Inghams Enterprises Pty Ltd v Sok - [2013] NSWWCCPD 39

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Status: Appeal to the Court of Appeal dismissed – Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217
CITATION:	Inghams Enterprises Pty Ltd v Sok & anor [2013] NSWWCCPD 39
APPELLANT:	Inghams Enterprises Pty Ltd
FIRST RESPONDENT:	Chan Tha Sok
SECOND RESPONDENT:	Integrated Parramatta Services Pty Ltd
APPELLANT’S INSURER:	Self-insured
SECOND RESPONDENT’S INSURER:	CGU Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-6074/12; A2-6074/12
ARBITRATOR:	Ms C Rimmer
DATE OF ARBITRATOR’S DECISION:	14 March 2013
DATE OF APPEAL DECISION:	17 July 2013
SUBJECT MATTER OF DECISION:	Challenge to factual findings; no relevant error demonstrated; s 105 of the Workplace Injury Management and Workers Compensation Act 1998; jurisdiction of the Commission to make award of weekly compensation; consequences of passage of Workers Compensation Legislation Amendment Act 2012
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr D Saul, instructed by Leigh Virtue & Associates
First Respondent:	Mr B Odling, instructed by Frisina Lawyers
Second Respondent:	Mr S Flett, instructed by Bartier Perry
ORDERS MADE ON APPEAL:	1. The findings and orders made in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11 are confirmed. 2. Paragraph 2 is revoked and the following orders are made in its place: “2. (a) The respondents are to pay weekly benefits pursuant to the former s 37 of the Workers Compensation Act 1987 as follows: i. $496 per week (being the statutory rate for a worker with a dependent child), as adjusted, from 10 May 2011 to 14 September 2012, and ii. $628 per week (being the statutory rate for a worker with a dependent spouse and dependent child), as adjusted, from 15 September 2012 to 31 December 2012. (b) The respondents are to pay weekly benefits pursuant to s 37(1) of the Workers Compensation Act 1987 at the rate of $523.92 per week from 1 January 2013 and continuing.” 3. The appellants are to pay Ms Sok’s costs of the appeals, each appellant bearing one half of such liability.

BACKGROUND

Ms Chan Tha Sok alleged that she had received injury to her lumbar spine in the course of her employment with Integrated Parramatta Services Pty Limited (Integrated) and, subsequently, with Inghams Enterprises Pty Limited (Inghams). Ms Sok had been employed by Integrated, a labour hire company, to perform work at the premises of Inghams between mid 2001 and November 2002. On 18 November, 2002 Ms Sok commenced employment at the same premises with Inghams.
The injuries alleged as against Integrated were that a frank injury had occurred on 21 October 2002 as Ms Sok was lifting crates of chicken parts. It was also alleged against Integrated that further injury had been occasioned by reason of the arduous duties performed by her between 21 October 2002 and 17 November 2002. The allegation of injury made as against Inghams was that, as a result of the nature and conditions of her employment between 18 November 2002 and 15 June 2004, Ms Sok had received injury to her lumbar spine.
There is no dispute that Ms Sok received injury in the course of employment with Integrated on 21 October 2002. It seems that Ms Sok was absent from work following that injury for a period of approximately seven days during which time she received medical treatment from her general practitioner Dr Henry Chau who then practiced at Cecil Hills Medical Centre. Upon her return to work, Ms Sok performed suitable duties for a short period and then resumed her normal duties. It seems that compensation benefits and medical expenses were paid by Integrated.
During the period Ms Sok was employed by Inghams it was alleged that she continued to experience back symptoms and sought treatment including physiotherapy. A period of one week’s light duties was provided by Inghams following which Ms Sok returned to her normal duties. In approximately early June 2004, Ms Sok was unable to complete her day’s work by reason of back pain. Light duties were again made available by Inghams and Ms Sok was referred to Dr Kim Edwards, surgeon, for examination and assessment. That examination took place on 10 June 2004. Ms Sok’s employment with Inghams was terminated on 15 June 2004.
Ms Sok remained unemployed until she commenced work at Dick Smith Enterprises, a position arranged by Integrated, performing light duties in September 2004. Up until the commencement of that employment she had been paid weekly compensation by Integrated. Employment at Dick Smith Enterprises came to an end in February 2005 following which Ms Sok, it seems, did not receive any further weekly payments from Integrated or its insurer. In June 2005 a claim brought by Ms Sok against Integrated with respect to lump sum compensation was the subject of agreement, and payment was made in the sum of $10,000 in respect of eight per cent whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
Ms Sok remained unemployed until 2007 at which time her husband purchased a takeaway food business in Springwood, New South Wales. That business was conducted by Ms Sok’s family between May 2007 and December 2010. Ms Sok assisted with order taking and serving at the business premises for a period of four or five hours per day, five days per week. Following sale of the business Ms Sok remained unemployed. Ms Sok has continued to experience pain and disability in her lower back and her left leg. In May 2011, Ms Sok was examined by Dr Charles H New, orthopaedic and spinal surgeon, following referral by Dr Chau. In February 2012, Dr New recommended that Ms Sok undergo surgical treatment being left L4/5 and L5/S1 decompression, laminotomy and neurolysis. Liability in respect of the cost of such treatment was declined by Integrated.
Claims in respect of weekly payments of compensation and the expenses to be incurred in respect of the surgery proposed by Dr New have since been declined by both Integrated and Inghams. The dispute concerning Ms Sok’s entitlement to compensation benefits was the subject of an Application to Resolve a Dispute registered with the Commission in June 2012. The matter came before an Arbitrator in October 2012 at which time the parties agreed that the dispute be remitted to the Registrar for referral to an Approved Medical Specialist (AMS) in accordance with s 60(5) of the 1987 Act for the purpose of an assessment under Pt 7 (Medical Assessment) of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). That assessment was conducted by Dr Peter Holman, AMS, following which a Medical Assessment Certificate (MAC) dated 7 January 2013 was issued. Dr Holman expressed his view in that certificate that the surgery contemplated by Dr New was reasonably necessary treatment for Ms Sok’s then current condition.
The proceedings were relisted before the Commission and came before Arbitrator Carolyn Rimmer for conciliation/arbitration on 25 February 2013. The matter proceeded to arbitration and the Arbitrator reserved her decision. A Certificate of Determination issued on 14 March 2013 in the following terms:
“The Commission determines:
1.       Amend Part 5 of the Application to Resolve a Dispute to add the applicant’s husband as a dependent from 15 September 2012.
2.       That the respondents are to pay weekly benefits to the applicant pursuant to the Workers Compensation Act 1987, as follows:
(a) $496 per week (being the statutory rate for a worker with a dependent child), as adjusted, from 10 May 2011 to 14 September 2012, pursuant to section 37, and
(b) $628 per week (being the statutory rate for a worker with a dependent spouse and child), as adjusted, from 15 September 2012 to date and continuing, pursuant to section 37.
3.       That the respondents are to pay the applicant’s expenses pursuant to section 60.
4.       The proposed treatment, namely, a left L4/5 and L5/S1 decompression, laminotomy and neurolysis, is reasonably necessary treatment due to the injury on 21 October 2002 and the injuries between 18 November 2002 and 14 June 2004.
5.       Liability to pay the weekly award of compensation and section 60 expenses is to be apportioned as to 50 per cent against the first respondent, and as to 50 per cent against the second respondent.
6.       The award for weekly compensation and section 60 expenses is to be paid by the second respondent, and the first respondent is to pay its apportioned share of such compensation, to the first respondent.
7.       That the respondents pay the applicant’s costs as agreed or assessed on a pro rata basis as apportioned with 50 per cent to the first respondent and 50 per cent to the second respondent.
8.       This matter is certified as complex.
9.       I certify an uplift of the applicant’s costs at 45 per cent.
10.     I certify an uplift of the first respondent’s costs at 45 per cent.
11.     I certify an uplift of the second respondent’s costs at 45 per cent.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
Both Integrated and Inghams have instituted appeals against the Arbitrator’s determination of the dispute. As will be seen, the appeal brought by Integrated was limited to a challenge to the Arbitrator’s award in respect of weekly payments as being erroneously founded upon those provisions of the 1987 Act concerning entitlement to such payments as they stood prior to amendment of the 1987 Act which followed the passage of the Workers Compensation Legislation Amendment Act 2012 (the Amending Act). At the hearing of the appeal it was contended by Integrated that the Commission, following the passage of the Amending Act, had no jurisdiction to make any order in respect of weekly compensation beyond 31 December 2012.
The appeal brought on behalf of Inghams challenged a number of factual findings made by the Arbitrator; the order of apportionment made pursuant to s 22 of the 1987 Act, as well as her findings concerning the application of the provisions of the 1987 Act in its unamended form when determining entitlement to weekly compensation. Inghams, at the hearing of the appeal, adopted the submissions put by Integrated concerning jurisdiction.

