s construction of the Deed.
THRESHOLD MATTERS
There is no dispute that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
ON THE PAPERS
The parties submit that the appeal can be decided solely on the basis of the written application and any written notice of opposition.
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied that this is an appropriate matter to proceed “on the papers” without holding any conference or formal hearing.
THE NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT
I exercise the jurisdiction provided in subs 352(5) which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
TRANSFER OF THE MATTER FROM THE WORKERS COMPENSATION COMMISSION TO THE PERSONAL INJURY COMMISSION
The appeal was registered with the Workers Compensation Commission on 16February 2021. The Workers Compensation Commission was abolished and replaced by the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act from 1 March 2020.
The 2020 Act amended the 1998 Act such that the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act.
PROCEDURAL
The Appeal Against Decision of an Arbitrator was lodged on 16 February 2021.
On 17 February 2021, a delegate of the Registrar issued a Direction requiring the application to comply with Practice Direction Number 6. In the detailed reasons for the direction attention was directed to the requirement that the grounds of appeal identify:
“(a) the respects in which error of law, fact or discretion is alleged to have occurred;
(b) any material findings it is said the Arbitrator should or should not have made, and
(c) any material facts it is said the Arbitrator should or should not have found.”
The Delegate noted that Ground 2 stated “Ground 2 – Sections 280A and 280B of the 1998 Act” and Ground 4 stated “Ground 4 – the deed attempts to circumvent the commutation provisions of the 1987 Act”. These items do not comply with Practice Direction No. 6.
On 22 February 2021 in response to the Commission’s Direction, the appellant filed a “Document filed in accordance with the Direction made on the 17 February 2021” which provides without introduction:
“1. The arbitrator erred in law in finding that pursuant to the deed entered into between the parties dated 30 January 2017 (the deed), the appellant had received work injury damages in respect of hearing loss suffered during the course of his employment with the respondent notwithstanding that the requirements for the making of a work injury damages claim had not been complied with.
2. The arbitrator erred in law in determining that the requirements pursuant to section 280A of the Workplace Injury Management and Workers Compensation Act 1988 (the 1998 Act) [sic] and the other processes stipulated by the 1998 Act and the Workers Compensation Act 1987 relating to a claim for work injury damages were of a procedural nature and that the worker’s failure to comply with those requirements did not prevent the worker from recovering those damages in circumstances where the employer did not take issue with that failure.
3. As a result of the finding that the requirements for the making of a work injury damages claim in respect of any injury relating to hearing loss had not been complied with, the arbitrator should have found that the appellant had not received damages in respect of any injury relating to hearing loss.
4. Regardless of whether the requirements relating to a claim for work injury damages are of a procedural nature and the fact that the employer did not take issue with the appellant’s failure to comply with those requirements, the arbitrator should have found that the deed in so far as it referred injuries apart from the injury to the low back, neck and shoulders was in breach of section 234 of the 1998 Act.
5. There is no dispute as to the factual matters found by the arbitrator and therefore there are no material facts (as distinct from the issues of law referred to above) that the appellant contends that the arbitrator should or should not have made.”
The appellant filed written submissions dated 16 February 2021. Those submissions in support of the appeal are not organised in accordance with the document dated 22 February 2021.
The respondent filed written submissions dated 29 March 2021. Those submissions are organised and follow the appellant’s document dated 22 February 2021 as if the five paragraphs thereof were the grounds of appeal.
On 20 April 2021, the appellant filed “Appeal Submissions in Reply” directly responding to the respondent’s submissions dated 29 March 2021.
On 27 August 2021, I issued a further Direction requesting that the appellant specify the paragraphs of the submissions that are relied upon in support of the specific grounds of appeal and directing the respondent to file submissions with respect to Ground 5 if it wished to do so.
The appellant provided a response and I have incorporated that response in the headings to the Grounds of Appeal. For further clarity I have reproduced the headings in the appellant’s written submissions after the headings provided in the document dated 22February 2021.
