Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley) Pty Ltd trading as Lachley Meats v Merritt - [2019] NSWWCCPD 49

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Status: Revoked on reconsideration – see *Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley) Pty Ltd trading as Lachley Meats v Merritt (No 2)* [2020] NSWWCCPD 67
CITATION:	Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley) Pty Ltd trading as Lachley Meats v Merritt [2019] NSWWCCPD 49
APPELLANT:	Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley) Pty Ltd trading as Lachley Meats
RESPONDENT:	Linda Merritt
INTERVENER:	State Insurance Regulatory Authority
INSURER:	AAI Limited t/as GIO – Agent for Insurance for NSW
FILE NUMBER:	A1-239/19
ARBITRATOR:	Mr Paul Sweeney
DATE OF ARBITRATOR’S DECISION:	2 April 2019
DATE OF APPEAL DECISION:	12 September 2019
SUBJECT MATTER OF DECISION:	Construction of s 39 of the Workers Compensation Act 1987; RSM Building Services Pty Ltd v Hochbaum [2019] NSWWCCPD 15; Technical and Further Education Commission t/as TAFE NSW v Whitton [2019] NSWWCCPD 27
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	5 August 2019
REPRESENTATION:	Appellant:	Mr S Flett, of counsel, instructed by Rankin Ellison Lawyers
Respondent:	Mr L Morgan, of counsel, instructed by Toby Tancred Solicitors
Intervener:	Ms J Davidson, of counsel, instructed by the Crown Solicitor
ORDERS MADE ON APPEAL:	1. Order 1 of the Arbitrator’s Certificate of Determination of 2 April 2019 is confirmed. 2. The appellant employer’s name is amended from “Workers Compensation Nominal Insurer (incorrectly referred to in the ARD as Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley Pty Ltd trading as Lachley Meats (deregistered)” to Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley) Pty Ltd trading as Lachley Meats. 3. Orders 2 and 3 of the Arbitrator’s Certificate of Determination dated 2 April 2019 are revoked and an Award is entered in favour of the appellant employer.

INTRODUCTION

This is another appeal which concerns the application and interpretation of s 39 of the Workers Compensation Act 1987 (the 1987 Act). Section 39 of the 1987 Act provides that a worker’s entitlement to payments of weekly compensation is only available for an aggregate period of 260 weeks, unless the worker’s degree of permanent impairment resulting from injury is more than 20%. I note that this matter was heard by Arbitrator Sweeney before my decision in Hochbaum.[1]
[1] [2019] NSWWCCPD 15 (Hochbaum), 18 April 2019.
The issue for determination on appeal is whether a worker is entitled to weekly payments of compensation, after the expiry of an aggregate period of 260 weeks and before the worker has been assessed by an Approved Medical Specialist (AMS) with a degree of permanent impairment that results from injury that is greater than 20%.
For the reasons discussed below, the award made by the Arbitrator is revoked and an award for the appellant employer is substituted in its place.

BACKGROUND

The facts in this matter are not in contest. However, given the operation of s 39 of the 1987 Act, the chronology of events is important and in particular two dates, 26 December 2017 and 1 November 2018. Section 39(2) of the 1987 Act permits a continuation of weekly compensation payments after 260 weeks in certain circumstances. When weekly payments are restored is in dispute, hence the importance of the chronology.
In or around 1993 and 1994, Ms Merritt suffered injuries to her neck, left shoulder, right arm, low back and legs while performing manual lifting activities in the course of her employment with the respondent.
Ms Merritt’s deemed date of injury is 10 January 1994. Ms Merritt underwent various forms of treatment for her injuries, up to and including shoulder surgery on 23 January 2017. From 1 October 2012, compensation payments were made to Ms Merritt in respect of her injuries.
On 13 July 2017, Ms Merritt was assessed at 19% whole person impairment (WPI) by Dr Bosanquet, the insurer’s physician. On 25 September 2017, QBE notified Ms Merritt that her weekly payments of compensation would cease in December 2017, on the basis of her 19% WPI assessment. Ms Merritt’s claim was subsequently transferred to AAI Limited t/as GIO (the insurer) in December 2017.
On 25 December 2017, Ms Merritt’s weekly benefits ceased by virtue of the operation of s 39(1) of the 1987 Act.
At some date between 20 and 23 March 2018, Ms Merritt served the insurer with a report of Dr Christopher Oates, who assessed Ms Merritt as having 21% WPI.
On 23 March 2018, the insurer served a s 74 Notice disputing entitlement to weekly benefits pursuant to s 39 of the 1987 Act. On 28 March 2018, Ms Merritt made a further claim for lump sum compensation. On 29 March 2018, the insurer responded to her claim for lump sum compensation and weekly benefits by reference to the s 74 Notice. An Application to Resolve a Dispute (ARD)[2] was registered on 10 August 2018.
[2] Matter number 4116/18.
On 15 October 2018, Ms Merritt was referred to an AMS, Dr Tim Anderson for an assessment of permanent impairment.
On 1 November 2018, Dr Anderson issued a Medical Assessment Certificate (MAC), assessing Ms Merritt as having 24% WPI. On 21 November 2018, Ms Merritt made a claim to the insurer for payment of arrears of weekly benefits for the period between 26 December 2017 and 31 October 2018 (the disputed period).
On 4 December 2018, the respondent’s solicitors advised Ms Merritt that her weekly benefits would be reinstated from 1 November 2018 subject to Centrelink clearance. On 5 December 2018, a Certificate of Determination (COD) was issued in matter number 4116/18 in respect of Ms Merritt’s claim for lump sum compensation.
On 16 January 2019, Ms Merritt filed an ARD[3] in respect of payment for weekly benefits for the disputed period.
[3] Matter number 239/19.
On 6 February 2019, the respondent employer filed a Reply to the ARD.
On 25 March 2019, the matter was listed for hearing before Arbitrator Sweeney, who provided an ex tempore decision on the same day. The Arbitrator stated that by and large he “intend[ed] to follow [his] reasoning in Kennewell[4] and the reasoning of Senior Arbitrator Bamber in Hochbaum”.[5]
[4] Kennewell v ISS Facility Services Australia Limited t/as Sontic Pty Limited [2018] NSWWCC 216, 14 September 2018 (Kennewell).
[5] Transcript of extempore reasons, 25 March 2019, pp 1–2.

