Jaffarie v Quality Castings Pty Ltd

[2018] NSWCA 88

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88
Hearing dates:	28 March 2018
Date of orders:	27 April 2018
Decision date:	27 April 2018
Before:	Macfarlan JA at [1]; Leeming JA at [2]; White JA at [58]
Decision:	1. Appeal dismissed.  2. Appellant to pay the respondents’ costs.
Catchwords:	WORKERS COMPENSATION – claim for lump sum compensation – alleged injury in course of employment to both lumbar and thoracic spine – arbitrator determined that appellant injured lumbar spine but not thoracic spine – worker’s appeal to Workers Compensation Commission dismissed – whether findings open to arbitrator – whether arbitrator had jurisdiction to determine existence of injury to thoracic spine – whether arbitrator’s decision unreasonable – whether other errors of law made out – appeal dismissed
Legislation Cited:	Constitution, ss 76, 77, 109 Disability Discrimination Act 1992 (Cth) Interpretation Act 1987 (NSW), s 30 Judiciary Act 1903 (Cth), s 78B Racial Discrimination Act 1975 (Cth) Workers Compensation Act 1987 (NSW), ss 4, 33, 59A, 60, 65, 66, 151H, Schedule 6 Part 19H cll 1, 3 Workers Compensation Commission Rules 2011 (NSW), Part 17 Workers Compensation Legislation Amendment Act 2012 (NSW) Workers Compensation Regulation 2010 (NSW), Schedule 8 cl 17A Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 105, 293, 294, 319, 321, 326, 327, 328, 350, 352, 353
Cases Cited:	Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 Chanaa v Zarour [2011] NSWCA 199 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearn v Street (2008) 235 CLR 125; [2008] HCA 36 Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335 Jaffarie v Quality Castings Pty Ltd [2017] NSWWCCPD 2 Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37 Peric v Chul Lee Hyuang Ho Shin Jon Lee & Ors [2009] NSWWCCPD 47 Sabanayagam v St George Bank Ltd [2016] NSWCA 145 Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449; (2013) 12 DDCR 515
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Sayed Akbar Jaffarie (Appellant) Quality Castings Pty Ltd (First Respondent) Registrar of the Workers Compensation Commission of New South Wales (Second Respondent)
Representation:	Counsel: Appellant in person I D Roberts SC, J Malouf (First Respondent)   Solicitors: Sparke Helmore Lawyers (First Respondent) Crown Solicitor’s Office (Second Respondent, submitting)
File Number(s):	2017/00092508
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Workers Compensation Commission Citation: Jaffarie v Quality Castings Pty Ltd [2017] NSWWCCPD 2 Date of Decision: 28 February 2017 Before: Acting President Michael Snell File Number(s): A3 and A4 10946/12

Judgment

1. MACFARLAN JA: I agree with the judgments of Leeming and White JJA.

2. LEEMING JA: By his amended notice of appeal dated 3 July 2017, Mr Sayed Akbar Jaffarie appeals pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”) on seven grounds from the decision of the Workers Compensation Commission constituted by Acting President Snell: Jaffarie v Quality Castings Pty Ltd [2017] NSWWCCPD 2. His appeal represents the latest stage of lengthy contested litigation of which a brief summary is necessary in order to understand the grounds of appeal.

Background

3. Acting President Snell summarised the factual background, uncontroversially, at [4]-[5]:

“The appellant was born in Afghanistan in 1987. He came to Australia on a spousal visa in November 2008. He commenced employment with the respondent on 25 March 2009. The alleged injury occurred when he was lifting a mould on 12 June 2009. He continued his duties until he was retrenched on 19 June 2009. The respondent’s insurer made voluntary weekly payments of compensation to 16 September 2009. The insurer declined further liability in a s 74 notice dated 17 September 2009, following receipt of a report from Dr Breit (an orthopaedic surgeon qualified by the insurer) dated 18 August 2009. The stated reasons for denying liability were that the injury on 12 June 2009 ‘has now resolved’, and that the injury ‘is no longer causing any incapacity for work’.

The appellant operated a fruit shop from 19 November 2010, to a date variously described as 18 September 2012 or 19 June 2013. The appellant’s visa was cancelled on 19 June 2013, and he has subsequently been in the Villawood Immigration Detention Centre, where he remains.”

4. By an Application to Resolve a Dispute registered on 18 September 2012, Mr Jaffarie claimed weekly compensation from 4 September 2009 (approximately the date weekly payments to him had ceased), lump sum compensation in respect of a whole person impairment (“WPI”) of 17% (comprising 12% lumbar spine and 5% thoracic spine), and compensation for pain and suffering and expenses. The application was professionally prepared, and attached considerable supporting documentation. An arbitrator found, on 17 February 2014, that Mr Jaffarie did not sustain any injury to the thoracic or L1/2 regions of his spine, but did sustain a lower lumbar region strain, the effects of which had ceased by 19 January 2010. The arbitrator awarded compensation consistently with his findings. After an appeal to the Commission constituted by Deputy President Roche was dismissed: Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79, a further appeal to this Court was allowed on 29 October 2015: Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335.

5. This Court found in 2015 that the Deputy President had erred in law in failing to determine, pursuant to s 352(5) of the WIM Act, whether the arbitrator’s decision was affected by any error of fact and, if so, to determine whether the error should be corrected: see at [43] (Ward JA) and [61]-[62] (Sackville AJA). The result was to set aside the orders made by the Deputy President, and in lieu thereof allow the appeal, set aside the substantive orders in the arbitrator’s determination and remit the matter. Macfarlan JA expressed a broader view, concluding that the Deputy President had erred in finding that Mr Jaffarie’s appeals did not challenge the arbitrator’s finding that he did not suffer a thoracic spine injury: at [20], which his Honour regarded as amounting to a denial of procedural fairness: at [27]-[28]. In that respect, it was a minority view, with which Ward JA (at [39]) and Sackville AJA (at [54]-[56]) disagreed. This is mentioned because something is made in Mr Jaffarie’s submissions in support of his present appeal of the reasons of Macfarlan JA.

6. This Court ordered that “the whole matter is remitted to a different arbitrator for re-determination in accordance with the reasons in the Deputy President’s judgment of 9 December 2014 as varied by this judgment”. In accordance with that order, the matter was heard again before a Senior Arbitrator in 2016, at which hearing no oral evidence was adduced. Mr Jaffarie was represented by counsel.

