Ilic v 2/11 Leonard Ave Pty Ltd (in liquidation)
[2018] NSWWCCPD 34
•20 August 2018
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Ilic v 2/11 Leonard Ave Pty Ltd (in liquidation) [2018] NSWWCCPD 34 | |
| APPELLANT: | Milos Ilic | |
| RESPONDENT: | 2/11 Leonard Ave Pty Ltd (in liquidation) | |
| INSURER: | CGU Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-186/18 | |
| ARBITRATOR: | Mr M Wright | |
| DATE OF ARBITRATOR’S DECISION: | 19 April 2018 | |
| DATE OF APPEAL DECISION: | 20 August 2018 | |
| SUBJECT MATTER OF DECISION: | Further lump sum compensation claim; s 66 of the Workers Compensation Act 1987; complying agreement; s 66A of the Workers Compensation Act 1987; assessment of impairments; s 322 of the Workplace Injury Management and Workers Compensation Act 1998 | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Gajic Lawyers |
| Respondent: | TurksLegal | |
| ORDERS MADE ON APPEAL: | 1. The respondent employer’s name is amended to “2/11 Leonard Ave Pty Ltd (in liquidation)”. 2. I make the following declaration: “The Commission declares pursuant to s 162 of the Workers Compensation Act 1987 that, as at 12 August 2009, 2/11 Leonard Ave Pty Ltd (in liquidation) entered into a contract with CGU Workers Compensation (NSW) Ltd in respect of liability under that Act.” 3. The Arbitrator’s Certificate of Determination dated 19 April 2018 is confirmed. | |
INTRODUCTION
In 2012 the worker was compensated for 6% whole person impairment, for an accepted lumbar spine injury, in accordance with a complying agreement. In 2017, the worker brought a further claim for lump sum compensation. An Approved Medical Specialist assessed that the worker’s whole person impairment had not changed, however, the components of the assessment had changed because it included an assessment in respect of a consequential condition to the right leg. This appeal concerns whether the consequential condition is compensable in circumstances where there is no change in the worker’s overall assessment of permanent impairment.
For the reasons which follow, the appeal is unsuccessful.
BACKGROUND
Milos Ilic worked for the respondent, 2/11 Leonard Ave Pty Ltd (in liquidation), as a handyman.
On 12 August 2009, Mr Ilic injured his lumbar spine in the course of his employment with the respondent. Mr Ilic was pulling a wheel barrow from a truck when it got caught on the edge of the truck. His hands slipped on the handles of the wheel barrow and he fell on his back injuring his lumbar spine.
On 19 August 2009, Mr Ilic completed a WorkCover worker’s injury claim form. He claimed injury to his lower back as a result of “unloading wheel barrow from truck” during site preparation on 12 August 2009.
Mr Ilic underwent a series of treatment for his lumbar spine. He consulted various medical professionals, including Dr Uthum Dias, consultant occupational physician and Dr Matthew Giblin, orthopaedic surgeon.
On 30 May 2012, the parties entered into a complying agreement in respect of injury to the lumbar spine on 12 August 2009. The agreement records a 6% whole person impairment in respect of the lumbar spine, relying on Dr Giblin’s report of 20 December 2011. The agreement also records compensation in respect of s 66 of the Workers Compensation Act1987 (the 1987 Act) in the sum of $8,663.
On 10 November 2017, Mr Ilic’s legal representatives made a claim on his behalf for lump sum compensation (the further lump sum claim). The claim was particularised as a consequential condition to Mr Ilic’s right shoulder, right hip and right knee due to the prolonged use of a walking stick due to the injury of 12 August 2009. He sought lump sum compensation pursuant to s 66 of the 1987 Act in respect of 16% whole person impairment, comprising of a further 5% for the lumbar spine, 4% for the right upper extremity and 6% for the right lower extremity. He also sought medical expenses pursuant to s 60 of the 1987 Act. He relied on the reports of Drs Dias and Giblin. That claim was declined, for reasons which are unknown on the evidence.
On 15 January 2018, Mr Ilic lodged with the Commission an Application to Resolve a Dispute (the Application). He sought a referral for medical assessment by an Approved Medical Specialist pursuant to s 293 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), for the purposes of a claim for lump sum compensation and resolution of a threshold dispute. The date of injury is recorded as 12 August 2009 and the injury description is recorded as: lumbar spine, right upper extremity (shoulder) and right lower extremity (hip and knee). The Application recorded the incident of 12 August 2009 and the complying agreement. It added that Mr Ilic had “…subsequently developed a consequential injury to his right shoulder, right hip and right knee due to prolonged use of a walking stick.” Mr Ilic relied on the reports of Drs Dias and Giblin.