ORAL HEARING

Given the nature of the issues in dispute, I set the matter down for hearing on 5 August 2019.
A preliminary matter arose at the beginning of the hearing on 5 August 2019 regarding the proper identification of the appellant employer. The matter below was conducted with the employer named as “Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley) Pty Ltd trading as Lachley Meats“. The Arbitrator was informed that the respondents entered into a contract of insurance with an insurer/scheme agent, “Workers Compensation Nominal Insurer”, in respect of the respondents’ liability to the worker under the 1987 Act prior to being wound up. In respect of this issue, the Arbitrator in his Certificate of Determination dated 2 April 2019, made the following order:
“1. Pursuant to section 162(1)(d) of the Workers Compensation Act 1987 declare that the respondents entered into a contract of insurance with an insurer/scheme agent in respect of the respondents’ liability to the applicant under the 1987 Act prior to being wound up.”
In the matter before me, the appellant was named as “Workers Compensation Nominal Insurer (incorrectly referred to in the ARD as Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley) Pty Ltd trading as Lachley Meats (deregistered)”. Counsel for the appellant was directed to confirm the correct identity of the appellant at hearing. The appellant’s solicitors confirmed the identity of the appellant to be “Workers Compensation Nominal Insurer” by email on 13 August 2019.
I note that s 162(1) of the 1987 Act does not empower the Commission to order that an insurer be substituted for an employer in proceedings but, rather, permits a declaration to be made pursuant to section 162(1). Such declaration addresses the date of injury and the existence of a contract between the employer and the insurer.[6] As outlined above, such a declaration was made in the matter below. It is appropriate for this to be reflected in the present appeal case and for the parties to be properly named.
[6] Evans-Toyne v Dream Homes (NSW) Pty Ltd (in liquidation) [2010] NSWWCCPD 64, [9].
By consent of the parties by email dated 12 September 2019, pursuant to r 4.2 of the Workers Compensation Commission Rules 2011 (the Rules), I make the orders substituting the correctly named appellant, Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley) Pty Ltd trading as Lachley Meats.

THRESHOLD MATTERS

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

THE EVIDENCE

This appeal turns upon the proper construction of s 39 of the 1987 Act. The facts in this matter are uncontroversial, however, the facts and the chronology set out above in the section headed “Background” are important.
The Arbitrator noted that it was not readily apparent that there was a work capacity decision in this case. The Arbitrator made a direction that the employer produce to the Commission and to the worker all documentation touching on any work capacity decision made by it, however nothing of this description was provided. The Arbitrator noted:
“On the other hand, the statutory obligation of the insurer in the third entitlement period is to carry out a work capacity decision. It seems that may have been done informally because the wages material before the Commission clearly states from 2014 onwards that the worker was being paid on the basis of total incapacity.
When payments recommenced in November of 2018, there was also a notation made in the list of payments that the worker was being paid based on no work capacity or total incapacity. Those terms seem to be used interchangeably in the list of payments. In the list of payments time and time again this formulation was used post-secondary entitlement - no work capacity.
Patently the insurer would not have paid the worker on that basis if it was not satisfied that she was unable to work, did not have a current earning capacity, to use the current phraseology.”
On appeal, Mr Flett, counsel for the appellant employer, confirmed that there was no relevant dispute about the worker being incapacitated for work.[7]
[7] Transcript of appeal hearing of 5 August 2019, p 22.