GROUNDS OF APPEAL
Ground 1: The Arbitrator erred in law in finding that pursuant to the Deed entered into between the parties dated 30January 2017, the appellant had received work injury damages in respect of a hearing loss suffered during the course of his employment with the respondent notwithstanding that the requirements for the making of a work injury damages claim had not been complied with. (Appellant’s submissions 22 February 2021, paragraphs [2]–[16])
(Ground 1 in the original submissions: The Arbitrator erred in determining that the decision of the Court of Appeal in Wattyl Australia Pty Limited v McArthur [2008] NSWCA 326 supported the conclusion that the requirements for the making of a work injury damages claim are all procedural in nature the non-compliance of which are capable of being waived.)
Appellant’s submissions
In support of Ground 1 of the appeal the appellant confines his submissions (paragraphs [2]–[16]) to a discussion of the decision of Wattyl Australia Pty Limited v McArthur.[8]
[8] [2008] NSWCA 326 (Wattyl).
The appellant’s challenge is to the Arbitrator’s conclusion at [30] of the reasons. The submission is that the Arbitrator was wrong to conclude from Wattyl that non-compliance with the mandatory procedural obligations required for a valid work injury damages claim merely meant that the work injury damages could be defeated if the employer took issue with the worker’s failure to comply with the obligation.[9]
[9] Appellant’s submissions, [3].
The appellant complains that the Arbitrator’s conclusion at [30] of the reasons has no basis in the judgment of Beazley JA (as her Honour then was).
The appellant directs attention to [50] of the reasons where the Arbitrator said, referring to the worker’s failure to obtain an assessment of permanent impairment, that: “it would not be a barrier to the worker recovering work injury damages if the employer did not plead that issue in defence to the worker’s claim.”
The appellant’s submission is:
“…. the judgment of Beazley JA does not support this conclusion. The requirement pursuant to s 151H that the injury results in a degree of permanent impairment that is at least 15% was not considered by her Honour. Her Honour’s decision was limited to determining whether despite the failure to comply with section 280A a worker could potentially recover work injury damages from the employer in proceedings instituted by the worker against the employer if the employer did not take issue with the non-compliance. Because the employer did take issue with the non-compliance, her Honour held that the claim could not proceed. It was therefore unnecessary, and her Honour did not consider in detail any of the other relevant provisions ...”.[10]
[10] Appellant’s submissions, [14].
Respondent’s submissions
The respondent submits that Ground 1 of the appeal involves consideration of two parts, namely:
(a) did the appellant receive damages pursuant to the Deed of Release, and
(b) if so, could those damages include damages for hearing loss?
The respondent’s submission is that on a plain reading of the Deed of Release, the damages included injury to the senses which included hearing loss. The construction of the Deed is unambiguous.[11]
[11] Respondent’s submissions, [10], referring to the matters considered by the Arbitrator at [55]–[58] of the reasons.
The appellant relies upon the decision in Heidtmann.
The respondent submits:
“The only matter distinguishing this appeal from the conclusions drawn by arbitrator Mr Dalley and the then President is that the appellant submits that he could not have received damages in respect of his hearing loss because the procedural matters required by the Workers Compensation Acts were not followed, and that argument was not raised in Heidtmann.”[12]
[12] Respondent’s submissions, [13].
The respondent further submits:
“Other than in respect of hearing loss, it is not suggested that there has been a failure to comply with all procedural steps required to commence proceedings for [work injury damages], or that such compliance was a sham attempt to circumvent the restrictions imposed on commutation of a worker’s entitlements.
The appellant suggests that injury to the senses should be severed from the deed, despite the clear intention of the parties, because a claim for hearing loss had not been made nor assessed prior to the execution of the deed.”[13]
[13] Respondent’s submissions, [14]–[15].
The respondent submits that the parties to proceedings for work injury damages, having met the requirements of Pt 5 of the 1987 Act and Pt 6 of the 1988 Act (sic) are not constrained by the application of procedural matters to each body part claimed. The term “injury” when used in s 151A should be given the wider meaning of personal injury suffered in the course of employment.”[14]
[14] Respondent’s submissions, [17].
The respondent’s conclusion is that the body parts, senses and the circumstances of injury are set out in the Deed and the parties are bound by that Deed.[15]
[15] Respondent’s submissions, [19].