7. By Certificate of Determination dated 1 July 2016, accompanied by a Statement of Reasons, Senior Arbitrator McDonald found that Mr Jaffarie suffered an injury to his lumbar spine on 12 June 2009 and that he did not suffer an injury to his thoracic spine. She concluded that the first respondent was to pay Mr Jaffarie expenses in respect of treatment to his lumbar spine only, and weekly compensation at $300 per week from 29 September 2009 until 31 December 2012. She broadly rejected submissions made by the first respondent adverse to Mr Jaffarie’s credit, based on a failure to mention he had worked after the injury, the failure to mention working in a fruit shop to medical examiners, an opinion by one doctor that Mr Jaffarie had demonstrated “abnormal illness behaviour”, and litigation in the Federal Court concerning the cancellation of his spousal visa: at [110]-[140]. However, the Senior Arbitrator did state that where Mr Jaffarie’s evidence differed from the history provided to medical practitioners at the time, she preferred the latter: at [116].

8. The Senior Arbitrator’s Statement of Reasons occupies 24 single-spaced pages comprising 212 paragraphs. The temporal limitation upon the amount of weekly compensation reflected a finding that Mr Jaffarie was partially incapacitated “until at least 31 December 2012” (at [204]). The Senior Arbitrator recorded that the parties had agreed that Mr Jaffarie was not an “existing recipient of weekly payments” within the meaning of Part 19H cl 1 of Schedule 6 of the Workers Compensation Act 1987 at the date of commencement of the 2012 amendments, with the consequence that the Commission had no jurisdiction with respect to his claim for weekly compensation after 31 December 2012: at [16].

9. The Senior Arbitrator dealt with the claimed injury to Mr Jaffarie’s thoracic spine at [161]-[182], saying she did not doubt that he suffered pain in his thoracolumbar region but the burden of the medical evidence was that the condition was not work related: at [161]. That was based on an absence of complaint of thoracic spine pain until late 2011, and her resolution of the differing views of various medical practitioners. The Senior Arbitrator rested her conclusion on the need to be satisfied on the balance of probabilities, and her view that aspects of the opinion of the doctor most supportive of Mr Jaffarie’s claim, Dr Maniam, were speculative. However, because the assessment of injury to Mr Jaffarie’s lumbar spine was greater than 10% (thereby entitling Mr Jaffarie to compensation for permanent impairment pursuant to ss 65 and 66 of the Workers Compensation Act 1987), the Senior Arbitrator referred him to an Approved Medical Specialist to assess permanent impairment arising from that injury: at [194].

10. The foregoing is a very brief summary of the Senior Arbitrator’s decision (it is summarised more fully at [10]-[21] of the Acting President’s decision) but it will suffice for present purposes.

11. On 3 July 2016, Mr Jaffarie lodged an application seeking reconsideration of the Senior Arbitrator’s decision, pursuant to s 350(3) of the WIM Act. The details of that application need not be summarised. It purported to be made personally by Mr Jaffarie without legal representation, and included serious allegations of bias against the Senior Arbitrator, although they were undeveloped and did not distinguish between actual and apprehended bias. The application included submissions that this Court’s decision in Sabanayagam v St George Bank Ltd [2016] NSWCA 145 assisted him, that he should have been awarded weekly compensation on a continuing basis, that the dispute should have been referred to an Approved Medical Specialist (“AMS”), and certain constitutional arguments. The Senior Arbitrator considered that Sabanayagam had no application, that Mr Jaffarie was bound by the concession as to weekly payments, that she had been bound to determine whether Mr Jaffarie had suffered an injury to his thoracic spine, and that she had no jurisdiction to determine the constitutional matters. The application was refused by certificate of determination issued on 5 August 2016.

12. Mr Jaffarie appealed pursuant to s 352 of the WIM Act to a Presidential Member from each of the decisions dated 1 July and 5 August 2016. Once again, Mr Jaffarie was unrepresented. His appeal reiterated much of what had been put to the Senior Arbitrator on the application to reconsider.

13. The appeal was determined on the papers, both parties having withdrawn their application for an oral hearing: see at [49]. The nature and scope of the appeal was governed by s 352(5), which provides:

“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

14. The Acting President gave comprehensive reasons for affirming the decisions of the Senior Arbitrator over 290 paragraphs on some 49 single-spaced pages: Jaffarie v Quality Castings Pty Ltd [2017] NSWWCCPD 2. Rather than summarising those reasons, it is convenient to turn to the grounds of appeal in this Court and the submissions made in support of them, and to deal with the salient aspects of the Acting President’s decision as necessary.

The appeal in this Court

15. Mr Jaffarie has again exercised his right of appeal to this Court. An appeal lies to this Court where a party is aggrieved “in point of law”: WIM Act, s 353(1). Mr Jaffarie needs to establish that he is aggrieved by the decision of the Presidential Member in point of law.

16. Mr Jaffarie supplied an amended notice of appeal containing seven grounds, and lengthy written submissions of some 35 single-spaced pages in support of those grounds. Ground 7 invoked s 109 of the Commonwealth Constitution, claiming that there was an inconsistency between the Racial Discrimination Act 1975 and Disability Discrimination Act 1992 of the Commonwealth and the State workers compensation legislation of New South Wales. This ground also sought to draw support from the fact that the Workers Compensation Commission was not a court and could not determine some aspects of the dispute. Mr Jaffarie made an affidavit which stated that he had served notice pursuant to s 78B of the Judiciary Act 1903 (Cth) on the Attorneys-General of the Australian States and mainland Territories, and annexed responses from them to the effect that they did not seek to intervene. I am satisfied that there has been substantial compliance with s 78B.

17. The respondent supplied written submissions filed 1 February 2018, and Mr Jaffarie supplied a short (two page) submission in response on 13 February 2018.

18. Mr Jaffarie was given the opportunity of addressing the Court orally. A translator was made available, although it became plain that Mr Jaffarie has at least a moderate command of English. He addressed the Court orally, but briefly, making it plain that he was not legally qualified and could not assist the Court in relation to the submissions on which he relied. Those submissions (as well as those made to Acting President Snell) have been written by someone else. The reasons of the Presidential Member record that, once again, Mr Jaffarie had “indicated that the identity of the author of the written material lodged in his appeal was ‘privileged’, and that he would not be in a position to talk about the arguments made in those documents”: at [58].

19. I mean no disrespect, but the written submissions are not only lengthy, but they are also very difficult to understand. Examples will be given below. The approach I have adopted in the circumstances is to do the best as I can to identify the essential points sought to be made and then to address them.

20. The same difficulty confronted the Acting President. Indeed, the submissions in this Court bear a very close resemblance to those made to the Acting President. This may be illustrated by comparing paragraph 14 of the submissions made to the Acting President with paragraphs 5-7 of the submissions made in this Court. The former read as follows:

“14.(a) In paragraphs 161-182 the arbitrator has misquoted two cases decided by the Court of Appeal in paragraphs 172 and 178. The case have [sic] no application in relation to the issues arising in the applicant’s matter since the cases relate to the powers of the Court and the WCC is not a Court.