THE ARBITRATOR’S REASONS

As is the case in this appeal, there were no material facts in dispute when this matter was heard before the Arbitrator. The Arbitrator was only called upon to decide two matters. The first matter related to the Commission’s jurisdiction to determine the dispute. The employer submitted that ss 38 and 39 of the 1987 Act are, as a matter of statutory construction, intended to be the exclusive domain of the insurer (or the employer) and not a matter for the Commission. The second matter was determination of the proper construction of s 39 of the 1987 Act.
The Arbitrator noted that the thrust of the appellant’s argument was that s 39 should operate “in the present”. The Arbitrator said that whilst an argument in relation to present operation may be attractive, he did not believe it was textually available. He noted the argument that the section was not retrospective “has been dealt with by Commission Arbitrators in the past and with respect it would seem to have no real force in view of what was said about the doctrine of statutory retrospectivity in Goudappel”.[8]
[8] Transcript of Reasons, pp 4–5, referring to ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 (Goudappel).
The Arbitrator then referred to the role of the Commission in determining the true construction of s 39 being to interpret the words in the context of the legislation and in accordance with the rules of statutory construction, referring to Project Blue Sky Inc v Australian Broadcasting Authority[9] and Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT).[10] The Arbitrator noted the popular use of purposive interpretation of legislation in the past,[11] but then highlighted the return to the textual construction of statutory provisions, the history and context of the legislation in statutory interpretation following Project Blue Sky.
[9] [1998] HCA 28 (Project Blue Sky).
[10] [2009] HCA 41; 239 CLR 27 (Alcan).
[11] Referring to the Court of Appeal’s consideration of the Workers’ Compensation Act 1926 in Amco Wrangler Ltd v Sukkar (1985) 1 NSWLR 577.
The Arbitrator stated:
“Section 39 is a limitation provision. The clear words of the section, that is section 39(1), are that compensation ceases after 260 weeks. The exception, however, is that does not apply ‘when the worker has an assessment of more than 20 per cent whole person impairment.’
While I may be wrong, I remain of the opinion that the words of section 39(2) ‘does not apply’ means that the limitation provision in s 39(1), which restricts weekly payments to 260 weeks, does not apply at all in cases where the worker has been certified as having more than 20 per cent whole person impairment.
…
The context, in my view, and the literal meaning of the words in the Act lead inexorably to the conclusion that once there is a certification of whole person impairment greater than 20 per cent then there is no limitation on the payment of compensation.”[12]
[12] Transcript of Reasons, pp 5–6.
The Arbitrator referred to Snell DP’s decision in Cleland v Carter,[13] which was referred to by counsel for the appellant and which concerned the operation of s 60AA in the context of demonstrating the present tense operation of that provision. The Arbitrator found that this decision did not preclude the outcome he reached in this case, but in fact reinforced his opinion on the proper construction of ss 39(1) and (2).
[13] [2016] NSWWCCPD 29 (Cleland v Carter).
The Arbitrator further stated:
“I suggested in Kennewell that the theory of interpretation favoured by the respondent really involved reading words into section 39. That, in my view, remains the case. As said, section 39(2) uses the words ‘does not apply’. It does not matter in what way one considers that statutory language, it is totally emphatic. I, therefore, conclude that section 39(2) being operative in this case that the applicant has an entitlement to compensation in accordance with section 38 for the period claimed in the Application.”[14]
[14] Transcript of Reasons, p 7.
In respect of the question of the Commission’s jurisdiction to make an award in the extended s 38 period, the Arbitrator referred to the decisions Lee v Bunnings,[15] Taumalolo v Industrial Corporation Pty Limited[16] and his decision in Kennewell No 2,[17] in finding “the Commission does have jurisdiction to determine weekly payments in the section 38 period provided the determination is consistent with a determination of the insurer, that is, if it is consistent with a work capacity decision of the insurer.”[18] The Arbitrator noted that whilst it was not readily apparent that there was a work capacity decision in this case, the evidence indicated Ms Merritt had no current earning capacity and she was paid as such for the relevant periods prior to and after the cessation of her payments. In those circumstances, the Arbitrator found there was no proper factual basis in this case, for the insurer to argue that the Commission did not have jurisdiction (though he noted a contrary view may be available).
[15] [2013 NSWWCCPD 54.
[16] [2018] NSWWCC 243.
[17] Kennewell v ISS Facility Services Australia Ltd t/as Sontic Pty Ltd, (2914/18, 29 November 2018).
[18] Transcript of Reasons, p 8.
The Arbitrator further noted there was no evidence that “[Ms Merritt’s] condition varied, ameliorated or improved during that period and there is nothing to suggest that there is an argument available that the insurer’s previous payments were erroneous or they should have been, or could have been varied during that period”.[19]
[19] Transcript of Reasons, p 9.
In light of the above reasons, the Arbitrator found that Ms Merritt had an entitlement to weekly payments from 26 December 2017 to 1 November 2018 in the weekly amounts in the Application.

GROUNDS OF APPEAL

The appellant’s single ground of appeal is that the Arbitrator erred in his interpretation of s 39 of the 1987 Act. The appellant employer submits that s 39(2) of the 1987 Act allows weekly payments of compensation to continue beyond an aggregate period of 260 weeks but only on or from the date of such assessment and not in the intervening period prior to this.

LEGISLATION

The relevant legislation is extracted below.
Section 38 of the 1987 Act provides:
“38    Special requirements for continuation of weekly payments after second entitlement period (after week 130)
(1)     A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2)     A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3)     A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if:
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.
(3A) A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.
(4)     An insurer must, for the purpose of assessing an injured worker’s entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted:
(a) during the last 52 weeks of the second entitlement period, and
(b) thereafter at least once every 2 years.
Note. An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.
(5)     An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.
(6)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − D, or
(b) MAX − D,
whichever is the lesser.
(7)     The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.
(8)     A worker’s entitlement to compensation under this section may be reassessed at any time.”

Section 39 of the 1987 Act provides:
“39    Cessation of weekly payments after 5 years
(1)     Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.
(2)     This 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%.
Note. For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.
(3)     For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).”
Section 65 of the 1987 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.”
Section 322 of the 1998 Act provides:
“322 Assessment of impairment
(1)     The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2)     Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3)     Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note. Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4)     An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”

SUBMISSIONS

Appellant’s submissions

The appellant submits that the Arbitrator correctly referred to the rules of statutory construction in Project Blue Sky and Alcan, but that he erred when construing the operation of s 39 of the 1987 Act. The appellant submits the correct interpretation of s 39 is as follows. Section 39(1) provides a limitation in respect of weekly compensation and s 39(2) operates to lift the bar that is created by s 39(1). Section 39(3) then provides the parameters and a detailed definition which sets out how the operative provision in s 39(2) is to operate.
The appellant submits that the Arbitrator erred in his interpretation of s 39 as having retrospective operation on the following basis.
The appellant refers to my decision in Hochbaum and states that the present case is factually similar, and should be decided accordingly (I outline the similarities of the current matter and Hochbaum at [67] below).
The appellant submits that the tense employed by the legislature is a "significant indicator to the proper construction" of a statute.[20] The appellant submits the plain words of the provision are expressed in present tense, and the Arbitrator erred when he found to the contrary. Further, the present tense supplied the relevant temporal component to the operation of s 39(2). That is, whether the lifting of the bar under s 39(1) depends on the existence of the permanent impairment assessment as provided for in s 39(3). The appellant referred to the High Court’s decision in Shi v Migration Agents Registration Authority[21] in respect of the existence of a temporal component, and noted that the Arbitrator did not have jurisdiction to enter an award which had the effect of restoring an entitlement to weekly payments of compensation before the relevant criterion of s 39(3) was met.
[20] Cronulla Sutherland Leagues Club Ltd v Federal Commissioner of Taxation (1990) 23 FCR 82, 89, 116.
[21] [2008] HCA 31; 235 CLR 286 (Shi), [101].
The appellant further submits “that Section 39 is a 'point of time' statute, like that of Section 60AA”, and should be interpreted as such, referring to DP Snell’s decision in Cleland v Carter.
The appellant submits the Arbitrator erred in not considering the whole of s 39, but following his reasoning in Kennewell to find that once a worker has been certified as having greater than 20% WPI, s 39 “does not apply”, and weekly payments of compensation continue “as if the section was nugatory”.[22] The appellant refers to my decision in Hochbaum in its submission that by this reasoning, the Arbitrator “failed to strive to give meaning to all the words in Section 39” and that that was an error of law.[23]
[22] Kennewell, [47].
[23] Hochbaum, [132].
The appellant submits the Arbitrator’s interpretation of s 39 “read[s] words into the section, as opposed to considering and analysing the section as a whole.” It further submits the provision is non-beneficial and the intention of parliament was, in many respects, one of a cost saving nature, again citing my decision in Hochbaum at paragraphs [151]–[152]. The appellant submits that its interpretation of s 39, as enunciated by me in Hochbaum, provides certainty and consistency in the application of the provision, which is ascertainable on any given day.

