L'Estrange v Manildra Meat Company Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	L'Estrange v Manildra Meat Company Pty Ltd [2022] NSWPIC 563
APPLICANT:	Alan Robert L’Estrange
RESPONDENT:	Manildra Meat Company Pty Limited
Member:	Paul Sweeney
DATE OF DECISION:	11 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Whether a revoked Medical Assessment Certificate (MAC) is evidence that the worker is a “worker with high needs”; whether a worker who has been assessed for permanent impairment compensation is entitled to a further medical assessment to establish that he is a “worker with high needs” or surpasses the section 39 of the Workers Compensation Act1987 threshold to permit continuation of weekly payments after five years; Merchant v Shoalhaven City Council considered and applied; Held – the revoked MAC had no statutory force and effect in respect of the degree of permanent impairment of the worker; the new MAC issued by the Medical Assessment Panel was binding and conclusive as to that question; that the applicant was not entitled to a further medical assessment by operation of section 322A of the Workplace Injury Management and Workers Compensation Act 1998.
determinations made:	1. That the proceedings be dismissed.

STATEMENT OF REASONS

BACKGROUND

By these proceedings Alan Robert L’Estrange ( the applicant) seeks an assessment of the degree of permanent impairment resulting from proven injuries for the purpose of establishing that he is a “worker with high needs” as that term is defined by s 32A of the Workers Compensation Act 1987 (the 1987 Act).The litigation between the parties has a long history.
On 6 October 2020, in matter number 3444/20, following a contested hearing, I found that the applicant suffered injury by way of aggravation of pre-existing injuries or pre-existing medical conditions to his neck, back, wrists, elbows, right shoulder, right hip and both knees. I found that the injuries were deemed to have occurred on 27 February 2016 for the purpose of s 15 of the 1987 Act.
As the applicant claimed compensation pursuant to s 66 of the 1987 Act in those proceedings, I remitted the matter to the Registrar of the then Workers Compensation Commission for referral to an Approved Medical Specialist (AMS) to certify the degree of whole person impairment of the body parts referred.
I referred for assessment each of the body parts which Dr Dixon, the applicant’s qualified orthopaedic surgeon, opined contributed to permanent impairment. These were the cervical spine, the thoracic spine, the lumbar spine, the left upper extremity (left shoulder and left elbow), the right upper extremity (elbow and wrist), the right lower extremity (knee), and the left lower extremity (knee).
The Registrar referred the medical dispute to Dr Anderson, an AMS, who issued a Medical Assessment Certificate (MAC) on 8 December 2020 by which he certified that the applicant suffered 29% whole person impairment (WPI) as a result of the injuries.
Manildra Meat Company Pty Limited (the respondent) appealed from the medical assessment pursuant to s 327 of the Workplace Injury Management Act !998 ( the1998 Act). A Medical Appeal Panel (MAP) revoked the MAC of Dr Anderson. On 9 April 2021, it issued a new MAC by which it certified that the applicant suffered 18% WPI.
By an Amended Certificate of Determination dated 28 April 2021, I ordered that the respondent pay the applicant weekly compensation between 26 February 2016 and 26 August 2018 during the first and second entitlement periods. With the consent of the parties, I also ordered that the respondent pay the applicant $44,495.33 in respect of 18% WPI in accordance with the MAC dated 9 April 2021.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

As the respondent disputes that the applicant is entitled to a further medical assessment the Commission appointed a preliminary conference in the matter which took place on 10 August 2022. At the telephone conference Mr McCabe, solicitor, represented the applicant and Ms Petrolo, solicitor, represented the respondent. The dispute as to whether the applicant was a “worker of high needs” or surpassed the s 39 threshold could not be resolved at the conference. The respondent argued that s 322A of the 1998 Act precluded a further assessment of WPI. I issued a Direction that the parties file and serve written submissions on the issue. Those submissions have now been received in the Commission.