(b) The three cases were not relied upon by the respondent the arbitrator made up all the arguments in the favour of respondent, never raised by the respondent. Again it is indicative of bias. Indeed the arbitrator seems to be so keen to put the words in the mouth of Mr Malouf, the opposing barrister acting for the respondent, she wrote two further paragraphs 112 and 113 quoting a case, never quoted by Mr Malouf. The arbitrator in extraordinary and unprecedented manner in paragraph 112 advances the cause of respondent by stating Mr Malouf ‘did not refer to the decision’ …. ‘Mr Malouf was, in effect, asking me to apply principles consistent with it in this case’.

(c) The applicant was not cross-examined nor was Dr Maniam or Dr Ellis, or Dr Diwan or Dr Khan in 2016.

(d) The arbitrator has shown bias and caused extreme prejudice to the applicant by herself advancing the cause of respondent, against the objectives of WCC. It is evidence the arbitrator was not independent nor impartial.

(e) The WIM Act is a beneficial legislation and must be interpreted in favour of the applicant and the failure to do so by the arbitrator amounts to her bias.”

21. The submissions made to this Court are:

“6(a) In paragraphs [161]-[182] the arbitrator has misquoted two cases decided by the Court of Appeal in paragraphs [172] and [178]. The case has no application in relation to the issues arising in the applicant’s matter since the cases relate to the powers of the Court and the WCC is not a Court, a point again missed by the Deputy President.

(b) The three cases were not relied upon by the respondent. The arbitrator made up all the arguments in the favour of respondent, never raised by the respondent. Again it may be indicative of apprehended bias. Indeed the arbitrator seemed to be so keen to put the words in the mouth of Mr Malouf, (the opposing barrister acting for the respondent). She wrote two further paragraphs [112] and [113] quoting a case, never quoted by Mr Malouf. The arbitrator in extraordinary and unprecedented manner in paragraph [112] advanced the cause of respondent by stating Mr Malouf ‘did not refer to the decision’ …. ‘Mr Malouf was, in effect, asking me to apply principles consistent with it in this case’. Deputy President ignored such aspects and specific grounds raised by the appellant before him.

7. The appellant was not cross-examined nor were Dr Maniam, Dr Ellis, or Dr Diwan or Dr Khan in 2016.

8(a) The arbitrator has possibly shown apprehended bias and caused prejudice to the appellant by advancing the cause of respondent, against the objectives of WCC. It is evidence the arbitrator was not independent nor impartial, and the Deputy President’s endorsement is evidence of such apprehension. It is intrinsic and inherent in the unfair procedures adopted by the WCC.

(b) The WIM Act is a beneficial legislation and must be interpreted in favour of the appellant and the failure to do so by the arbitrator amounts to lack of independence and the common law and the decisions of the Supreme Court, it is submitted, must also be interpreted beneficially.”

22. This is no isolated example. It is plain that much of the document relied on in support of Mr Jaffarie’s appeal to this Court is derived from that relied upon in his appeal from the Senior Arbitrator to Acting President Snell, with minor embellishments. But the question in this Court is whether Mr Jaffarie is aggrieved in point of law with the decision of the Acting President.

23. Mr Jaffarie also supplied further submissions after judgment had been reserved. Although this should not have occurred, there having been no grant of leave, I have taken them into account.

Ground 1 – Previous decision of this Court unreasonably not followed

24. The gravamen of this ground is that it is said that Acting President Snell “wrongly reopened the decided issue of credit”, which is said to have been contrary to the decision in October 2015 of this Court. For example, it is said that:

“it is submitted the decision of Macfarlan JA, on its own, irrespective of any comments in the judgment of this Honourable Court, was binding on the subordinate tribunal the WCC. The arbitrator’s failure to follow order 3(b) in light of the aspects of variation including the issue of credit, has [led] to the flawed conclusions in the decisions in the decisions impugned in the instant appeal.”

25. It is said that while “the whole matter” was remitted to a different arbitrator for redetermination, the effect of that order was “misconstrued”. It is said that “the Orders must be read in the light of the remaining 37 paragraphs” (that, it may be inferred, is a reference to the 37 paragraphs of Macfarlan JA’s reasons which preceded the orders he proposed, with which the other members of the Court agreed).

26. The short answer to this ground is that the issue of injury to Mr Jaffarie’s thoracic spine was left open for the Commission. The issues of Mr Jaffarie’s credit were likewise left open for determination by the Commission. True it is, this Court identified error in the way in which the Commission in 2014 had made its determination relating to Mr Jaffarie’s credit. However, that reasoning could not prevent the Commission performing the task remitted to it, namely, determining the whole matter. Contrary to Mr Jaffarie’s submission, the order remitting the whole matter to the Commission is not in some way confined by the reasons to errors in point of law in relation to jurisdiction. Nothing in Macfarlan JA’s judgment supports Mr Jaffarie’s submission.

27. The Senior Arbitrator made one finding adverse to Mr Jaffarie (at [116]):

“The questions which I am required to determine are medical questions and fall to be determined based on a chronological review of the medical evidence. Where Mr Jaffarie’s evidence differs from the history provided to the medical practitioners at the time the reports were prepared, I have relied on the contemporaneous medical evidence.”

28. There was no error in the Senior Arbitrator proceeding on that basis (and rejecting the various attacks on Mr Jaffarie’s credit made by the first respondent), and no error in the Acting President concluding that she was entitled to do so.

29. This ground is not made out.

Grounds 2, 3 and 4 – Jurisdiction to determine medical dispute, wrongful denial of threshold for WPI and absence of evidence meant that the Arbitrator had no option but to refer the medical dispute to an AMS

30. A previous draft of this judgment gave reasons for dismissing grounds 2, 3 and 4. However, I have now had the advantage of reading White JA's reasons on those grounds. I gratefully adopt what his Honour has written.

Ground 5 – The concession in relation to weekly payments

31. Mr Jaffarie said that the Deputy President had wrongly relied upon a concession made in relation to weekly payments. He submitted that when applying cl 17A of Schedule 8 of the 2010 Regulations, the entitlement must be calculated without reference to weekly compensation which predated 1 September 2015. He further submitted that Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37 was wrongly decided.

32. The concession related to the transitional provisions which govern any entitlement to weekly payments after 31 December 2012. It is recorded in [155] of the Acting President’s decision:

“At the arbitration hearing on 23 May 2016 the following exchange occurred:

‘ARBITRATOR: And it’s also agreed just formally – I formally place it on the record that it’s agreed that by the operation of the legislation and as interpreted by decisions such as Kilic v Kmart I have no jurisdiction to deal with the application for weekly – any application for weekly payments after 31 December 2012.

MR CAMPBELL: I accept that...’ (T21.27-34).”