On 5 February 2018, the respondent lodged a reply to the Application. In dispute of the claim, the respondent relied on a report of Dr Robert Breit, orthopaedic surgeon, dated 21 December 2017. Dr Breit had assessed Mr Ilic with 7% whole person impairment, comprising of 5% in respect of the lumbar spine and 2% for activities of daily living.
On 8 February 2018, the Commission referred the medical dispute to Dr David McGrath, Approved Medical Specialist, for assessment of whole person impairment pursuant to s 319 of the 1998 Act. The body parts referred were: lumbar spine, right upper extremity and right lower extremity.
On 21 February 2018, Mr Ilic was assessed by Dr McGrath. On 5 March 2018, the Commission issued a Medical Assessment Certificate certifying Mr Ilic to have suffered 6% whole person impairment, comprising of 2% in respect of the lumbar spine (in respect of activities of daily living), 4% in respect of the right lower extremity and 0% in respect of the right upper extremity.
On 3 April 2018, Mr Ilic’s legal representative wrote to the Commission. It referred to the Medical Assessment Certificate and relied on the decision in Cram Fluid Power v Green.[1] It submitted that that case “… held that a complying agreement is analogous to a Medical Assessment Certificate for the purposes of determining [Mr Ilic’s] impairment.” It then submitted that he was therefore “…entitled to make a further claim for 4% WPI in relation to [Mr Ilic’s] injury to the Right Lower Extremity.” He sought a telephone conference before an Arbitrator.
[1][2014] NSWWCCPD 84.
On 18 April 2018, the Commission advised the parties that the complying agreement and the Medical Assessment Certificate will be taken into consideration in the determination of the claim for lump sum compensation. It noted that no telephone conference will be scheduled to discuss the matter and a Certificate of Determination will be issued soon.
On 19 April 2018, the Commission issued a Certificate of Determination in favour of Mr Ilic. The Certificate of Determination certified the Medical Assessment Certificate. The Arbitrator determined that Mr Ilic suffers from 6% whole person impairment resulting from injury on 12 August 2009 but found there was no entitlement to further lump sum compensation under s 66 of the 1987 Act. The Certificate of Determination and reasons are as follows:
“The Commission determines:
1. The applicant suffers 6% permanent impairment resulting from injury on 12 August 2009.
2. The applicant has no entitlement to further lump sum compensation under section 66 of the Workers Compensation Act 1987 (the 1987 Act).
Brief statement of reasons
3. The Medical Assessment Certificate dated 5 March 2018 certifies 6% permanent impairment resulting from injury on 12 August 2009, compensable as $8,387.50.
4. The applicant was previously paid $8,663 in respect of 6% permanent impairment resulting from injury on 12 August 2009 in accordance with the Complying Agreement dated 30 May 2012.
5. Therefore the applicant has no entitlement to further lump sum compensation under section 66 of the 1987 Act.
6. The proceedings were commenced after 2 April 2013 and therefore no order is made as to costs.”
Mr Ilic appeals against the Arbitrator’s determination.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
DECLARATION
The name of the employer has been variously described in the appeal proceedings as “David Ivanovic t/as 2/11 Leonard Avenue Pty Ltd” and “Leonard Ave Pty Ltd (in liquidation)”.
In the circumstances, on 15 August 2018, I issued a Direction seeking to clarify the correct description of the employer. The respondent clarified that the correct description of the employer is “2/11 Leonard Ave Pty Ltd”. It transpires that the employer has been placed into liquidation. A liquidator was appointed on 19 March 2010.
On 16 August 2018, Mr Ilic’s legal representatives made an application under s 162 of the 1987 Act seeking a declaration that the respondent employer had entered into a contract with an insurer in respect of liability under the 1987 Act.
In the circumstances, I make the following declaration:
“The Commission declares pursuant to s 162 of the Workers Compensation Act 1987 that, as at 12 August 2009, 2/11 Leonard Ave Pty Ltd (in liquidation) entered into a contract with CGU Workers Compensation (NSW) Ltd in respect of liability under that Act.”
THE EVIDENCE
Mr Ilic’s statement
Mr Ilic provided a statement dated 11 May 2017. In that statement, Mr Ilic states that he commenced working for the respondent in or about 2009 as a handyman. His duties included carrying tools and building supplies, collecting rubbish, tiling and fixing items in houses. His duties were varied. He often drove a truck with materials to various work sites.