ISSUES IN DISPUTE

Leaving aside for the moment the argument raised concerning jurisdiction, the two grounds of appeal relied upon by Integrated raise three issues for determination on this appeal. Those matters require determination as to whether the Arbitrator erred:
(a) in making an award for the payment of weekly compensation “beyond 31 December 2012” in accordance with those provisions concerning such entitlement that had been repealed by the Amending Act;
(b) in failing to consider the operation of the Amending Act upon the facts found, and
(c) failing to seek submissions from the parties concerning “[Ms Sok’s] entitlement to weekly payments after 31 December 2012”.
The nine grounds of appeal relied upon by Inghams represent a broad challenge to matters of fact and as to exercise of discretion determined by the Arbitrator. Those grounds and the submissions in support lack precision and it is apparent that there is a degree of overlap among the grounds relied upon. It is nonetheless clear that the complaints raised concern questions as to whether the Arbitrator erred:
(i)     in finding that Ms Sok received relevant injury arising out of or in the course of her employment with Inghams (grounds (a), (b), (e) and (f));
(ii)     in finding that Ms Sok was totally incapacitated as a result of relevant injury (ground (c));
(iii)    in her finding as to apportionment of liability as between Integrated and Inghams (ground (d));
(iv)    in failing to find that Ms Sok received injury “by way of a disease pursuant to s 4(b)(i) and (ii) and in failing to find that the appellant was not the last employer who employed the first respondent, in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of such disease, pursuant to s 16(1)(b)” (grounds (g) and (h)), and
(v)     in failing “to apply the amended legislation so far as any entitlement to weekly compensation after 1 January 2013 is concerned” (ground (i)).

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

HEARING

Having regard to the challenge made by each of the appellants to the Arbitrator’s determination concerning ongoing entitlement to weekly compensation as calculated by reference to the provisions of the 1987 Act as that Act stood before the recent amendments, it was considered appropriate that an oral hearing be conducted. The matter was heard on 8 July 2013 at which time the parties were represented by counsel. A transcript (TA) of that hearing has been produced.

THE ARBITRAL PROCEEDINGS

The evidence

The proceedings before the Arbitrator were recorded and a transcript (T) has been produced and made available to the parties. The documentary evidence relied upon by each party was admitted without objection. Those documents were identified at [10] of the Arbitrator’s Statement of Reasons (Reasons). No oral evidence was adduced. The Arbitrator noted that the MAC issued by the AMS, Dr Holman, was in evidence before her.
The evidence tendered was large in volume. Included were numerous reports from treating doctors and from expert medical witnesses who had been qualified by the parties to provide opinions for the purposes of the litigation. Also tendered were voluminous medical records relating to treatment of Ms Sok over many years. That material was the subject of very careful and detailed examination by the Arbitrator and had been thoroughly summarised by her in the course of her Reasons.
The evidence of Ms Sok is found in a written statement made on 12 April 2012. Ms Sok arrived in this country from her native Cambodia in 1998. She had earlier been trained at university in Cambodia in the field of tourism. She had worked as an interpreter at a hotel until 1990. Ms Sok accepted an invitation from the Australian Government to study in Tasmania in 1990. She became qualified as an interpreter in Tasmania after one year, following which she returned to Cambodia where she worked as a guide for the Government Tourism Office.
Upon arrival in Australia, Ms Sok held various positions including employment at a bread shop and worked as a packer with a plastics manufacturer. Her employment with Integrated, at first part time, commenced in mid 2001. Ms Sok had never had significant injury or any compensation claim before that commencement. She was engaged to work as a packer at Inghams’ plant at Hoxton Park. She was then assigned to work at a Woolworths warehouse for three or four months, and was then reassigned to work at Inghams.
Upon her return to Inghams, Ms Sok was employed full time as a packer and performed various duties in the chicken processing plant. Those duties as described by Ms Sok, and as found by the Arbitrator, were repetitive and extremely heavy. On 21 October 2002, Ms Sok was engaged in repetitive shifting of crates of chicken pieces when she felt sudden pain in her back as she was lifting a crate. She completed her day’s work with difficulty and experienced increasing pain. Ms Sok attended her general practitioner, Dr Henry Chau, the following day. She was absent from work because of her disability for approximately a week, following which she returned to work. Ms Sok became a direct employee of Inghams from 18 November 2002.
Ms Sok remained with Inghams until June 2004. The work performed by Ms Sok was similar to that performed by her before her initial injury and she noticed a worsening of her symptoms. In March 2003, Ms Sok experienced a significant worsening of symptoms in her back at which time she was put on light duties for one week. Upon resumption of normal duties she continued to experience pain and she sought treatment from her general practitioner. Ms Sok describes her work upon resumption as “very hard work” and stated “this made my back condition a lot worse and I had numbness in my legs. I had to stand for the entire shift and reported the problems I was having to my supervisor”.
Ms Sok was assigned light duties and was referred to Dr Edwards following which her employment with Inghams was terminated. That occurred on 15 June 2004.
Following termination of her employment Ms Sok received weekly compensation payments from Integrated’s insurer, CGU Workers Compensation (NSW) Limited. The insurer paid medical and rehabilitation expenses. Light duties were arranged by the insurer with Dick Smith Enterprises in September 2004. That work was performed until February 2005. Weekly payments of compensation ceased at that time.
Ms Sok performed no work until 2007 at which time her husband purchased a take-away food business. Between May 2007 and December 2010, Ms Sok worked in the family business four or five hours per day working five days per week performing very light duties. The business was sold in December 2010. Ms Sok has not worked since. She has continued to experience disabling pain and was referred to Dr New in May 2011. Dr New has recommended surgery and her general practitioner, Dr Chau, has provided WorkCover medical certificates stating that she is totally unfit for work from 10 May 2012.
The medical evidence before the Arbitrator included a number of reports from treating doctors. Ms Sok had been treated by a number of general practitioners and a report from Dr John Houston is in evidence. In 2004, Ms Sok had been referred to Dr Simon McKechnie, neurosurgeon, whose report is in evidence. A report from Mr Milazzo, physiotherapist, who treated Ms Sok in 2004 was before the Arbitrator. Reports from Dr Balsam Darwish, neurosurgeon and Dr New, who have treated Ms Sok more recently, are in evidence. A report from Dr Elias Matalani, consultant occupational physician, who had been qualified to provide an opinion for the purposes of this litigation by Ms Sok’s solicitors, is also in evidence. Two reports prepared by Dr Edwards at the request of Inghams were tendered on behalf of that party and two reports from Dr Robert Breit, orthopaedic surgeon, were tendered on behalf of Integrated.
A number of reports relating to radiological studies conducted with respect to Ms Sok’s lumbar spine are in evidence and they include the following studies which had been summarised by Dr Matalani in his report dated 29 March 2005:
“•     CT scan of the lumbar spine dated 9 February 2004 demonstrated a broad-based annular disc bulge at L4-L5 level with a superimposed small left posterolateral disc protrusion that appears to be encroaching on and likely compressing the region of the left L5 nerve root at its point of exit from the thecal sac.
•        MRI of lumbar spine dated 30 July 2004 demonstrated a broad-based posterior disc protrusion at L4-L5 with a posterior annular tear and minor encroachment on the thecal sac or neural structures.
•        At L5-S1, there is minor asymmetric bulging to the right without gross protrusion or neural encroachment.
•        CT of the lumbar spine dated 28 October 2002 demonstrated a broad-based small right posterolateral disc protrusion at L5-S1 encroaching on and apparently causing some displacement of the right S1 nerve root distal to its exit from the thecal sac.”
A report by Dr Sarah McGlone relating to CT lumbosacral spine dated 4 April 2011 is in evidence. Dr McGlone’s comment concerning the findings of that examination was: “mild canal stenosis at L4/5 with mild compression of the origins of the L5 nerves”.