Appellant’s submissions in reply
The essence of the appellant’s reply is that the respondent’s submission at paragraph [17] is wrong.
The appellant says the reasoning in Woolage v State of New South Wales[16] when applied to the present matter means that the appellant could never have recovered “damages” under Pt 5 Div 3 because the “further loss of hearing” pathology did not result from the tortious conduct of the employer against whom damages were claimed. Furthermore “further loss of hearing” in any event could not satisfy the s 151H of the 1987 Act threshold to entitle the worker to damages.[17]
[16] [2001] NSWCA 256.
[17] Appellant’s submissions in reply, [12].
The reference in s 151A(1)(a) to an “injury” is a reference to the injury in respect of which the resulting impairment satisfied the s 151H of the 1987 Act threshold and from which the economic loss arose to give entitlement to damages.[18]
[18] Appellant’s submissions in reply, [14].
The conclusion reached by the appellant in his submissions in reply is as follows:
“It follows then in the Appellant submission that the Respondent’s submission at [19] that the ‘proper construction of the term ‘injury’ is that in the sense of an injurious event and its consequences, in this case several body parts and senses, as a result of the nature of employment’ should be rejected as contrary to authority to the extent it is advanced that damages for economic loss can be recovered for a consequential global loss ‘body parts and senses’ resulting generally from the ‘nature of employment’ rather than the negligent course of conduct of the employer which resulted in an injury and impairment that under s 151H [of the 1987 Act] entitled recovery.
In the present consideration there is no allegation of negligence nor impairment that satisfies an entitlement to recover damages for industrial deafness so anything recovered by the Appellant worker cannot be work injury damages for a Court does not under s 151F [of the 1987 Act] have the power to award damages contrary to Part 5 Div WCA [sic] which mandates both tortious conduct and satisfaction of the s 151H [of the 1987 Act] in respect of the injury which it is alleged gives rise to an entitlement to recover damages for economic loss.”[19]
[19] Appellant’s submissions in reply, [15]–[16].
Consideration
It is not apparent that Wattyl controls the outcome in this matter because:
(a) Wattyl is authority for the proposition that a worker cannot waive compliance with the requirements of s 280A of the 1998 Act where the employer insists on compliance;
(b) Wattyl is not concerned with the interpretation of s 151A of the 1987 Act, and
(c) Wattyl did not involve construction of a Deed of Release.
It is unclear from the appellant’s submissions what flows from the conclusion that the Arbitrator misunderstood the dicta in Wattyl. This is apparent from the conclusion at [15] of the appellant’s submissions.
I do not accept that the Arbitrator did misunderstand the import of Wattyl, much less am I persuaded that it led him to a misdirection as to the operation of the 1987 Act and the 1998 Act.
It is necessary to consider the decision of Wattyl in the context of Ground 2 of the appeal. So far as Ground 1 of the appeal is concerned, I am not satisfied that the Arbitrator misunderstood the effect of Wattyl or that it led him into error. Ground 1 of the appeal is dismissed.
Ground 2: The Arbitrator erred in law in determining that the requirements pursuant to s 280A of the 1998 Act and the other processes stipulated by the 1998 Act and the 1987 Act relating to a claim for work injury damages were of a procedural nature and that the worker’s failure to comply with those requirements did not prevent the worker from recovering those damages in circumstances where the employer did not take issue with that failure. (Appellant’s submissions 22 February 2021, paragraphs [17]–[29])
(Ground 2 in the original submissions: Sections 280A and 280B of the 1998 Act.)
Ground 3: As a result of the finding that the requirements for the making of a work injury damages claim in respect of any injury relating to hearing loss had not been complied with, the Arbitrator should have found that the appellant had not received damages in respect of any injury relating to hearing loss.
(Ground 3 in the original submissions: the arbitrator erred in not determining the Deed was in breach of section 234 of the 1988 Act (sic))
(The appellant says of Ground 3 that it is a general submission and relates to Grounds 1 and 2 of the Grounds of Appeal dated 16 February 2021.)