33. As noted above, at that stage Mr Jaffarie was represented by counsel. Now, unrepresented, he maintains that this Court’s more recent decision of Sabanayagam v St George Bank Ltd [2016] NSWCA 145 means that the Commission did have jurisdiction in respect of weekly payments after that date. Mr Jaffarie submits that the Arbitrator and the Acting President had misread Sabanayagam. He denies that he was an “existing recipient” and further maintains that Kilic was wrongly applied. He also relies upon Chanaa v Zarour [2011] NSWCA 199 in support of that proposition.

34. Finally, he says that even if there was any such alleged concession, the arbitrator contravened the WCC Presidential Practice Direction 4, s 294 of the WIM Act and Part 17 of the WCC Rules of 2011 and adds that “the Deputy President’s decision on the subject is incongruous”.

35. Many of the submissions are but slight rewordings of identical submissions that were made on the appeal to the Acting President.

36. First, these points were addressed by the Acting President, at [155]-[164]. The definition of “existing recipient of weekly payments” in Part 19H of Schedule 6 of the Workers Compensation Act is “an injured worker who is in receipt of weekly payments of compensation immediately before the commencement of the weekly payments amendments”. The Acting President considered that it was clear that Mr Jaffarie did not answer that definition: at [157]. That is the subject of the “concession” which is said to involve error.

37. Secondly, nowhere in his written submissions does Mr Jaffarie identify why that could be wrong in point of law. It is, with respect, plainly right. The “weekly payments amendments” are certain amendments made by the Workers Compensation Legislation Amendment Act 2012 (NSW) in late 2012. Mr Jaffarie had ceased being in receipt of weekly payments some three years earlier. True it is that in 2016 he obtained a determination that he had been entitled to weekly benefits from September 2009 until 31 December 2012. That does not alter the fact that he was not in receipt of weekly payments of compensation in September 2012. I am conscious of s 30(1)(c) of the Interpretation Act 1987 (NSW), and that at the time the amendments were made, Mr Jaffarie had made a claim which extended to weekly compensation. However, the definition of an “existing recipient of weekly payments” is “an injured worker who is in receipt of weekly payments of compensation immediately before the commencement of the weekly payments amendments”, while cl 3 of Part 19H makes it plain that the amendment extended to claims for compensation made before the commencement of the amendment.

38. Thirdly, as for the balance of Mr Jaffarie’s submissions in support of this ground, they were addressed at [166]-[167] by the Acting President:

“The Senior Arbitrator, at [29] of the reconsideration decision, said she did not accept that Sabanayagam had ‘any application to Mr Jaffarie’s case’. This is clearly true. Having regard to the date of the appellant’s injury and claim, the fact that he was not ‘an existing recipient’, and the transitional provisions, his rights to weekly compensation were correctly determined pursuant to the provisions of the 1987 Act, in its form prior to relevant commencement of the 2012 Amending Act, up to 31 December 2012: Kilic. Thereafter, any weekly entitlement would have fallen within the third entitlement period (beyond 130 weeks). The Commission lacked jurisdiction to award him weekly compensation in the third entitlement period: Lee at [57].

In very general terms, Sabanayagam does not deal with workers in the position of the appellant. It deals with entitlements governed by the ‘weekly payments amendments’ in the 2012 Amending Act, the distinction between ‘work capacity decisions’ and notices disputing liability pursuant to s 74 of the 1998 Act, and the associated jurisdiction of the Commission. There was no error on the Senior Arbitrator’s part, in her conclusion about the relevance of Sabanayagam to the appellant’s weekly entitlement.”

39. Once again, Mr Jaffarie’s submissions do not indicate why there is error in that aspect of the Acting President’s reasons. I regard the passage reproduced above as entirely correct.

40. Further, at the time the concession was made, Mr Jaffarie was represented by counsel. Generally speaking, a client is bound by what counsel says on the client’s behalf: Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [46]. Mr Jaffarie has not pointed to any exceptional circumstances which would cause him to fall outside that rule, and nothing I have seen suggests that there were any such circumstances.

41. This ground is not made out.

Ground 6 – Misunderstanding of decisions in respect to contemporaneity of evidence and wrong standard of proof

42. It is convenient to reproduce the entirety of the written submissions in support of this ground, which illustrate of the difficulty in identifying the true import of what is said:

“SUBMISSIONS RELATING TO GROUND 6. The Deputy President has misunderstood the decisions of this Honourable Court in respect of contemporaneity of evidence and wrongly applied the lack of it to be fatal in the matters in dispute before the WCC and consequently applied wrong standard of prove specially when the rules of evidence do not apply and technicalities and form to be avoided.

1. (a) The appellant’s arguments relating to Chanaa v Zarour[2011] NSWCA 199 (Chanaa) were wrongly rejected by Deputy President in paragraph [178] by stating it ‘does not have any readily apparent application to the current matter’.

(b) A simple net search reveals Chanaa has been quoted and applied in more than a dozen cases by the other two Presidential decision makers in appeal including President Keating and Deputy President Roche.

(c) The appellant relies upon Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66 (Bi-Lo) where, at paragraphs [75]-[78] and thereafter, Deputy President Roche relies upon Chanaa and rejects the reliance of corroboration and contemporaneity, quoting nine cases in paragraph [76] where the Presidential decisions of Workers Compensation Commission (WCC) held the trite law.

(d) The absence of complaints by the worker about the relevant body parts, in medical records, cannot authorize the WCC to reject the appellant’s evidence. The appellant’s thoracic spine injury was identified long before notice of injury was given and paragraphs [168]-[189] of the Deputy Presidential decision and paragraphs [166]-[182] of the arbitrator’s decision were therefore based upon palpably and diametrically opposite proposition of law and long standing established view rejected by DP Snell.

(e) Since the arbitrator has not doubted the appellant’s credit, applying the Chanaa principle, which was ignored by the arbitrator and refused to be followed by the Deputy President, the two decision makers have treated the applicant’s medical evidence without due regard to the decision of this Honourable Court and both merit setting aside.

2. The arbitrator’s decision wrongly takes into account the lack of contemporaneous complaint of thoracic spine as fatal and consequently the decision is palpably erroneous and biased.”

43. Mr Jaffarie’s submission was directed to [178] of the Acting President’s reasons. That paragraph merely stated:

“Chanaa, to which the appellant refers, was a contractual case, which does not have any readily apparent application to the current matter.”

