Iqbal v Hotel Operations Solutions Pty Ltd
[2024] NSWPICPD 6
•5 February 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Iqbal v Hotel Operations Solutions Pty Ltd [2024] NSWPICPD 6 |
APPELLANT: | Mohammed Javed Iqbal |
RESPONDENT: | Hotel Operations Solutions Pty Ltd |
INSURER: | AAI Limited t/as GIO |
FILE NUMBER: | A2-6359/20 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 5 February 2024 |
ORDERS MADE ON APPEAL: | 1. The Member’s Amended Certificate of Determination dated 27 February 2023 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – Section 32A of the Workers Compensation Act 1987 and clause 2 of Schedule 8 to the Workers Compensation Regulation 2016 – worker with highest needs – worker assessed by a Medical Assessor as having 31% whole person impairment in a Medical Assessment Certificate dated 2 March 2022 – whether the worker was entitled to payment of compensation at the rate applicable to a worker with highest needs prior to the assessment – Hochbaumv RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 distinguished; Meat Carter Pty Ltd v Melides [2020] NSWCA 307 considered and applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr D Adhikary, counsel | |
| The Law Office of Conrad Curry | |
| Respondent: | |
| Ms C Roberts, counsel | |
| Hicksons Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Ms R Homan |
| DATE OF MEMBER’S (AMENDED) DECISION: | 27 February 2023 |
INTRODUCTION AND BACKGROUND
Mr Mohammed Javed Iqbal (the appellant) was employed by Hotel Operations Solutions Pty Ltd (the respondent) as a room attendant from October 2008 until March 2009, and again from 24 August 2009 until 11 October 2010, following which he resigned his employment. After ceasing work, the appellant made a claim for workers compensation in respect of alleged injuries to the cervical spine and lumbar spine that he said resulted from the heavy nature of the work performed for the respondent. He also claimed compensation in respect of a gastrointestinal condition which he asserted resulted from medications taken for his cervical and lumbar injuries, and scarring that resulted from surgery to the cervical spine. He claimed weekly payments of compensation, treatment expenses and a lump sum pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The respondent denied liability for the claim. The appellant commenced proceedings in the former Workers Compensation Commission and the matter proceeded to arbitration. Arbitrator Homan (as she then was) issued a Certificate of Determination dated 24 February 2021, in which she accepted that the appellant suffered an injury to his cervical spine and a consequential gastrointestinal condition that resulted from the cervical injury, as well as scarring. She entered an award for the respondent in respect of the alleged lumbar spine injury. The Arbitrator also observed that the submissions relating to the appellant’s entitlement to weekly payments were not sufficient to permit her to determine that component of the appellant’s claim. With the consent of the parties, she deferred the claim for weekly payments and treatment expenses and remitted the matter to the Registrar for referral to an Approved Medical Specialist (now known as a Medical Assessor) for assessment of the whole person impairment of the lumbar spine, skin (scarring) and digestive system (upper gastrointestinal tract).
The appellant appealed the then Arbitrator’s adverse finding in respect of the allegation of injury to the lumbar spine. On 1 March 2021, before the appeal was lodged, the Workers Compensation Commission was abolished by operation of clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). The matter then became a matter within the Workers Compensation Division of the Personal Injury Commission (the Commission) from that date.[1] The appeal was allocated to Deputy President Snell of the Commission, who issued a determination dated 15 November 2021 confirming the former Arbitrator’s Certificate of Determination.
[1] Section 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
The matter proceeded for assessment to a Medical Assessor, Dr T Michael Long, who issued a Medical Assessment Certificate dated 2 March 2022. The Medical Assessor certified that the appellant’s whole person impairment resulting from the injury was 31%, including the consequential condition and the scarring.
The remaining issues as to the appellant’s entitlement to weekly payments and treatment expenses were returned to the former Arbitrator, who had been appointed as a Member of the Commission, with effect from 1 March 2021. In the meantime, the appellant lodged an appeal from the decision of Snell DP in the NSW Court of Appeal, which was dismissed on 4 August 2022. The matter was returned to the Commission and came before the Member for further conciliation and arbitration on 28 November 2022. The claim for treatment expenses was discontinued and the weekly payments claim was unable to be resolved, so that claim proceeded to arbitration.
In respect of the amount of weekly payments payable, an issue was raised as to whether, following the amendments made to the workers compensation legislation pursuant to the Workers Compensation Legislation Amendment Act 2012 (the 2012 Act) the appellant was an “existing recipient” of weekly payments as at 1 October 2012. If he was, his weekly entitlements would continue under the pre-2012 legislation until he was transitioned into the new scheme, and if he was not an “existing recipient”, the new legislation would apply to him from 1 January 2013. A further issued was raised in respect of the calculation of the appellant’s entitlements because of the effect of the 2012 Act and cl 2 of Sch 8 to the Workers Compensation Regulation 2016 (the 2016 Regulation), as those provisions related to a “worker with highest needs.” The appellant argued that even though he was not assessed by the Medical Assessor until 2 March 2022, he should be classed as a worker with highest needs from 1 January 2013 in accordance with cl 2 of Sch 8 to the 2016 Regulation.
The Member issued a Certificate of Determination dated 10 February 2023, which was subsequently amended to correct some of the weekly amounts payable. In her amended Certificate of Determination dated 27 February 2023, the Member found that the appellant had some capacity for work from 7 October 2010 to 10 April 2012 and had no capacity for work from 11 April 2012 on an ongoing basis. She determined that the appellant was not an “existing recipient” (which has not been challenged in this appeal), so that the 2012 amendments applied to him from 1 January 2013.