Appellant’s submissions
The appellant sets out s 280A of the 1998 Act and submits:
“Given the ordinary meaning of cannot, it is submitted that in the context of s 280A it denotes an [sic] legislative intent to make a claim [for work injury] damages impossible unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages. It is in stark contrast to the language used in s 151C of the 1987 Act of entitled to.”[20] (emphasis in original)
[20] Appellant’s submissions, [20].
The appellant submits that s 280B provides an even more emphatic endorsement of the mandatory need for compliance.
The appellant submits that the plain meaning and use of the word cannot denotes an intent by the legislature that it is impossible to recover damages. The use of the expression “unless and until” makes compliance a precondition and introduces the use of the word “until”, a temporal element and a time threshold which must be satisfied. The appellant relies on Gardiner v Laing O’Rourke Australia Construction Pty Limited.[21]
[21] [2020] NSWCA 151, [90].
The appellant concludes with a submission that s 280B of the 1998 Act prohibits the worker from recovering damages in respect of an injury from the employer liable to pay compensation under the Act unless and until any permanent impairment compensation and pain and suffering compensation to which the worker is entitled in respect of the injury has been paid.[22]
[22] Citing J & D Stephens Pty Limited v Stephens [2021] NSWWCCPD 4; Sydney South West Area Health Service v Palau [2012] NSWWCCPD 20, [39]–[41].
Respondent’s submissions
The respondent’s submissions do not seem to fully address this ground. The respondent submits that the Arbitrator’s determination was correct and that the question of whether or not a work injury damages claim can be amended to include injury that was not originally pleaded is a matter for the Court. The respondent observes that s 314(2)(a) of the 1998 Act permits an employer to accept a degree of permanent impairment greater than 15% without a medical assessment. It says “[i]n this case the respondent accepted liability for all injuries suffered in the course of the appellant’s employment and paid damages accordingly.”[23]
[23] Respondent’s submissions, [25].
Appellant’s submissions in reply
The appellant submits that the respondent’s proposition that amendment of a work injury damages claim to include an injury that was not originally pleaded is a matter for the Court cannot be reconciled with the clear and unambiguous prescription found in s 151F of the 1987 Act that the Court may not award damages to a person contrary to this Division.
The appellant asserts that damages are only payable where the resulting pathology has resulted in a permanent impairment that satisfies s 151H(1) of the 1987 Act.
The appellant’s submission in reply to the respondent’s submissions [21]–[25] is:
“The Court is given no jurisdiction or discretion to award damages for economic loss where the loss has not arisen from firstly the employer’s tortious conduct (as distinct from what the Respondent advances as the ‘general nature of employment;) an[d] secondly that injury or the resulting pathology has been assessed as injury or pathology that has been assessed as resulting [in] at least a 15% WPI. It is not then a matter for the Court but rather is addressed in the legislation by the jurisdiction given to the Court, which provides for no discretion to the Court to amend a pleading to enable a recovery of damages where the injury is not as a result of the tortious conduct upon which the worker relies.
Assuming such an application was made in the present consideration tortious conduct was the system of work involving in lifting and an injury to the back which resulted in an injury which satisfied s 151H [of the 1987 Act] threshold. These facts would not support an application to amend the pleading to further allege industrial deafness from the ‘general nature of employment’ whatever that involves. In the circumstances absent any jurisdiction of the Court to award damages any purported recovery of damages could not be a recovery compliant with Part 5 Div 3 [of the 1987 Act] and must be either contractual and contrary to s 234 [of the 1987 Act] or ex gratia and not damages for the purpose of s 151A(1) WCA.”[24]
[24] Appellant’s submissions in reply, [18]–[19].
Consideration
Each of the parties submit that Grounds 2 and 3 are related and it is appropriate that they be considered together. The appellant says Ground 3 is a general ground in support of Grounds 1 and 2. The respondent relies on its submissions in support of Ground 1.
The appellant’s point before the Arbitrator and on appeal is that the payment pursuant to the Deed could not be a payment of damages in respect of the injury, being the further loss of hearing, because:
(a) there had been no compliance with the procedural requirements of the 1987 or the 1998 Act;
(b) there was no permanent impairment assessment greater than 15% in respect of the further loss of hearing and therefore s 151H was not satisfied, and
(c) there was no tortious conduct alleged with respect to further loss of hearing.