44. In his submissions to this Court, it was put that “the decision makers in the WCC have also misconceived the combined application of Chanaa and Hancock”, and that the appellant “also relies upon Chanaa v Zarour for the proposition on contemporaneous argument raised above”

45. Chanaa v Zarour [2011] NSWCA 199 is a decision of this Court primarily challenging the decision at first instance as going beyond the pleadings and the way it had been litigated: see at [11]-[78]. There was also a subsidiary question whether there was sufficient evidence to support the finding that there was a contract: see at [79]-[87]. The whole of the appeal was fairly summarised at [6] by Campbell JA, with whom Bathurst CJ and Tobias AJA agreed:

“The Developer appeals against the decision in the court below, on two broad bases. One is that in light of the pleadings and the way the case was conducted, it was not open to the judge to find that the agreement was with the Developer alone. The other is that the finding that the agreement was between the Developer and the Lender had insufficient evidentiary support.”

46. The decision has no bearing upon Mr Jaffarie’s workers compensation dispute with his former employer.

47. Once again, this ground in substance is an attempt to articulate a complaint directed to the rejection of Mr Jaffarie’s claim of injury to his thoracic spine. It takes the matter no further than the grounds already addressed.

Ground 7 – Constitutional points

48. The written submissions relied on by Mr Jaffarie in support of this final ground are very extensive. They include a complaint that Mr Jaffarie has been discriminated against, contrary to the Racial Discrimination Act and Disability Discrimination Act, and that he is entitled to protection under those federal statutes. It is further submitted that the Workers Compensation Commission is not a Court and does not have the defining characteristics of a Court. From this it is said to follow that the Commission cannot exercise judicial power with respect to matters of the kind identified in ss 75 and 76 of the Constitution. So much may be accepted. However, the submission fails to identify how precisely it is said that there has been unlawful discrimination in the adjudication of his claims under the NSW statute.

49. These submissions also contain a series of non-constitutional points. It is said that his immigration file was obtained in breach of the Harman principle as laid down in Harman v Secretary of State for the Home Department [1983] 1 AC 280 and as adopted in Hearn v Street (2008) 235 CLR 125; [2008] HCA 36. He refers to a complaint lodged in the Australian Human Rights Commission (although he does not identify what the complaint is) and he refers to what appear to be pending proceedings in the Australian Human Rights Commission in two matters that have not yet been heard. Mr Jaffarie’s submissions state that the Commission dismissed his complaint, but he was successful on appeal to the Federal Circuit Court and the complaint has been remitted to the Commission.

50. Mr Jaffarie submits that workers’ rights in comparison with non-workers’ rights in New South Wales are unequal, incongruous and unjust, and therefore contrary to the Commonwealth Disability Discrimination Act for reasons directed to (a) the retrospective construction placed upon the 2012 amendments, (b) the splitting up of Workcover into three statutory bodies (this is said to be “unworkable and unreasonable to Wednesbury proportion and clouds the fairness and independence of WIRO and WCC”), (c) the 11% WPI yardstick and the 15% threshold are harsh and unjust, as is (d) the “each party to pay its own costs rule”.

51. I shall not attempt to summarise Mr Jaffarie’s submissions in support of ground 7 in full. They do not make legal sense. No utility is served by attempting a more fulsome summary. In the interests of transparency, the entirety of Mr Jaffarie’s submissions on the constitutional point have been annexed to this judgment.

52. I note the following. First, a deal of these submissions repeat, with minor embellishments, submissions made to the Acting President. The submissions to him invoked the Disability Discrimination Act and the Racial Discrimination Act, s 109 of the Constitution, the complaint to the Human Rights Commission and the proceedings in the Federal Circuit Court, and much of the balance of the submission (“Applicant’s Submissions under Section 352 Appeal”, paragraphs 30-40). But the submissions in this Court are longer, and also reflect some changes. For example, no complaint based on Harman v Home Office was made to the Acting President, although paragraphs 39-40 do complain about what is said to have been wrongful disclosure of documents on his files.

53. Secondly, the Acting President dealt with the cognate submissions made to him with some care at [203]-[210]:

“At [30]-[41] of his submissions, over five to six pages, the appellant includes submissions of a general nature, which are briefly described at [84]-[85] above. They consist of broad generalisations going to the Australian Constitution, Commonwealth legislation dealing with race and disability discrimination, the role of WorkCover, the lack of effective rules of discovery, the costs regime in the workers compensation jurisdiction and provisions for work injury damages. This list does not purport to be exhaustive.

These general submissions relate in only the most general way (frequently not at all) to the evidence and issues in the appeals before me.

...

The appellant’s grounds of appeal and submissions raise difficulties. The grounds, by and large, fail to identify specific alleged error. The certainly do not do so ‘with clarity’. The documents do not comply in any meaningful way with Practice Direction No 6, which applies to appeals pursuant to s 352 of the 1998 Act. I have tried to identify, predominantly from the submissions, the issues which the appellant seeks to raise, and to deal with the substance of those issues. The submissions at [30]-[41], read with the grounds, do not provide any ‘comprehensible or reliable framework’ for the correction of error. They fail to identify specific alleged error. An appeal under s 352 is limited to the identification of ‘error of fact, law or discretion, and to the correction of any such error’: s 352(5) of the 1998 Act.

The ‘General Submissions’ at [30]-[41] raise matters which were not raised at first instance. This is a reason why the appellant should not be allowed to raise them on appeal .... As these submissions were not raised before the Senior Arbitrator on the arbitration hearing, the Senior Arbitrator did not deal with them. It is not an error to fail to deal with matters not raised .... The appellant is not permitted to raise the issues in his submissions at [30]-[41], for these reasons, and additionally because they fail to adequately identify and address error in any meaningful way.”

54. Thirdly, if an appellant were aggrieved in point of law from the Acting President’s decision insofar as the constitutional points were rejected, one might expect to see some mention of those paragraphs in the lengthy written submissions filed by the appellant. So far as I can see, no complaint is made about any aspect of [203]-[210].

55. Fourthly, Mr Jaffarie asserts that the Workers Compensation Commission, which is not a court, cannot determine matters arising under the Constitution or under federal law. So much may be accepted. It is difficult to see how Mr Jaffarie could be aggrieved in law when that body declined to determine the issues arising under the Constitution and under federal law.

56. Fifthly, I am conscious that the written submissions made in this Court are in some respects different from those made to the Acting President. But they share the same character. They do not advance a legally tenable submission as to why he is aggrieved in point of law with the decision of the Acting President. This ground is not made out.

Orders

57. For those reasons, I have concluded that Mr Jaffarie is not a person who is aggrieved in point of law by the decision of the Presidential Member of the Commission. I propose that the appeal be dismissed, with costs.

58. WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Leeming JA. I agree with the order his Honour proposes and I agree with his Honour’s reasons in relation to grounds 1, 5, 6 and 7.