SUBMISSIONS

As the submissions of both parties are in writing, I do not propose to reiterate each of the arguments put by the parties. I note, however, that Mr McCabe lodged two documents in response to my Direction. One is headed “Specific Submissions” and the other “General Submissions”.
Mr McCabe stressed that this application did not claim further permanent impairment compensation. The only relief sought was an assessment of the degree of permanent impairment for the purposes of s 32A and s 39 of the 1987 Act. In short, it dealt with a “threshold dispute” and was distinguishable from the claims for permanent impairment compensation pursuant to s 66 made in the previous proceedings between the same parties.
Secondly, Mr McCabe noted that the definition of a “worker with high needs” includes a worker whose injury has resulted in permanent impairment and:
“(c) The insurer is satisfied that the degree of permanent impairment is likely to be more than 20%.”
The submission continues:
“In accordance with section 32A(c), it is submitted that the insurer should be satisfied that the degree of permanent impairment has been assessed and is more than 20% in accordance with the medical assessment certificate issued by the Approved Medical Specialist on 18 December 2020 in respect of permanent impairment of 29% for the injuries as found by the Arbitrator on 15 October 2020.”
As I understand that submission, it is that the respondent’s insurer should be satisfied that the applicant’s degree of permanent impairment is likely to be more than 20% on the basis of the MAC of Dr Anderson which was revoked by the medical panel on 9 April 2021.
Thirdly, the applicant argues that s 322A(2) only forbids a further medical assessment “in connection with” a claim for permanent impairment, commutation, or work injury damages. The submission continues that s 322A(2):
“does not state that only one MAC is to be used for section 32A or section 39 disputes as to weekly entitlements and medical expenses under section 59A. Therefore, the Applicant’s section 39 assessment of permanent impairment is not limited by section 322A of the WIM Act 1998.”
Fourthly, the submissions of the applicant refer to the beneficial nature of the legislation and to the requirement in s 354(3) of the 1998 Act for the Commission to act “according to equity, good conscience and the substantial merits of the case”.
Finally, the applicant referred to authorities dealing with statutory construction and concluded thus:
“1. In accordance with S 32A(3) of the 1987 Act, the insurer has to be satisfied that the applicant has permanent impairment of more than 20%, i.e. 29% whole person impairment as found by the AMS on 18 December 2020 for the accepted injuries as found by the Member on 5 October 2020.
2. S 39 of the 1987 Act is dealing with the issue as to whether the worker’s permanent impairment is more than 20% to determine whether weekly compensation continues after the 5-year period. It is submitted the Applicant suffers from permanent impairment of 29% as found by the AMS on 18 December 2020 for the accepted injury as found by the Arbitrator on 5 October 2020.
3. Each section has a different referral to assess the permanent impairment. They are as follows:
4. Section 32A of the 1987 Act worker of ‘high’ needs:
(a)in this section the degree for permanent impairment has to be assessed for the purposes of Division 4 of more than 20% or
(c)the insurer is satisfied that the degree of permanent impairment is more than 20%.
It is submitted that the applicant would fall into 32A(c) and the insurer has to accept that the applicant has 29% permanent impairment on 5 October 2020.”
By its “General Submissions” the applicant asserts that the respondent’s insurer, ICare Workers Insurance, is bound by the Model Litigant Policy for Civil Litigation as set out in the NSW Premier’s Memorandum issued on 29 June 2016. He then sets out some of the “key requirements” of that policy. The submission refers to a series of cases from appellate courts which eschew the taking of technical points by the Crown and by analogy the respondent’s insurer in this case.
The respondent submitted that as the applicant had an assessment of the degree of permanent impairment as a result of the accepted injuries, s 322A(2) precluded a further assessment. It argued that the MAC of of 9 April 2021 was the:
“only MAC that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned.”.
The respondent argued that s 322A(2) had been considered by the Presidential Unit of the Commission in several cases. In O’Callaghan v Energy World Corporation [2016] NSWWCCPD 1, Roche DP stated that the section operates in concert with s 66(1A) of the 1987 Act and restricts a worker to only one claim for permanent impairment. The matter had also been discussed by the Presidential Unit in Matilda Cruises Pty Ltd v Sweeny [2018] NSWWCCPD 37 (Sweeny).