It is necessary to consider each of these matters.
The appellant relies on Wattyl for the conclusion that non-compliance with the procedural requirements relating to a claim for work injury damages meant that the Deed and payment made in 2017 could not have been in respect of the further loss of hearing.
Wattyl was not a decision on s 151A of the 1987 Act. The Court there did not consider the interaction of s 151A with a resolution of a dispute between the parties embodied in a Deed of Release. The nature of the issue being considered by the Court of Appeal in that case is set out in paragraphs [2] and [3] of the judgment namely the proper construction of s 280A of the 1998 Act and whether noncompliance with s 280A can be overcome by the worker abandoning the claim for lump sum compensation.
In my view the conclusions expressed by Beazley JA at [86]–[89] are against the appellant’s contentions and support the Arbitrator’s view that non-compliance with the procedural requirements of the workers compensation legislation is not fatal to a work injury damages claim. The effect of non-compliance with the procedural obligations depends on whether the employer makes the forensic choice to insist on compliance.
The other members of the Court in Wattyl did not give the legislation the same detailed attention as did Beazley JA. His Honour Young CJ in Eq at [162] appears to accept that the procedural requirements to some extent may on occasions be foregone. Grove J at [191] appears to evince the view that the requirement of s 280A to make a claim is mandatory.
In my view it is not necessary to comply with each of the procedural obligations with respect to every body part the subject of a claim for work injury damages.
It is an agreed fact that a Medical Panel issued a Medical Assessment Certificate on 29January 2016 certifying a 15% whole person impairment as a result of the injury suffered on 31 July 2012.
The s 281/282 Notice records:
“A claim has been made by the claimant on the defendant employer for lump sum compensation for permanent impairment.”
The s 281/282 Notice is part of the documentation included in the Application to Admit Late Documents filed by the appellant’s solicitors on 13 November 2020.
Mr Gundelj did in fact apply for lump sum compensation. The s 281/282 Notice asserts that that was so.
Assessment of permanent impairment under the Act separates physical and psychological injury, but there is no requirement for individual assessments in respect of separate parts of the body that might be injured. That is plain from the discussion by Beazley JA in Wattyl at [45].
Section 314(2) provides that there is no dispute that the person’s degree of permanent impairment is sufficient for an award of damages if the person on whom the claim is made has accepted that the degree of permanent impairment is at least 15%. The implication from s 314(2) is that the employer was satisfied when it made the payment under the Deed.
The evidence before the Arbitrator did not extend to evidence as to how the further loss of hearing may have been sustained other than evidence that Mr Gundelj was exposed to noise. But the essence of the compromise of litigation is that each party assesses the risks of success. Not everything that motivates the settlement is necessarily disclosed.
Construction of the Deed
In my view, disposition of the parties’ dispute and of the appeal depends on the construction of the Deed and the interpretation of s 151A of the 1987 Act.
The respondent has directed attention to Adams v Fletcher International Exports Pty Limited,[25] and the Arbitrator made reference to Heidtmann.
[25] [2008] NSWCA 238 (Adams).
In Adams the appellant was employed as a meatworker from 1988 until 20June 2003. On 19January 2005 he made an application to the Workers Compensation Commission. The claim was referred to arbitration and following a rehearing was finally determined by an Arbitrator on 15June 2006.
In January 2005 the worker had recovered $2,500 pursuant to an undated Deed of Release as part of the resolution of an industrial dispute in the Australian Industrial Relations Commission.
On appeal a Deputy President of the Workers Compensation Commission made an award in favour of the employer on the basis that the worker had recovered damages in respect of his injury from the employer so that s 151A(1)(a) of the 1987 Act applied.
Handley AJA (Allsop P and Giles JA agreeing) discussed the construction of the Deed and the operation of s 151A(1)(a).
The Deed provided in the recitals:
“(c) In addition the employee has alleged that he has sustained work injuries as a result of the nature and conditions of his employment with the employer throughout the entire period of that employment including but not limited to an injury to his left hand and wrist;”
The operative provision included the following:
“(d) any entitlements to damages of any kind including but not limited to any entitlement to work injury damages … consequent upon the injuries referred to in the Recitals or otherwise.”