The findings by Dr Adrian Gale following MRI scan of the lumbar spine are recorded in a report from Dr Gale dated 21 April 2011 as follows:
“Indication: Back pain extending to the left leg.
Sagittal and axial images were obtained at 3T.
There is decreased signal intensity on T2 weighting in the L2/L3, L4/L5 and L5/S1 discs, indicating disc desiccation.
At the L2/L3 level, there is a small left posterolateral disc protrusion but without encroachment on neural structures.
At the L4/L5 level, posterior bulging of the disc annulus is present with flattening of the theca with a small left posterolateral disc protrusion encroaching on the left L5 nerve root.
At the L5/S1 level, circumferential bulging of the disc annulus is noted without neural compromise.
The remaining discs are intact.
The remaining neural structures are normal in appearance and the conus medullaris is in normal position.
There is no evidence of canal stenosis.”
Also in evidence was a report relating to MRI lumbar spine conducted on 6 June 2011 at the request of Dr New which included the following conclusion:
“CONCLUSION:
* Multilevel degenerative disc change most prominent at L4/L5 level where there is a fairly broad-based central disc protrusion with annular fissuring with evidence of contact of the disc protrusion with the facet joints and bilateral subarticular recess/lateral recess stenosis. The traversing left L5 nerve root appears to bypass the subarticular recess/lateral recess stenosis whereas the traversing right L5 nerve root appears to be impinged upon within the right subarticular recess/lateral recess.
*Small central disc protrusion with annular fissuring L5/S1.
*Mild facet joint and legamentum flavum hypertrophy L4/L5 and mild to moderate facet joint and legamentum flavum hypertrophy at L5/S1.”
It is common ground among the medical practitioners whose evidence is before the Commission, with the exception of Dr Edwards, that Ms Sok suffers significant disability by reason of the abnormalities demonstrated at the level of the lumbar spine by the various radiological studies and that such disability is work related. There is some divergence of opinion as to what particular work activities have caused the relevant injury and there are also differing views as to whether Ms Sok suffers or has suffered from relevant disease at that level of her spine. It is not proposed to summarise that evidence, which was addressed with particular care by the Arbitrator in the course of her Reasons, but reference will be made to that material, where relevant, in the course of discussion which appears below.

Submissions before the Arbitrator

Relevant issues were identified by counsel for each employer. Counsel appearing on behalf of Integrated conceded the occurrence of injury in the course of Ms Sok’s employment in October 2002. Counsel stated that it was Integrated’s case that there had been a subsequent injury which had given rise to relevant incapacity and the need for surgical treatment. It was put on behalf of Integrated that, should a finding be made that injury had been relevantly caused by work related incidents whilst Ms Sok was employed by both Integrated and Inghams, it would be appropriate to apportion liability pursuant to s 22 of the 1987 Act.
Counsel appearing on behalf of Inghams stated that his client denied injury and, further, placed reliance upon the provisions of s 9A of the 1987 Act in that it asserted that employment with Inghams was not a substantial contributing factor to injury. It was also put that ss 15 and 16 “do not apply”. Inghams also disputed “incapacity” and denied that the surgery recommended by Dr New was reasonably necessary in terms of s 60 of the 1987 Act. Counsel also made the statement “if … you find that there is a disease, we say that [Inghams] is not the last employer …”.
Counsel appearing on behalf of Ms Sok noted that the claim for weekly payments commenced on 10 May 2011 and that total incapacity was alleged. Counsel placed reliance upon the opinion of Dr Holman concerning Ms Sok’s allegation that the surgery recommended by Dr New was reasonably necessary within the meaning of the Act.
The general thrust of submissions advanced on behalf of Inghams was that, having regard to the history of injury in October 2002 and the perpetuation of symptoms, any incapacity experienced by Ms Sok since that time may be attributable to that initial injury. Emphasis was placed upon the accepted fact that compensation benefits including lump sum payments had been made on a voluntary basis by Integrated following the subject injury and that such payments were made following the expiration of the period during which Ms Sok was employed by Inghams. The records of Dr Chau, which date from 2004, were relied upon in support of an argument that during consultation with that practitioner in 2004, Dr Chau had made no record of any complaint by Ms Sok concerning relevant injury whilst working for Inghams. Reliance was also placed by counsel upon the opinion of Dr New as found in his report dated 15 June 2011. It was argued that the views expressed by Dr New support the proposition that ongoing symptoms and any resultant incapacity relate to the October 2002 injury. A similar argument was advanced concerning causation of incapacity founded upon the evidence of Dr Chau in his report dated 21 May 2012. It was argued that the evidence of Dr Breit would not, given the apparent alteration of his opinion following receipt of correspondence from Integrated’s solicitors, be treated as persuasive evidence. It was also suggested that the history taken by Dr Breit that “there was no specific traumatic event” which precipitated the pain experienced by Ms Sok was incorrect. It was put, following further argument based upon the medical evidence, including the history as recorded by Dr Holman, that there should be an award entered in favour of Inghams.
Counsel appearing on behalf of Integrated sought to emphasise the evidence of Ms Sok concerning her resumption of normal duties following the October 2002 injury which followed a short period of absence from work and performance of light duties. It was argued that, having regard to the nature of symptoms experienced by Ms Sok as reported to Dr Houston in May 2004, the Commission would accept that the likelihood was that Ms Sok had been injured in the course of the heavy work performed immediately before that consultation. Alternative arguments were advanced, firstly that the incapacity in respect of which the claim is made and liability for the cost of anticipated surgery should be borne by Inghams, or that there should be a finding that the injury in 2002 was but part of the cause of the incapacity and need for surgery. A further argument appears to have been advanced that the mechanism of injury giving rise to relevant incapacity concerned the aggravation, from time to time, of underlying degenerative changes in Ms Sok’s lumbar spine. Particular reliance was placed by counsel upon the opinion of Dr Breit as expressed in his first report that a significant component of the pathology demonstrated in Ms Sok’s lumbar spine “relates to the nature and conditions of her employment where there is repetitive lifting and carrying”. A similar argument was advanced founded upon the evidence of Dr Matalani. It was accepted by counsel that, should both employers be found to have relevantly caused the incapacity and the need for surgery, it would be appropriate to apportion liability as is permitted by s 22 of the 1987 Act.