Ms Merritt’s written submissions

Ms Merritt submits that the Arbitrator did not err and his decision should be confirmed. Ms Merritt refers to and supports the Arbitrator’s finding that “The context … and the literal meaning of the words in the Act lead inexorably to the conclusion that once there is a certification of Whole Person Impairment greater than 20 per cent then there is no limitation on the payment of compensation.”[24]
[24] Transcript of Reasons, p 6.
Ms Merritt goes on to say that in any event, Hochbaum can be distinguished from the present facts. Ms Merritt submits:
“[17] The critical difference in the Hochbaum facts and the present matter is that in Hochbaum there remained a live dispute between the parties as to what injuries and conditions were said to give rise to Whole Person Impairment and were properly related to the accepted injury.
[18] Unlike here, in Hochbaum there had not been, any assessment of Whole Person Impairment exceeding 20% relative to ‘accepted’ impairments prior to the cessation of payments.”
Ms Merritt observes that that even if one has regard to the language employed in s 39(2) as being expressed in the present tense, it still creates an exception to the exclusion in sub-section (1) to workers whose WPI is assessed as being greater than 20%. She submits that the present tense would only be relevant to the time when the WPI is assessed pursuant to s 65 of the Act. If a worker has been assessed as having a WPI of greater than 20 percent, then the preclusion to further entitlements for weekly compensation beyond 260 weeks does not apply to that worker and he or she can receive the entitlements beyond the aggregate period of 260 weeks.
Ms Merritt submits that s 39(3) can operate ‘independently’ in respect of the method by which a worker’s WPI is assessed, however this does not have bearing on the application of weekly benefits compensation beyond the aggregate 260 weeks, except for the fact the worker needed to have greater than 20% WPI. She submits “the present tense as identified must relate solely to the assessment itself and not to the point in time where weekly payments are payable.”
Ms Merritt further submits that s 39 exists to ensure certain injured workers receive weekly compensation after a period of 260 weeks. She says the section should not be construed to mean a worker would not ever be entitled to be compensated for the period following the lapse of the 260 weeks until the date of the relevant assessment, regardless of the outcome of that medical assessment. She submits this interpretation is inconsistent with the fact there was a work capacity assessment pursuant to s 38 the Act to the effect that weekly compensation payments could continue indefinitely. Given this existing work capacity decision and her assessment of greater than 20% WPI, Ms Merritt submits the Arbitrator had jurisdiction to make the award for weekly compensation for the disputed period.
Ms Merritt supports the Arbitrator’s approach to the construction of s 39, and submits the employer’s construction reads words into the statute that do not exist and further do not achieve the clear ambition of the statute to provide certain classes of workers with compensation beyond the otherwise mandated 260 weeks.
Ms Merritt notes that the issue of whether s 39, or any of the sub-sections therein, is/are beneficial or not, is beside the point as the “literal meaning of the words in the Act” support the findings made by the Arbitrator. Ms Merritt submits that the construction of s 39 favoured by the Arbitrator does not cause uncertainty or inconsistency.