The Member further determined that cl 2 of Sch 8 to the 2016 Regulation did not apply to the appellant until he had been assessed as a worker with highest needs, which was on 2 March 2022. The appellant appeals that determination.
ON THE PAPERS
Section 52(3) of the 2020 Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties are content for the appeal to be determined on the basis of the documents and written submissions.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’, and WC3 – Presidential appeals and questions of law, the documents that are before me and the submissions by the parties that the appeal can proceed to be determined on the basis of those documents and submissions. 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 subss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 have been met.
THE EVIDENCE
As noted in the background to this case, the matter was previously the subject of consideration by various decision makers in respect of other issues raised and a summary of the evidence in the matter is contained in those decisions. This appeal concerns the application of various legislative provisions to uncontested factual circumstances. It is therefore not necessary to include a summary of the evidence in this appeal.
THE LEGISLATION
Part 19H of Sch 6 to the 1987 Act was introduced to the 1987 Act on 1 October 2012. Clause 1 of Part 19H defines an existing recipient as “existing recipient of weekly payments means an injured worker who is in receipt of weekly payments of compensation immediately before the commencement of the weekly payments amendments.”
The following clauses in Part 19H of Sch 6 were taken into account by the Member and are relevant to the issues on appeal:
“3 Application of amendments generally
(1)Except as provided by this Part or the regulations, an amendment made by the 2012 amending Act extends to—
(a)an injury received before the commencement of the amendment, and
(b)a claim for compensation made before the commencement of the amendment, and
(c)proceedings pending in the Commission or a court immediately before the commencement of the amendment.
(2) An amendment made by the 2012 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.”
And:
“10 Special provision for seriously injured workers
(1) The weekly payments amendments apply from the commencement of those amendments to the compensation payable under Division 2 of Part 3 of the 1987 Act to an existing recipient of weekly payments who is a seriously injured worker.
(2) For the purposes of the application under this clause of the weekly payments amendments to a seriously injured worker, the worker’s pre-injury average weekly earnings are deemed to be equal to the transitional amount.
Note—
The transitional amount is initially $906.25 and is indexed annually.”
Section 32A of the 1987 Act, as enacted in 2012, defined a “seriously injured worker” as:
“… a worker whose injury has resulted in permanent impairment and:
(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
(b) the degree of permanent impairment has not been assessed because an approved medical specialist has declined to make an assessment until satisfied that the impairment is permanent and the degree of permanent impairment is fully ascertainable, or
(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.”
The definition of a “seriously injured worker” in s 32A of the 1987 Act was amended in 2015, with effect from 21 August 2015, as follows:
“seriously injured worker means a worker whose injury has resulted in permanent impairment and:
(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
(b) an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note—
Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.”
In 2012, the Workers Compensation Regulation 2010 was amended to add Schedule 8 to the regulation. Clause 1(2) of Part 1 of Sch 8 provided that:
“The provisions of Part 19H of Schedule 6 to the 1987 Act are deemed to be amended to the extent necessary to give effect to this Part.”
Clause 2 of Sch 8 provided:
“2 Weekly payments amendments—seriously injured workers
(1) If a worker is a seriously injured worker and a claim for compensation in respect of the worker’s injury was made before 17 September 2012, the following provisions apply:
(a) the weekly payments amendments apply to the compensation payable to the worker in respect of the injury (while the worker is a seriously injured worker) on and from 17 September 2012,
(b) the amount of the weekly payments of compensation payable to the worker pursuant to the weekly payments amendments is not to be less than the amount of the weekly payments of compensation that would have been payable to the worker had the weekly payments amendments not applied to the worker (having regard to the period for which the worker has been entitled to weekly payments and the effect this has on entitlement to weekly payments or the amount of weekly payments),
(c) the adjustment of the transitional amount (which the worker’s pre-injury average weekly earnings are deemed to equal)) under section 80 of the 1987 Act that occurs on 1 October 2012 is backdated to have effect on and from 17 September 2012 in respect of the compensation payable to the seriously injured worker on and from 17 September 2012,
(d) the amount of the weekly payments of compensation that would have been payable to the seriously injured worker had the weekly payments amendments not applied to the worker is to be determined as if the adjustment of any relevant amount under Division 6 of Part 3 of the 1987 Act that occurs on 1 October 2012 were backdated to have effect on and from 17 September 2012 in respect of the compensation payable to the worker on and from 17 September 2012.
(2) For the purposes of the application of the weekly payments amendments to a seriously injured worker whose claim for compensation was made before 1 October 2012, the worker’s pre-injury average weekly earnings are deemed to be equal to the transitional amount whether or not the worker is an existing recipient of weekly payments.”
The Workers Compensation Amendment Act 2015 (the 2015 amending Act) introduced a raft of amendments to the 1987 Act.
Section 32A of the 1987 Act was again amended, with effect from 4 December 2015. The phrase “seriously injured worker” was amended to “worker with highest needs”, which was defined in identical terms as the definition of a “seriously injured worker”, reproduced at [17] above.
Section 38A was inserted in the 1987 Act and provides as follows:
“38A Special provision for workers with highest needs
(1) If the determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with this Subdivision results in an amount that is less than $788.32, the amount is to be treated as $788.32.
(2) If the amount specified in subsection (1) is varied by operation of Division 6A, a weekly payment of compensation payable to a worker with highest needs before the date on which the variation takes effect is, for any period of incapacity occurring on and after that date, to be determined by reference to that amount as so varied.”