59. I state as follows my reasons for rejecting the submission advanced by Mr Jaffarie in grounds 2, 3 and 4. As noted by Leeming JA at [7] the Senior Arbitrator found that Mr Jaffarie suffered an injury to his lumbar spine on 12 June 2009 and did not suffer an injury to his thoracic spine. She remitted the matter to the Registrar for referral to an approved medical specialist to assess the permanent impairment resulting from injury to his lumbar spine. Mr Jaffarie submitted that the Senior Arbitrator had no jurisdiction to determine that he had suffered a separate injury to his thoracic spine, being an injury that did not arise out of or in the course of his employment. He submitted that the claimed injury to his thoracic spine and the degree of whole person impairment arising from the totality of injury suffered in the course of his employment were required to be determined as a medical dispute by an approved medical specialist in accordance with Pt 7 of Ch 7 of the WIM Act.

57. Mr Jaffarie sought three forms of compensation under the Workers Compensation Act: weekly compensation by way of income support under Div 2 of Pt 3, compensation for medical, hospital, and rehabilitation expenses under Div 3 of Pt 3, and lump sum compensation for non-economic loss under Div 4. Mr Jaffarie’s degree of permanent impairment was directly relevant only to the last category of compensation. His entitlement to weekly payments depended upon a determination of whether he was totally or partially incapacitated for work resulting from an “injury” as defined (s 33) and upon the operation of the Workers Compensation Legislation Amendment Act 2012 (NSW). It was common ground that the Senior Arbitrator could determine the degree of Mr Jaffarie’s incapacity for work resulting from his injury.

58. Nor did Mr Jaffarie’s claim for compensation for medical treatment depend upon a determination of the degree of permanent impairment arising from personal injury suffered in the course of employment. The Senior Arbitrator noted (at [195]) that the parties did not address on the claim for s 60 expenses. The Senior Arbitrator said that because of the findings she made the respondent was liable only for Div 3 of Part 3 expenses for the treatment of Mr Jaffarie’s lumbosacral spine. Under s 59A(2) compensation is not payable under s 60 in respect of any treatment, service or assistance provided more than 12 months after a worker has ceased to be entitled to weekly payments of compensation. The Senior Arbitrator noted that the payment of s 60 expenses would be subject to the limits in s 59A of the Workers Compensation Act and the relevant transitional provisions. No issue was raised under s 60(5) concerning the jurisdiction of the Commission in respect of a dispute concerning any proposed treatment or service.

59. Mr Jaffarie’s third possible entitlement to compensation is for lump sum compensation under s 66 of the Workers Compensation Act. At the relevant time, under s 66(1) a worker who received an “injury” (that is, an injury as defined in s 4) that resulted in a degree of permanent impairment greater than 10 per cent was entitled to receive from his or her employer compensation as provided for by s 66. The amount of permanent impairment compensation was to be calculated under s 66 as it was in force at the date the injury was received, that is, on 12 June 2009 (s 66(3)). Under s 65(3), if there is a dispute about the degree of permanent impairment the Commission cannot award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist. In her certificate of determination the Senior Arbitrator remitted the matter to the Registrar for referral to an approved medical specialist to assess Mr Jaffarie’s permanent impairment resulting from the injury to his lumbar spine. Mr Jaffarie complains that that referral did not extend to injury to his thoracic spine that the Senior Arbitrator found was not work-related. This may have a significant effect on the determination by an approved medical specialist of the degree of permanent impairment. That could be relevant both to the determination of whether Mr Jaffarie satisfies the 10 per cent permanent impairment threshold for lump sum compensation and whether he satisfies the 15 per cent permanent impairment threshold for any claim that he might bring for work injury damages (Workers Compensation Act, s 151H).

60. Section 65 of the Workers Compensation Act provides:

“65 Determination of degree of permanent impairment

(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

(2)    If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.

Note. The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.

(3)    If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”

64. The question is whether in s 65(3) the reference to “a dispute about the degree of permanent impairment of an injured worker” extends to a dispute about the degree of permanent impairment of an injured worker that results from an injury (as defined), that is, relevantly for present purposes, from a personal injury arising out of or in the course of employment (s 4). The omission from s 65(3) of the words “that results from an injury” is consistent with s 321 of the WIM Act that defines the circumstances in which a medical dispute concerning permanent impairment can and cannot be referred to an approved medical specialist under Pt 7 of Ch 7 of the WIM Act. Section 321 of the WIM Act provides:

“321 Referral of medical dispute for assessment

(1)    A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.

(2)    The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.

(3)    The Commission may not refer for assessment under this Part a medical dispute concerning permanent impairment (including hearing loss) of an injured worker.

(4)    The Registrar may not refer for assessment under this Part:

(a)    a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or

(b)    a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”

65. Section 326 of the WIM Act provides:

“326 Status of medical assessments

(1)    An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:

(a)    the degree of permanent impairment of the worker as a result of an injury,

(b)    whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,

(c)    the nature and extent of loss of hearing suffered by a worker,

(d)    whether impairment is permanent,

(e)    whether the degree of permanent impairment is fully ascertainable.

(2)    As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”

66. These sections, when read with the definition of “medical dispute” in s 319, delineate the roles of the Commission and an approved medical specialist (or an Appeal Panel) (ss 327 and 328). The Commission cannot itself refer for assessment under Pt 7 of Ch 7 a medical dispute concerning permanent impairment of an injured worker. Only the Registrar or a court can make that referral. Hence, the Senior Arbitrator in this case remitted the matter to the Registrar for referral to an approved medical specialist to assess Mr Jaffarie’s permanent impairment resulting from injury to his lumbar spine (Peric v Chul Lee Hyuang Ho Shin Jon Lee & Ors [2009] NSWWCCPD 47 at [64]-[65]).

67. Under s 321(4)(a) the Registrar may not refer a medical dispute concerning permanent impairment for medical assessment to an approved medical specialist if “liability” is in issue. That must extend to liability of the employer to pay compensation for permanent impairment under s 66. Under s 65 of the Workers Compensation Act the degree of permanent impairment that results from an injury is to be assessed as provided by Pt 7 of Ch 7 of the WIM Act. But under s 321 (which is in Pt 7 of Ch 7 of the WIM Act), except in the case of an expedited assessment under Pt 5 of Ch 7, a medical dispute concerning permanent impairment of an injured worker cannot be referred for assessment either by the Commission (s 321(3)), or by the Registrar, if “liability is in issue and has not been determined by the Commission” (s 321(4)(a)). Hence the question of whether a worker has suffered an injury as defined, that is, relevantly, a personal injury arising out of or in the course of employment, is a question to be determined not by an approved medical specialist, but by the Commission. If liability to pay compensation is in issue, and the Commission has determined that an injury said to have given rise to some degree of permanent impairment did arise out of or in the course of employment, then the degree to which the worker was permanently impaired is a medical dispute to be determined by an approved medical specialist (or on appeal by an Appeal Panel). Conversely, if the Commission determines that the injury was not an injury as defined in s 4 so that the employer is not liable to pay compensation, there will be no occasion for referral of a medical dispute concerning permanent impairment to be referred under s 321.