Ms Merritt’s oral submissions

At the hearing of the appeal, counsel for Ms Merritt, Mr Morgan, adopted and expanded on Ms Merritt’s written submissions. I note that Mr Morgan conceded that absent an agreement as to WPI in this matter, the MAC of 1 November 2018 was the relevant assessment for the purposes of s 39(3).[25]
[25] Transcript of appeal hearing, 14.9–13.
Counsel referred to the Court of Appeal’s decision in Hee v State Transit Authority of New South Wales[26] at [108] in respect of the submission of an analysis of what the section hopes or seeks to achieve. Counsel noted that s 39 falls within Div 2 of the 1987 Act, titled “Weekly compensation by way of income support”. Mr Morgan noted that when one talks about compensation, reference is made to a loss that has been incurred which needs to be addressed, and this is the purpose of the Act. Mr Morgan noted that whilst much has been said about the retrospectivity in the analysis of s 39, Div 2 by its very nature is directed to a retrospective reinstatement of rights as workers compensation legislation does not have prospective application.
[26] [2019] NSWCA 175, 17 July 2019 (Hee).
Mr Morgan submitted that, looking at the purpose of the division, the following interpretation of s 39 is open:
“And we say it’s open to an interpretation of section 39 to look at it in terms of, at the relevant time – i.e. the time outside the 260 weeks when compensation was not being paid – was the worker 20 per cent whole-person impaired? And how does one make that determination? We have an approved medical specialist who has made an assessment at some point that there is a 20 per cent whole-person impairment, so the worker is greater than 20 per cent whole-person impaired when the assessment is to be made by the Commission or the Arbitrator. What’s the loss? The loss is, he wasn’t paid after the 260 weeks. Now, is there a mechanism by which that loss can be redressed and compensation paid? Yes, there is. It’s in section 39. The worker is greater than 20 per cent whole-person impaired. There’s an acceptance that he’s totally – in this instance, that this worker was totally incapacitated during the relevant period. He has an entitlement to weekly compensation to be paid.
Now, that, we’d urge on you, is, looking at the division as a whole, how it ought be read, and indeed, not that it’s applicable in this particular instance, but if one looks at the language, for example, and I use this as an example, the language, for example, of section 36 and section 37 it talks of a worker who has no current work capacity, and if one moves the analysis of what one sees in section 39 to a discussion of what is in section 36, does that carry with it the same temporality? Does that mean that section 36 can only have application, or can there only be awards made under section 36 in circumstances where a determination is made on that day, the determination that there is no current work capacity as far as that particular worker is concerned? How does one then take that back, so to speak, as far as determining workers’ rights in the past, if one accepts that the language of section 36 and section 37 is in the present tense?”[27]
[27] Transcript of appeal hearing, 9.28–10.29.
Mr Morgan submitted as follows about the textual (as opposed to contextual) argument in favour of Ms Merritt’s construction of s 39:
“in our submission, [the s 65 assessment of WPI as referred to in s 39(3) is] not a condition – well, it is a condition precedent, but it doesn’t impose any – the language of it, in our submission, doesn’t put any timeframe or time limitation as being relevant within it. It simply says that there is a further element that needs to be established beyond the 260 weeks – that is, there needs to be an agreement with respect to whole-person impairment, and that whole‑person impairment is assessed by the means allowed in the Act under section 65, so – obviously, you’ve expressed a view, your Honour, with respect to that as being the pivotal element for discussion in this argument, but as we submit, it still needs to be looked at in terms of the section as a whole and the division as a whole and what the division hopes to achieve.
…
Where is there, under the thrust or the purpose of the legislation, an idea that where there’s a general acceptance that the worker has a level of impairment, that there is – and if he has a level of impairment, then he has an entitlement to incapacity, but that payment of income support would only start weeks under an artificial date, and the – that artificial date being the date there’s either agreement and/or an assessment made of whole-person impairment. I mean, that’s – the difficulty that the – in our mind the section creates, and I really can’t take you to anything more than that, I’m sorry.”[28]
[28] Transcript of appeal hearing, 12.5–13.5.
Mr Morgan conceded that “the legislation says what the legislation says, and one has to deal within that”, but noted the difficulty in treating two workers differently in circumstances where they have the same injuries and same level of impairment (greater than 20%), but the second worker is assessed 12 months later, for example, such that one worker would be held out of benefits where the other would continue to receive them. Mr Morgan noted that in the current circumstances, there was an acceptance that that Ms Merritt’s WPI in all relevant periods was greater than 20%. As such, he submits that there is an available textual reading of s 39(2) as follows:
“Now, unless a contrary factual case can be advanced – that is, an explanation given as to why the 20 per cent that was determined in October 2018 was not relevantly whole-person impairment, when payments stopped in December of 2017, then on one view of it, section 39(2) would simply revert to there being an assessment or a factual basis by an Arbitrator with respect to what the state of affairs were with reference to what’s available to the Arbitrator. That is, we have two assessments made by independent medical examiners. We have an assessment made by an approved medical specialist, and there’s section 65.
Now, is it not available to an Arbitrator under section 39(2) to make that determination during the relevant period? I mean, that’s one reading of section 39(2), because it’s a pure factual analysis. The section doesn’t apply, if the injuries resulted in permanent impairment more than 20 per cent. 39(3) – ‘The degree of permanent impairment is assessed as provided by section 65.’ That’s done, box ticked, more than 20 per cent. In the relevant period when compensation isn’t paid, was the worker 20 per cent whole-person impaired? Yes, the worker was. I mean, that’s all I can urge on you as an interpretation of how section 39 would operate in those circumstances.”[29]
[29] Transcript of appeal hearing, 20.8–32.
Finally, Mr Morgan submitted, (with reference to Clause 28C of Sch 8 to the Workers Compensation Regulation 2016, which references s 39 in respect of a pending assessment for permanent impairment), that the language always contemplated there being a level of flexibility as far as determining rights in the past is concerned.[30]
[30] Transcript of appeal hearing, 15.4–14.