At 11.30 am on or about 12 August 2009, Mr Ilic was “pulling a wheel barrow from a truck and it got caught on edge of truck.” His hands slipped on the handles and he fell on his back. It was “sprinkling at the time which made the truck and wheelbarrow slippery.” Mr Ilic reported the incident to his boss. He then drove to a medical centre.
In 2012 Mr Ilic settled a claim for compensation in respect of the injury to the lower back. Following this, his back deteriorated. He lists the circumstances of deterioration. He adds that “… as a result of needing to use a walking stick [due to his back] I now suffer pains in my right shoulder in particular when I use it to support my body when standing up.”
Mr Ilic states that since the 2012 settlement his “… injury has continued to deteriorate and has caused consequential injury to my right and left legs, hips and buttocks” and he suffers from incontinence. He adds that “[u]sing a walking sick has caused aggravation/injury to my right shoulder.”
Complying Agreement
In evidence is the complying agreement, issued pursuant to s 66A of the 1987 Act. The agreement is signed by Mr Ilic and his legal representative and dated 30 May 2012. The agreement records the worker, employer and insurer details. The agreement also records the following:
“1.4 Agreement details
Date of injury 12 August 2009
Date claim made for S66 4 April 2012
Nature of employment of Builder and handy man
worker at time of injuryDetails of previous Agreements/Settlements in respect of this injury under S66/S67:
Not applicable.Particulars of this Agreement
Date of this agreement 30 May 2012
Medical reports relied on to assess the degree of permanent impairment
Dr Matthew Giblin dated 20 December 2011
…
For post-1 January 2002 date of injury
System 1 Lumbar spine
…
Whole body impairment percentage 6%
Amount of compensation
Section 66 Injury amount $8,663.00
…
Total amount of compensation $8,663.00”
GROUNDS OF APPEAL
Mr Ilic submits that the Arbitrator erred by failing to:
(a) consider the actual percentages awarded in the complying agreement as compared with those in the Medical Assessment Certificate issued by Dr McGrath, and
(b) give sufficient reasons for his decision.
LEGISLATION
The relevant legislation appears below.
Permanent impairment compensation
Section 66 of the 1987 Act provides:
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note. No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.
...”
Section 66A of the 1987 Act provides:
“66A Agreements for compensation
(1) In this section, ‘complying agreement’ means a written agreement:
(a) under which a worker who has received an injury, and an employer or insurer, agree as to the degree of permanent impairment that has resulted from the injury, and
(b) in which there is a provision in which the employer or insurer certifies that it is satisfied that the worker has obtained independent legal advice, or has waived the right to obtain independent legal advice, before entering into the agreement.
…
(3) The Commission may award compensation additional to the compensation payable under subsection (2) by virtue of a complying agreement if it is established that:
(a) the agreed degree of permanent impairment is manifestly too low, or
(b) the worker has been induced to enter into the agreement as a result of fraud or misrepresentation, or
(c) since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed.
…”
Section 322 of the 1998 Act provides:
“322 Assessment of impairment
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note. Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
...”
Section 326 of the 1998 Act provides:
“326 Status of medical assessments
(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
Clause 11 of Sch 8 of the Workers Compensation Regulation 2016 (the 2016 Regulation) provides:
“11 Lump sum compensation: further claims
(1) A further lump sum compensation claim may be made in respect of an existing impairment.
(2) Only one further lump sum compensation claim can be made in respect of the existing impairment.
(3) Despite section 66 (1) of the 1987 Act, the degree of permanent impairment in respect of which the further lump sum compensation claim is made is not required to be greater than 10%.
(4) For the purposes of subclauses (1) and (2):
(a)a further lump sum compensation claim made, and not withdrawn or otherwise finally dealt with, before the commencement of subclause (1) is to continue and be dealt with as if section 66 (1A) of the 1987 Act had never been enacted, and
(b)no regard is to be had to any further lump sum compensation claim made in respect of the existing impairment:
(i)that was withdrawn or otherwise finally dealt with before the commencement of subclause (1), and
(ii)in respect of which no compensation has been paid, and
(c)section 322A of the 1998 Act does not operate to prevent an assessment being made under section 322 of that Act for the purposes of a further lump sum compensation claim.