68. Mr Jaffarie contends that this construction is inconsistent with decisions of this Court in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 per Emmett JA (with whom Ward JA agreed) at [110], and Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449; (2013) 12 DDCR 515.

69. Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd concerned a dispute in relation to a worker’s claim for weekly compensation payment. The degree of permanent impairment of an injured worker is not determinative of such a claim. He also sought lump sum compensation for permanent impairment and for pain and suffering (at [65]). Sections 66 and 67 of the Workers Compensation Act provided that such compensation was not payable unless the “injury” resulted in a degree of permanent impairment of 10 per cent or more. Section 293 of the WIM Act provided:

“293 Medical assessment

(1) When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may, in accordance with this section, refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment.

(2) If the dispute concerns the degree of permanent impairment (including hearing loss) of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Part 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment.

(3)    The Registrar may not refer for assessment:

(a)    a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or

(b)    a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”

70. Emmett JA, with whom Ward JA agreed, said:

“[109] Generally, the scheme for the settlement of compensation disputes established by the Management Act, read in conjunction with the Compensation Act, is to have factual and legal issues resolved by an arbitrator, subject to an appeal to a President or Deputy President of the Commission, and to have certain medical issues decided by an approved medical specialist, subject to an appeal to an Appeal Panel. That scheme is designed to ensure that the degree of permanent impairment that results from injury, and any contribution to the worker’s total impairment that is due to an earlier injury or pre-existing condition, are assessed in accordance with Pt 7 of Ch 7 of the Management Act, and not otherwise. If there is a medical dispute within the meaning of that term in s 319 of the Management Act, an arbitrator would have no jurisdiction to decide it. However, an arbitrator may refer such a medical dispute for assessment by an approved medical specialist under s 321. Section 321 confers a power that, in a proper case, an arbitrator is bound to exercise in aid of the private rights of the parties. Thus, because an arbitrator has no jurisdiction to decide a medical dispute, an arbitrator has no jurisdiction to make findings that are binding on an approved medical specialist or on an Appeal Panel. A finding made by a person without jurisdiction cannot bind a person or persons who have jurisdiction (see Haroun v Rail Corporation New South Wales [2008] NSWCA 192 at [16] and [19]–[21]).

[110] However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of ‘medical dispute’. Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski [2013] NSWCA 449 at [35]).

[111] It is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the Compensation Act. The Commission must also determine whether there are any disentitling provisions, such that compensation is not payable in respect of that injury. It is also the function of the Commission to determine by whom any compensation is payable. Jurisdiction is conferred on the Commission by s 105 of the Management Act. However, that jurisdiction is subject to the restriction contained in s 65(3) of the Compensation Act, which precludes the Commission from awarding permanent impairment compensation if there is a dispute about the degree of impairment, unless the degree of impairment has been assessed by an approved medical specialist. The fact that a medical dispute includes a dispute as to the degree of permanent impairment of a worker as a result of an injury is consistent with the entitling provision of s 66 of the Compensation Act in conferring an entitlement to receive compensation if the worker receives an injury that results in permanent impairment. The degree of permanent impairment that results from an injury is to be assessed as provided in Pt 7 of Ch 7.”

71. There was no issue in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd that the worker had suffered injury as defined. An order had been made by consent that the applicant suffered injury to his right eye and that the employer had liability in respect of the injury. An order was also made by consent that the matter be remitted to the Registrar for referral to an approved medical specialist. Prior to his injury the worker had a cataract in his right eye. He suffered a trauma injury to the same eye when a door at his work closed hitting him on the face. He underwent cataract surgery on his right eye that resulted in complications leaving him with a complete loss of vision to that eye (at [5]-[6]). The approved medical specialist assessed his degree of permanent impairment as the result of his injury that occurred in the course of his employment as being nought per cent on the basis that his permanent impairment as a result of loss of vision to his right eye was due to the surgery and not to the injury suffered at work (at [13]). That assessment was confirmed by the Appeal Panel. The worker argued that it was not open to the approved medical specialist nor the Appeal Panel to so conclude. He argued that the consent order that he had suffered a work injury to his right eye for which the employer was liable connoted that the blow to his right eye had exacerbated the pre-existing cataract necessitating surgery, from the complications of which he lost his vision, so that the impairment resulting from the loss of vision was due to the work injury. He submitted that the only medical dispute was as to the degree of permanent impairment and whether there should be a deduction for any proportion of the impairment due to the pre-existing condition (at [18]).

72. That argument was rejected. Meagher JA, with whom Ward JA also agreed, said:

“[26] The language of order 3 supports the conclusion that the ‘injury’ being referred to was the trauma injury and its pathology. In terms, it is a determination that the applicant ‘suffered injury on 28 January 2009’. That injury was a trauma injury, aspects of the pathology of which were in dispute and remained to be assessed. The medical dispute as to that pathology was, by order 3, to be assessed under Pt 7 of Ch 7 of the WIM Act. If the position was otherwise, and the determination was that there had been an exacerbation injury, there would have been nothing of substance left for assessment because, as the earlier correspondence between the parties showed, it was not in issue that if the injury sustained on 28 January 2009 accelerated the need for the cataract surgery, the complications arising from that surgery including the subsequent retinal detachment and almost complete loss of vision, would have resulted from that injury.”

73. Emmett JA also held that the approved medical specialist and the Appeal Panel had jurisdiction to determine the medical dispute that encompassed whether permanent impairment was the result of an injury (as defined) or whether any proportion of it was due to any previous injury or pre-existing condition. On the construction of the consent order his Honour said:

“[107]    The language of Order 3 should be construed as doing no more than recording acceptance by the parties that the Employer was liable for compensation for permanent impairment, if an approved medical specialist appointed by the Registrar determined that any permanent impairment suffered by Mr Bindah was the result of the incident that occurred on 28 January 2009, when he sustained a direct blow to his right eye by a closing metal door, as described in the Application of 24 August 2011. Order 3 should not be construed as a determination that that incident caused the impairment that he now suffers.”

74. At [110], quoted at [70] above, his Honour noted that the language of causal connection fell squarely within the definition of “medical dispute”.

75. What was said by Emmett JA at [109], quoted above at [70], must be understood in the context of the issues before the court in Bindah. I do not understand his Honour to mean that anything which falls within the definition of “medical dispute” in s 319 will necessarily be outside the jurisdiction of an arbitrator.