Part 19I was added to Schedule 6 to the 1987 Act. Clause 9 of Pt 19I provides:
“9 Weekly payments
(1) Section 38A of the 1987 Act extends to the determination of the compensation payable in respect of any period of incapacity occurring before the commencement of that section.
(2) The regulations may make provision for or with respect to the adjustment of the amount of weekly payments of compensation payable to an injured worker as a result of the operation of section 38A of the 1987 Act and this clause.
(3) Without limiting subclause (2), the regulations may prescribe the period within which any additional amount payable to an injured worker as a result of the adjustment is to be paid.”
Following the introduction of the 2015 amending Act, the Workers Compensation Regulation 2010 was replaced by the 2016 Regulation. Clause 2 of Sch 8 to the 2016 Regulation is in identical terms to cl 2 of Sch 8 to the former 2010 Regulation (reproduced at [18] above), save that the reference to a “seriously injured worker” was amended to a “worker with highest needs.”
Clause 3 of Sch 8 to the 2016 Regulation is relevant. It provides:
“3 Weekly payments amendments—other than workers with highest needs
(1) If a claim for compensation in respect of a worker’s injury was made before 1 October 2012, the weekly payments amendments and the relevant transitional arrangements do not apply to the compensation payable in respect of the injury until 1 January 2013.
Note—
In the case of a claim made on or after 1 October 2012, the weekly payments amendments apply to the claim from when the claim is made.
(2) This clause does not apply to a worker with highest needs.
(3) In this clause—
relevant transitional arrangements means the provisions of Division 2 (Weekly payments) of Part 19H of Schedule 6 to the 1987 Act.”
THE MEMBER’S REASONS
The Member noted the documentary evidence admitted in the proceedings and the parties’ written submissions. She referred to the summary of the evidence provided in her previous Certificate of Determination dated 24 February 2021 and advised that the earlier reasons provided by her should be read together with her current reasons. The Member further referred to the Medical Assessment Certificate issued by Dr Long, Medical Assessor, on 2 March 2022 in which the appellant was certified as having a 31% whole person impairment as a result of his injury.
The Member turned to the issue of the calculation of the appellant’s weekly entitlements, involving a consideration of the amendments made in 2012 about weekly compensation entitlements and how the appellant’s entitlements were to be calculated. The Member noted that the amendments commenced on 1 October 2012, with retrospective operation unless specified otherwise by legislative provision. The Member referred to cl 3 of Pt 19H of Sch 6 to the 1987 Act, which provided that, unless otherwise provided for in Pt 19H or in the regulations, the amendments applied to injuries received and claims made before the commencement of the 2012 amendments. The Member noted that an “existing recipient” was defined in cl 1 of Pt 19H as an injured worker who was in receipt of weekly payments of compensation immediately before the commencement of the amendments and that, in accordance with cl 6 of Pt 19H, an existing recipient was entitled to weekly compensation as though the amendments had not been made, until otherwise provided for in Div 2 of Pt 19H.
The Member observed that the appellant was assessed at 30% impairment, which satisfied the meaning of a “seriously injured worker”’ as defined by s 32A of the 1987 Act prior to 2015. The Member further observed that cl 10 of Pt 19H made special provision for existing recipients who were seriously injured workers, in that the amendments were applicable from the commencement of the amendments and the worker’s pre-injury average weekly earnings were deemed to be equal to the “transitional amount”.
The Member pointed out that Sch 8 to the 2016 Regulation was inserted in 2012, which deemed Part 19H of Sch 6 to be amended in order to give effect to Pt 1 of Sch 8. She reproduced cl 2 of Sch 8 to the 2016 Regulation, observing that by operation of the 2015 amending Act, the term ‘seriously injured worker” was changed to “worker with highest needs”. She pointed to the definition in s 32A of the 1987 Act of the term “worker with highest needs”, which was consistent with the definition of the previous term, “seriously injured worker”.
The Member observed that, in this case, the appellant was seeking weekly payments of compensation from 7 October 2010 (the deemed date of his injury), on an ongoing basis. She further observed that the appellant had made a claim for weekly payments of compensation prior to the 2012 amendments and was paid compensation from 26 May 2012 until 21 September 2012, the date when liability for the injury was declined. The Member indicated that the respondent submitted that the appellant’s weekly payments had ceased on 21 September 2012, however, the appellant should have received a further two weeks of compensation because, pursuant to s 54 of the 1987 Act, the respondent was required to give the appellant two weeks’ notice of the cessation of payments. The Member noted the respondent’s concession that on that basis, the appellant was an “existing recipient” as at 1 October 2012.
The Member observed that the appellant disputed that he was an “existing recipient” because he was not in receipt of actual weekly payments at the time, relying on decisions of Senior Arbitrator Snell (as he then was)[2] and Arbitrator Sweeney of the former Workers Compensation Commission.[3] The Member considered that the respondent’s concession was not properly made. She said that the weekly payments actually ceased on 21 September 2012, and it appeared that the respondent had not complied with its obligation to provide two weeks’ notice. She referred to the remedy provided for in those circumstances in s 54(2) of the 1987 Act that the worker could recover the amount equal to the amount payable during the prescribed period of notice. The Member observed that the question remained as to whether the expression “in receipt of weekly payments of compensation” extended to include the right to recover the compensation from the respondent.
[2] Komljenovic v Facility Management Solutions Pty Ltd [2013] NSWWCC 69 (Komljenovic), [58].