(5) The following provisions are to be read subject to this clause:
(a)section 66 of, and clause 15 of Part 19H of Schedule 6 to, the 1987 Act,
(b)section 322A of the 1998 Act,
(c)clauses 10 and 19 of this Schedule.
(6) In this clause:
‘existing impairment’ means a permanent impairment resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012.
‘further lump sum compensation claim’ means a lump sum compensation claim made on or after 19 June 2012 in respect of an existing impairment.
‘lump sum compensation claim’ means a claim specifically seeking compensation under section 66 of the 1987 Act.”
Reasons
Section 294 of the 1998 Act provides:
“294 Certificate of Commission's determination
(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission's reasons for the determination.
(3) If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error.”
Rule 15.6 of the Workers Compensation Commission Rules 2011 (the 2011 Rules) provides:
“15.6 Certificates of determination
(1) A statement of the Commission’s reasons referred to in section 294 (2) of the 1998 Act is to include:
(a)the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
MR ILIC’S SUBMISSIONS
Mr Ilic seeks an award in his favour, and, in the alternative, that the matter be referred to another Arbitrator for determination.
Ground 1
Mr Ilic submits that the Arbitrator did not consider that the earlier complying agreement was only in relation to the lumbar spine. The Arbitrator should have considered Dr Giblin’s medical reports dated 1 December 2011 and 23 February 2012, which are referred to in Dr McGrath’s Medical Assessment Certificate.
The percentage for the lumbar spine had been accepted and paid. The fact that there is no increase in the amount awarded to Mr Ilic for the lumbar spine means that the amount of whole person impairment “is static for the purposes of awarding further compensation for the lumbar spine.” The right lower extremity is a further condition which warrants a separate assessment and award of compensation. Therefore, the Arbitrator should have awarded Mr Ilic a further 4% whole person impairment.
The exercise the Arbitrator undertook in his short reasons “would be appropriate if the same body systems that arise out of the accident were being assessed for a deterioration claim, but this is not the case”. The right lower limb is a new condition which warrants compensation. It is not a deterioration claim. It should not be “dealt with by a simple comparing the amount of monetary compensation awarded in the first award for s66 compensation with this latter award”.
Ground 2
The Arbitrator’s reasons set out in the Certificate of Determination “do not allow for the presidential review to determine what the reasoning process was that lead to the arbitrators [sic] decision”. Mr Ilic relies on Nasr v New South Wales,[2] in support but does not provide any pinpoint reference.
[2][2007] NSWCA 101.
Mr Ilic further submits that “[t]he matter affected by the failure to give reasons is germane to this action as it determines how much if any compensation is awarded.”
RESPONDENT’S SUBMISSIONS
The respondent submits that the Arbitrator did not err and provided sufficient reasons for his decision.
The respondent also submits that the Medical Assessment Certificate is presumed to be correct and is binding, while the complying agreement and medical reports of Dr Dias are not. Credit was given for the percentage of permanent impairment that has been paid previously. Accordingly, there is no further entitlement to lump sum compensation.
Further, Mr Ilic’s whole person impairment is not greater than 10% and therefore he has no entitlement to compensation under s 66 of the 1987 Act.
Ground 1
The respondent submits that Mr Ilic was previously assessed and paid compensation in respect of 6% whole person impairment in respect of injury on 12 August 2009. That was formalised in a complying agreement dated 30 March 2012. Mr Ilic was later assessed by Dr McGrath with a 6% whole person impairment in respect of the same injury. On 5 March 2018, Dr McGrath issued a Medical Assessment Certificate certifying that assessment.
Pursuant to s 326 of the 1998 Act, the Medical Assessment Certificate is conclusively presumed to be correct as to the degree of impairment of Mr Ilic’s injury and is binding on the parties.
The respondent also submits that the Arbitrator correctly issued a Certificate of Determination reflecting the assessment as set out in the Medical Assessment Certificate.
The Arbitrator is not required to accept the findings of the independent medical examiner, Dr Giblin over Dr McGrath. A complying agreement and a medical assessment by an independent medical examiner is not an order of the Commission and does not give rise to estoppel. The respondent relies on Roche v Australian Prestressing Services Pty Ltd.[3]
[3][2013] NSWWCCPD 7.
Having previously been assessed to have a 6% whole person impairment as a result of injury on 12 August 2009, and having then been assessed by Dr McGrath to have a 6% whole person impairment as a result of the same injury, Mr Ilic has no further entitlement.