Handley AJA said this:
“The deed by itself could not have affected the worker’s rights to compensation because s 234 of the 1998 Act provides that the two Acts apply ‘despite any contract to the contrary’. The worker’s difficulties flow not from the deed as such, but from his acceptance of the payment of $2,500.”[26]
[26] Adams, [17].
In s 151A(1)(a) “recovers” has a settled meaning as involving receipt.[27]
[27] Adams, [19].
“[D]amages” for the purpose of s 151A(1)(a) is defined in s 149 of the 1987 Act as:
“(a) any form of monetary compensation, and
(b) without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted), but does not include …”.
His Honour said:
“It cannot be denied that the $2500 was monetary compensation within para (a) of this definition. It is not clear that the worker has made ‘a claim for damages’ which would bring the deed within para (b) although the recitals suggest that this may have happened. It is not necessary to decide this question because para (b) does not limit para (a).”[28]
[28] Adams, [22].
An argument in terms similar to that advanced by the appellant in this matter was rejected:
“Mr King SC who appeared for the worker with Mr Dodd submitted that the worker had no claim or possible claim for damages for a number of reasons but since the case is clearly within para (a) it is not necessary to deal with these submissions.”[29]
[29] Adams, [23].
In other words, so far as the submission questions whether or not a “claim” for further loss of hearing industrial deafness had been validly made at the time of the payment under the 30 January 2017 Deed is concerned that does not arise whereas here paragraph (a) of the definition of damages applies.
The final issue considered in Adams was whether the payment of $2,500 was “in respect of an injury” so that s 151A(1)(a) applied and the worker ceased to be entitled to “any further compensation under this Act in respect of the injury concerned”.
Handley AJA said:
“… The character of the payment is governed by the deed and the letter of the 17 January 2005 which accompanied the cheque.”[30]
[30] Adams, [24].
His Honour then said:
“The deed singled out, without limitation, the injury to the worker’s left hand and wrist …
The amount of $2500 was also paid in respect of other claims, but this cannot matter. The deed and the letter, construed on their face, or in the light of the surrounding circumstances, establish that the payment was made ‘in respect of’ the injury to the worker’s left hand wrist. Accordingly he ceased to be entitled to compensation ‘in respect of the injury concerned’, that is the injury to his left hand and wrist.”[31]
[31] Adams, [26]–[27].
In my view Adams’ case is directly on point.
Plainly the appellant recovered “monetary compensation”.
The recitals to the Deed provide:
“A The Releasor was employed by the Employer as more fully set out in his claim for Work Injury Damages.
B …
C The Releasor alleges personal injuries (‘the said injuries’) arising out of or in the course of the employment of the Releasor by the Employer as set out in the claim for Work Injury Damages and the Schedule annexed hereto and alleges to have been incapacitated and otherwise suffered loss and damage as a result of the said injuries. (emphasis added)
D The Releasor alleges that the said injuries were caused by the negligence of the Employer and/or its servants or agents or as a result of a breach of statutory duty by the Employer and/or its servants or agents.
E The Employer denies all liability in respect of the said injuries.
F The Releasor has agreed to accept as damages the sum of money referred to in the Schedule in full and final settlement and discharge of all actions, suits, claims, costs and demands which the Releasor may now have or at any time hereafter has against the Releasees, their servants or agents arising out of the said injuries.”[32]
[32] Reply to Application to Resolve a Dispute (Reply), p 4.
Clause 5 provides the release:
“The Releasor releases the Releasees from all obligations, sums of money, actions, suits, causes of action, proceedings, claims, demands, accounts, costs and expenses whatsoever at law, in equity or pursuant to statute which the Releasor now has, could, would or might have against the Releasees, its employees or agents arising out of or in any way related to the injuries or employment referred to in the Schedule.”[33]
[33] Reply, p 7.