[3] Boon Tong G Tan v P.D. & V Soulios & L & H Rotsos t/as Brew Cafe [2013] NSWWCC 203, [22].
The Member discussed various decisions of the Workers Compensation Commission in which arbitrators of the former Commission considered whether the workers were “existing recipients” in a number of different factual circumstances.[4]
[4] Mohammadi v Chandler Macleod Group t/as Ready Workforce Pty Ltd [2013] NSWWCC 75; Komljenovic; Murphy v Cowra Jockey Club [2013] NSWWCC 451; William v Rentokil Pty Ltd [2014] NSWWCC 410.
The Member concluded that, having regard to the authorities, she was not satisfied that the appellant’s right of recovery meant that he was “in receipt” of weekly payments immediately before 1 October 2012. She rejected the submission that the appellant was an existing recipient. As mentioned above, that determination is not challenged in this appeal.
The Member noted the appellant’s submission that the 2012 amendments applied to him on and from 17 September 2012 on the basis of cl 2 of Sch 8 to the 2016 Regulation. She further noted that there was no dispute that the appellant’s degree of impairment was assessed on 2 March 2022 by the Medical Assessor as more than 30% and there was no dispute that the appellant was currently a “worker with highest needs”. The Member identified, however, that the respondent disputed that cl 2 of Sch 8 applied prior to 2 March 2022 because it was asserted that the appellant was not a “worker with highest needs” (or the equivalent term of “seriously injured worker”) as at 17 September 2012. The Member summarised the submissions made by the respondent that the phrase “while the worker is a worker with highest needs” involved a clear temporal element, consistent with the effect of s 38A of the 1987 Act, which section was discussed by the Court of Appeal in Meat Carter Pty Ltd v Melides.[5] The Member said that, in that case, the benefit flows from the time the worker is assessed as “highest needs” and not before. The Member noted that the appellant argued that the clause should not be read to require the appellant to have such an assessment as at 17 September 2012, and that the appellant sought to distinguish Melides on the basis that the cases were dealing with different sections.
[5] [2020] NSWCA 307 (Melides).
The Member observed as follows:
“I find some force in the respondent’s submissions. The [appellant’s] interpretation of the provision does not grapple with the use of the word ‘while’ in the transitional provision. The use of that term indicates an acknowledgement that an injured worker may not at all times be a ‘worker with highest needs’. While this clearly accounts for workers who satisfied paragraphs (b) and (c) of the definition of a ‘worker with highest needs’, there is some uncertainty as to how the provision should be interpreted in the case of a worker who is injured and makes a claim before 17 September 2012 but who did not become ‘a worker with highest needs’ until an assessment was made at a later date.”[6]
[6] Iqbal v Hotel Operations Solutions Pty Ltd [2023] NSWPIC 48 (reasons), [50].
The Member referred to the decision of Alexandrou v The ANI Corporation Limited,[7] a decision of an arbitrator in the former Workers Compensation Commission. The circumstances were that the worker’s injuries were assessed under the Table of Disabilities long before 17 September 2012 but were not assessed by an Approved Medical Assessor until 29 July 2013. The Arbitrator determined that, where there was no evidence of any material change in the worker’s condition prior to the assessment on 29 July 2012, the worker was a “seriously injured worker” on 17 September 2012 even though his rights did not crystalise until he was assessed by the Approved Medical Specialist.
[7] [2014] NSWWCC 136 (Alexandrou).
The Member observed that, in the current case, it could not be accepted that the appellant had a degree of impairment greater than 30%, which had yet to crystalise, at the time of the amendments. She referred to the fact that the appellant underwent a C5/6, C6/7 discectomy and fusion in September 2016, which was a factor taken into account by the Medical Assessor in his assessment of the appellant’s impairment. The Member considered that there was no evidence that the appellant would have been assessed at greater than 30% before the surgery.
The Member observed, however, that in any event, Alexandrou was decided before the Court of Appeal delivered its judgment in Melides, which involved a consideration of s 38A of the 1987 Act, a section dealing with the amount of weekly payments payable to a worker with highest needs. She reproduced s 38A, together with cl 9 of Part 19I of Sch 6 to the 1987 Act and cl 35 of Sch 8 to the 2016 Regulation. The Member observed that the Court accepted that s 38A(1) had “a temporal aspect and the special rate of weekly compensation was only payable at a time when the worker [was] a worker with highest needs [and] the worker … was not a worker with highest needs before the assessment on 9 June 2017.”[8]
[8] Reasons, [57].
The Member noted that “[t]he Court held that whether s 38A is engaged depends on whether the definition of ‘worker with highest needs’ is satisfied at the time weekly compensation payments are payable.”[9] The Member concluded that, applying the Court’s observations in Melides about cl 2 of Sch 8, the weekly payments amendments only applied to the appellant while he was a worker with highest needs and he was not a worker with highest needs until 2 March 2022. She determined that, pursuant to cl 2(2) of Sch 8, the appellant’s average weekly earnings were deemed to be equal to the transitional amount.
[9] Reasons, [58].
The Member pointed to cl 3 of Sch 8 to the 2016 Regulation which applies to workers other than those with highest needs and provides that if a claim for compensation was made before 1 October 2012, the weekly payments amendments did not apply until 1 January 2013. She concluded therefore that the 2012 amendments applied to the appellant’s entitlements from 1 January 2013.