Dr McGrath should not have assessed any impairment of the lumbar spine as pursuant to Pt 4.33 of the SIRA Guidelines only activities of daily living are to be included where the worker is placed in DRE categories II to IV.
In any event, claims made after 19 June 2012 must meet “the 10% WPI threshold for entitlement to lump sum compensation.”
The respondent referred to cl 11 of Pt 1 to Sch 8 of the Workers Compensation Legislation Amendment Act 2012. It submits that, although cl 11 does not require the further claim for permanent impairment to be greater than 10% it does not remove the requirement under s 66(1) that the overall impairment suffered by the worker must be greater than 10%. If Parliament intended for the transitional provisions to override s 66(1) it would have expressed this in specific language.
Regardless of the interpretation of the Medical Assessment Certificate, Mr Ilic does not meet the threshold under s 66(1) of the 1987 Act.
Ground 2
The respondent submits that the Arbitrator provided clear reasons for concluding that Mr Ilic had no further entitlement to lump sum compensation under s 66 of the 1987 Act. The Arbitrator stated the findings of the Medical Assessment Certificate and its compensable equivalent, and stated the compensation previously paid in the complying agreement. The Arbitrator’s Certificate of Determination clearly reflects that of the Medical Assessment Certificate which is binding on the parties.
DISCUSSION
Ground 1
Mr Ilic’s claim of 10 November 2017 is a further lump sum compensation claim pursuant to cl 11(6) of Sch 8 to the 2016 Regulation, having previously settled a claim for lump sum compensation in respect of the existing impairment in a complying agreement dated 30 May 2012. The claim made on 10 November 2017 was made and not “withdrawn or otherwise finally dealt with, before the commencement of subclause (1)” of cl 11 of Sch 8 to the 2016 Regulation. It follows that the 10 November 2017 claim is the one further lump sum compensation claim that may be made pursuant to cl 11(1) and (2). It is available as if s 66(1A) had never been enacted (cl 11(4)(a)).
Contrary to the respondent’s submission, in a claim for further lump sum compensation it does not matter that the degree of permanent impairment is not greater than 10%, as provided by s 66(1) of the 1987 Act. The express words of cl 11(3) provide for an exemption to the threshold requirement under s 66(1) of the 1987 Act. It specifically provides that despite s 66(1) of the 1987 Act “the degree of permanent impairment in respect of which the further lump sum compensation claim is made is not required to be greater than 10%”. The effect of cl 11 is to preserve Mr Ilic’s entitlement to make one further claim in respect of all impairments arising from his accepted injury, of 12 August 2009.
Section 66(1A) and cl 11 must be read with s 66A of the 1987 Act. Section 66A defines a “complying agreement” and provides for the circumstances in which the Commission may award compensation additional to the compensation payable by virtue of a complying agreement, if one of the conditions under s 66A(3) is satisfied. The only relevant condition is s 66A(3)(c) of the 1987 Act, which provides the Commission with jurisdiction to award compensation additional to the compensation payable pursuant to a complying agreement where there has been an increase in the degree of permanent impairment since the complying agreement was entered.
Mr Ilic’s first claim for permanent impairment compensation was resolved by complying agreement. He received compensation in respect of 6% whole person impairment of the lumbar spine for injury on 12 August 2009. Mr Ilic’s further claim for lump sum compensation in November 2017 alleged deterioration of the lumbar spine and alleged consequential conditions to the right upper extremity and right lower extremity. That claim was determined by the Arbitrator following the issue of a Certificate of Determination in respect of the binding[4] Medical Assessment Certificate issued by Dr McGrath. Relevantly, Dr McGrath certified Mr Ilic to have suffered a 6% whole person impairment, comprising of 2% impairment of the lumbar spine, 4% impairment of the right lower extremity and 0% impairment of the right upper extremity.
[4] 1998 Act, s 326(1).
In determining the dispute, which was limited to quantification of Mr Ilic’s whole person impairment, the Arbitrator was not required to consider the medical reports of Dr Giblin, as Mr Ilic submits. The Arbitrator was only required to consider the conclusive and binding Medical Assessment Certificate issued by Dr McGrath, which was to take effect according to the terms of the relevant legislation.
I do not accept Mr Ilic’s submission that the right lower extremity is a further condition which warrants a separate assessment and award. Section 322(2) of the 1998 Act provides that impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.[5]
[5]1998 Act, s 322(2).