LEGISLATION

Section 322A states:
“(1)    Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(2)     The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3)     Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of--
(a) assessment and a medical assessment certificate under this Part, or
(b) a determination by the Commission under Part 4.
(4)     This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by non-presidential member).”
Section 326 of the1998 Act deals with the status of medical assessments. It is as follows:
“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.”

DISCUSSION AND FINDINGS

It is difficult to understand the applicant’s submission that the Commission, or the respondent’s insurer, should accept and act on the MAC of Dr Anderson dated 18 December 2020. It was revoked by the decision of the MAP of 9 April 2021. The new certificate issued by the MAP is conclusively presumed to be correct as to the degree of permanent impairment of the applicant as a result of an injury in accordance with s 326(1)(a) of the 1998 Act. Conversely, from 9 April 2021, the MAC of Dr Anderson ceased to have any statutory force or effect in respect of the degree of WPI as a result of the injury referred for assessment.
There is no basis for the Commission to accept the revoked certification of Dr Anderson. On the contrary, it is obliged to accept the certification of permanent impairment by the MAP. Equally, there is no substance in the argument that the insurer is obliged to accept the MAC of Dr Anderson and conclude that the applicant is a worker of “high needs”. It was entitled to rely on the MAC of 9 April 2021 that the applicant suffered 18% WPI as a result of the proven injuries.
Somewhat belatedly, the respondent’s insurer qualified a medical practitioner for the purposes of these proceedings. Dr Richard Powell, an orthopaedic surgeon, opined in a report of 10 May 2022 that the applicant suffered 9% WPI as a result of injuries sustained in the course of his employment with the respondent. Plainly, this is further evidence on which the insurer was entitled to rely in reaching a conclusion as to whether the applicant’s WPI was greater than 20%. However, this is probably a distraction as, in my opinion, the MAC of the 9 December 2001 puts the matter beyond doubt.
I accept the applicant’s submission that a distinction can be drawn between claims for permanent impairment compensation and threshold disputes as to whether a worker is of “high needs” or of “highest needs”. Section 66(1A) of the 1987 Act restricts claims for “permanent impairment compensation”. Clearly, these threshold disputes do not involve permanent compensation: c.f. Rebecca Anne Robin-True v Stella Maris College No. 004011/16 (5 January 2017).
However, s 322A is in wide terms. Sub-section322A(1) emphatically states:
“(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.”
The applicant argues that the width of the section is cut down by the words in parentheses in s 322A(2). I doubt, however, that the omission of a specific reference to threshold disputes relating to whether a worker is of “high needs” or “highest needs” or to s39 in that subsection leads to a conclusion that they are excluded from the regime of only one assessment of permanent impairment imposed by the section.
When considering the meaning of the section it is, of course, necessary to employ the principles enunciated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR and, in the context of the workers compensation legislation, the decision of the High Court in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 (16 May 2014). The task of construction commences with a consideration of the text of the legislation. It is necessary, however, to consider text in the legislative context, including the purpose and policy of the Act. While it remains true that the Act as a whole has a “beneficial” purpose that does not mean that each provision is to be construed beneficially. Plainly, many of the amendments introduced by the Workers Compensation Legislation Amendment Act 2012, including s 322A, were not intended to be beneficial.
In my opinion, the words in parentheses in subs 322A (2) are merely intended to clarify or illustrate the width of the section. In Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95, the Court of Appeal stated at [126]:
“It is not impossible for words of inclusion or illustrations to be construed as confining or limiting more general words appearing in the same provision. Orthodox principles of interpretation might lean to such a result in a particular case. However, it is ‘an unusual way to proceed’ to limit general words by illustrations rather than specific language. This is particularly the case where the illustrations are contained within parenthesesand prefaced by the words ‘such as’. (parentheses in NSW legislative provisions. In the case of Dunn v Regin it was stated at [32] that ‘[t]he examples given in parentheses are merely that, i.e. examples, they do not comprise an exhaustive list of the groups envisaged by the subsection.’”
In the context of the emphatic language in s 322A (1), it is highly unlikely that the words in parentheses in s 322A (1) were intended to limit the general words of the section.
The argument put by the applicant has been raised and rejected by the Commission in earlier cases. In Merchant v Shoalhaven City Council [2015] NSWWCCPD 13, his Honour Judge Keating said this at [127]:
“Mr McManamey argued in reply that s 322A(2) ‘limits the operation of the section to disputes about claims for permanent impairment compensation, commutations and work injury damages but not to disputes about whether the worker is seriously injured’. He added ‘the failure to mention seriously injured worker in section 322A is consistent with section 32A not being so restricted’. I disagree. The limitation on the number of assessments in s 322A applies to ‘any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury...’ (s 322A(2)) (emphasis added). Whilst the matters referred to by Mr McManamey are certainly included as matters to which the limitation applies, the sub-section expressly applies to any further assessment.”
In Mohamed Abdelatif Mohamed Ali v Access Quality Services WCC 378/19 (26 February 2019), Principal Member Bamber applied that reasoning to circumstances similar to the present case. She held that a worker, who had obtained an assessment of permanent impairment for the purposes of establishing a right to compensation, was precluded from bringing a further application for a medical assessment in respect of the s 39 threshold. The medical assessment of the threshold dispute involved a further assessment of the degree of impairment as a result of the injury and the worker was limited to one assessment.
The Principal Member noted that if this was not so a worker could apply for and obtain several further MACs dealing with threshold disputes for “high needs”, “higher needs”, domestic assistance (s 60), and compensation after 260 weeks (s 39). It is difficult to envisage that this is consistent with the policy underlying the 2012 legislative changes.
There are also many cases decided by both members and the presidential unit of the Commission which have been determined on the unstated assumption that s 322A limits a worker to one assessment. Sweeny, a decision of Deputy President Snell, which was referred to by the respondent is one such case. As far as I’m aware there is no decision to the contrary. These cases involve the interpretation of the various Regulations which had been introduced by the executive to ameliorate the severity of the rule that there can be only one MAC in respect of the permanent impairment of a worker as a result of an injury.
This legislative history must also be considered. If the outcome contended for by the applicant is correct, it would have been completely unnecessary for the executive to introduce the Workers Compensation Amendment (Transitional Arrangements for Weekly Payments) Regulation 2016 which was published on 16 December 2016. It can now be found in Part 2A of Schedule 8. It is headed “Special Provisions for Existing Recipients of Weekly Payments – 2012 amendments”. Clause 28D is as follows:
(1) This clause applies to an injured worker if the degree of permanent impairment resulting from the worker’s injury is or has been assessed for the purposes of the Workers Compensation Acts.
(2) Section 322A of the 1998 Act does not operate to prevent a further assessment being made of the degree of permanent impairment resulting from the worker’s injury for the purposes of Part 3 of the 1987 Act.
(3) However, only one further assessment may be made of the degree of permanent impairment resulting from the worker’s injury.