The Member proceeded to determine the extent of the appellant’s incapacity. After a detailed evaluation of the evidence, the Member determined that the appellant was partially incapacitated for work from 7 October 2010 to 10 April 2012 and thereafter had no capacity for work as a result of the injury. She calculated the appellant’s weekly payments of compensation for the period up to 10 April 2012 in accordance with the former s 40 of the 1987 Act and the steps set out by the Court of Appeal in Mitchell v Central West Health Service,[10] based on a figure of $546.50 per week being the appellant’s probable earnings but for injury. The Member determined that from 11 April 2012 to 31 December 2012, when the appellant was totally incapacitated for employment, the appellant was entitled to weekly payments at his current weekly wage rate of $546.50 in accordance with the former s 37(2) of the 1987 Act. In respect of the period from 1 January 2013 until 1 March 2022, the Member calculated the appellant’s entitlements in accordance with the 2012 amendments, applying s 37(1), s 35, s 44C, s 38(6) and s 39 of the (amended) 1987 Act. The Member noted that from 2 March 2022, the appellant was a worker with highest needs and she determined his entitlements in accordance with ss 38(6) and 38A of the 1987 Act and cl 2 of Sch 8 to the 2016 Regulation.
[10] (1997) 14 NSWCCR 526.
The Amended Certificate of Determination issued on 27 February 2023 records:
“The Commission determines:
1.From 7 October 2010 to 10 April 2012 the [appellant] was partially incapacitated for work as a result of the injury on 7 October 2010 (deemed).
2.From 11 April 2012 to date and continuing, the [appellant] has been totally incapacitated for work as a result of the injury on 7 October 2010 (deemed).
The Commission orders:
3.The respondent to pay the [appellant] weekly compensation in accordance with the Table below:
PERIOD
RATE PER WEEK
7 October 2010 to 11 January 2011
$402.50
12 January 2011 to 10 April 2012
$186.50
11 April 2012 to 30 September 2012
$546.50
1 October 2012 to 31 December 2012
$546.50
1 January 2013 to 31 March 2013
$459.20
1 April 2013 to 4 April 2013
$467.20
5 April 2013 to 30 September 2013
$467.20
1 October 2013 to 31 March 2014
$471.20
1 April 2014 to 30 September 2014
$480
1 October 2014 to 31 March 2015
$484.80
1 April 2015 to 30 September 2015
$488.80
1 October 2015 to 31 March 2016
$496
1 April 2016 to 30 September 2016
$498.40
1 October 2016 to 31 March 2017
$500
1 April 2017 to 30 September 2017
$507.20
1 October 2017 to 31 March 2018
$511.20
1 April 2018 to 30 September 2018
$518.40
1 October 2018 to 31 March 2019
$521.60
1 April 2019 to 30 September 2019
$527.20
1 October 2019 to 31 March 2020
$530.40
1 April 2020 to 30 September 2020
$536
1 October 2020 to 31 March 2021
$536
1 April 2021 to 30 September 2021
$551.20
1 October 2021 to 1 March 2022
$557.60
2 March 2022 to 31 March 2022
$900.16
1 April 2022 to 30 September 2022
$914
1 October 2022 to date and continuing
$923.36
4.The respondent to have credit for payments of weekly compensation already made during the period.
5.The parties have liberty to apply with respect to the mathematical calculations in the Table above within seven days.”
GROUNDS OF APPEAL
The appellant brings one ground of appeal, asserting that the Member committed an error of law in determining that cl 2 of Sch 8 did not apply to the appellant until he was assessed as a worker with highest needs on 2 March 2022.
SUBMISSIONS
The appellant’s submissions
The appellant quotes paragraph [50] of the Member’s reasons, set out by me at [35] above. The appellant notes that the Member distinguished Alexandrou on a factual basis. The appellant says that the Member applied the decision in Melides following which she determined that prior to 2 March 2022, the appellant was not a worker with highest needs and cl 3 of Sch 8 to the 2016 Regulation applied. The appellant submits that the Member erred in law in reaching her conclusion.
The appellant refers to the Member’s consideration of cl 2(1)(a) of Sch 8 to the 2016 Regulation and the word “while” contained therein. The appellant asserts that the word did not mean that the clause only applied when the worker was a worker with highest needs and all that it did was to indicate that the weekly payments amendments applied to a worker with highest needs from 19 September 2012. The appellant disputes that the clause was only applicable from when the worker was assessed as a worker with highest needs because cl 2(1) begins with the words “If a worker is a worker with highest needs and a claim for compensation in respect of the worker’s injury was made before 17 September 2012, the following provisions apply”. The appellant says that when considering sub-clauses (1)(a)–(d) of cl 2 together, those subclauses do not suggest that sub-cl (1)(a) of cl 2 only applied once a worker is a worker with highest needs. The appellant asserts that the function of the word “while” is evident, and when reading sub-clauses (1)(b)–(d) of cl 2, it is apparent that the Member’s reliance on the word “while” was erroneous. The appellant says that this is so because the sub-clauses show that the appellant’s pre-injury average weekly earnings figure is deemed to be the transitional amount (as adjusted in accordance with the clause), he is a worker with highest needs, he made a claim for compensation before 17 September 2012, and the weekly payments amendments applied to him.
The appellant submits that this is evident from:
(a) sub-cl (1)(b) of cl 2, which provides that, while the weekly amendments apply to the appellant, the weekly payments were not to be less than they would be if the amendments did not apply;
(b) sub-cl (1)(c) of cl 2, which deems the pre-injury average weekly earnings to be equal to the transitional amount, as adjusted, backdated to have effect from 17 September 2012, and
(c) sub-cl (1)(d) of cl 2, which provides that any adjustment of an amount that was payable that would occur if the amendments did not apply is to be determined as if the adjustment that occurred on 1 October 2012 was backdated to 17 September 2012.