The Arbitrator’s determination

The Arbitrator identified the issues raised in the proceedings by the parties as follows (at [9] of Reasons):
“(a) Did the applicant receive an injury to her lumbar spine whilst in the employment of the second respondent (section 4 of the 1987 Act)?
(b)     Was employment a substantial contributing factor to the lumbar spine [sic, injury] during her employment with the second respondent (section 9A of the 1987 Act)?
(c)     Do the provisions of section 15, section 16 and section 4(b) of the 1987 Act apply?
(d)     If section 15 applies, was the second respondent the employer who last employed the worker in employment to the nature of which the disease was due?
(e)     If section 16 applies, was the second respondent the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease?
(f)      Did the applicant have an incapacity resulting from the alleged work injuries?
(g)     If the applicant was incapacitated for work as a result of the alleged work related injuries, was she totally or partially incapacitated for work?
(h)     If the applicant was incapacitated for work as a result of the alleged work related injuries, what was her entitlement to weekly compensation?
(i)      Were the applicant’s medical expenses in respect of the proposed surgery reasonably necessary for any compensable injury?
(j)      If applicable, apportionment between the first respondent and the second respondent.”
Following a thorough summary of the evidence, the Arbitrator proceeded to address the issues raised, giving attention firstly to the question of the occurrence of injury. It was noted that Integrated had conceded the occurrence of injury on 21 October 2002. Following a consideration of the medical evidence the Arbitrator found that Ms Sok had received a frank injury, being an acute L5/S1 intervertebral disc lesion to her spine on 21 October 2002 (at [114] of Reasons). The Arbitrator was not satisfied that Ms Sok sustained any further injury to her lumbar spine as a result of work performed by her with Integrated up until 17 November 2002 (at [116] of Reasons).
A finding was made (at [118] of Reasons) that Ms Sok received further injury to her lumbar spine between 18 November 2002 and 15 June 2004 “as a result of the nature and conditions of her employment with [Inghams]”. That conclusion was reached having regard to the Arbitrator’s acceptance of the evidence of Dr Chau, Dr Houston and Dr New. A further finding was made that employment with Inghams “was a substantial contributing factor to the injuries as found”.
The Arbitrator concluded, having regard to relevant medical evidence, that it had not been established that Ms Sok had suffered a relevant disease within the meaning of s 4 of the 1987 Act. The injury received in the course of her employment with Inghams was found by the Arbitrator to be one “as a result of the repetitive traumata experienced in the course of her employment with [Inghams] from 18 November 2002 to 14 June 2004”. Further findings were made that, there being no relevant disease, the provisions of ss 15 and 16 of the 1987 Act had no application. The ongoing disability suffered by Ms Sok was found by the Arbitrator to be the result of both the injury received in the course of employment with Integrated and injury, as found, received in the course of her employment with Inghams.
The Arbitrator, following a consideration of all relevant matters including the nature of the restrictions on Ms Sok’s physical capacity and the need for surgery, determined that Ms Sok’s “labour was, for all practical purposes, unsalable in the relevant labour market”. A finding was made that Ms Sok had been totally incapacitated for work since 10 May 2011 as a result of injury received with each employer (at [154] of Reasons).
The Arbitrator proceeded to determine that Ms Sok was entitled to a continuing award in respect of weekly compensation pursuant to s 37 of the 1987 Act as it stood prior to the amendments effected by the passage of relevant provisions found in the Amending Act.
Following a further consideration of the medical evidence and relevant authority the Arbitrator found that the surgical treatment proposed by Dr New was reasonably necessary as a result of the relevant injuries within the meaning of s 60 of the 1987 Act.
The Arbitrator proceeded to consider the question of apportionment pursuant to s 22 of the 1987 Act. A finding was made that Integrated and Inghams should each bear 50 per cent of liability in respect of the award for weekly compensation and medical expenses. The Arbitrator proceeded to make the determinations and orders as noted at [8] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“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.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
It is convenient to deal firstly with those challenges raised by Inghams which appear in grounds (a) to (h) which are summarised at [12] above. The challenge raised by both Integrated and Inghams concerning the Arbitrator’s entry of an award in accordance with the relevant provisions of the 1987 Act as they stood prior to the recent amendment may be addressed thereafter. Consideration may then be given to those arguments raised concerning the jurisdictional question.
Ground (a) challenges the Arbitrator’s finding that the worker received injury arising out of or in the course of employment with Inghams. The Arbitrator’s finding as to injury, and her primary reasons for so concluding, are to be found between [117] and [119] of Reasons. As earlier noted, the Arbitrator expressed her satisfaction that Ms Sok had “sustained further injury to her lumbar spine between 18 November 2002 and 15 June 2004 as a result of the nature and conditions of her employment with [Inghams]”.
It is argued on behalf of Inghams, as was emphasised before the Arbitrator, that there is no dispute concerning the injury received in October 2002 whilst employed by Integrated; that Integrated accepted liability for that injury and paid weekly compensation and medical expenses; that there was no suggestion that Ms Sok had suffered any other injury to her back at the time she ceased employed with Inghams, and that Integrated accepted liability in respect of compensation payments after Ms Sok’s period of employment with Inghams. It is further argued that the records of Dr Chau, the register of injuries form dated 12 May 2004 and the claim form dated 28 May 2004 each record but one injury, being that received in the course of employment with Integrated. Inghams, in argument, emphasise that the WorkCover Medical Certificates record but one date of injury, being 21 October 2002. The evidence of Dr New, it is put, makes no reference to any injury other than that which occurred on 21 October 2002. Reliance is placed by Inghams upon the report of Dr Matalani dated 29 March 2005 in which, it is put, the only recorded injury is that which occurred in October 2002. Following Dr Matalani’s report Integrated agreed to pay lump sum compensation. Inghams draws attention to the identification of but one injury, that being the October 2002 injury, in the text of the s 66A Agreement entered into between Ms Sok and Integrated on 28 June 2005.
Inghams, in the course of argument, outlines the work history of Ms Sok following cessation of her employment with Inghams and it is suggested that the evidence supports a conclusion that Ms Sok’s symptoms “waxed and waned since 21 October 2002 depending upon types of activities [Ms Sok] performed both inside and outside her various employments”. It is further suggested that Integrated made “full payments of compensation … continuing well into 2011”. It is suggested that, having regard to the state of the evidence, the Arbitrator has “erred in law” in finding the occurrence of injury whilst Ms Sok was employed with Inghams. It is also submitted that “there is error of law”. That suggested error is not identified in the submissions.
The arguments advanced by Inghams represent a more concise presentation of those arguments advanced before the Arbitrator. A question raised is whether the appellant has, on appeal, established error of fact. Such an error will be made out in those circumstances addressed by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506), that is where:
“… material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
I have earlier made reference to the Arbitrator’s careful attention to the evidence as summarised by her. The Arbitrator’s Reasons demonstrate that her conclusion concerning the disputed finding of injury was founded upon the opinions as expressed by Dr Holman, the AMS, Dr Chau, Dr Houston and Dr New. The expert medical witnesses nominated by the Arbitrator each provide sufficient evidence to permit the conclusion reached by the Arbitrator, and the reasons for her conclusion have been plainly stated. No factual error has, in my opinion, been established by Inghams. The submission that the Arbitrator had erred in finding the occurrence of injury, which was described by her (at [144] of Reasons) as being “… as a result of repetitive traumata caused at work in the performance of her duties with [Inghams] between 18 November 2002 and 15 June 2004”, must be rejected.
As noted earlier, the grounds relied upon by Inghams have, to an extent, an overlap. This is demonstrated by the challenge, in ground (b), to the Arbitrator’s finding that the injury received whilst employed by Inghams was “by way of any injury arising out of the nature and conditions of [Ms Sok’s] employment”. The criticism raised in submissions concerning Ms Sok’s allegation of injury by way of “nature and conditions” and the suggested adoption by the Arbitrator of that expression are well founded. However, as noted above at [38], the Arbitrator has in fact found that the subject injury resulted from “repetitive traumata” experienced in the course of the relevant employment. The Arbitrator’s earlier reference to nature and conditions of employment may be seen as reference to, and adoption of, the inadequate description of injury as it appears in the application. Having regard to the Arbitrator’s finding concerning repeated traumata, which constitutes a finding of injury in terms of s 4(a), Inghams’ submission found at [2b], that the Arbitrator failed to address the question of injury (s 4(a)), is erroneous and must be rejected.
I have earlier summarised the Arbitrator’s approach to the evidence, her reasoning and her conclusion concerning injury. I have found no error as suggested. It is for those reasons that Inghams’ challenge under ground (b) must be rejected. The criticism made of the medical evidence relied upon by the Arbitrator must, likewise, be rejected. That criticism goes to the weight of that evidence and, whilst such argument may be relevant to a review of the Arbitrator’s determination of factual matters, such argument has little or no force in circumstances where the present task on appeal is to determine the commission or otherwise of relevant factual error.
Ground (c) challenges the Arbitrator’s finding of total incapacity. Submissions in support of this ground summarise Ms Sok’s employment history and history of treatment post dating her period of employment with Inghams. It is suggested it was “not open to the Arbitrator to find that [Ms Sok] became incapacitated some seven years after leaving the employ of [Inghams]”.