Importantly, Part 2A took effect from 1 October 2012 and applied “to an injured worker who is an existing recipient of weekly payments”. It contemplates that a further assessment of permanent impairment may be made in respect of a worker of “high needs” or “highest needs” for the purposes of s 39. But it only grants a right to one further assessment of permanent impairment to a specific cohort of workers, namely “existing recipients”. That cohort has a right to one further assessment of permanent impairment
If a Regulation has any role to play in statutory interpretation, Part 2A was undoubtedly published on the assumption that the one medical assessment regime applied to all assessments of permanent impairment for the purposes of determining whether a worker was a worker of “high needs” or of “higher needs” or any of the other threshold disputes which arise under the 1987 Act.
For these reasons, I conclude that the applicant’s argument that he is entitled to a further assessment of a threshold dispute must be rejected. It is not consistent with the language of s 322A or the case law which addresses the section.
It also must be borne in mind that the only evidence on which he relies to support the proposition that he is entitled to consideration as a worker of “high needs” is the revoked MAC of Dr Anderson. Section 328 (5) of the 1998 Act, however, applies s 326 to the new MAC issued by the MAP on 9 April 2021. It is that MAC which is binding and conclusive as to the degree of permanent impairment of the worker as a result of the injuries.
As the applicant is not entitled to a further assessment of permanent impairment as a result of his proven injuries, I propose to dismiss the Application.

[2022] NSWPIC 563

11 October 2022