The schedule provides:
“Period of employment: 30July 2012 to 16December 2014
Nature of employment: Gyprocker/fitter
Period of insurance: Whole
Date of injury: 31July 2012
Nature of injury: The nature and conditions of employment and any specific injury in the course there of causing or aggravating injury to the head, neck, whole of spine all of both upper and lower limbs, trunk, chest, disease, all senses, skin and any primary or secondary psychological injury, functional overlay, internal organs, sexual organs, brain and sequelae excluding latent injuries.”[34]
[34] Reply, p 8.
The deemed date of injury for the further loss of hearing claim is the last day of employment, namely, 16December 2014. It is therefore within the Release on the construction adopted by the Arbitrator and not challenged by the appellant.
The appellant does not challenge the Arbitrator’s construction of the Deed. In the absence of any, much less a successful challenge to the construction of the Deed, the Deed applied to the injuries specified therein. The Deed provided for payment of monetary compensation for the specified injuries. It follows the appellant has received damages and the claim for compensation for a further loss of hearing was precluded by s 151A of the 1987 Act.
The Deed of Release considered by the Workers Compensation Commission in Heidtmann is in the same form as that now under consideration.
Although in Heidtmann there were no documents relating to the work injury damages claim in evidence that is not sufficient to distinguish this matter. The critical consideration is the construction to be given to the Deed. In Heidtmann and Adams the Deed as a matter of construction applied to the worker’s injury. For the reasons indicated above, in my view the Deed in this matter applies to the injury sustained by Mr Gundelj on 31December 2014 in the form of a further loss of hearing.
Grounds 2 and 3 of the appeal are not made out and are dismissed.
Ground 4: Regardless of whether the requirements relating to a claim for work injury damages are of a procedural nature and the fact that the employer did not take issue with the appellant’s failure to comply with those requirements, the Arbitrator should have found that the Deed in so far as it referred to injury to the low back, neck and shoulders was in breach of s 234 of the 1998 Act. (Appellant’s submissions 22 February 2021, paragraphs [30]–[40])
(Ground 4 in the original submissions: The Deed attempts to circumvent the commutation provisions of the 1987 Act.)
Appellant’s submissions
The appellant’s submissions in respect to s 234 of the 1998 Act appear under the heading “Ground 3”. The appellant submits:
“It is clear that apart from the claim in relation to the back injury suffered on 31 July 2012, that the worker had not complied with the relevant statutory requirements for the making of [a] claim for work injury damages in respect of all the other body parts and injuries that are referred to in the deed.
It is also apparent that there was no resistance by [the] employer to pay the work injury damages claim notwithstanding that the worker had not complied with the relevant statutory requirements for the making of [a] claim for work injury damages in respect of all the other body parts and injuries referred to in the Deed. At [47] of the [reasons] the Arbitrator stated: ‘The injuries as defined in the Deed are far more extensive than the injuries that were subject of the claim made on 30 May 2016.’”[35]
[35] Appellant’s submissions, [31]–[32].
The appellant submits that the Deed would include injuries:
· of which the worker was unaware;
· the worker had given notice of or made a claim;
· which had not been assessed in terms of degree of whole person impairment, and
· which had not been the subject of payment of compensation pursuant to s 66 of the 1987 Act.
The appellant submits:
“Even if contrary to the above submission, all of the prescriptive provisions of the legislation relating to the making of a claim for work injury damages are of a procedural nature, the non-compliances of which are all capable of being waived by the parties, the fact remains that any agreement based upon such non-compliances and waivers will produce an agreement that contravenes the provisions of s 234 of the 1988 Act [sic] which must therefore be void.”[36]
[36] Appellant’s submissions, [37].
Respondent’s submissions
The respondent submits:
“The award of damages by means of a properly executed deed of release is not inconsistent with the provisions of the Workers Compensation Acts.
Having proceeded to the Court to determine liability and the extent of any damages, s 234 does not apply, as the execution of a deed as a means of resolving the dispute between the parties is clearly not an attempt to contract out of the provisions of the Workers Compensation Acts.”[37]
[37] Respondent’s submissions, [27]–[28].