Submissions on behalf of the Authority

The Authority intervenes in this appeal pursuant to its right in s 106 of the 1998 Act. Section 106 confers on the Authority all the rights of a party in the proceedings. The Authority’s submissions in this matter largely reflect its submissions made in Hochbaum[31] and Whitton.[32] To the extent that those submissions were expanded on in its written and oral submissions in the current matter, they are outlined below.
[31] See Hochbaum [98]–[114].
[32] See Technical and Further Education Commission t/as TAFE NSW v Whitton (Whitton), [87]–[100].
At paragraph 7 of the Authority’s submissions, it outlines the four bases on which the Arbitrator’s decision was essentially reached, namely:
(a) the “totally emphatic” words “does not apply” in s 39(2) mean that the limitation in s 39(1) does not apply at all in cases where the worker has been certified as having a sufficient degree of permanent impairment (pages 5-6, 7 of his reasons);
(b) it is not “textually available” to describe s 39 as operating “in the present”, even if it may have merit “if the language or the Act and interrelationship of the various sections is only to be considered purposively” (page 6);
(c) a consideration of s 60AA reinforced his view as to the proper construction of s 39(1) and (2) (page 7); and
(d) the interpretation urged by the respondent below involved reading words into s 39.
In respect of (a) above, the Authority submits the Arbitrator’s approach paid insufficient regard to other textual considerations and failed to give effect to s 39(3) in construing s 39(2). In oral submissions, counsel for the Authority referred to my decision in Whitton, in its submission that the Arbitrator’s reasoning involved the inappropriate reading of words into the section.[33]
[33] Transcript of appeal hearing, 3.2–15.
In respect of (b) above, the Authority submits the Arbitrator’s finding was contrary to my finding in Hochbaum and Whitton in respect of the clear language, text and context of the provision. That is, that s 39 operates in the present, the trigger and time at which s 39(2) operates to restore the entitlement to weekly payments is when the worker’s WPI has been assessed in accordance with s 65 at more than 20%.[34]
[34] Transcript of appeal hearing, 3.26–4.6.
In respect of (c) above, the Authority noted it is not clear why the Arbitrator regarded the language of s 60AA as reinforcing his opinion as to the proper construction of s 39(1) and (2). The Authority noted that “as with the criteria in s 60AA(1)(c) (‘the injury to the worker has resulted in a degree of permanent impairment of the worker of at least 15% or …’), it is significant that there is a ‘statutory regime in place for establishing the existence of the threshold of … impairment’ (Cleland v Carter at [85]) that is the trigger for the operation of s 39(2), namely the regime for assessment under s 65 and Pt 7 of the 1998 Act: see Cleland v Carter at [91]-[95].”[35]
[35] Authority’s Submissions [23].

In respect of (d) above, the Authority again referred to my decisions in Hochbaum and Whitton in its submission that my construction of the provision in those decisions, which should equally be applied here, does not “read words into” s 39(2), but simply provides that s 39(1) either operates or does not, depending on whether the degree of permanent impairment has been assessed in accordance with s 65 as being greater than 20%. The Authority submits that this construction has the advantage of enabling s 39 to be applied according to its terms to the facts as they exist at any given point in time, with the associated benefit of certainty as to the operation of the law at any particular time, depending on the existence or otherwise of the relevant favourable assessment in accordance with s 65.