The appellant asserts that the Member fell into error by not addressing sub-cl 2 of cl 2, which did not require contemporaneity or restrict its application to a worker while the worker was one with highest needs. The appellant points out that he was a worker with highest needs, and he made a claim for compensation prior to 1 October 2012. The appellant submits that if the intention of sub-cl 2 of cl 2 was to only apply at the time the worker was assessed as being with highest needs, the words “whether or not the worker is an existing recipient” would be superfluous. The appellant refers to Project Blue Sky Inc v Australian Broadcasting Authority[11] as authority to say that every word of a provision must be interpreted in a manner that gives meaning to it.
[11] [1998] HCA 28 (Project Blue Sky).
The appellant asserts further error on the part of the Member by her failing to have regard to the language of the sub-clause, when read in the context of the provision, as required by Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue.[12] The appellant says that the Member erred by failing to interpret the clause as meaning that the appellant’s pre-injury average weekly earnings figure was deemed to be equal to the transitional amount from 17 September 2012. The appellant says that the context in which cl 2 appears includes cl 3 which provides for a worker who is not a worker with highest needs. He submits that sub-cl 2 of cl 3 explicitly says that cl 3 “does not apply to workers with highest needs.”
[12] [2009] HCA 41.
The appellant submits that as cl 3 did not apply to him, the Member ought not to have determined that cl 2 only applied to workers once they had been assessed. The appellant submits that the Member’s finding was erroneous because it led to a conclusion that was absurd, impracticable or inconvenient.
The appellant further submits that the Member erred by applying Melides, which dealt with s 38A of the 1987 Act, a section that is materially different to cl 2 because it does not specifically refer to compensation being payable to a worker on and from 17 September 2012. The appellant says that s 38A makes no reference to a claim for compensation having been made on or before 17 September 2012 but provides for the determination of the amount of compensation payable to a worker with highest needs, whereas cl 2 “does not require any positive action to be taken.”[13] The appellant says that cl 2 only requires that the worker be a worker with highest needs and a claim for compensation was made before 17 September 2012 or 1 October 2012 and, in those circumstances, the worker’s pre-injury average weekly earnings figure is automatically deemed to be the transitional amount.
[13] Appellant’s submissions, [52].
The appellant submits that the situation to which cl 2 applies is more consistent with the circumstances in Hochbaumv RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW,[14] a decision relevant to a consideration of s 39 of the 1987 Act.
[14] [2020] NSWCA 113 (Hochbaum).
The respondent’s submissions
The respondent refers to the conclusions reached by the Member that she would not accept that the appellant had a degree of impairment greater than 30% at the time of the 2012 amendments to the 1987 Act, which had not yet crystalised, and that the appellant was not assessed as having 31% impairment until 2 March 2022. The respondent further refers to the award of weekly payments made by the Member. The respondent pointed out that the construction of cl 2 of Sch 8 sought by the appellant would result in the appellant receiving the benefit of a worker with highest needs for over a decade prior to the assessment having actually occurred.
The respondent points out that the appellant has not argued that he was capable of meeting the requirements of being a worker with highest needs, as defined, during the earlier period. The appellant refers to the Member’s observation that it was unlikely that the appellant could have satisfied the requirement during that time. The respondent adds that there was no argument put by the appellant that he satisfied the definition of “seriously injured worker” before the 2015 amendments so that cl 33 of Sch 8 of the 2016 Regulation applied (transitioning “seriously injured workers” to “workers with highest needs” consequent upon the 2015 amendments).
The respondent submits that the Member’s construction of cl 2 of the 2016 Regulation reflects the correct effect of the provision. The respondent says that the Member’s construction was the natural and ordinary consequence of the language adopted in cl 2(1)(a) of Sch 8. The respondent highlights the words “while the worker is a worker with highest needs” used in the provision and asserts that those words are consistent with the provision only applying in the period in which a worker is a worker with highest needs. The respondent refers to Project Blue Sky and submits that the words should be read so as to give them their natural and ordinary meaning. The respondent further refers to Melides as authority to say that a provision which includes a defined term can be read as incorporating that definition, and in this case, prior to 2 March 2022, the appellant did not satisfy the definition of a “worker with highest needs” as defined in s 32A of the 1987 Act.
The respondent asserts that the Member was not wrong in her approach to Melides and did not consider Melides determinative of the issues before her. The respondent says that the Member acknowledged the parties’ submissions about Melides at [46] and [49] of her reasons and appropriately noted the observations made in that case in relation to the proper construction of that legislation.
The respondent refers to the appellant’s submission that “while” was not an operative word and submits that such an approach would result in that word having no function, which is contrary to the rules of statutory construction that indicate that every word in a provision should be given effect where possible. The respondent again refers to Project Blue Sky to say that in ascertaining the meaning of a statute, there is a presumption against surplusage. The respondent submits that the construction adopted by the Member shows that the words “while the worker is a worker with highest needs” assist in concluding that the provision is only engaged when a person is a worker with highest needs.
The respondent disputes the appellant’s allegation that the Member failed to address sub‑cl (2) and points to the Member’s reasoning that from 2 March 2022, cl 2(2) applied because from that time the appellant had claimed compensation before 1 October 2012, and he was a worker with highest needs. The respondent submits that that provision should be read consistently with cl 2(1)(a), that is, involving a temporal element.