The Arbitrator’s reasons for concluding that, as a result of relevant injury, Ms Sok was totally incapacitated from 10 May 2011 appear between [145] and [154] of Reasons. Such incapacity was found to be a result of injury with Integrated and of the injuries “between 18 November 2002 and 14 June 2004” whilst employed by Inghams.
The manner in which Inghams presents argument challenging this finding does not include an express challenge to the finding of total incapacity, but rather challenges the finding made by the Arbitrator that there is a causal nexus, in part, between the incapacity as found and the work performed at Inghams. Inghams again emphasises the employment history of Ms Sok following termination of her employment in 2004 as well as the evidence concerning payments of benefits made voluntarily by Integrated. In my view, nothing raised by the appellant in argument addresses the question of causal nexus between each of the injuries, as found, and the total incapacity determined by the Arbitrator. It is clear from her reasoning that the worsening pain and disability experienced by Ms Sok, as reported to those practitioners treating her, was found to have resulted from injury received with both employers. The substantive finding made by the Arbitrator concerning the causal relationship between that incapacity and injury received during employment with Inghams is to be found later in her Reasons when the question of apportionment pursuant to s 22 of the 1987 Act was addressed (at [180] and [181]):
“The applicant’s history to the AMS, and it was consistent with the medical evidence overall, was that following the injury on 21 October 2002 she continued to suffer pain in her back, particularly if she was asked to do any lifting while at work. The applicant said that between October 2002 and 15 June 2004 her back pain persisted and she experienced pain radiating into the left buttock and down the posterior aspect of the left thigh into the calf and intermittent numbness in the left foot. The applicant said that the back pain between October 2002 and June 2004 was exacerbated by repetitive bending and lifting while at work at the second respondent’s premises. She said that although she ceased work with the second respondent her back pain and the left leg pain persisted and had gradually become worse over the years.
There was significant pathology in the applicant’s lumbar spine associated with the acute L4/5 intervertebral disc lesion sustained on 21 October 2002. I was satisfied that in the period between 18 November 2002 and 15 June 2005 the applicant was required to carry out heavy and repetitive duties that caused further injury to her lumbar spine. The CT scan of the lumbar spine dated 28 October 2002 reported a right postero‑lateral disc protrusion at the L5/S1 level of small profile and broad base while the CT scan of the lumbar spine dated 9 February 2004 reported a broad‑based annular disc bulge at L4/5 with a small superimposed left postero‑lateral disc protrusion which may be compressing the left L5 nerve root. In my view, the contribution of the injury on 21 October 2002, to the total incapacity I have found, was equal to that of the contribution of repetitive traumata injuries sustained between 18 November 2002 and 14 June 2004.”
Having regard to the state of the evidence I conclude that the Arbitrator’s finding that incapacity suffered by Ms Sok was the result of injury both with Integrated and Inghams was open to her and that the reasons stated by her for that conclusion had been plainly and sufficiently expressed by her. That reasoning related to both the question of causal nexus between injury received whilst employed by Inghams and incapacity, and the question of apportionment. Ground (d) relied upon by Inghams challenges the apportionment as expressed by the Arbitrator and her order made pursuant to s 22 of the 1987 Act. For those reasons earlier expressed I reject Inghams’ argument that there should be no apportionment against it pursuant to the last mentioned section or that there should be “only de minimis apportionment of liability”.
Ground (e) suggests that the Arbitrator has erred in failing to find that “any [injury whilst in the employ of Inghams] was a temporary aggravation of injury suffered with [Integrated] ”. This ground is poorly expressed but seems to suggest that, having regard to the evidence, any injury received whilst in the employ of Inghams had no lasting incapacitating consequences. No argument is advanced other than a statement that reliance is placed upon earlier submissions. I have addressed and rejected those submissions which were put in support of the challenge to the finding of injury between [46] and [52] above. This ground is rejected.
Ground (f) suggests error on the part of the Arbitrator in finding that injury whilst employed by Inghams had resulted in “further pathology in [Ms Sok’s] lumbar spine” and that operative treatment was reasonably necessary as a result of that injury. Inghams draws attention to the evidence of Dr New that the relevant surgery had become necessary by reason of the October 2002 injury (wrongly described by Dr New as having occurred in 2004). Inghams accepted that the Arbitrator had been “influenced” by the opinion expressed by Dr Holman. It is argued that Dr New’s opinion should have been preferred. The argument as advanced, again, suggests that the Arbitrator has erred in accepting one aspect of the evidence (the opinion of Dr Holman) and preferred it to other expert medical evidence (the opinion of Dr New). I note that these submissions fail to acknowledge the view expressed by Dr New in his report dated 7 June 2012 that “the nature of [Ms Sok’s] work from 2002 to 2004 would certainly aggravate and exacerbate her low back pain and sciatica and lead her to the point when I feel that she would require surgical intervention”. The appeal is not by way of review of the Arbitrator’s determination of the dispute. The Arbitrator has, as I have earlier stated, addressed the totality of the evidence. In my view, she has sufficiently expressed her reasons for the acceptance of Ms Sok’s evidence concerning the history of symptoms experienced whilst working with Inghams, and that of the expert medical witnesses whose opinions inculpate that work as being, in part, causative of the need for the surgery in question. Ground (f) is rejected.
Inghams relies upon alternative arguments which suggest error in failing to find that Ms Sok suffered injury by way of a disease (s 4(b)(i)(ii)) and further in failing to find that Inghams was not the last employer who employed Ms Sok in relevant employment (grounds (g) and (h)).
These grounds require determination on appeal as to whether any relevant error has been established concerning the Arbitrator’s findings as to the disease provisions of the 1987 Act as expressed between [121] and [142] of Reasons. Following consideration of relevant authority and the expert medical evidence, the Arbitrator found that Ms Sok had not contracted a disease, expressed by her as being one of “gradual onset”, within the meaning of s 4(b)(i). The Arbitrator also found that Ms Sok’s injury did not consist in the aggravation, acceleration, exacerbation or deterioration of a disease: ss 4(b)(ii). The argument advanced concerning the disease provisions was put on behalf of Integrated. Had such argument prevailed the provisions of ss 4, 15 and/or 16 would apply, so it was argued before the Arbitrator, to relieve Integrated of any liability. Any such liability found would thus devolve upon the last relevant employer. That argument was countered by Inghams in the course of submissions before the Arbitrator. However it was, in the alternative, faintly argued that, should relevant disease be found, Inghams were not the last relevant employer.
The Arbitrator’s conclusion that the disease provisions have no relevance on the present facts was supported by the evidence; her reasons for that conclusion were, again, plainly stated and no relevant error is made out. It is thus unnecessary to address argument, such as it is, that Inghams were not the last relevant employer. Grounds (g) and (h) are rejected.