DISCUSSION

The present matter involves matters of principle, construction and facts which are very similar, if not identical, to those covered in the recent Presidential decisions of Hochbaum and Whitton. The matters are identical in the following manner:
(a)    All three matters involve a worker who had received weekly compensation benefits for an aggregate period of 260 weeks post the 2012 amendments.
(b) Towards the end of this 260 week period, the workers received notification from the requisite insurer of a medical assessment by a doctor of the insurer’s choice. The insurer’s medical assessment in all three cases was less than the threshold referred to in s 39(2) of the 1987 Act.
(c) As a consequence, the workers’ entitlements to weekly payments ceased at the end of the aggregate 260 week period pursuant to s 39(1).
(d)    All three workers commenced proceedings in the Commission and subsequently obtained a MAC certifying a degree of permanent impairment greater than 20% at a point after the conclusion of the aggregate 260 week period.
(e)    All three workers sought payment of weekly compensation for the disputed period between the end of the aggregate 260 week period and the date of receiving the MAC of greater than 20% permanent impairment.
(f) All three disputes concern the application and construction of s 39 of the 1987 Act.
(g)    All three workers succeeded in their application for weekly payments for the disputed period at first instance, before the Arbitrator (Senior Arbitrator in the cases of Hochbaum and Whitton).
(h)    All three employers appealed the Arbitrator’s decision.
(i)    In each case counsel for the worker accepted that the relevant assessment of the degree of permanent impairment was that contained in the MAC. In the present matter, the MAC issued by the Approved Medical Specialist Dr Anderson of 1 November 2018, provided an assessment of 24% whole person impairment.
The arguments traversed in this matter, whilst similar if not identical in some respects, do have some slightly different emphasis being placed on particular issues than was the case in either Hochbaum or Whitton.
Starting with the Arbitrator’s decision, the Arbitrator found as follows;
“In my opinion, and for reasons that I expressed more fully in Kennewell, section 39 is a limitation provision. The rights to compensation under the legislation arise from section 36, section 37 and section 38. Section 38 operates after 130 weeks. It is patently capable of operating indefinitely. It contains no limitation period.”[36] (emphasis added)
[36] Transcript of Reasons, p 5.
And further:
Section 39 is a limitation provision. The clear words of the section, that is section 39(1), are that compensation ceases after 260 weeks. The exception, however, is that does not apply ‘when the worker has an assessment of more than 20 per cent whole person impairment’.
While I may be wrong, I remain of the opinion that the words of section 39(2) ‘does not apply’ means that the limitation provision in s 39(1), which restricts weekly payments to 260 weeks, does not apply at all in cases where the worker has been certified as having more than 20 per cent whole person impairment.
If the limitation period does not apply, section 38 continues and the applicant has an entitlement to compensation beyond the 260-week period. While the argument in relation to present operation of the section is attractive, I do not believe that it is textually available. I concede that if the language or the Act and interrelationship of the various sections is to only be considered purposively then such an interpretation might have some merit.”[37] (emphasis added)
[37] Transcript of Reasons, pp 5–6.
In terms of Ms Merritt’s submissions on the appeal, counsel relied upon what I found at [139] in Whitton and the decision of Justice White in the Hee at [108] which were both to the effect that the process of statutory construction requires consideration of text, context and purpose. Justice White in Hee said as follows:
“The literal meaning of s 38A is not necessarily its legal meaning. Its legal meaning is to be ascertained with regard to the context of the provision understood in the widest sense as including the mischief or object to which the provision was directed. Section 33 of the Interpretation Act 1987 (NSW) requires the adoption of a construction of a provision of an Act that would promote the purpose or object underlying the Act to one that would not promote that purpose or object. Section 34 of the Interpretation Act provides in substance that extrinsic materials not forming part of the Act (such as the Explanatory Memorandum or the Second Reading speeches in relation to the 2015 amendments) may be considered to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, taking into account the purpose or object underlying the Act, or to determine the meaning of s 34A if the provision is ambiguous or obscure or the ordinary meaning conveyed by the text of the provision, taking into account its context and the purpose or the object underlying the WC Act, leads to a result that is manifestly absurd or unreasonable.”[38]
[38] Hee, [108].
Counsel for Ms Merritt then developed the submission that s 39, sitting as it does in Subdiv 2 of the 1987 Act, needs to be considered in accordance with the other provisions of that subdivision. The subdivision is headed “Entitlement to weekly compensation”. Counsel developed the argument that when considering this subdivision of the 1987 Act, when compensation is being discussed, it is “talking about a loss that has been incurred which needs to be addressed, which is the purpose of the Act”.[39] Ms Merritt’s counsel said Subdiv 2 is by its very nature was “directed to a retrospective reinstatement of rights, because the traditional approach with respect to compensation is, and it’s well accepted the workers compensation legislation does not have prospective application. It only deals with reinstatement, in our submission, of rights that have been withdrawn by denial of liability.”[40]
[39] Transcript of appeal hearing, 8.23–24.
[40] Transcript of appeal hearing, 9.7–14.
This submission was developed to characterise the loss to the worker, in this case Ms Merritt, in not being paid after the expiry of the 260-week period.
This submission continued that once the worker attained the WPI assessment of greater than 20%, the injuries have resulted in a permanent impairment of more than 20% and “the acceptance would be that the whole person impairment in all relevant periods was greater than 20 per cent”.[41] (emphasis added)
[41] Transcript of appeal hearing, 20.4–6.
Clearly, as was acknowledged by Ms Merritt’s representatives, my decisions in Hochbaum and Whitton represent significant, if not insurmountable, hurdles to Ms Merritt’s defence of Arbitrator Sweeney’s decision.
In terms of the passages which I have outlined above from both the learned Arbitrator’s decision and the arguments advanced on behalf of Ms Merritt, it is apparent that what has been asserted is that once the relevant criterion for the purposes of s 39(2) has been achieved, s 39 “does not apply at all” (as found by the Arbitrator at page 6 of the transcript of reasons). A similar argument was advanced by counsel for Ms Whitton. I dealt with the argument of s 39(1) not applying at all in Whitton at [131]–[141]. In Whitton I found that there was no permit to read the words “at all” into s 39(1).[42] I adopt and affirm that reasoning in this matter.
[42] Whitton, [138].
Indeed the submission which I have referred to above at [74], that the whole person impairment existed in all relevant periods, was characterised in the following manner by the intervener:
“The only point, your Honour, is effectively that my friend, for the respondent, is asking for a factual inference to be drawn in respect of the position before the MAC issued – that is, that the impairment was assessed subsequent to or at the point that the issue of the MAC – that that assessment wasn’t one that necessarily indicated the state of the injury beforehand, but that, in my respectful submission, is not the process that section 39 contemplates – that is, that process of drawing inferences as to a state of affairs before the relevant assessment occurs – it is the assessment reaching that trigger point of greater than 20 per cent impairment that enlivens the operation of the section, and that is the section that then – well, that enlivens the operation of the removal of the exception that section 39(2) provides, and that’s precisely what your Honour has found previously by finding that section 39(2) and section 39(3) should be read together …”[43]
[43] Transcript of appeal hearing, 23.3–20.