The respondent asserts that the decision in Hochbaum does not assist the appellant’s construction of cl 2(1)(a). The respondent refers to the facts in Hochbaum, and observes that the Member, consistent with that case, noted that the appellant enjoyed a significant benefit in that he received weekly benefits well beyond the 260 weeks limitation provided by s 39 of the 1987 Act.
The respondent maintains that there was no error exposed in the Member’s construction of cl 2(1)(a) of Sch 8 to the 2016 Regulation.
The respondent submits that the Member’s construction gives effect to the intention of the 2016 Regulation, and disputes that the language of the Regulation is unclear. The respondent says that, if there was to be found some uncertainty, there is no indication that those drafting the provision meant it to have the “very broad and somewhat arbitrary consequence sought by the appellant.”[15] The respondent submits that the absence of such an indication lends strong support for the construction adopted by the Member.
[15] Respondent’s submissions, [25].
The respondent refers to the Explanatory Note to the Regulation, which did not refer to workers with highest needs or seriously injured workers. The respondent asserts that, if the significant change allowing workers to claim a weekly payment well in excess of their pre-injury average weekly earnings when they had not met the definition of a worker with highest needs was intended, it would be expected that that would have been made clear in the Explanatory Note. The respondent again refers to Hochbaum, in which Brereton JA said he doubted that a provision in a schedule would provide “a sound basis for interpreting the principal provisions of the Act.”[16]
[16] Hochbaum, [68].
The respondent submits that the appellant points to no extrinsic material that would suggest that the 2016 Regulation was intended to benefit a worker at a time before the worker met the requirements of s 32A of the 1987 Act. The respondent maintains that the plain words of the provision are contrary to such a construction. The respondent points to Cram Fluid Power Pty Ltd v Green[17] and Adco Constructions Pty Ltd v Goudappel[18] and submits that the amendments to existing claims were patently not beneficial in their effect and the surest guide to the meaning of a statute is the text itself. The respondent concludes that, as with Melides, the appellant only became a worker with highest needs because an assessment took place on 2 March 2022, and there is nothing in the language of the 2016 Regulation that supports an entitlement at a significantly earlier time at a higher rate.
[17] [2015] NSWCA 250.
[18] [2014] HCA 18.
THE RELIEF SOUGHT
The appellant submits that the Member’s decision should be revoked, and the matter remitted to another member for determination. The respondent submits that the appeal should be dismissed.
CONSIDERATION
Hochbaum does not assist the appellant. In that case, the Court of Appeal gave consideration to the application of s 39 of the 1987 Act. Section 39(1) of 1987 Act provides that a worker has no entitlement to weekly compensation after an aggregate period of 260 weeks of weekly payments of compensation in respect of which a weekly payment has been paid or is payable. Section 39(2) provides that the section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%. Section 39(3) requires that the degree of impairment must be assessed as provided for by s 65 of the 1987 Act. Both workers (Mr Hochbaum and Ms Whitton) were assessed as having more than 20% impairment but the assessments were conducted some time after the expiration of the first 260 weeks. The workers compensation insurer in both cases recommenced payments from the date of assessment. The workers asserted that the payments should have been recommenced from the date of expiry of the first 260 weeks.
Brereton JA (with whom White JA agreed) made the following observations:
“The words ‘is to be assessed’ in s 39(3) stand in marked contradistinction to the words ‘has been assessed’ in the definition (in s 32A) of ‘worker with high needs’ … [which] requires either that there has been an assessment, or that assessment cannot yet be made, or is not required because the insurer is satisfied without assessment. The different language of s 39 – using ‘to be assessed’ rather than ‘has been assessed’, and the absence of provision for circumstances where assessment cannot yet be made or is not required – is a powerful indication that s 39(3) was not intended to require that there have been an assessment before s 39(2) is engaged. Rather, s 39(3) points to the mechanism to be used when measuring the degree of permanent impairment resulting from an injury and, where necessary, resolving any dispute about it.”[19]
[19] Hochbaum, [46]–[47].
His Honour made the following further observations (citation omitted):
“The notion of a singular degree of permanent impairment resulting from an injury is inconsistent with there being any temporal element in s 39(2), which poses the simple question, what degree of permanent impairment results from the injury. While the subsection speaks in the present tense, in providing that the section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%, that does not mean that the question is to be answered as at the expiration of the 260-week period, or at any other particular time; the question is simply what is the degree of permanent impairment that results, and that means the ultimate degree of permanent impairment. The use of a verb in the present tense does not necessarily connote a temporal element, and the present tense of the verb ‘to be’ not uncommonly specifies the character of something. The word ‘is’ is used descriptively, not to indicate contemporaneity, as explained by Gaudron J in Re Dingjan; ex parte Wagner:
‘The present tense may be used descriptively or it may be used to signify contemporaneity. Although there is no fixed rule, the use in a statute of the present tense, simpliciter, indicates that it is being used descriptively (the ‘simple present’), whereas ‘is’ followed by a present participle (the ‘continuous’ or ‘progressive’ present) usually indicates contemporaneity … .’
In s 39(2), the word ‘is’ is used to specify the character of the relevant injury, in terms of the resultant degree of permanent impairment, rather than to connote contemporaneity.”[20]
[20] Hochbaum, [58]–[59].