The appellants’ challenge to the Arbitrator’s award of weekly compensation

Both Integrated and Inghams challenge the Arbitrator’s order noted, at [8] above, made in respect of weekly payments. That challenge is limited to the award made in respect of continuing payments from 1 January 2013. It is put that the Arbitrator has erred in law in purporting to make such award pursuant to s 37 of the 1987 Act in its terms before its repeal effected by the Amending Act. Counsel for Ms Sok conceded at the hearing of the appeal that such error had been made. Such concession, having regard to the relevant transitional provisions and the present facts, was, in my opinion, properly made. My reasons for so concluding appear below.
Since the date of commencement of these appeals, there has been a significant shift in emphasis in argument as is demonstrated by those matters advanced by Integrated at the hearing of the appeal. It was put then that the Arbitrator had erred in making an award in respect of payments after 31 December 2012 given that, upon the passage of the Amending Act, and its operation as regulated by the relevant transitional provisions, the Commission had no jurisdictional power to make such an award. That argument was adopted by Inghams at the hearing.
A preliminary question was raised at the hearing as to whether the appellants should be permitted to raise this question on appeal, given that no such argument had been raised before the Arbitrator. It was common ground among the parties that, at the hearing before the Arbitrator, no argument had been advanced by any party concerning the relevance or otherwise of the consequences of the passage of the Amending Act. It is important to note that no objection to the jurisdictional question being raised on appeal is made by Ms Sok. Given the serious nature of the appellants’ submissions, and all relevant circumstances, I am of the opinion that it is appropriate, notwithstanding the general principle which ordinarily prevents a party from raising a new point on appeal, that such argument should be permitted (see discussion per Mason J (as he then was) in O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at [319]).
It is the appellants’ fundamental contention that the amendments to the provisions of the 1987 Act that regulate entitlement to weekly compensation and the manner of its calculation (Pt 1 Div 2 of that Act) had the consequence that the Commission no longer has jurisdiction to examine, hear and determine matters concerning entitlement to and quantification of weekly compensation.
Before addressing the arguments advanced in support of that contention it is convenient to examine, generally, the relevant amendments and transitional provisions:
(a)     the relevant provisions, being amendment of those provisions relating to weekly payments of compensation, were found in Sch 1 to the Workers Compensation Amendment Bill 2012 which came into operation, by proclamation, on 1 October 2012;
(b)     no amendment was made to the terms of s 33 being the provision which vests in a worker a right to such compensation in circumstances where total or partial incapacity results from injury;
(c)     amendments to ss 34 to 44 make provision for the manner of determination of the existence of, and the rate of, such entitlement to weekly payments during three distinct “entitlement periods” of incapacity (first 13 weeks; weeks 14-130, and thereafter);
(d)     section 39 provides that entitlement ceases after an aggregate period of five years except in the case of a worker with permanent impairment exceeding 20 per cent: s 39(2);
(e)     the amendments, generally, apply to injuries received, claims made and proceedings pending in the Commission immediately before the commencement of the amendment: Sch 6.19H.1.3(1) to the 1987 Act. That clause is subject to any exceptions provided by Pt 19H or the Regulations;
(f)     having regard to relevant provisions, including transitional provisions in the Act and Regulations, the amendments have application on and from different dates depending on circumstances:
(i)the amendments apply to a worker who was an existing recipient of weekly payments immediately before 1 October 2012 upon the expiration of three months after an insurer makes a work capacity decision arising from the first work capacity assessment: Sch 6.19H.9 to the 1987 Act read, with Sch 8.22 to the Workers Compensation Regulation 2010 (the Regulation). Such assessment must be conducted by the insurer no later than 18 months after 1 October 2012: Sch 8.17 to the Regulation;
(ii)where a worker has claimed compensation before 1 October 2012 but was not an existing recipient immediately before that date, the amendments including transitional provisions do not apply to the compensation payable in respect of the injury until 1 January 2013: Sch 8.3 to the Regulation, and
(iii)where a claim is made on or after 1 October 2012 the amendments apply when the claim is made: Note following Sch 8.3.1 to the Regulation;
(g)     there is express provision effected by the amendments that deprive the Commission of jurisdiction to determine any dispute about a work capacity decision of an insurer. The Commission is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer: s 43(3). Further, the Commission does not have jurisdiction to make a decision in proceedings concerning weekly payments of compensation payable to a worker whilst a work capacity decision by an insurer is the subject of review: s 44(5);
(h)     the legislative scheme makes provisions for the means by which a determination of the rate of weekly payments is to be calculated. Broadly speaking that scheme requires determination of whether at relevant times a worker has a “current work capacity” and/or whether the worker has “no current work capacity” as each expression is defined in s 32A. An important, but not essential, element concerning the determination of the rate of such weekly payments is the conduct of a work capacity assessment by an insurer under s 44A which provides relevantly:
“44A   Work capacity assessment
(1)An insurer is to conduct a work capacity assessment of an injured worker when required to do so by this Act or the WorkCover Guidelines and may conduct a work capacity assessment at any other time.
(2)A work capacity assessment is an assessment of an injured worker’s current work capacity, conducted in accordance with the WorkCover Guidelines.
(3)A work capacity assessment is not necessary for the making of a work capacity decision by an insurer.
…”
(i)     the work capacity of workers as determined by insurers is addressed by s 43(1) which provides:
“43   Work capacity decisions by insurers
(1) The following decisions of an insurer (referred to in this Division as work capacity decisions) are final and binding on the parties and not subject to appeal or review except review under section 44 or judicial review by the Supreme Court:
(a) a decision about a worker’s current work capacity,
(b) a decision about what constitutes suitable employment for a worker,
(c)a decision about the amount an injured worker is able to earn in suitable employment,
(d)a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,
(e)a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,
(f)any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)–(e).”