76. Under s 105(1) of the WIM Act the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under the WIM Act and the Workers Compensation Act. This is subject to specific exclusions contained in both the WIM Act and the Workers Compensation Act. The specific exclusion in s 65(3) of the Workers Compensation Act does not extend to any medical dispute within the meaning of s 319 of the WIM Act, but only to a subset of such disputes, being a dispute about the degree of permanent impairment of an injured worker. Even a medical dispute concerning permanent impairment of an injured worker cannot be referred for assessment under Pt 7 of Ch 7, except by the Registrar and then where liability is not in issue, or, if in issue, liability has been determined by the Commission (ss 293(3)(a) and 321(4)(a)). The medical assessment is conclusive only in respect of the matters referred to in s 326 which are not as extensive as the matters falling within the definition of medical dispute in s 319.

74. Mr Jaffarie also relied upon the decision of this Court in Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449. The issue in that case concerned s 60(5) of the Workers Compensation Act where there was a dispute as to whether proposed medical treatment was reasonably necessary as a result of an injury (as defined), that is, as a work-related injury, or whether the proposed treatment was not the result of a work-related injury. Section 60(5) provided:

“60 Compensation for cost of medical or hospital treatment and rehabilitation etc

…

(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the Registrar for assessment under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”

78. The second sentence of subs 60(5) expressly provided that “any such dispute” had to be referred for medical assessment under Pt 7 of Ch 7. The definition of “medical dispute” in s 319 was plainly wide enough to cover that issue. Leeming JA with whom the other members of the Court agreed, said that there was no warrant for reading down the express provision made by s 60(5). That decision is not of present relevance.

79. The Senior Arbitrator acted in accordance with s 65(3) by remitting to the Registrar for referral to an approved medical specialist the issue of the degree of permanent impairment arising from injury to Mr Jaffarie’s lumbar spine. Her jurisdiction to determine that he did not suffer a work-related injury to his thoracic spine was not excluded by s 65(3).

80. In any event, the jurisdiction of the Senior Arbitrator to determine the nature of the injury sustained in the course of Mr Jaffarie’s employment on 12 June 2009 is resolved by the terms of the order made by this Court on 29 October 2015. As noted by Leeming JA at [6] the matter was remitted for re-determination by a different arbitrator “in accordance with the reasons and the Deputy President’s judgment of 9 December 2014 as varied by this judgment.” Deputy President Roche in his judgment of 9 December 2014 (Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79) analysed in detail the reasons of this Court in Bindah and concluded as follows:

“[249]    Notwithstanding the different approach by Emmett JA and Meagher JA, it is my view that the following principles apply to proceedings in the Commission:

(a)    questions of causation are not foreign to medical disputes within the meaning of that term when used in the 1998 Act. Assessing the degree of permanent impairment ‘as a result of an injury’, and whether any proportion of permanent impairment is ‘due’ to any previous injury or pre-existing condition or abnormality, both call for a determination of a causal connection (Bindah at [110]);

(b) it is for the Commission to determine whether a worker has received an injury within the meaning of s 4 of the 1987 Act and whether there are any disentitling provisions, such that compensation is not payable for that injury (Bindah at [111] and s 105 of the 1998 Act);

(c) the Commission’s jurisdiction is restricted by s 65(3) of the 1987 Act, which precludes the Commission (an Arbitrator or a Presidential member) from awarding permanent impairment compensation if there is a dispute about the degree of permanent impairment, unless the degree of impairment has been assessed by an AMS (Bindah at [111]);

(d)    the determination of the degree of permanent impairment that results from an injury is a matter wholly within the jurisdiction of the AMS or, on appeal, the Appeal Panel and is not a matter for determination by an Arbitrator (Bindah at [112]);

(e)    a finding made by a person without jurisdiction cannot bind a person or persons who have jurisdiction (Haroun at [16] and [19]–[21]), and

(f)    it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues (Bindah at [110]; Tolevski at [35]).

…

[255] The only matters that are ‘conclusively presumed to be correct’ are those matters listed in s 326(1). They are:

‘(a)    the degree of permanent impairment of the worker as a result of an injury,   

(b)    whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,

(c)    the nature and extent of loss of hearing suffered by a worker,

(d)    whether impairment is permanent,

(e)    whether the degree of permanent impairment is fully ascertainable.’

[256] It follows that, since ‘the nature of the injury’ (or the ‘condition’ or ‘aetiology of the condition’) is not a matter on which an assessment in a MAC is conclusively presumed to be correct, the opinions of an AMS on such matters do not bind the Commission. This follows from s 326(2), which states that ‘[a]s to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings’. This conclusion is reinforced when one considers s 319(e), which defines medical dispute to include ‘the nature and extent of loss of hearing suffered by a worker’, and s 326(c), which states that an assessment in a MAC is conclusively presumed to be correct as to ‘the nature and extent of loss of hearing suffered by a worker’ (McGowan v Secretary, Department of Education and Communities [2014] NSWWCCPD 51 (McGowan)). In other words, if the injury is a loss, or further loss, of hearing an AMS determines the ‘injury’ issue. That is an exception to the norm.

[257] The absence of any similar provisions for ‘the nature of the injury’ points strongly to the conclusion that ‘the nature of the injury’ is a matter for the Commission to determine. This is consistent with Emmett JA’s statement at [111] that it is for the Commission ‘to determine whether a worker has suffered an injury within the meaning of s 4 of the [1987] Act’ and his Honour’s later statement (at [118]) that only ‘certain matters of causation’ (emphasis added) are within the exclusive jurisdiction of an AMS.”

81. In this Court’s earlier reasons of 29 October 2015 no comment was made in relation to these reasons of Deputy President Roche. It is evident that no issue was raised in the earlier appeal about the correctness of those reasons. As the Senior Arbitrator and Acting President recognised on the redetermination of the matter, the Senior Arbitrator was obliged to determine what was the nature of the work-related injury suffered by Mr Jaffarie by reason of the order of this court of 29 October 2015 that required the matter to be re-determined in accordance with the Deputy President’s judgment where that was not varied by the Court of Appeal. The Acting President made no error in so deciding.

82. It is for these reasons that I would reject grounds 2 and 4 of the notice of appeal that the Senior Arbitrator acted without jurisdiction and “… had no other option [but] to refer the medical dispute as defined by the relevant legislation to the AMS”.

83. By ground 3 Mr Jaffarie asserted that the Senior Arbitrator acted unreasonably in excluding injury to the thoracic spine. However, there was evidence upon which the Senior Arbitrator could properly have made the determination that she did. It does not appear to me that the determination was unreasonable, let alone, that it was a determination at which no reasonable decision-maker could have arrived. Mr Jaffarie did not point to the Senior Arbitrator as having acted on any wrong principle. This ground raises no error in point of law.

84. For these reasons I agree that the appeal should be dismissed with costs.

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Annexure "A"

Decision last updated: 27 April 2018