The following observations made by White JA in Hochbaum are also relevant to the issues in this appeal:
“In some cases the worker’s degree of permanent impairment will date from the injury. But in others the ultimately assessed degree of permanent impairment would have been occasioned by later events, such as adverse results of surgery or psychological sequelae, that did not exist earlier. Although there is a temporal element in each of ss 36, 37, 38 and 59A, and arguably s 38A when applied to those provisions, there is no temporal element in s 39(2). The inquiry directed by s 39(2) is whether the injury ‘results in’ permanent impairment where the degree of permanent impairment ‘resulting from the injury’ is more than 20 per cent. The only question under s 39(2) is what degree of permanent impairment resulted from the injury. It is unnecessary to enquire whether the impairment resulting from the injury was always present or was present at the expiry of the 260 week period referred to in s 39(1), to the degree of the permanent impairment as ultimately assessed. The date from which the injured worker’s degree of permanent impairment arose is not a relevant consideration for the purposes of s 39.”[21]
[21] Hochbaum, [9].
What can be seen from the observations above is that s 39 is a separate and distinct section of the Act using different terminology to that of cl 2 of Sch 8 to the 2016 Regulation. It does not refer to or adopt the requirement of the worker being a worker with highest needs and is not dependent upon the definition in s 32A of a worker with highest needs. Nor does it require that the permanent impairment was always present. As White JA observed, in some cases, such as where there are adverse results from surgery, the permanent impairment will arise at a date later than the date of injury.
The parties to this appeal made submissions (both to the Member and in their appeal submissions) in relation to the application of Melides. In Melides, the Court of Appeal considered a decision of a Presidential member of the Commission in respect of the application of s 38A of the 1987 Act (reproduced by me at [22] above). Similar to the present appeal, the appellant in Melides argued that the entitlement only arose from the time the respondent satisfied the definition of “worker with highest needs” in s 32A of the 1987 Act, which was when the Medical Assessment Certificate was issued. The Court (per White JA, with Macfarlan and Gleeson JJA agreeing) held that s 38A did not apply prior to the worker meeting the definition of a “worker with highest needs”.
White JA said:
“The respondent came within the definition of ‘worker with highest needs’ because and only because his degree of permanent impairment had been assessed for the purpose of Div 4 to be more than 30 per cent. Prior to 9 June 2017 there was no assessment. Prior to that date the respondent was not a worker with highest needs within the meaning of s 38A.”[22]
And:
“The appellant submitted, correctly, that there is a temporal aspect to s 38A(1). It submitted that s 38A(1) operates with respect to determined amounts of weekly payments of compensation payable to a worker who meets the criteria for a worker with highest needs at the time the compensation is payable.
…
Unless at that time the worker is a ‘worker with highest needs’, then, increased amounts of compensation are not payable. The respondent was not a worker with highest needs (as defined) before 9 June 2017.”[23]
And:
“The respondent submitted that s 32A is a definition section and does not of itself create any entitlements to any form of compensation. That is true. But the definition is to be read into s 38A (Herzfeld and Prince, Interpretation, 2nd ed Thomson Reuters at [3.40]).”[24]
[22] Melides, [35].
[23] Melides, [40]–[41].
[24] Melides, [47].
It follows that, because cl 2 of Sch 8 to the 2016 Regulation refers to a “worker with highest needs”, which is a phrase defined in s 32A, the definition contained in s 32A of the 1987 Act must be read into the clause. That is, the appellant must satisfy the definition of being a worker with highest needs in order to benefit from the provisions in cl 2. Section 32A requires that the worker “has been assessed” to be more than 30%. The use of the words in the present perfect continuous tense “has been” denotes that the assessment was something which had started in the past. Applying White JA’s reasoning in Melides, the appellant only satisfied the definition after he was so assessed, and he was not a worker with highest needs prior to the date of assessment.
The appellant argues that the word “while” used in the phrase “while the worker is a worker with highest needs” in cl 2 of Sch 8 does not mean that the clause only applies to him when he was a worker with highest needs. The respondent submits that the appellant’s submission in relation to the word “while” not being an operative word would result in the word having no function, contrary to the rules of statutory construction.
I accept the respondent’s submission that the word “while” used in the clause must have some utility and that its ordinary and grammatical meaning should be adopted, in line with the various authorities referred to by the appellant as to the rules of statutory construction. The ordinary meaning of the word connotes a period of time when something occurred, which is consistent with the Member’s finding that the clause applied to the appellant only when he satisfied the definition of a worker with highest needs.
The appellant asserts that the Member’s finding that cl 2 did not apply to him prior to the medical assessment of his impairment led to a conclusion that was absurd, impracticable or inconvenient. On the contrary, the construction put forward by the appellant would of itself lead to the appellant being unjustly entitled to the benefits of a worker with highest needs.
The appellant submits that the Member failed to consider sub-cl 1 in the context of the other sub-clauses of cl 2 and failed to address sub-cl 2 of cl 2. Sub-clause 1(a) of cl 2 speaks for itself and when the meaning of the provision is clear, it is not necessary to look at the context in which it appears. In any event, all of the sub-clauses in cl 2 are dependent upon the worker being a worker with highest needs as defined by s 32A of the 1987 Act. Additionally, the Member did address sub-cl 2 of cl 1. She applied that sub-clause from the date upon which the appellant satisfied the definition of a worker with highest needs and deemed the appellant’s pre-injury average weekly earnings to be equal to the transitional amount.[25]
[25] Reasons, [60].
The appellant’s ground of appeal fails.
CONCLUSION
The appellant has failed to establish error on the part of the Member and the appeal fails. The Member’s amended Certificate of Determination is confirmed.
DECISION
The Member’s amended Certificate of Determination dated 27 February 2023 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
5 February 2024
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