Mr Ilic’s further lump sum compensation claim is in respect of impairments that result from the same injury which had been the subject of the May 2012 complying agreement. There is only one injurious event, that is, the event that occurred on 12 August 2009. There is only one injury pleaded, that is, the accepted injury to the lumbar spine on 12 August 2009. The alleged impairments to the right upper and right lower limbs are not separate injuries, they are alleged consequential conditions arising from the accepted lumbar spine injury.
Contrary to Mr Ilic’s submissions, it did not matter that the complying agreement was only in relation to the impairment of the lumbar spine. Nor did it matter that Dr McGrath’s assessment concerned different body parts. Mr Ilic is not entitled to be awarded a further 4% whole person impairment for the right lower extremity, as he submits, merely because it is a separate impairment to the lumbar spine and was not the subject of the complying agreement. As I have said, the impairments concern the same injury and must be assessed together and not separately. That is why the subject of the referral to Dr McGrath was the degree of whole person impairment as a result of injury on 12 August 2009 to Mr Ilic’s lumbar spine, right upper extremity and right lower extremity. That is, all impairments arising from the same injury.
As Mr Ilic is unable to establish an increase in the degree of permanent impairment since the complying agreement was entered, he does not satisfy s 66A(3)(c) of the 1987 Act. Mr Ilic has been compensated for the permanent impairment which is presently claimed. Had Mr Ilic’s degree of permanent impairment increased from that awarded in the complying agreement he would be entitled to the payment of compensation for the difference between those amounts.
It follows that the Arbitrator did not err in finding that Mr Ilic is not entitled to further lump sum compensation pursuant to s 66 of the 1987 Act.
Accordingly, ground one fails.
Ground 2
The obligation to give reasons must be considered in the statutory context. The statutory duty to provide reasons in the Commission is governed by s 294 of the 1998 Act and r 15.6 of the 2011 Rules. Section 294(2) provides that “[a] brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination”. Rule 15.6 provides that reasons must include the Commission’s findings on material questions of fact, the Commission’s understanding of the applicable law and the reasoning processes that led to the conclusion made. It also provides that reasons “are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them”.
Reasons do not need to “be lengthy or elaborate” and must be read as a whole.[6] The extent and content of reasons will depend on the unique circumstances of the case.[7] In the present case, the statutory duty to provide a brief statement of reasons must be read in the context of the statutory scheme for resolving permanent impairment disputes.
[6]Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.
[7] Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329, [52]; Mifsud v Campbell (1991) 21 NSWLR 725, 728.
The only issue before the Arbitrator was whether there had been an increase in the degree of whole person impairment from that agreed by the parties and reflected in the complying agreement. It is evident from the Medical Assessment Certificate that no increase in the degree of whole person impairment had been established and therefore no additional compensation was payable. That is what the Arbitrator’s determination reflected.
The Arbitrator provided the reasoning process that led him to find that Mr Ilic had no entitlement to further lump sum compensation pursuant to s 66 of the 1987 Act. He stated that Mr Ilic was not entitled to further lump compensation because he was “previously paid [compensation] in respect of 6% permanent impairment resulting from injury on 12 August 2009 in accordance with the Complying Agreement dated 30 May 2012”. That is, Mr Ilic was previously paid compensation for the permanent impairment which was claimed in the dispute before the Arbitrator. While the Arbitrator could have elaborated further on the reasons for making that finding, the reasons satisfied the statutory duty to provide “brief reasons”.[8]
[8] 1998 Act, s 294(2).
Mr Ilic has not demonstrated that the Arbitrator’s reasons were inadequate or that such inadequacy disclosed that the Arbitrator failed to exercise his statutory duty to fairly and lawfully determine the dispute.[9] In any event, even if the Arbitrator’s reasons were inadequate it does not affect the result because, for the reasons discussed above, Mr Ilic is not entitled to the further lump sum compensation claimed.
[9] YG & GG v Minister for Community Services [2002] NSWCA 247; Young v Labourpower Recruitment Services Pty Ltd [2016] NSWWCCPD 37, [85].
It follows that ground two fails.
DECISION
The respondent employer’s name is amended to “2/11 Leonard Ave Pty Ltd (in liquidation)”.
I make the following declaration:
“The Commission declares pursuant to s 162 of the Workers Compensation Act 1987 that, as at 12 August 2009, 2/11 Leonard Ave Pty Ltd (in liquidation) entered into a contract with CGU Workers Compensation (NSW) Ltd in respect of liability under that Act.”
The Arbitrator’s Certificate of Determination dated 19 April 2018 is confirmed.
Judge Keating
President
20 August 2018
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