Was the decision of the Arbitrator affected by relevant error?

It is clear that the continuing award entered by the Arbitrator made provision for weekly payments calculated upon the basis of her findings of total incapacity and that the quantum of such payments were determined by her by reference to the provisions of Div 2 of Pt 3 of the 1987 Act as it stood before the amendments discussed above. On the relevant facts, in particular the fact as agreed, that Ms Sok was not at relevant times an existing recipient of payments, her entitlement from 1 January 2013 required determination in accordance with the new scheme established by the Amending Act. The Arbitrator’s entry of an award beyond 31 December 2012 pursuant to the repealed provisions was made in error and her decision, plainly, has been relevantly affected. The outcome of this appeal, in particular the nature of appropriate orders to be made following determination of such error, requires determination of the correctness, or otherwise, of the appellants’ submissions suggesting an absence of jurisdiction in the Commission to make any order concerning payment of weekly benefits beyond 31 December 2012.
The appellants’ argument, as found in Integrated’s supplementary written submissions handed up on the day of hearing, is simply put. It is accepted that, on the facts, Ms Sok is entitled to the award “under the pre-amendment provisions from 13 May 2011 to 31 December 2012.” It is put that the Commission “has no jurisdiction to make an order for weekly compensation beyond [sic] 2013” (Submissions [14]). It was made clear at the hearing that what was intended to be put was that the Commission, since commencement of the amendments, has no jurisdiction to order weekly payments, in the present circumstances, beyond 31 December 2012.
That last contention is supported firstly by the assertion that s 33 has the effect that it is “mandatory” that employers pay compensation in circumstances where the worker is totally or partially incapacitated as a result of injury. Once a worker’s incapacity has been “established”, it is put, there is “no question as to whether” an employer should or should not pay compensation.
It follows, it is argued, that the only question before the Commission under s 33 was the existence and extent (total or partial) of Ms Sok’s incapacity. The “amendments by express words, have stripped [the Commission] of its former jurisdiction to determine this [sic, these] question [sic, questions]”. It is put that “there is nothing remaining for [the Commission] to determine under s 33 post 1 October 2012”.
In conclusion, the appellants argue that, whilst the relevant transitional provisions “may provide for the extension of weekly compensation until 1 January 2013”, there is “no transitional provision providing for the extension of the finding of incapacity beyond 30 September 2012. The question of incapacity post 1 October 2012 is solely for the insurer, to be assessed pursuant to the new ss 37 and 38 of the 1987 Act” (Submissions [17]). During argument it was put that such assessment was to be made by an insurer in accordance with the amended scheme and that only an insurer may make a work capacity decision: s 43. The Commission, it was put, had no jurisdiction to make such a decision.
It should be noted that included in argument was the assertion that “after 1 January 2013 (the latest extension of the employer’s obligation to pay weekly compensation), there is no obligation on an employer to pay weekly compensation until an insurer has assessed an injured worker as suffering total or partial incapacity” (Submissions [18]).

Discussion

As was stated by Meagher JA in New South Wales State Brickworks v Abi-arraj (1995) 38 NSWLR 94 (at [99]) concerning the jurisdiction of the Commission’s predecessor, the Compensation Court of New South Wales:
“For what it matters, the Compensation Court is not a superior court. But what does matter is that it is a statutory court. Its jurisdiction, powers and functions must be discovered in the express or implied terms of the Worker’s Compensation legislation.”