I accept this submission. There is no warrant in either the text of s 39 or in the context, which I will shortly come to, which would lead to a view that once the MAC with an assessment of greater than 20% WPI has been issued, that it therefore applies “in all relevant periods” as is asserted by Ms Merritt, that is from the imposition of the s 39(1) bar. The support for this position which particularly was relied upon by the learned Arbitrator are the words described as being “totally emphatic”, namely the words “does not apply”, found in s 39(2). I have previously found in Hochbaum and Whitton that this approach pays insufficient attention to the balance of s 39 nor to the context of the provision. The key question, as I found in Hochbaum, is the point at which s 39(1) does not apply.[44] As was discussed in Hochbaum, the critical statutory question as to whether or not a criterion was or was not met at a particular date has to be resolved in relation to whether or not the legislation had a temporal element.[45]
[44] Hochbaum, [143].
[45] Shi, [101] per Hayne and Heydon JJ.
As I found in Hochbaum and Whitton, s 39 is a provision which speaks in the present tense.[46]
[46] Hochbaum, [138]–[140], Whitton [140]–[143].
The learned Arbitrator in this matter said that:
“While the use of the concept of present operation which Mr Flett also argued is appropriate in this case is attractive, ultimately it is the role of the Commission in determining the true construction of section 39 to interpret the words in the context of the legislation.”[47]
[47] Transcript of Reasons, p 5.
This statement ultimately led to the relevant finding in this matter by the learned Arbitrator as follows:
“… because of Project Blue Sky and all the cases following, there has been a return to history and context of the legislation.
The context, in my view, and the literal meaning of the words in the Act lead inexorably to the conclusion that once there is a certification of whole person impairment greater than 20 per cent then there is no limitation on the payment of compensation.”[48]
[48] Transcript of Reason, p 6.
With respect to the learned Arbitrator, I do not agree that the context that either he or counsel for Ms Merritt have referred to is consistent with the textual reading of s 39 which I have set out at some length in Hochbaum and Whitton and which I adopt here. This approach does not resolve the present tense drafting of s 39 nor does it attempt to reconcile or construe the effect, in a temporal sense, of the achievement of the particular criterion provided for in s 39(2). Section 39 is a provision which is temporal in character. The first temporal aspect of it is the imposition of the bar in s 39(1). That is, after an injured worker has received payments of weekly compensation for 260 weeks in aggregate, weekly payments are to cease. The second temporal aspect is the present tense drafting of s 39(2) and the necessity to read the s 39(3) definition into subs 2. The criterion imposed, when properly understood in accordance with Shi, enables the point at which the s 39(1) bar is lifted to be determined. It is true as the Arbitrator inferred, that achieving the greater than 20% WPI excuses the injured worker from the limitation contained in s 39(1). The fact that the injured worker is then excluded from this limitation does not mean that it never applied or that the effect of achieving that criterion somehow deems the worker to have always satisfied that criterion at all relevant times since the s 39(1) bar had been imposed.
Contextually, s 39 was part of the 2012 amendments to the workers compensation legislation. These amendments have been discussed in cases such as Goudappel and Cram Fluid. In Goudappel, the High Court found as follows:
“It can be accepted, as was put by counsel for Mr Goudappel, that the [1987 Act’s] remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the [1987 Act] as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified.”[49]
[49] Goudappel, [29].
Additionally, in Cram Fluid the Court of Appeal said this of the 2012 amendments:
“It should be accepted that the 2012 amendments disclose a cost-savings objective. Part of the reforms to the existing scheme under the 1987 and 1998 Acts was to disentitle workers from making more than one claim for lump sum compensation. The Court must give effect to this legislative intention, notwithstanding the detrimental impact on injured workers.”[50] (emphasis added)
[50] Cram Fluid, [122].
Section 39 in its terms clearly reveals a similar cost saving intention as was discussed in Cram Fluid. For the first time, it brings to an end a worker’s entitlement to compensation after 260 weeks. This provision is then subjected to an exception which is found in s 39(2), which provision excepts from the bar the subset of those injured workers, namely, in the circumstances of this matter who are relevantly assessed as having a permanent impairment of greater than 20%. That s 39 reveals a cost saving intention could not be clearer. Once the 260 week period (in aggregate) is achieved, absent agreement with the insurer or a pre-existing MAC of greater than 20%, entitlement to compensation beyond the 260 week aggregate period depends upon the satisfaction of the criterion set out in s 39(2), as assessed in accordance with s 39(3). As I found in Hochbaum and Whitton, it is necessary to read s 39(3) into s 39(2) as subs 3 provides the definition of permanent impairment which is referred to in subs 2. Permanent impairment, as I found in Whitton, is not an everyday English phrase, rather it is a term of art with the particular meaning ascribed to it in s 39(3).[51]
[51] Whitton, [121].
In terms of that permanent impairment assessment, I dealt with this at length in Hochbaum.[52] Relevantly as I described in Hochbaum, s 322 of the 1998 Act provides that an assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with the Workers Compensation Guidelines. The Guidelines, which provide assistance to understanding the overall context of the legislative scheme, contemplate an assessment at the time of clinical presentation on the day the assessment takes place. This is unremarkable but is of assistance in understanding the context of the legislative scheme enacted by the Parliament in 2012, which included s 39.
[52] Hochbaum, [144]–[147].
Consequently, and bearing in mind the extract from Justice White’s remarks in Hee regarding construction,[53] this leads to the conclusion that the textual meaning that I have applied to s 39 is consistent with its context and purpose, which as I have found above is clearly cost saving. After 260 weeks payment of compensation in aggregate, the clear purpose of s 39 is to decrease the number of recipients of workers compensation to that smaller subset of injured workers who are assessed in accordance with the scheme set out in s 39(3) as having a greater than 20% WPI.
[53] Hee, [108].
Additionally, counsel for Ms Merritt made much of the fact, which was not disputed, that Ms Merritt was totally incapacitated for work at all relevant times. This argument proceeds to rely upon this status so that once the relevant criterion is met, that is greater than 20% WPI, the lack of any capacity for work enlivens the entitlement to payments of weekly compensation during the entirety of the disputed period and not just from the attainment of the relevant criterion. A similar argument was conducted in Hochbaum which was to the effect of giving primacy of s 38 over s 39. I dealt with this argument in Hochbaum at [160]–[162]. I adopt these findings from Hochbaum and would further record that the note in s 39(2) provides as follows:
“Note. For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.”
That is unsurprising because the insurer can make successive work capacity decisions which dictate the injured worker’s entitlement. All that happens once the s 39 bar has been lifted by attaining a greater than 20% WPI is that the injured worker is entitled to receive payments of weekly compensation beyond the 260 week limit, albeit subject to the operation of s 38. The fact that Ms Merritt in this case at all relevant times was held to be totally incapacitated for work by the insurer does not alter the approach to the construction of s 39.
I find that the learned Arbitrator was in error when he found that once the greater than 20% WPI was satisfied, the 260 week limitation “does not apply at all”. This means, incorrectly in my view, that s 39(1) never had application to Ms Merritt which is contrary to the present tense of s 39. Further, this construction pays insufficient attention to the medical assessment scheme which was enacted by the Parliament in s 39(2) and s 39(3) which, as I have found, operates to read s 39(3) into s 39(2).
This case, unlike Hochbaum and Whitton, did not assert that s 39(2) was remedial or beneficial. I therefore do not need to deal with this particular submission, which I dealt with at length in both Hochbaum and Whitton. Indeed the learned Arbitrator, correctly in my view, properly characterised s 39(2) as an “exception”.

DECISION

Order 1 of the Arbitrator’s Certificate of Determination of 2 April 2019 is confirmed.
The appellant employer’s name is amended from “Workers Compensation Nominal Insurer (incorrectly referred to in the ARD as Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley Pty Ltd trading as Lachley Meats (deregistered)” to Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley) Pty Ltd trading as Lachley Meats.
Orders 2 and 3 of the Arbitrator’s Certificate of Determination dated 2 April 2019 are revoked and an Award is entered in favour of the appellant employer.

Judge Phillips
PRESIDENT

12 September 2019