Appellant’s submissions in reply
The appellant in reply submits that if there is no jurisdiction to order an award of damages, then there is no jurisdiction under the 1987 Act to enable any purported recovery of damages under contract. Any payment by the respondent to the appellant could not be in the nature of damages, firstly, due to there being no entitlement to damages for industrial hearing and, secondly, to the extent a payment of damages was made, where there was no entitlement, then it was contrary to s 234 of the 1987 Act (sic, 1998 Act).
Appellant’s submissions with respect to Ground 4 of the submissions: Commutation and ss 87D–87K
The appellant submits to the extent the Deed included injuries apart from the injury to the back suffered on 31 July 2012, it was inconsistent with ss 87D to 87K of the 1987 Act.
The respondent has not provided any submissions on this issue.
Consideration
Section 234 of the 1998 Act provides: “This Act and the 1987 Act apply despite any contract to the contrary.”
The provision does not make the contract void. I do not understand the provision to prevent the worker and the employer from resolving by agreement a dispute as to entitlement once the dispute has eventuated.[38]
[38] Qantas Airways Limited v Gubbins & Ors (1992) 28 NSWLR 26, 31.
There is no prohibition against compromising accrued rights. Section 234 does not prevent parties compromising a claim for compensation or a claim for work injury damages.
Furthermore, it is not the contract embodied in the Deed that presents as a problem to Mr Gundelj but the receipt of the monetary compensation.[39]
[39] Adams.
There is no evidence that the Deed of Release objectively was intended by the parties to be a commutation agreement. There is no evidence that the agreement was a “sham”. The appellant does not challenge the construction of the Deed. The agreement was plainly a compromise of the appellant’s claims for injury whilst employed by the respondent.
I reject Ground 4 of appeal so far as it relates to s 234 of the 1998 Act and additionally in so far as it relates to the commutation provisions of the 1987 Act.
Ground 5: There is no dispute as to the factual matters found by the Arbitrator and therefore there are no material facts (as distinct from the issues of law referred to above) that the appellant contends that the Arbitrator should or should not have made.
(Ground 5 in the original submissions: The Arbitrator failed to consider the provisions of s 151H of the 1987 Act)
The appellant presses the submissions in support of Ground 5 contained in the written submissions filed 16 February 2016. The document filed 22 February 2021 does not raise any ground of appeal. However, in the appellant’s written submissions, submissions are made with respect to s 151H.
Appellants Submissions
The appellant submits that the only claim for work injury damages that was ever made by the appellant was a claim in respect of injury to the back, neck and shoulder suffered on 31 July 2012. There was no claim for hearing loss.[40]
[40] Referring to reasons, [53].
The submission continues that “[t]o concludes that the requirement in s 151H is not mandatory and that noncompliance with the provision would not necessarily result in a claim being defeated, it would be necessary to interpret the phrase claim for damages in the definition of damages in s 149 to mean any claim for damages rather than a claim for damages in respect of a specific injury or injuries.”[41]
[41] Appellant’s submissions, [44].
The appellant submits that because there was no claim for hearing loss, s 150B and s 151E of the 1987 Act are not satisfied. There were no particulars provided to support an allegation of specific injury caused by negligence.
Respondent’s Submissions
The respondent has not specifically provided submissions with respect to this ground of appeal. But on 10 September 2021 the respondent advised the Commission that it did not have wish to advance any further submissions in opposition to the appeal.
Consideration
It is possible to comply with s 151H if the person on whom the claim is made has accepted that the degree of permanent impairment of the injured worker is at least 15%.[42]
[42] Section 314(2) of the 1998 Act.
It is a reasonable inference in this matter that the person to whom the claim was made in 2017 accepted that the permanent impairment was at least 15%. Further, as discussed at [8] above, there was a Medical Assessment Certificate for 15%.
I do not accept that s 151H requires an assessment of 15% for each body part.
I have discussed the effect of s 314(2) above at [85].
Ground 5 of the appeal is rejected.
CONCLUSION
In my view the appellant has not established the grounds of appeal. The appeal should be dismissed, and the decision of the Arbitrator confirmed.
DECISION
The Certificate of Determination dated 21 January 2021 is confirmed.
Geoffrey Parker SC
ACTING DEPUTY PRESIDENT
17 September 2021
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