The jurisdiction of the Commission is conferred by the provisions of s 105 of the 1998 Act, which provides:
“105 Jurisdiction of Commission and Compensation Court
(1)     Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.
Note. The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer. See section 43 of the 1987 Act.
(2)     The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act.
(3)     The Commission does not have jurisdiction in respect of matters that the Compensation Court or (after the repeal of the Compensation Court Act 1984) the District Court has jurisdiction to examine, hear and determine.
(4)     Subject to this Act and the Compensation Court Act 1984, the Compensation Court has exclusive jurisdiction to examine, hear and determine all existing claim matters except matters arising under Part 5 of the 1987 Act.
(4A) After the repeal of the Compensation Court Act 1984, the District Court has exclusive jurisdiction to examine, hear and determine all coal miner matters (except matters arising under Part 5 of the 1987 Act).
(5) Despite section 17(4) of the Compensation Court Act 1984, the Compensation Court does not have jurisdiction to reconsider a matter, or to rescind, alter or amend any decision previously made or given by the Court in relation to a matter, once the matter has become a new claim matter.
(6)     For the purposes of giving effect to subsections (4) and (4A), references in this Act to the Commission are to be read as references:
(a)to the Compensation Court, to the extent that the reference relates to a matter that the Compensation Court has jurisdiction to examine, hear and determine, or
(b)to the District Court, to the extent that the reference relates to a matter that the District Court has jurisdiction to examine, hear and determine.
Note. Provision is made in the 1987 Act for regulations to require existing claims to be treated as new claims (transferred claims). The Compensation Court ceases to have jurisdiction in respect of transferred claim matters and the Commission acquires exclusive jurisdiction in respect of transferred claim matters.”
It may be seen that the legislature, when prescribing the nature and extent of the Commission’s jurisdiction, adopted the broadest of terms. Subject to the Act (which must be read as including both the 1987 Act and 1998 Act (the Acts) : s 2A(2) of the 1987 Act), the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under the Acts: s 105(1).
The jurisdiction granted may be curtailed by statutory provision and such curtailment is found in the terms of s 105 itself, as well as in numerous provisions of the Acts (viz s 65(3) of the 1987 Act and ss 43(3) and 44(5) of the 1998 Act). Such curtailment of, or limitation to, the Commission’s jurisdiction has thus been effected by express statutory provision.
On the present facts there existed a dispute concerning Ms Sok’s entitlement to compensation benefits in respect of incapacity and need for medical treatment. A dispute existed between the appellants concerning the question of causation of such incapacity and need for treatment. Such matters plainly arise under the Acts and have come before the Commission for examination, hearing and determination.
Ms Sok, it is agreed, is presently and was at the time of the Arbitrator’s determination, claiming weekly compensation, the rate of which, from 1 January 2013, required calculation in accordance with the terms of s 37 in its amended terms which are as follows:
“37   Weekly payments in second entitlement period (weeks 14–130)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:
(a)(AWE × 80%) − D, or
(b) MAX − D,
whichever is the lesser.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the rate of:
(a)(AWE × 95%) − (E + D), or
(b)MAX − (E + D),
whichever is the lesser.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the rate of:
(a)(AWE × 80%) − (E + D), or
(b)MAX − (E + D),
whichever is the lesser.”
I reject the appellants’ submissions which suggest that the Commission has, by reason of the passage of the Amending Act and relevant transitional provisions, been deprived of its jurisdiction to determine the dispute which Ms Sok has brought before it, being her application concerning entitlement to weekly benefits.
I so conclude given that the appellants’ challenge is founded upon suggested “express” provision, or “inference”, that Parliament has curtailed the Commission’s former jurisdiction to determine the dispute concerning the rate of payments beyond 31 December 2012. I am not satisfied that such meaning or inference may be drawn from the terms of the Amending Act. It cannot, in my view, be said that such withdrawal of jurisdiction appears “clearly and unmistakably” from the terms of the amendment. It cannot be said that such “repeal, alteration or derogation” of jurisdiction appears from the terms of the Amending Act “expressly or by necessary intendment” (see discussion in Shergold v Tanner [2002] HCA 19; 209 CLR 126 per the Court at 136-137 where Saraswati v The Queen (1991) 172 CLR 1 is cited).
The circumstances in which Ms Sok has brought her claim for weekly compensation include relevantly:
(a)     her claim had been made before 1 October 2012;
(b)     she was not, as at 1 October 2012, an existing recipient of weekly payments;
(c)     no work capacity assessment had been conducted at the time of the hearing before the Arbitrator, nor since, and
(d)     no work capacity decision has to date been made concerning Ms Sok in terms of s 43.
It may be seen that, in the absence of a work capacity assessment having been conducted, and given that no work capacity decision has been made, there is no obstacle presented by the terms of s 43(3) or s 44(5) to the Commission determining Ms Sok’s entitlement to weekly payments and the rate of such payments.
The provision which vests in a worker the right to weekly compensation, s 33, has, as earlier noted, not been affected by the Amending Act. One consequence of the preservation of that section is that the concepts of “total incapacity” and “partial incapacity” remain relevant to the determination of a worker’s right or otherwise to weekly payments. In the present matter, the Arbitrator has made a finding that Ms Sok has been totally incapacitated at all times. The appellants’ argument that s 33 in some way now operates to deprive the Commission of jurisdiction to make an order for weekly compensation “beyond 2013” as stated at [14] of Submissions is, in my view, wrong.
Notwithstanding the profound changes introduced by the Amending Act to the methods of determining entitlement to, and the rate of weekly payments, and the role of insurers in determining such matters free of any challenge before the Commission, it is my opinion that, on the present facts, the scheme relevant to the assessment of such rate to which Ms Sok is entitled post 31 December 2012 does not have the effect, either expressly as was suggested in argument, nor impliedly, that the Commission has no jurisdiction to determine such rate. That is so, in part, given the continuation of the relevance of the statutory concept of pre-injury “average weekly earnings” as found in ss 35 and 37.
Having regard to all relevant matters, in particular the appropriate calculation to determine into which “entitlement period” Ms Sok is to be placed having regard to Sch 6.19H.9(4), I consider that the parties are correct in their acceptance that Ms Sok is, and was at the time of hearing before the Arbitrator, in the second entitlement period (see Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37 per Roche DP at [47]).
It follows that the rate of weekly payments to which Ms Sok is entitled must be determined by reference to s 37, the terms of which are noted at [78] above. It is at this point that a problem arises having regard to the Arbitrator’s finding of total incapacity. That concept, as earlier discussed, gives rise to a vested right to weekly compensation. However, s 37(1), relevantly to the present facts, speaks of a worker who has no current work capacity. The parties have not addressed as to whether such finding of total incapacity supports, of necessity, a finding of “no current work capacity”. I note that Integrated’s counsel accepted that a finding by an arbitrator of total incapacity “could” constitute a finding of no work capacity (TA 17).
The term “no current work capacity” is helpfully defined in s 32A of the 1987 Act as follows:
“no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Having regard to the Arbitrator’s finding concerning total incapacity, the fact that Dr New has advised the need for spinal surgery and having regard to the evidence generally, I conclude on this appeal that Ms Sok is not able to return to her pre-injury employment nor is she able to return to work in suitable employment and thus has no current work capacity. In so concluding I have taken into account the definition of “suitable employment” which appears in s 32A. It may be seen that, having regard to the terms of that definition, the concepts of “no current work capacity” and “total incapacity”, as that latter term is understood in the light of relevant authority, may not in all circumstances be equivalent in meaning.
I am of the view that it is appropriate, and in accordance with legislative intent, that a new decision is made on this appeal in place of the Arbitrator’s order concerning ongoing weekly payments from 1 January 2013.
The rate of Ms Sok’s weekly entitlement is to be determined, having regard to all circumstances, in accordance with s 37(1). The relevant average weekly earnings (AWE) for the purposes of that calculation were $654.91. That figure is reached by adoption of the method of calculation made by the Arbitrator at [162] of her determination. Eighty per cent of that figure is $523.92. There are no relevant deductible amounts.
The findings made on this appeal concerning weekly payments require that the Arbitrator’s decision is in part revoked and that an order is made concerning weekly payments as from 1 January 2013. Appropriate orders appear below. For the reasons above stated the appeals brought by each appellant are otherwise dismissed.

DECISION

The findings and orders made in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11 are confirmed.
Paragraph 2 is revoked and the following orders are made in its place:
“2(a) The respondents are to pay weekly benefits pursuant to the former s 37 of the Workers Compensation Act 1987 as follows:
(i)$496 per week (being the statutory rate for a worker with a dependent child), as adjusted, from 10 May 2011 to 14 September 2012, and
(ii)$628 per week (being the statutory rate for a worker with a dependent spouse and dependent child), as adjusted, from 15 September 2012 to 31 December 2012.
(b) The respondents are to pay weekly benefits pursuant to s 37(1) of the Workers Compensation Act 1987 at the rate of $523.92 per week from 1 January 2013 and continuing.”

COSTS

Notwithstanding the need to order variation of the Arbitrator’s award of weekly payments, Ms Sok has retained the benefit of a continuing award on this appeal. In the circumstances it is appropriate that the appellants pay Ms Sok’s costs of the appeals, each appellant bearing one half of such liability.

Kevin O'Grady
Deputy President

17 July 2013

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE