| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Lazio Formwork Pty Ltd v Kelly; Kelly v Lazio Formwork PTY LTD [2023] NSWPICPD 40 |
APPELLANT: | Lazio Formwork Pty Ltd (A1-W3685/22) John Kelly (A2-W3685/22) |
RESPONDENT: | John Kelly (A1-W3685/22) Lazio Formwork Pty Ltd (A2-W3685/22) |
INSURER: | GIO General Ltd |
FILE NUMBER: | A1-W3685/22 A2-W3685/22 |
PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
DATE OF APPEAL DECISION: | 17 July 2023 |
ORDERS MADE ON APPEAL: | 1. Leave is granted to the employer, pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998, to bring an interlocutory appeal in matter no. A1-W3685/22. 2. To the extent that it is necessary, leave is granted to the worker pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998, to bring an interlocutory appeal in matter no. A2‑W3685/22. 3. The time for the worker to bring an appeal in matter no. A2-W3685/22 is extended to 17 April 2023, pursuant to s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998. 4. The employer’s appeal in matter no. A1‑W3685 succeeds. 5. The worker’s appeal in matter no. A2‑W3685 fails. 6. The Member’s decision dated 13 September 2022 is revoked. 7. In lieu thereof, there is an award for the respondent (the employer). |
CATCHWORDS: | WORKERS COMPENSATION – Factual error; extension of time to appeal – application of Bryce v Department of Corrective Services [2009] NSWCA 188; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290; the duty to give reasons – Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; alleged denial of procedural fairness – Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389; s 322A of the Workplace Injury Management and Workers Compensation Act 1998 – application of Merchant v Shoalhaven City Council [2015] NSWWCCPD 13; Galluzzo v Little [2013] NSWCA 116; injury pursuant to s 4 of the Workers Compensation Act 1987 – the ‘disease’ provisions; application of Crisp v Chapman (1994) 10 NSWCCR 492 |
HEARING: | 14 April 2023 |
REPRESENTATION: | Appellant/Employer: |
| Mr Andrew Parker, counsel | |
| Bartier Perry | |
| Respondent/Worker: | |
| Mr B McManamey, counsel | |
| MTM Legal | |
DECISION UNDER APPEAL | |
MEMBER: | Mr P Young |
DATE OF MEMBER’S DECISION: | 13 September 2022 |
INTRODUCTION AND BACKGROUND
John Kelly (the worker) performed physically hard work in the building industry, erecting and dismantling formwork, from about 1984. He worked with multiple employers over the years. On 1 July 1988, while working with Daros Constructions, he fell from formwork injuring his spine, right leg and a middle finger. He said he had three weeks off work and then resumed working with intermittent back and neck pain, which worsened with time. He suffered an injury to his back in August 1992 while carrying timber upstairs at a site at Macquarie Shopping Centre. He worked with Fast Form at that time. He stated that he was off work for eight weeks (for which he received workers compensation) and he then resumed normal duties. He stated that he resigned from this job in 1992 and did not then work for about 18 months, until commencing with Pedy Concrete in 1994. He injured his left index finger on 16 March 1994 and also hurt his back in the process of supporting his bodyweight at that time. He continued with Pedy Concrete until that employer went into administration. He worked with multiple employers thereafter until commencing with Lazio Formwork Pty Ltd (Lazio) from 17 February 2010.[1] He described the work with that company in April 2010, at a site in Bankstown, as “particularly heavy”. He said that while doing that work his right knee and back became “very painful”. There was not a “specific injury” with Lazio.[2] The worker’s last date of employment with Lazio was 9 April 2010.[3] He has not worked since.[4] The current proceedings are brought against Lazio.
[1] Worker’s claim form 30/9/2010, Reply, pp 40–41.
[2] Worker’s statement 14/10/21, Application to Resolve a Dispute (ARD), pp 3–12.
[3] Dispute notice 10/8/21, ARD, pp 18–25.
[4] A/Prof Fearnside’s report 12/10/20, ARD, p 36.
The worker described symptoms in his back, neck and right knee. He also developed problems of a psychological nature. He had arthroscopic surgery to remove loose bodies from his right knee on 8 August 2011 and a right knee replacement on 21 February 2014. These costs were met by GIO, Lazio’s relevant insurer. On 7 May 2012 Dr Steel, neurosurgeon, performed a lumbar fusion at L3/4. Dr Steel also performed a cervical spinal fusion at C5/6 and C6/7 on 20 November 2013.[5] Allianz, the insurer of Daros Constructions at the time of the fall on 1 July 1988, met the cost of the lumbar fusion but declined to pay for the neck surgery, which the worker underwent as a ‘public patient’.[6]
[5] A/Prof Fearnside’s report, ARD, pp 34–35.
[6] Worker’s statement 8/6/22, ARD, p 15.
The worker took proceedings in the former Compensation Court of New South Wales. The respondents to those proceedings were Daros Constructions Pty Ltd, Fastform (Australia) Pty Ltd and Pedy Concrete (NSW) Pty Ltd. Terms of Settlement dated 20 November 2002 provided for lump sum compensation totalling $20,000 in respect of the back, right hand and sexual organs, together with ‘pain and suffering’.[7]
[7] ARD, pp 862–868.
Dr Burns, an Approved Medical Specialist (AMS) in the former Workers Compensation Commission of NSW (WCC), assessed the worker twice. In proceedings no. 161/14 Dr Burns assessed permanent impairment relating to the back and sexual organs, resulting from injuries on 1 July 1988 (in the employ of Daros Constructions), 19 August 1992 (in the employ of Fast Form) and 16 March 1994 (in the employ of Pedy Concrete Constructions). He assessed 35% permanent impairment of the back and 20% loss of use of the sexual organs, which he attributed equally to each of these injuries.[8] Orders consistent with this assessment were made in a Certificate of Determination dated 26 November 2014,[9] amended on 28 January 2015.[10]
[8] Medical Assessment Certificate (MAC) 16/10/14, Reply, pp 240–247.
[9] Reply, pp 260–261.
[10] Reply, pp 262–263.
Dr Burns assessed permanent impairment relating to the right knee and scarring in proceedings no. 6091/14 and issued a Medical Assessment Certificate (MAC) dated 24 February 2015. Lazio was the respondent in those proceedings. The claim was pleaded as one for a “frank right knee injury on 9/4/2010” and also one for the aggravation of a disease due to heavy and repetitive stress.[11] Dr Burns recorded a history of the worker’s right knee becoming “painful during a period of heavy work in April 2010”. The doctor assessed whole person impairment (WPI) in respect of the right lower extremity (knee) and scarring, based on a date of injury of 9 April 2010, at a figure of 13 per cent.[12]
[11] Reply, p 215.
[12] ARD, pp 44–51.
On 12 February 2016 Dr Guirgis, the worker’s treating psychiatrist, recorded a diagnosis of “Major Depressive Disorder with Anxious Stress”. The doctor described this as “in the context of workplace injury in 1988, chronic pain, and stressors of dealing with insurance company”.[13]
[13] ARD, pp 474–475.
On 12 January 2017 Allianz (the insurer in relation to the 1988 injury) noted that a worker with “whole person impairment of 20% or less” was entitled to weekly payments for a maximum of 260 weeks.[14] On 15 February 2017 Dr Pillemer, orthopaedic surgeon, examined the worker at the request of Allianz and reported to that insurer. The copy of the report in the ARD is incomplete[15] and does not reveal the assessment. A purpose of the assessment was to ascertain whether the worker’s whole person impairment entitled him to weekly payments beyond 260 weeks. A letter from Allianz indicates Dr Pillemer assessed whole person impairment at 22%.[16]
[14] ARD, p 530.
[15] ARD, pp 551–2.
[16] ARD, p 550.
On 16 June 2011 proceedings in the former WCC resolved when they were listed for hearing before a Commission Arbitrator. The parties were Allianz Australia Workers Compensation (NSW) Ltd (which was substituted for its insured, Daros Consructions Pty Ltd, which was de-registered) and Lazio. The Consent Orders provided for various amendments to the pleadings, and an award against “the respondents” at $747 per week from 10 April 2010 to 9 July 2010, and at $350 per week from 10 July 2010 to 2 June 2011. There was a notation that the respondents would pay continuing weekly compensation at a rate of $350 per week from 3 June 2011 on a voluntary basis. There was an award in favour of Allianz in respect of an injury to the right hip.[17]
[17] ARD, pp 1,216–7.
On 6 April 2022 the worker gave notice to Lazio of a weekly claim from 7 October 2017.[18] It relied on Dr Burns’ assessment of 13% WPI (relating to the right knee injury) and A/Prof Fearnside’s assessment of 23% WPI (relating to the cervical spine injury). It sought to have the impairments “assessed together” pursuant to s 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
[18] Reply, pp 8–9.
GIO, the insurer of Lazio, most recently denied liability in a notice dated 22 June 2022.[19] It disputed ‘injury’ to the neck. It disputed that there was an entitlement to weekly payments on the basis of s 39 of the Workers Compensation Act 1987 (the 1987 Act). The worker’s entitlement to further weekly compensation from Lazio was dependent on his satisfaction of the threshold in s 39 of the 1987 Act. Lazio did not accept that there was permanent impairment resulting from injury in its employment that was more than 20%. It referred to s 66(1)(a) of the 1987 Act and stated that the worker had “exhausted” his one claim for permanent impairment lump sum compensation. The employer relied on Port of Melbourne Authority v Anshun Pty Ltd.[20] It asserted that in proceedings No 6091/14 the worker discontinued claims that related to injury to the neck, and that this gave rise to “an Anshun estoppel in relation to the alleged neck injury”.
[19] Reply, pp 1–7.
[20] [1981] HCA 45; 147 CLR 589 (Anshun).
The current proceedings were commenced by way of an Application to Resolve a Dispute dated 16 June 2022. Lazio is the only respondent. The Application claims $828.72 per week on a continuing basis from 7 October 2017. The date of injury is given as 10 April 2010. The injury allegation relies on the “heavy and arduous duties” and pleads injury to the neck, lumbar spine and knee. It relies on the aggravation, acceleration, exacerbation or deterioration of a disease. The matter was listed for hearing on 16 August 2022. Mr McManamey appeared for the worker and Mr Andrew Parker appeared for Lazio. Both counsel addressed and the Member reserved his decision.
The Commission issued a Certificate of Determination dated 13 September 2022, accompanied by 16 pages of reasons.[21] There was an award in Lazio’s favour on the allegation of injury to the neck. The worker succeeded on the allegations of injury to the lumbar spine and the right lower limb. The matter was remitted to the President for referral to a Medical Assessor to assess whole person impairment (WPI) in respect of the lumbar spine, with a deemed date of injury of 10 April 2010.
[21] Kelly v Lazio Formwork Pty Ltd [2022] NSWPIC 506 (the reasons).
THE MEMBER’S REASONS
The Member said there were “broadly three issues”. The first was Anshun estoppel. The second was the dispute regarding “certain ‘body parts’”, particularly the lumbar and cervical spine. The third involved s 322A of the 1998 Act and Lazio’s case that the worker had “already received his assessment in respect of [the] degree of permanent impairment”.[22]
[22] Reasons, [6].
The Member referred to the Application in proceedings no. 161/14 in which Lazio was the fourth respondent.[23] He said the worker there sought medical expenses and lump sum compensation, pleading an injury date of 9 April 2010 with injury to the “back, neck, right hip, right knee”. That Application pointed to the lumbar fusion occurring on 7 May 2013 and the cervical fusion occurring on 20 November 2013. The Member referred to Consent Orders dated 24 July 2014.[24] He said these discontinued the claim as against Lazio.[25]
[23] Reply, p 61.
[24] Reply, p 258.
[25] Reasons, [12].
Lazio’s defence based on Anshun estoppel failed before the Member. That aspect of the decision is not challenged on this appeal. The Member referred to the injury description in the claim form lodged in 2010, which referred to injury to the lower back, right hip, right knee and right middle finger and used the language “nature and conditions of employment”. He said the worker was aware as early as 2010 that he had sustained these injuries. The exception to this was the cervical spine, which was not evident in 2010, which was confirmed by the dispute notice issued by GIO on 6 December 2010.[26] The Member contrasted this with the dispute notice dated 23 December 2013, which referred also to the neck.[27] The Member said the “inevitable conclusion” was that the worker was aware of his back and neck disability from not long after he ceased with Lazio.[28]
[26] Reasons, [13]–[21].
[27] Reply, pp 30–33.
[28] Reasons, [23].
The Member referred to proceedings no. 470/02 which he said pre-dated the worker’s employment with Lazio.
The Member referred to proceedings no. 161/14. That claim was for injury to the back and sexual organs. The claim against Lazio was discontinued and the balance of the proceedings was remitted for referral to an Approved Medical Specialist. Proceedings no. 6091/14 were commenced against only Lazio, with an award for 13% permanent impairment (right lower extremity) being entered. The referral to, and assessment by, Dr Burns related only to the injury on 9 April 2010 and the right lower extremity. Proceedings no. W5253/21 were determined by consent, being discontinued on 28 January 2022.[29]
[29] Reasons, [27]–[30].
The Member referred to the amendment to s 65(3) of the 1987 Act by the Workers Compensation Amendment Act 2018 (2018 Amending Act).[30] Prior to 1 January 2019, where there was a dispute regarding the degree of permanent impairment, it was necessary that permanent impairment be assessed by an Approved Medical Specialist before such compensation could be awarded by the Commission. The former s 65(3) was repealed by the 2018 Amending Act. The amendment applied to an injury, a claim, and proceedings pending in the Commission or a court immediately before commencement of the 2018 Amending Act. The Member referred to a decision of Senior Member Capel (as he then was) in Dang v Onesteel Reinforcing Pty Ltd.[31]
[30] Reasons, [31].
[31] [2021] NSWPIC 476.
The Member concluded that the Anshun defence failed. He dealt with it in the following summation:
“That issue i.e., as to whether the [worker’s] claims for back and neck should have been brought at the same time as the right knee is resolved in my view as follows:
(a) the absence of any Medical Assessment Certificates concerning the [worker’s] back and neck before 1 January 2019;
(b) the entitlement of the [worker] to pursue separate claims in respect of several injuries sustained by reason of the nature and conditions of his employment, and
(c) the fact that the 2021 proceedings were discontinued so that it is not possible for determination of the current Application to present any conflicting judgment.”[32]
[32] Reasons, [35]–[36].
The Member considered the allegation of injury to the neck. Neck injury was not referred to in the claim form.[33] It was not mentioned in the worker’s statement dated 24 June 2010 (see paragraphs [40] to [46]), which was adopted in the worker’s statement to an investigator dated 29 October 2010.[34] It was not mentioned in Dr Walker’s reports dated 3 May 2010 and 20 January 2011.[35] The Member referred to the history recorded by Dr Ehrlich on 31 July, 2013. Dr Ehrlich recorded a history that the neck became painful in about 1989 or 1990 and was “still troubling him”. The Member said this did not, to his mind, “implicate any work for the [employer] up to 10 April 2010”. The Member referred to Dr Jones’ examination of the worker on 12 June 2013. She recorded neck and lower back pain “evident according to the [worker] from the incident in 1988”. Dr Jones did not turn her mind to the ‘nature and conditions’ of employment up to 9 April 2010. The Member said that Dr Steel’s report dated 30 April 2012 mentioned the lower back but not the neck. The Member said Dr Steel’s report dated 21 August 2012 commented on the need for surgery at C5/6 and C6/7. The Member noted a cervical CT scan on 10 May 2007 included references to protrusions at C5/6 and C6/7. He referred to A/Prof Fearnside’s history that the worker ceased work in 2010 due to complaints that included the neck. The Member said this history was taken about six months after the worker ceased working and referred to the 1988 injury.[36]
[33] Reply, pp 40–42.
[34] Reply, pp 207–214.
[35] Reply, pp 372–374.
[36] Reasons, [37]–[48].
The Member said that the worker carried the onus of demonstrating on the probabilities that his work caused or aggravated (etc) his neck pathology. When examined by Dr Bodel on 1 July 2010, the worker complained of his right middle finger, lower back and right iliac crest, but not his neck.[37] The Member said that Dr Bodel’s assessment occurred “close to the [worker’s] last day of working of 9 April 2010”; there was no history of “neck aggravation or pathology whilst the [worker] was employed by [Lazio]”. The Member said there was “a gap in the reporting of neck pain after 9 April 2010”. Neck pain was “reported as early as 2007”.[38]
[37] Reply, pp 321–327.
[38] Reasons, [49]–[54].
The Member concluded on ‘injury’ within the meaning of the ‘disease’ provisions:
“The [worker] provides a consistent history of lower back and right knee problems having been contemporaneously reported on three specific occasions as well as generally after 9 April 2010. In terms of the neck, although there is a gap in the reporting of neck pain after 9 April 2010, the fact remains that it was (contrary to Professor Ehrlich’s opinion) reported as early as 2007. In the circumstances I am not content finding that the [worker] during his employment with [Lazio] up to 10 April 2010 was subjected to heavy and arduous duties which have caused or aggravated (etc) degenerative changes in the [worker’s] cervical spine. In view of the much earlier complaints of lumbar spine and right lower limb, I am satisfied that the [worker’s] work for [Lazio] imposed an aggravation (etc) of these body parts within the meaning of section 4 (b) (ii) of the 1987 Act.”[39]
[39] Reasons, [54].
Referring to s 16 of the 1987 Act, the Member said:
“The proper application of section 16 has been submitted by Mr Parker to include first a finding of injury, second application of section 16 to determine who pays for it.
Mr McManamey, unlike Mr Parker, argued that it is not a question as to how long an applicant has worked in a particular employment and this is important because in the time up to 10 April 2010 the [worker] had only worked for [Lazio] for a period of about two to four months. But in my view the enquiry nonetheless requires causation either directly or by way of aggravation (etc) in the last employment.”[40][40] Reasons, [58].
The Member referred to the worker’s statement where he said “I had intermittent back and neck pain, which increased in frequency, duration and intensity over time. Formwork is heavy work.” He referred to the worker’s reference to the work with Lazio being particularly heavy, and to he and another worker being “the donkeys” because two other formworkers were the boss’s sons. He described this as “the sum total” of contemporaneous evidence of neck injury with Lazio. He concluded:
“… [in] the [worker’s] 2021 statement the [worker] mentions a very painful right knee and back but in describing the work performed with [Lazio] he makes no mention of any pain, let alone pathology in his cervical spine. Coupled with the absence of earlier complaints of neck pain and no mention of neck being affected in his claim form of 30 September 2010, I am of the view that there is insufficient evidence to establish that the [worker’s] employment with [Lazio] was either the main [or] a substantial contributing factor to any injury to his cervical spine.”
The Member said that s 16 of the 1987 Act was “triggered” in relation to the injury to the lumbar spine but not that to the cervical spine.[41]
[41] Reasons, [59]–[61].
The Member turned to the application of s 322A of the 1998 Act. He said that on 24 July 2014 the worker withdrew his lump sum claim against Lazio, the referral for assessment by an AMS (and the resultant lump sum awards) being made only in respect of the back and sexual organs against the three other employers joined to those proceedings, no. 161/14.[42] The Member said the worker had “not made any ‘claim’ in the sense of section 66(1A) for permanent impairment as a result of any back injury with [Lazio]”. He said there had been no assessment of ‘injury’ in the worker’s employment with Lazio. The Member noted the worker had already been assessed in respect of injury to his right lower extremity. He said the worker was not precluded from assessment of WPI in respect of his lower back with a deemed date of injury of 10 April 2010.
[42] Reply, pp 258–263.
The Member concluded that the worker’s claim in respect of the cervical spine failed against Lazio. The right lower extremity had already been assessed. The worker had established injury to the lower back for which referral to a Medical Assessor for assessment was appropriate.
LEGISLATION
Section 4 of the 1987 Act, in its form as at the relevant date of alleged injury (which preceded 19 June 2012) relevantly provided:
“4 Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration,
…”.
Section 16 of the 1987 Act relevantly provides:
“16 Aggravation etc of diseases—employer liable, date of injury etc (cf former ss 7 (4A), (5), 16 (1A))
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a)the injury shall, for the purposes of this Act, be deemed to have happened—
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.”
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) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor 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.”
Section 322A of the 1998 Act provides:
“322A One assessment only of degree of permanent impairment
(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 352(4) of the 1998 Act provides, in respect of appeals under s 352 of the 1998 Act:
“The appeal must be made within—
(a) 28 days after the decision appealed against is made, or
(b) a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.”
Rule 133A of the Personal Injury Commission Rules 2021 (the Rules) provides:
“133A Extension of time for making certain applications
(1) This rule specifies the procedure for determining a period of time, longer than the statutory period, within which 1 of the following (a relevant application) may be made—
(a)an appeal under the 1998 Act, section 352,
…
Note—
The listed provisions specify that a relevant application must be made within the statutory period or a longer period determined or allowed in accordance with these Rules.
(2) A party seeking to make a relevant application after the end of the statutory period may make an additional application (an extension application) for an order determining a longer period within which the party may make the relevant application.
(3) An extension application—
(a)must be made at the same time as the relevant application to which it relates, and
(b)must be in the approved form, and
(c)must include full details of the arguments relied on in favour of granting the order, and
(d)is taken to form part of the relevant application for the purposes of the requirements relating to service under rules 123 and 129.
(4) The extension application must be decided by the following (the decision-maker)—
(a) for an appeal under the 1998 Act, section 352—a presidential member,
(b) otherwise—the President.
(5) The decision-maker may make the order if satisfied by the party making the extension application, in exceptional circumstances, that to lose the right to make the relevant application would work demonstrable and substantial injustice.
(6) In this rule—
statutory period means—
(a)for the 1998 Act—the period specified in section 352(4)(a), and
…”.
Clause 11 of Pt 1 of Sch 8 to the Workers Compensation Regulation 2016 (the 2016 Regulation) provides:
“11 Lump sum compensation: further claims
(1) A further lump sum compensation claim may be made in respect of an existing impairment.
(2) Only one further lump sum compensation claim can be made in respect of the existing impairment.
(3) Despite section 66(1) of the 1987 Act, the degree of permanent impairment in respect of which the further lump sum compensation claim is made is not required to be greater than 10%.
(4) For the purposes of subclauses (1) and (2)—
(a)a further lump sum compensation claim made, and not withdrawn or otherwise finally dealt with, before the commencement of subclause (1) is to continue and be dealt with as if section 66(1A) of the 1987 Act had never been enacted, and
(b)no regard is to be had to any further lump sum compensation claim made in respect of the existing impairment—
(i)that was withdrawn or otherwise finally dealt with before the commencement of subclause (1), and
(ii)in respect of which no compensation has been paid, and
(c)section 322A of the 1998 Act does not operate to prevent an assessment being made under section 322 of that Act for the purposes of a further lump sum compensation claim.”
(5) The following provisions are to be read subject to this clause—
(a)section 66 of, and clause 15 of Part 19H of Schedule 6 to, the 1987 Act,
(b)section 322A of the 1998 Act,
(c)clauses 10 and 19 of this Schedule.
(6) In this clause—
existing impairment means a permanent impairment resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012.
further lump sum compensation claim means a lump sum compensation claim made on or after 19 June 2012 in respect of an existing impairment.
lump sum compensation claim means a claim specifically seeking compensation under section 66 of the 1987 Act.”
ON THE PAPERS/LISTING OF THE MATTER
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Lazio initially submitted that an oral hearing was not required.[43] The worker similarly submitted the appeal could be decided solely on the basis of the appeal application and its notice of opposition.[44] In its other written material Lazio submitted the appeal could be determined on the papers, but also said that the appeal involved a question of statutory interpretation, not previously determined, that “may benefit” from oral submissions.[45] Lazio, in its submissions in response, submitted that “the case warrants an oral hearing”. The reason Lazio gave for this submission was that the worker had challenged the reasoning in the Presidential decision of Merchant v Shoalhaven City Council,[46] and had raised a “novel argument” in relation to s 66(1A) of the 1987 Act and s 322A of the 1998 Act.
[43] Appellant employer’s submissions, [2.3].
[44] Respondent worker’s submissions, ‘Procedural Matters’.
[45] Respondent worker’s submissions, ‘Procedural Matters – On the Papers’, p 2.
[46] [2015] NSWWCCPD 13 (Merchant).
Ultimately both parties supported the view that an oral hearing should be held. The matter was listed for hearing on 14 April 2023. Mr Parker appeared for Lazio and Mr McManamey appeared for the worker. Both counsel addressed.
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 in respect of the employer’s appeal. The worker additionally filed an appeal, consistent with a timetable put in place at an oral hearing. This was the subject of an application to extend time which is dealt with below.
INTERLOCUTORY
Section 352(3A) of the 1998 Act provides:
“(3A) There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The employer submits,[47] and the worker agrees,[48] that the employer’s appeal is interlocutory. The employer submits:
(a) determination of the appeal would obviate the need for assessment by a Medical Assessor;
(b) leave is “routinely” granted in such circumstances;
(c) the state of the appeal would be identical following medical assessment, and
(d) the matter has precedent importance and will afford a determinative answer on this issue.[49]
[47] Appellant employer’s submissions, [2.5].
[48] Respondent worker’s submissions, Procedural Matters, p 2.
[49] Appellant employer’s submissions, [2.5].
The worker submits the granting of leave is a matter for the Commission. It does not take issue with the employer’s submissions referred to immediately above.
In Licul v Corney Gibbs J (as his Honour then was) said the established view in Australia is that whether a decision is interlocutory “depends on the nature of the order made; the test is ‘does the judgment or order, as made, finally dispose of the rights of the parties?’.”[50] I accept that the decision appealed is interlocutory. It is necessary to consider whether determining the appeal is necessary or desirable for the proper and effective determination of the dispute.
[50] [1976] HCA 6; 50 ALJR 439, 443–444.
It is common ground that the appeal could potentially avoid an unnecessary medical assessment. This has frequently been a factor in the granting of leave in such circumstances.[51] The claims in respect of permanent impairment are relevant to whether the worker falls within the definition of a ‘worker with high needs’ or a ‘worker with highest needs’ in s 32A of the 1987 Act. The proceedings are relevant to whether the worker satisfies the threshold in s 39 for the payment of weekly compensation beyond 260 weeks. Having regard to the employer’s submissions, and the absence of significant opposition to the granting of leave on this issue, leave is granted pursuant to s 352(3A) of the 1998 Act.
[51] See, for example, Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50.
The worker’s appeal, which is further discussed below, is against a finding that finally decides whether the worker has an entitlement against the employer in respect of injury to the cervical spine. To the extent that the worker’s appeal may be considered interlocutory, both parties submitted that leave should be granted. To the extent that it is necessary, I do so. The employer submitted that both appeals should be re-determined and that they should be dealt with as one.[52]
[52] Transcript 27/4/23 (T3), 2.22–3.21.
THE NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT
Section 352(5) 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.”
In Northern NSW Local Health Network v Heggie[53] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519.”[54]
[53] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[54] Heggie, [72].
In Raulston v Toll Pty Ltd[55] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[56] to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c) It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[57]
EMPLOYER’S GROUNDS OF APPEAL
The employer raises the following grounds:
(a) The Member erred in fact in finding the date of injury was 10 April 2010 (note, this is a slip and is of no significance). (Ground No. 1)
(b) The Member erred in fact in finding that the worker had not previously made a claim for the relevant injury/incident. (Ground No. 2)
(c) The Member erred in law in failing to deal with clearly articulated submissions. (Ground No. 3)
(d) The Member erred in law in failing to provide lawful reasons. (Ground No. 4)
(e) Error of law in construing the effect of s 322A of the 1998 Act. (Ground No. 5)
WORKER’S GROUND OF APPEAL
The worker seeks to challenge the Member’s decision to the extent that the allegation of injury to the cervical spine failed at first instance. The worker initially sought to pursue this allegation on a basis akin to a cross-appeal,[58] by including these submissions in his Notice of Opposition to the employer’s appeal. There is no specific provision in the workers compensation legislation or rules for such a course. There is support for this approach in some Presidential decisions which are referred to below.
[58] Respondent worker’s submissions, [44]–[53].
The employer opposes this course, maintaining the appropriate procedure is that the worker file a Notice to Appeal accompanied by an application to extend time. At the oral hearing I expressed doubt regarding the appropriateness of treating the challenge to the finding on the allegation of neck injury as if it were a cross-appeal, in the absence of the worker lodging a separate appeal. The worker said that although he did not resile from the submission that the former course was available, he would lodge an Application to Appeal accompanied by an application to extend time.[59] A timetable was set with the agreement of the parties providing for:
(a) Leave to the respondent [worker] to file and serve an Application to Appeal accompanied by an application to extend time on or before 4 pm on 19 April 2023;
(b) Leave to the appellant [employer] to file and serve a Notice of Opposition on or before 4 pm on 26 April 2023, and
(c) The matter to be listed for mention on 27 April 2023.
[59] Transcript of appeal hearing 14/4/23 (T2), T2 53.25–62.3.
The worker lodged an appeal (matter no. A2-W3685/22) on 17 April 2023. The employer lodged a Notice of Opposition to that appeal on 20 April 2023. The worker’s notice of appeal appears to raise a single ground, followed by a series of submissions, although the ground and submissions are not clearly delineated in the document. The ground is in the following terms:
“The Member erred when he considered that he had to find that there was a specific aggravation of the degenerative neck condition whilst in the employ of the [employer].”
EXTENSION OF TIME IN THE WORKER’S APPEAL
The worker’s appeal was lodged out of time and requires leave pursuant to s 352(4) of the 1998 Act. The worker’s submissions refer to r 133A of the Rules.
The worker submits he did not initially appeal as he did not wish to provoke a cross appeal. In the circumstances, he was prepared to accept the Member’s adverse finding on ‘injury’ to the cervical spine, given the finding in his favour (and the associated referral for assessment of permanent impairment) on the allegation of lumbar spine injury. The worker states in his submissions that the employer’s appeal was served on 13 October 2022, the last day on which an appeal could be lodged within time. The worker submits he did not, in the circumstances, have an opportunity to lodge his own appeal within time, once he became aware that the employer was appealing. The worker submits this constitutes ‘exceptional circumstances’.
The worker’s submissions state that, after considering some authorities, it was considered unnecessary to lodge a formal appeal as the matter could be raised in his submissions in the existing appeal (put on by the employer). This the worker did. The worker notes that on the oral hearing the employer argued a formal Notice of Appeal should be lodged and served by the worker. The worker submits there is no associated prejudice. The employer has been on notice of the substance of the cross appeal since 16 November 2022. The worker submits it is in the interests of justice that this substantial issue be determined. He submits the cross appeal is based on the application of settled law and has good prospects of success.[60]
[60] Worker’s submissions on the cross appeal (A2–W3685/22), [9]–[18].
The employer opposes the extension of time.[61] It refers to the summary of principle dealing with such applications in Allen v Roads and Maritime Services.[62] It refers to the discussion dealing with ‘exceptional circumstances’ in Yacoub v Pilkington (Australia) Ltd.[63] It submits the delay is unexplained. It submits the explanation of delay is deficient in the absence of explanation of when instructions were received and acted upon. It submits the explanation is deficient in the absence of identification of the authorities that caused the erroneous view, regarding seeking relief akin to a cross appeal in the absence of lodging a separate appeal, and who held that view. The employer refers to Itex Graphix Pty Ltd v Elliott[64] as authority that a deliberate decision to allow a limitation period to expire will not ordinarily justify an extension of time. It refers to Vaughan v Secretary, Department of Education[65] for the principle that ignorance of rules or procedural requirements is not ‘exceptional’. It submits the length of delay is a factor, citing Tomko v Palasty (No. 2).[66]
[61] Employer’s Notice of Opposition to the cross appeal, [4]–[14].
[62] [2015] NSWWCCPD 39, [31].
[63] [2007] NSWCA 290 (Yacoub), [66].
[64] [2002] NSWCA 104; 54 NSWLR 207 (Itex Graphix).
[65] [2018] NSWWCCPD 1 (Vaughan).
[66] [2007] NSWCA 369.
The employer does not assert there is prejudice. It objects to the form of the application on the basis that it is not in “evidentiary form”.
Sections 42 and 43 of the 2020 Act provide:
“42 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
(2) The Commission must seek to give effect to the guiding principle when it—
(a)exercises any power given to it by this Act or the Commission rules, or
(b)interprets any provision of this Act or the Commission rules.
(3) Each of the following persons is under a duty to co-operate with the Commission to give effect to the guiding principle and, for that purpose, to participate in the processes of the Commission and to comply with directions and orders of the Commission—
(a)a party to proceedings in the Commission,
(b)an Australian legal practitioner or other person who is representing a party in proceedings in the Commission.
(4) In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings.
(5) However, nothing in this section requires or permits the Commission to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.”
“43 Procedure before Commission generally
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
In Onesteel Reinforcing Pty Ltd v Sutton McColl JA said:
“Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not: Southwest Sydney Area Health Service v Edmonds (at [129]) referring to Smith v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 (at [32]) per Mason P (Handley JA and Campbell J agreeing).”[67]
[67] [2012] NSWCA 282; 13 DDCR 351 (Sutton), [60].
The explanation on which the worker relies, in support of the application to extend time, is contained in a submission prepared by, and appearing above the hand of, his counsel, who acted at first instance and continues to act on the appeal. The worker’s counsel is required to act in a manner consistent with s 42(3) of the 2020 Act. The subject matter of the submission, dealing with the application to extend time, goes to the reasons for the worker’s appeal not having been instituted in time. It can be reasonably inferred that his counsel has knowledge of such matters. As a matter of practice, it is common in the Commission that the factual and procedural background supporting such applications is contained in the parties’ submissions rather than being set out in accompanying evidentiary statements. This is generally consistent with ss 42 and 43 of the 2020 Act. I do not accept the employer’s submission that the explanation is deficient because it is not in “evidentiary form”. This should not be taken as a statement that it is generally appropriate, in the preparation and running of cases in the Commission, to simply include material on which parties rely as part of their submissions. It depends on the circumstances and the nature of the material. In the current circumstances, it is appropriate that I have regard to the explanation contained in the submissions of the worker’s counsel on the application to extend time. This is consistent with the legislation and the passage from Sutton quoted above.
The employer refers to identification of the authorities that led to the erroneous view that the worker did not need to lodge a separate application to appeal. This assumes that such a view is erroneous. The worker’s submissions do not resile from the proposition that the view is correct.
There are a number of such Presidential decisions. These include Rail Corporation of New South Wales v B,[68] BlueScope Steel Ltd v Markovski,[69] and Navitas English Pty Ltd v Trinh.[70] Trinh is a decision of mine in which I accepted the correctness of the reasoning in B and Markovski. Roche DP in Markovski said:
“While there is no provision for a cross appeal in the Commission’s rules, proceedings in the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits (s 354(1) of the [1998 Act]). In addition, the Commission has a statutory obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 354(3) of the 1998 Act). Moreover, a respondent to an appeal can, on appeal, support the decision below on any good legal ground appearing on the evidence (David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416 at 420E–421D; 426F; 428G). That is effectively what Mr Markovski is seeking to do, in the event that BlueScope succeeds on the causation issue.”[71]
[68] [2009] NSWWCCPD 81 (B).
[69] [2013] NSWWCCPD 69 (Markovski).
[70] [2017] NSWWCCPD 52 (Trinh). See also State of New South Wales v AK [2018] NSWWCCPD 36; Royal Rehabilitation Centre Sydney v Cassar [2008] NSWWCCPD 41, [35]–[40].
[71] Markovski, [13].
The above decisions were published in the ordinary way on the website containing Presidential decisions of the former WCC and remain available on that site, which has a search facility. I do not accept that the failure to specifically cite these decisions, or others like them, amounts to a deficiency in the adequacy of the explanation.
The decision in Itex Graphix, on which the employer relies, can be appropriately distinguished. In that decision Sheller JA summarised the plaintiff’s situation briefly:
“… the decision initially taken not to proceed at common law and allow the three year period under s151D(2) of the [1987 Act] to expire were taken quite deliberately on a fully informed basis. The respondent further delayed for a significant period before changing her mind.”[72]
[72] Itex Graphix, per Sheller JA, [4].
This contrasts with the facts in the current matter. The worker did not lodge an appeal as he was concerned that this may provoke the employer to appeal, in circumstances where the worker had succeeded in part on the application that he brought. The worker submits that, by the time he became aware that the employer was appealing those aspects of the decision on which he had succeeded, it was impossible for him to file an appeal within time. He did not allow time to expire on a “fully informed basis”. The worker then made submissions against the Member’s findings that were adverse to him, regarding the neck injury, on the basis that he could arguably rely on such submissions by including them in his Notice of Opposition. When there was discussion at the oral hearing regarding the viability of proceeding in this way, the worker readily adopted the course of lodging his own separate appeal.
I cannot see that the decision in Vaughan assists the employer. The worker’s explanation does not involve ignorance of rules or procedural requirements.
In considering the length of the delay, it is appropriate to have regard to when the appeal was initially raised, in the worker’s submissions in his Notice of Opposition (dated 15 November 2022). The employer was aware of the worker’s intention to appeal, and the submissions in support of the appeal, from that time.
The passage from Yacoub to which the employer refers has been frequently applied in the Commission in applications to extend time pursuant to s 352(4) of the 1998 Act. Campbell JA there dealt with the phrase ‘exceptional circumstances’ in the context of the Uniform Civil Procedure Rules 2005, saying:
“(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).”
The worker’s explanation relies on circumstances where his opponent’s appeal was made known to him when it was served, on the last day when an appeal could be put on within time. The worker submits this left him with insufficient time to lodge an appeal within time. It is relatively common for a party to lodge and serve an appeal at or close to the expiry of the available time period. This is not, of itself, exceptional. There was, however, the additional factor that the worker had avoided putting on an appeal because he was concerned this may provoke an appeal from the employer. The institution of the employer’s appeal tipped the balance, from the worker’s perspective, in favour of appealing. It did so at a point where the worker no longer had the opportunity to appeal within time. In my view this combination of factors, taken together, may be seen as constituting ‘exceptional circumstances’. This is consistent with the passage from Yacoub quoted above.
In Bryce v Department of Corrective Services Allsop P (as his Honour then was) (Tobias JA and Handley AJA agreeing), dealing with the corresponding provision in Pt 16 of the Workers Compensation Commission Rules 2011, said:
“In my view, the phrase ‘in exceptional circumstances’ finding its place in the middle of the rule is to be dealt with as a matter to be considered by the Presidential member as a matter within jurisdiction as opposed to a precondition to the operation of jurisdiction.”[73]
[73] [2009] NSWCA 188, [8].
It follows that the presence of ‘exceptional circumstances’ is a matter to be considered on the application to extend time but is not a precondition to the application succeeding.
In my view the worker’s explanation of delay is satisfactory. His failure to initially lodge his appeal within time is explained by valid and understandable doubts regarding whether an appeal should be pursued in the circumstances. The failure to then institute an appeal prior to the oral hearing is explained by a reasonable belief that the challenge to the finding on ‘injury’ to the cervical spine could be pursued as an argument akin to a cross appeal. There was Presidential authority consistent with this position. Following discussion and the setting of a timetable at the oral hearing on 14 April 2023, the worker on 17 April 2023 lodged his appeal against the Member’s finding regarding injury to the cervical spine.
The worker’s initial position is analogous to that in Hume v CSR Ltd, in which an employer initially decided not to appeal, but then put on an appeal (described as “in the nature of a ‘Cross-Appeal’”) when the worker appealed. Roche DP, on the employer’s application to extend time, described the employer’s action of appealing when it became aware of the worker’s appeal as “not unreasonable”.[74]
[74] [2015] NSWWCCPD 7, [21]–[27].
The Member’s reasons, dealing with whether there was an injury to the worker’s cervical spine within the meaning of the ‘disease’ provisions, included:
“… in my view the enquiry nonetheless requires causation either directly or by way of aggravation (etc) in the last employment.”[75]
And:
“… there is insufficient evidence to establish that the [worker’s] employment with the [employer] was either the main nor a substantial contributing factor to any injury to his cervical spine. As such, it is accordingly unnecessary to give further consideration to section 16 of the 1987 Act. Section 16 is not triggered in respect to any cervical spine injury.”[76]
[75] Reasons, [58].
[76] Reasons, [61].
The worker’s submissions on his appeal quote from the reasons of Sheller JA in P & O Berkeley Challenge Pty Ltd v Alfonzo.[77] The worker argues that the Member asked himself “whether there was an injury that was caused by the work with the [employer]”, which constituted an incorrect approach. The worker submits the first question should have been whether the neck condition consists of an aggravation, etc due to the work of a formworker. The medical evidence supports that proposition. The worker says there should have been a finding that employment during the period relied on, 1984 to 9 April 2010, was a substantial contributing factor to the aggravation. The question then should have been “whether the employment with the employer was the last employment which [was] a substantial (not main) contributing factor”. The worker submits there was no requirement for a specific finding of injury during the period the worker worked for the employer. If the employment is part of the overall employment that was a substantial contributing factor then this satisfies s 16 and the employer is liable for the consequences of that injury.[78] This submission is consistent with authority.
[77] (2000) 20 NSWCCR 554 (Alfonzo), [26]–[27].
[78] Worker’s submissions on the cross appeal (A2–W3685/22), [4]–[8].
In my view the worker’s appeal on the issue of injury to the cervical spine has good prospects of success. The delay is satisfactorily explained. The employer has been on notice of the basis on which the worker seeks to challenge the finding on injury to the neck, since the worker’s Notice of Opposition was lodged and served on 16 November 2022. The employer does not assert that there is prejudice. I am satisfied that loss of the right to make the application to appeal would work demonstrable and substantial injustice. In the exercise of the Commission’s discretion, the time to bring the worker’s appeal is extended to 17 April 2023.
There have been changes to the legislation and the rules, subsequent to the earlier decisions which dealt with pursuing relief on appeal akin to that available by way of cross claim and notice of contention. This includes the commencement of the 2020 Act and the Personal Injury Commission Rules. Rule 133A has been inserted. At the time of the earlier decisions there was no provision in the legislation or rules dealing with cross appeals or notices of contention. Rule 125 of the Rules now provides for the filing of a notice of contention and reply; the rules remain silent regarding any provision for a cross appeal. Because of the view I have formed regarding the extension of time to bring the worker’s appeal, it is unnecessary that I further consider whether it would have been open to the worker to pursue his appeal without instituting the further proceedings, no. A2-W3685/22.
WORKER’S SUBMISSIONS ON THE WORKER’S APPEAL
The worker refers to the Member’s approach to the issue of ‘injury’, either directly or by way of aggravation in the last employment. The Member considered the length of the employment with the employer was important. He did not consider the nature of the work (formwork) and the evidence that such work was a substantial contributing factor to the neck injury. The worker quotes from the reasons of Sheller JA in Alfonzo, dealing with injury on the basis of the ‘disease’ provisions.[79] The worker submits the correct approach was to first consider whether there was ‘injury’ by way of aggravation etcetera due to work as a formworker. The worker submits the medical evidence supported such a finding. He submits the Member simply asked whether there was an injury that was caused by work with the employer. He submits the proper approach would have involved finding that employment as a formworker caused the aggravation of a degenerative condition in the neck and that employment with the employer was the last employment that was a substantial contributing factor to the aggravation.
[79] Alfonzo, [26]–[27].
The worker submits his appeal should be allowed and the issue of neck injury either be determined by the Presidential member or be remitted to a different member for determination.[80]
[80] Worker’s submissions on the cross appeal (A2–W3685/22), [4]–[10].
EMPLOYER’S SUBMISSIONS ON THE WORKER’S APPEAL
The employer in matter no. A1-W3685/22 states that it objects to the worker raising a cross appeal in those proceedings. It submits the Commission’s procedures do not provide for such a pleading.[81]
[81] Employer’s submissions dated 17 November 2022, [4]–[5].
The employer, in its Notice of Opposition in matter no. A2-W3685/22, submits the worker’s appeal simply expresses “dissatisfaction with the result”, reciting arguments made and rejected at first instance. It relies on the decision in Raulston. It quotes from the decision of Wood DP in Toll Transport Pty Ltd v Eftimovski,[82] which was consistent with the reasoning in Raulston. It refers to Shellharbour City Council v Rigby[83] as authority for the proposition that the weight to be given to evidence, including medical evidence, is a matter peculiar to the trial judge.
[82] [2022] NSWPICPD 14.
[83] [2006] NSWCA 308.
The employer submits the Member’s findings on the neck injury were open, as were the findings in relation to the deeming provisions (which can have no application without an injury). It submits that, giving appropriate deference to the Member’s findings, the worker’s appeal should fail.[84]
[84] Employer’s Notice of Opposition to the cross appeal, [22]–[26].
The employer quotes from the Member’s reasons at [54], [58] and [61]. It submits s 16 of the 1987 Act only operates where an injury has been found. The proposition that neck injury should have been found simply because the worker was a formworker was “rightly rejected”. It submits the Member dealt with the worker’s evidence regarding neck injury and was not satisfied his duties with the employer were causative of the neck condition. This conclusion was open and was “rightly rejected”. The employer refers to the submissions at first instance.[85]
[85] Employer’s Notice of Opposition to the cross appeal, [30]–[42], citing transcript of hearing, 16/8/22 (T1), T1 7–21 and 33–34.
EMPLOYER’S WRITTEN SUBMISSIONS – GROUNDS NOS. 3–5
The employer’s submissions deal initially with Grounds Nos. 3 to 5. I will adopt the same course.
The employer submits that nothing turns on the finding that the date of injury was 10 (rather than 9) April 2010.
The employer refers to the letter of claim from the worker’s solicitors dated 6 April 2022.[86] That claim asserted a level of WPI of 33%, sufficient to make the worker a ‘worker with highest needs’ pursuant to s 32A of the 1987 Act. This involved combining the earlier assessment of Dr Burns dated 24 February 2015 (relating to the right knee – 13% WPI) with A/Prof Fearnside’s assessment of the cervical spine in his report dated 12 October 2020 (23% WPI). The employer noted that at the hearing it was additionally sought that the back injury be referred for assessment. The worker asserted this combination of the assessments was available on the basis that the two injuries resulted from the same incident. The Member’s findings rejected the allegation of neck injury but accepted the alleged injuries to the right knee and the back. The employer does not challenge these findings on injury; it does challenge the date of injury (which it says is not significant) and the referral of the worker to a Medical Assessor to assess the back injury.[87]
[86] ARD, pp 1,192–3.
[87] Appellant employer’s submissions, [4], [6], [12]–[14].
The employer says the matter was run at first instance on the basis there was an entitlement to weekly compensation because the worker’s permanent impairment was over 20%.[88] This required that the earlier assessment of 13% for the right knee “be combined with any further impairment assessed by A/Prof Fearnside (i.e. the neck and back)”. The employer says the Member accepted this, referring to the reasons at [65].[89]
[88] T1 32.1–9.
[89] Appellant employer’s submissions, [17]–[19].
The employer submits the worker “did not allege a fresh injury/incident separate from the one relating to the right knee”. It submits this raised the “limitations in ss 66(1A) and 322A”. It says that at first instance, the worker submitted the earlier referral was in respect of a right knee injury, he was entitled to be referred in respect of injury to the neck or back. The employer submits that ss 66(1A) and 322A should be read together. Having had one claim, the worker was “precluded from seeking a further referral about the injury/incident”. Section 322A should not be read narrowly, it prohibited a referral for the purposes of s 39.[90]
[90] Appellant employer’s submissions, [20]–[23].
The employer referred to Practice Direction 11, and to a number of cases in the Commission (and one in the District Court) that did not restrict the operation of s 322A in the way submitted by the worker. The employer cites Merchant as authority that the words in parentheses in s 322A are not exhaustive and include “a s 39 threshold referral”.[91]
[91] Appellant employer’s submissions, [25]–[26].
The employer submits the Member failed to provide adequate reasons, citing Soulemezis v Dudley (Holdings) Pty Ltd.[92]
[92] (1987) 10 NSWLR 247 (Soulemezis).
The employer submits the Member failed to deal with a “properly articulated argument” and this amounted to a denial of procedural fairness, citing Dranichnikov v Minister for Immigration and Multicultural Affairs.[93]
[93] [2003] HCA 26; 197 ALR 389 (Dranichnikov).
The employer submits it does not know why its argument was not accepted. The Member did not distinguish any of the case law or Practice Direction No. 11 on which it relied, he did not explain, or cite authority for, the meaning he gave to the words ‘injury’ and ‘claim’. He did not explain why Merchant was not binding, or at the very least persuasive.[94]
[94] Appellant employer’s submissions, [27]–[34].
The employer makes submissions under the heading “Re-determination”. It briefly sets out some fundamental aspects of its argument. The worker’s claim involved injury resulting from the ‘nature and conditions’ of employment involving “heavy and arduous duties”. This is alleged to have caused aggravation of a degenerative condition of the back and neck. This is said to be capable of being combined with the previous award under s 66. Although that previous s 66 award related only to the right knee, it “operated to crystalise the worker’s only s 322A assessment for the purposes of all physical injuries/conditions, relating to the incident”.[95] Section 322A of the 1998 Act prevents more than one referral in relation to this “injury/incident”.
[95] Appellant employer’s submissions, [51].
The employer refers to “recent legislative changes” concerning ‘existing recipients’: Pt 2A of the 2016 Regulation. If the worker’s interpretation of the legislation were correct, the amendment in the 2016 Regulation would be otiose. The employer, in an apparent reference to ADCO Constructions Pty Ltd v Goudappel,[96] submits that “when the High Court has previously considered the amending Acts, at least by reference to the lump sum provisions, [the 2012 amendments] are patently not beneficial”.[97]
[96] [2014] HCA 18; 254 CLR 1 (Goudappel).
[97] Appellant employer’s submissions, [56].
The employer submits the orders providing for referral of the matter to a Medical Assessor should be revoked.
WORKER’S WRITTEN SUBMISSIONS – GROUNDS NOS. 3–5
Dealing with Grounds Nos. 3 to 5, the worker submits the essential issue is the interpretation of s 322A of the 1998 Act. Sub-section (2) of the section refers to the degree of permanent impairment “as a result of the injury concerned”. Sub-section (3) speaks of the degree of permanent impairment “as a result of an injury”. “The limitation on multiple assessments in s 322A is therefore limited to the assessment of the degree of impairment resulting from the single injury.”[98]
[98] Respondent worker’s submissions, [7]–[8]. Reference is made to Merchant at [125].
The worker refers to the ‘Guidelines for the Evaluation of Permanent Impairment’. These provide for assessment of differing body systems that are the result of different injuries, in many cases by specialists in different disciplines. They provide a mechanism for combination of separate assessments to produce a single combined impairment. An assessor is competent to certify in respect of those parts that have reached maximum medical improvement and to defer the assessment of parts that had not reached maximum medical improvement. “The system allows for assessment of different body parts and injuries at different times.”[99]
[99] Respondent worker’s submissions, [9]–[10].
The worker submits there was nothing in the definition of ‘injury’ in s 4 of the 1987 Act “that would require what is usually understood to be separate injuries to be treated as one injury”. The worker submitted there were “other provisions that recognise that there can be separate injuries which are understood as separate injuries and not as a single injury entity”. The worker referred to s 322 of the 1998 Act. The worker quoted from the reasons of Barrett JA in Galluzzo v Little.[100] His Honour accepted (with one reservation) the analysis by Roche DP of the operation of s 322 of the 1998 Act, in Department of Juvenile Justice v Edmed.[101] The worker submits Barrett JA concluded that it was permissible for an assessor to assess those parts that had reached maximum medical improvement and to defer assessment of those parts that had not. The worker submits Galluzzo supported the proposition that there are assessments of differing body parts which can occur at different times. These are ultimately combined to produce a single impairment.[102]
[100] [2013] NSWCA 116, (Galluzzo).
[101] [2008] NSWWCCPD 6; 7 DDCR 288 (Edmed).
[102] Respondent worker’s submissions, [13]–[20].
The worker submits that, on the employer’s interpretation, an assessment in respect of any single injury would prevent an assessment of any other body part injured in the same incident. This would be inconsistent with the combining nature of whole person impairment. The worker submitted this is the natural grammatical meaning of the words in s 322A. In the current matter, there was an assessment of impairment that resulted from injury to the right knee, but not of impairment that resulted from injury to the back. As there had not been an assessment of the degree of impairment that resulted from injury to the back, s 322A had no application to that injury and did not prevent it being assessed. The worker submits it is immaterial whether there was previously a claim in respect of the back injury.[103]
[103] Respondent worker’s submissions, [21]–[24].
The worker refers to s 65 of the 1987 Act. He submits s 65 did not prevent an assessment of his back injury, as it operated only for the purposes of Div 4 of the 1987 Act. It did not operate for the purposes of Pt 7 of the 1998 Act, which is where s 322A was to be found. Section 322A was not within Div 4. The worker submits s 65 acknowledges that there can be multiple injuries within the meaning of s 4 that arise from the same circumstances. Unless it followed that those injuries were to be treated as separate injuries then s 65 would be otiose. The worker submits that, as a “general principle”, impairments from separate injuries could not be combined in the absence of specific legislative provision (reference was made to Canute v Comcare[104]). The worker submits s 65 overcomes this by treating the separate injuries as one injury, but only for the purposes of Div 4. Elsewhere in the Acts the injuries are treated as separate.[105]
[104] [2006] HCA 47; 229 ALR 445; 80 ALJR 1578.
[105] Respondent worker’s submissions, [25]–[29].
The worker submits that, in any event, the prior right knee assessment for the purposes of s 66 does not prevent a further referral for the purposes of s 39. The case does not involve any further claim for permanent impairment compensation so s 66(1A) does not apply, the employer does not assert otherwise.[106] The worker refers to s 322A in the following terms:
“As can be seen from the terms of section 322A it provides that the medical assessment referred to in subsection 1 is the only assessment 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).”
[106] Respondent worker’s submissions, [30]–[31].
The worker submits the section should be read as a whole and each of the words should be given work to do. The worker submits that the scope of s 322A was only peripheral to the question before Keating P in Merchant. The worker submits the President in Merchant considered the opening words of s 322A but not the qualification in the words in parentheses. He submits that, if s 322A were read in the fashion for which the employer argues, then the words in parentheses at the end of the section have no work to do. The purposes described in those words in parentheses would in any event be prohibited by the general words earlier in the section. The worker submits “[t]he obvious purpose of the words [in parentheses] is to limit the circumstances to which the one assessment applies”.[107]
[107] Respondent worker’s submissions, [32]–[36].
The worker submits that subs (3) should be interpreted similarly. The reference to a ‘medical dispute’ in the subsection “must be defined in terms of what is being claimed”.[108] Section 322A(3) should be read in this light. The worker submits:
“In this case the former referral was in respect of a dispute about the degree of impairment resulting from an injury to the right knee for the purposes of a claim pursuant to section 66. This claim is about a completely different matter being the entitlement to weekly compensation. The referral [is] essentially to determine whether the degree of permanent impairment resulting from the injury to the right knee and back is greater than 20%. This is a different dispute about a different matter than the prior referral and assessment.”[109]
[108] Reference is made to Skates v Hills Industries Ltd [2021] NSWCA 142 at [27]–[30] and [45]–[48].
[109] Respondent worker’s submissions, [38].
EMPLOYER’S WRITTEN SUBMISSIONS – GROUNDS NOS. 1–2
The employer refers to the reasons at [62] to [64], where the Member found that no prior ‘claim’ was made, or ‘injury’ referred to, a Medical Assessor. It submits it was unclear how this conclusion was reached, whether factually or on some legal analysis. The reasons at [62] suggest the Member considered only Dr Burns’ report dated 16 October 2014.[110] Other parts of the reasons indicate the Member considered two reports from Dr Burns. Dr Burns’ second report, dated 24 February 2015,[111] was not mentioned at [62] to [64] of the reasons. It was the report that specifically referred to the injury on 9 April 2010. The Member may have been mistaken that there was only one report from Dr Burns. The Member may have erred in finding no claim or injury had been made or referred. The employer submits this flowed from the worker’s submissions concerning the interpretation of ss 66(1A) and 322A. The employer submits the date of injury should be corrected to 9 April 2010 on the basis of the ‘slip rule’.[112]
[110] Reply, p 240.
[111] Reply, pp 274–281.
[112] Appellant employer’s submissions, [36]–[44].
WORKER’S WRITTEN SUBMISSIONS – GROUNDS NOS. 1–2
The worker submits he does not understand the point about the date of injury. The worker worked from 1984 to 9 April 2010. 10 April 2010 was the first date of incapacity and was the date of injury contended for by the employer. The worker submits nothing turned on it, it “reinforces the point that this is a referral for a separate injury”.[113]
[113] Respondent worker’s submissions, [39]–[40].
The worker refers to the finding that there had not been a prior claim. The worker accepts that there had been a prior claim, in the sense that a claim had been made, but it was withdrawn. It was not determined or the subject of assessment. The worker submits it was for this reason that the Member referred to any “claim” in inverted commas. The worker submits it did not matter whether a claim was made at an earlier time, only the current claim was the subject of any determination. Any earlier claim had not been the subject of referral or assessment. The Member’s conclusion was correct.[114]
[114] Respondent worker’s submissions, [41]–[43].
EMPLOYER’S SUBMISSIONS AT THE HEARING ON 14 APRIL 2023
Mr Parker described the “real dispute” as that “dealing with the combined effects of [ss] 66, 39 and 322A”. He described the evidence as suggesting “a nature and conditions disease-type claim … brought in these proceedings as a [s] 4(b)(ii) … the current claim was run on the basis of a disease”.[115] The claim was not for s 66 benefits, rather the worker had been paid for 260 weeks and his ongoing weekly entitlement depended on an assessment of permanent impairment greater than 20 per cent. The worker sought to combine the neck, the back and the right knee, all from the one incident and on the basis that he had already been assessed (and received) 13 per cent WPI (whole person impairment).[116] The Member’s rejection of the employer’s defence based on Anshun was not appealed, nor was the finding in the worker’s favour on the injury to the back. The only issue raised on the employer’s appeal was “essentially a referral under section 39”.[117]
[115] T2 2.24–3.4.
[116] T2 3.24–4.1.
[117] T2 4.4–14.
The employer referred to Gerene Nominees Pty Ltd v Pritchard[118] in a submission that the worker’s challenge to the Member’s finding regarding injury to the neck required the filing by the worker of an appeal document.[119] This would require satisfaction of the various threshold provisions in s 352 of the 1998 Act.[120]
Following some brief discussion there was agreement that the deemed date of any injury, based on the ‘nature and conditions’ of employment, should be the same in both sets of proceedings. In the previous proceedings the deemed date was 9 April 2010.[121]
[121] T2 9.12–11.8.
Mr Parker referred to the employer’s written submissions on the appeal, particularly at [48(b)]. The worker had already been assessed in respect of the “injury/incident”, being the “nature and conditions claim”. Only one claim could be made in respect of “all physical injuries and conditions out of the same incident” (reference was made to Tokich v Tokich Holdings Pty Ltd[122]). Section 322A of the 1998 Act prohibited “any further referral in relation to the injury/incident, including in relation to a threshold dispute”, subject to rare exceptions. The earlier s 66 award, although it related only to the right knee, “operated to crystalise the worker’s only s 322A assessment for the purposes of all physical injuries/conditions, relating to the incident”.[123]
[122] [2015] NSWWCCPD 72 (Tokich).
[123] Appellant employer’s submissions, [46]–[51], T2 12.12–17.
Mr Parker referred to Pt 2A of Sch 8 to the Workers Compensation Regulation 2016. Part 2A took effect on and from 1 October 2012. The Part applied to a worker who was an ‘existing recipient of weekly payments’ (cl 28B of Pt 2A). In general terms it provided that such a worker, whose permanent impairment had been assessed, could have one further such assessment, and this was not prevented by s 322A. (Mr McManamey said that Mr Parker could proceed on the basis that the worker’s claim for lump sums was made in 2013 or 2014.)[124]
[124] T2 15.6–29.
Mr Parker referred to the Member’s reasons at [62] to [64]. He submitted this was “the sum total of the extensive submissions made by the parties on this issue”. Mr Parker submitted that “in addition to being wrong … in his conclusion at the very least [the Member] denied the employer procedural fairness and/or natural justice by failing to deal with the submissions that were made by the employer”. The employer did not know why its submissions were not accepted. It was either a denial of procedural fairness or a failure to provide proper reasons. Mr Parker submitted that proper reasons would have required, at the least, a consideration of the decisions in Merchant and Tokich, and why s 322A did not prevent the referral.[125]
[125] T2 18.28–20.2.
It is clear that the right knee injury assessed by Dr Burns resulted from heavy work with Lazio in the period up to 9 April 2010 (the last date of such employment). Although the Member in the current matter made a finding of injury on 10 April 2010, this was (similarly) a deemed date based on the ‘disease’ provisions of the 1987 Act.[155] Neither party has submitted that anything turns on the discrepancy between 9 and 10 April 2010 (see the discussion above dealing with Ground No. 1).
[155] Reasons, [66].
A statement of reasons should be looked at as a whole.[156] As the employer correctly notes, the Member at other places in his reasons referred to the existence of two Medical Assessment Certificates from Dr Burns. The employer’s submissions speculate that the Member may simply have been mistaken. Whatever the explanation, the finding at [63] of the reasons, that there had not been a previous “assessment” relating to employment injury with Lazio, was wrong and involves error.
[156] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (Beale), 444.
The employer refers to Dranichnikov, where Gummow and Callinan JJ said:
“To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.”[157]
[157] Dranichnikov, [24].
It was an established fact that, contrary to the Member’s finding at [63] of the reasons, Dr Burns had previously assessed the worker’s permanent impairment resulting from a ‘disease’ injury involving his work duties up to 9 April 2010. The employer at first instance, relying on s 322A(1) of the 1998 Act, argued that “only one assessment may be made of the degree of permanent impairment of an injured worker”. It relied on various authorities in support of that proposition.[158] This argument, if accepted, excluded the making of a further order referring the ‘disease’ injury for assessment of permanent impairment, such impairment having already been assessed in the MAC dated 24 February 2015. It was a clearly articulated argument. Factually, it depended on the proposition that an assessment of permanent impairment resulting from the worker’s duties with the employer had already been made and represented the “one assessment” to which he was entitled. This was consistent with the MAC dated 24 February 2015. The Member failed to address this argument, which constituted error.
[158] T1 37.19–44.28.
The employer additionally relies on an alleged failure by the Member to provide adequate reasons. The employer cites Soulemezis. It submits it does not know why its argument regarding s 322A, based on case law and other authority, was not accepted. It submits the Member did not distinguish any of the cases or Practice Direction 11. The Member did not explain why the decision of Keating P in Merchant “was not binding, or at the very least persuasive”. The employer submits the Member did not cite authority for the definition he gave to the words ‘claim’ and ‘injury’ where discussed in the reasons at [63]. He did not explain why he seemed to “extend the definition of ‘injury’ and ‘claim’”.
Section 294 of the 1998 Act provides:
“294 Certificate of Commission’s determination
(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
Rule 78 of the Rules provides:
“78 Statement of reasons for decision
(1) This rule applies only in relation to the following applicable proceedings—
(a)Commission proceedings,
(b)merit review proceedings.
(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)the appropriate decision-maker’s understanding of the applicable law,
(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.”
The Member’s reasons dealing with s 322A of the 1998 Act failed to engage in any meaningful way with the section and the scheme of the legislation. The employer relied on the decision of Keating P in Merchant, which dates back to 2015, and which has been applied in the Commission, including the former WCC. The decision in Merchant was on point and supported the employer’s argument. Mr Parker submitted that proper reasons at least would have required a consideration of Merchant and Tokich and why s 322A did not prevent the referral.[159] The following exchange occurred at the oral hearing on 14 April 2023:
“MR PARKER: … this type of submission has been made in a number of cases, but perhaps the most relevant one is in Merchant – now, this was the specific submission made in Merchant, and effectively the same submission made to Member Young by the worker. And if I can just transgress back into what I was saying about why there’s an error, there must be at least an error. One would [have] expected the Member to have dealt with this, at least this part of Merchant. When one party says that it’s essentially binding, or very powerful dicta, right on point, dealing with this particular submission, the other party seems to accept it does – it’s the same submission, but it’s not binding, which was – which, in fairness to my friend, what he said – you would expect a Member to turn his mind to it and specifically address it.
DEPUTY PRESIDENT: It wasn’t addressed at all, was it?
MR PARKER: No. That must be an error. That must be jurisdiction for this court to intervene.”[160]
[159] See T2 18.28–20.2.
[160] T2 24.23–25.9.
When the worker’s counsel addressed at the oral hearing the following was said:
“MR McMANAMEY: … the common view of the parties is that if you find error, that the matter should be redetermined, I propose to limit my submission as to what actually is the correct legal position.
DEPUTY PRESIDENT: Is there tacit acceptance, from your perspective, that redetermination is needed, that error is demonstrated?
MR McMANAMEY: I don’t wish to be heard and I’m not saying anything as to whether or not there was an error in the first place, other than the submission which is, whatever error there may have been, the outcome is nonetheless correct, subject to the costs.
DEPUTY PRESIDENT: I mean, the reason[s] the argument on its own would seem fairly powerful in the circumstances - - -
MR McMANAMEY: I think that’s fair, Deputy President, from that.
DEPUTY PRESIDENT: All right.
MR McMANAMEY: I think it’s a question, really, of what is the approach.”[161]
[161] T2 30.2–27.
In Brambles Ltd v Bell Hodgson JA (Tobias and McColl JJA agreeing) said “the obligation to give reasons has to be considered in the light of the issues raised for consideration by the parties.”[162] It is necessary that the decision maker enter into the issues and provide explanation for why one case is preferred over the other.[163] It is necessary that the Member “expose his reasoning in sufficient detail to enable a losing party to understand why they lost”.[164] In Beale Meagher JA said:
“… a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.”[165]
[162] [2010] NSWCA 162, [22].
[163] Moylan v Nutrasweet Company [2000] NSWCA 337, [66].
[164] Beale, 442.
[165] Beale, 443–444.
I accept the employer’s argument regarding the adequacy of the reasons. The Member’s reasons do not, in my view, satisfy the established general legal requirements or those in r 78 of the Rules.[166]
[166] See generally Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, [56]–[67] per McColl JA.
It follows from the above that Grounds Nos. 1, 2, 3 and 4 succeed.
GROUND NO. 5 – ERROR OF LAW IN CONSTRUING THE EFFECT OF SECTION 322A
The employer’s submissions summarise the “essence of the parties’ submissions”:[167]
“a. Worker
i. Whilst he had been referred for an injury to the right knee (ARD 264 and 274), he had not been referred, and he was entitled to be referred, for an injury to the back or neck: T45–46; and
ii. Section 322A did not preclude a further referral to the [Medical Assessor], as the claim was not about permanent impairment compensation, the commutation of liability, or a claim for work injury damages: T46.17–49.
b. Employer
i. Section 66(1A), read together with s 322A, operated such that he had had his one claim and was precluded from seeking a further referral about the injury/incident; and
ii. Section 322A could not be interpreted narrowly, as sought by the worker. Rather, s 322A – in the circumstances of the case – prohibited a referral for the purposes of s 39.”
[167] Appellant employer’s submissions, [23].
The employer submits the worker’s claim relied on the ‘nature and conditions’ resulting from the worker’s “heavy and arduous duties”, alleged to have aggravated a degenerative condition in the worker’s back and neck. The employer submits the earlier award pursuant to s 66 of the 1987 Act, which related to the right knee, was the worker’s only s 322A assessment for the purpose of all “physical injuries/conditions relating to the incident”. It submits the worker’s interpretation of the legislation is not open. The worker’s argument involves reading words into the Act, replacing the word ‘injury’ with the word ‘pathology’. The High Court in Goudappel described the amending Acts, in reference to the lump sum provisions, as “patently not beneficial”. The employer submits the referral of the back for assessment was not open and should not have been made.
The worker submits the “essential issue” appears to be whether the back injury found by the Member could not be referred for assessment due to s 322A.[168] The worker refers to the Guidelines for the Evaluation of Permanent Impairment; the Guidelines provide for assessment by specialists in different disciplines. There is a mechanism for combining separate assessment from different injuries to produce a single combined assessment. An assessor can produce a certificate for body parts that have reached maximum medical improvement and defer assessment of parts that have not. ‘Injury’ and ‘impairment’ are different concepts.[169] The worker quotes from the definition of ‘injury’ in s 4 of the 1987 Act and from s 322 of the 1998 Act. He quotes from the reasons of Barrett JA in Galluzzo.[170] His Honour concluded that an assessor could assess body parts that had reached maximum medical improvement and defer assessment of those parts that had not. There can be separate assessments in respect of different body parts at different times, although these are ultimately combined. This is submitted to be the “natural grammatical meaning” of the words in s 322.[171] The worker submits that as there had not been an assessment of the impairment resulting from back injury, s 322A had no application and did not prevent that assessment from being carried out.[172]
[168] Respondent worker’s submissions, [5].
[169] Respondent worker’s submissions, [7]–[11].
[170] Galluzzo, [40]–[41].
[171] Respondent worker’s submissions, [12]–[22].
[172] Respondent worker’s submissions, [23]–[24].
The worker’s submissions refer to s 65 of the 1987 Act. He submits s 65 operates for the purposes of Div 4 of that Act, it does not operate for the purposes of Pt 7 of the 1998 Act, where s 322A is found.[173] The worker submits that prior assessment of the right knee injury does not prevent a referral to determine whether s 39 applies. The case does not involve a further claim for permanent impairment compensation, there is no issue regarding s 66(1A) of the 1987 Act. The worker submits the words in parentheses in s 322A are subject to a qualification, it describes three circumstances where the assessment applies. The worker submits the obvious purpose of the words is to limit the circumstances where the “one assessment” applies. It is submitted the President’s construction in Merchant leaves the words in parentheses with “no work to do”.[174]
[173] Respondent worker’s submissions, [25]–[28].
[174] Respondent worker’s submissions, [30]–[36].
The worker’s submissions refer to sub-s (3) of s 322A. The worker submits that when the sub-section talks about “a medical dispute about that matter” this is a reference to the matter which formed the medical dispute. It does not apply to “another matter”. The worker submits the previous referral in the current proceedings was about permanent impairment to the right knee for a claim pursuant to s 66. The current claim is completely different, a determination of whether impairment from injury to the right knee and back is greater than 20 per cent for the purposes of s 39. The matter in dispute is different to the prior referral and assessment.[175]
[175] Respondent worker’s submissions, [37]–[38].
The decision in Merchant
Merchant, like the current matter, was not a claim for lump sum compensation. The worker sought to satisfy the “permanent impairment threshold of more than 30 per cent to be characterised as a ‘seriously injured worker’.” Such workers, as a general proposition, “receive significantly more generous benefits than other claimants.” Mr Merchant suffered a series of four work injuries, between October 1998 and August 2010. Keating P said “the issue concerns whether it is permissible to aggregate impairments that have resulted from injuries to different body parts, in a series of unrelated accidents, to meet the required permanent impairment”.[176] His Honour concluded that it was not. The definition of a ‘seriously injured worker’ in s 32A of the 1987 Act referred to a worker “whose injury has resulted in permanent impairment …”. His Honour discussed the legislation and the rebuttable presumption regarding “number” in s 8(b) of the Interpretation Act 1987. His Honour concluded that the presumption created by s 8(b) was “displaced by the contrary intention which is evident from the legislation when read as a whole”. He said “the reference in those provisions [ss 65 and 66 of the 1987 Act] to injury is a reference to a singular injury”.[177]
[176] Merchant, [1]–[7].
[177] Merchant, [123]–[125].
Keating P described this conclusion as being “consistent with the presence of s 322A of the 1998 Act”. His Honour referred to an argument which is also made in the current proceedings:
“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.”[178] (emphasis in original)
[178] Merchant, [127].
I note that the issue again came before Keating P in Davison v State of New South Wales,[179] in which his Honour came to a similar result for similar reasons.
[179] [2015] NSWWCCPD 47.
The decision in Tokich
The parties’ submissions referred to Tokich, a decision which deals with claims for permanent impairment compensation where a worker sustains both physical and primary psychological injury in the same incident. The worker was assaulted and suffered spinal injuries together with post-traumatic stress disorder and major depression. He recovered permanent impairment compensation in respect of his physical injuries following assessment by an AMS. He subsequently claimed lump sum compensation for the psychological injury, relying on s 65A(4) of the 1987 Act. There was a Presidential appeal against a finding by an arbitrator that the worker, having claimed permanent impairment compensation for his physical injuries, was prevented by s 66(1A) of the 1987 Act from claiming permanent impairment compensation for his primary psychological injury.
Acting President Roche referred to the notes to s 65 of the 1987 Act, which he said could be considered in accordance with s 34(2)(a) of the Interpretation Act. It reads:
“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.”
The Acting President also referred to the note to s 65A(4) of the 1998 Act which reads:
“Note—
If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.”
The Acting President said:
“In circumstances where s 65A expressly distinguishes between physical injuries and primary psychological injuries arising from the same incident, it would be illogical and contrary to commonsense to require claims for permanent impairment compensation for those injuries to be made at the same time. They are clearly different injuries and are treated differently in s 65A. They are not intended to be assessed ‘together’ (s 65(2)) and cannot be treated as ‘one injury’, as is required for multiple physical injuries that arise from the one incident.
It therefore follows that, in cases involving physical injuries and primary psychological injuries arising out of the same incident, the reference in s 66(1A) to ‘one claim’ for permanent impairment compensation in respect of the permanent impairment that results from ‘an injury’ is a reference to one claim for the physical injuries and one claim for the primary psychological injuries. As a result, Mr Tokich’s claim for permanent impairment compensation for his primary psychological injury is not a second claim, but is his one claim for that injury and the Arbitrator erred in finding to the contrary.”[180]
[180] Tokich, [64]–[65].
Conclusion dealing with Ground No. 5
In my respectful opinion the construction by Keating P in Merchant, dealing with s 322A of the 1998 Act, is correct. The emphasis placed by his Honour on the word “any” in s 322A(2) highlights the emphatic language employed by the legislature in that sub-section. The words of the section do not suggest that there are exceptions to this prohibition. To read s 322A, in the way the worker submits, would involve a reading that conflicts with the plain, unlimited words of sub-s (1). His Honour’s reading of s 322A involves internal consistency within the section. I accept the employer’s submissions that the words in parentheses should be read as providing examples.[181] They do not purport to be exhaustive. There are certain statutory exceptions to the prohibition in s 322A, for example medical appeals (ss 327 and 328 of the 1998 Act), referrals under s 329 of the 1998 Act, and Pt 2A of the 2016 Regulation.[182] It is not argued that these have application in the current matter.
[181] See Dean v Attorney-General (Qld) [1971] Qd R 391 discussed in D Pearce, Statutory Interpretation in Australia, 9th ed., 170–171.
The term ‘medical dispute’ is defined in s 319 of the 1998 Act:
“In this Act—
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim—
(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker’s fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
Section 322 of the 1998 Act provides that, in assessing permanent impairment, impairments that result from the same injury are to be assessed together, and impairments that result from more than one injury arising out of the same incident are to be assessed together. It also provides for the deferral of an assessment until the degree of permanent impairment is “fully ascertainable”.
The dispute in the current matter, going to whether the worker suffers a degree of permanent impairment sufficient to receive ongoing weekly payments having regard to s 39 of the 1987 Act, falls within the definition of a ‘medical dispute’. Subsection (3) of s 322A states:
“(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.”
The MAC dated 24 February 2015 certified that the worker suffered 13 per cent permanent impairment as a result of the nature and conditions of his work with Lazio with a deemed date of injury of 9 April 2010. As discussed above under Ground No. 1, the date of deemed injury was initially found to be 9 April 2010 in proceedings no. 6091/14 and 10 April 2010 in the current matter. It is clear that in both instances the alleged injury was one based on the ‘disease’ provisions during the full period of the worker’s employment with Lazio, which came to an end on 9 April 2010. Quite properly, neither party argued that anything turns on the discrepancy in the deemed dates and the parties agree that the deemed dates should be consistent. It was described as common ground that the right knee condition, which was previously assessed, also arises out of the ‘nature and conditions’ of employment (see [133] above).
In Galluzzo Barrett JA said:
“The provisions just quoted, read as a whole (and together with s 322(1) of the [1998] Act), indicate three things: first, that if a worker suffers several ‘injuries’ arising out of a single ‘incident’, those injuries are to be treated as a single injury and the impairments resulting from that composite single injury are to be ‘assessed together’; second, that, even if the several injuries arising out of a single incident are not to be treated as a single injury, the impairments resulting from those injuries are to be ‘assessed together’; and, third, the object of the process of assessment as a whole is to quantify ‘the degree of permanent impairment of an injured worker’.
The aim, therefore, is to address the state of ‘permanent impairment’ of a particular person produced by a single incident, with all injuries arising out of the incident being treated as a single injury and all resultant impairments being ‘assessed together’, so as to avoid the kind of situation illustrated by Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 (a case involving the Commonwealth workers compensation regime) where each ‘injury’ was dealt with in its own right and without reference to the others even though all arose from the one incident.[183] (emphasis added)
[183] Galluzzo, [38]–[39].
In Sukkar v Adonis Electrics Pty Ltd McColl JA quoted the above passage with approval. Her Honour said the above described the effect of s 65(2) of the 1987 Act and s 322(2) and s 322(3) of the 1998 Act.[184]
[184] [2014] NSWCA 459, [80].
It is not to the point, as the Member said at [63] of the reasons, that the worker “has not made any ‘claim’ in the sense of s 66(1A) for permanent impairment as a result of any back injury with the current [employer].” (emphasis added).
Section 322A was inserted into the 1998 Act by the Workers Compensation Legislation Amendment Act 2012. The Court of Appeal referred to the 2012 amendments in Cram Fluid Power Pty Ltd v Green, where it said that these legislative reforms “marked a legislative policy favouring cost-saving and administrative reforms to the existing scheme for lump sum compensation under the 1987 and 1998 Acts.”[185]
[185] [2015] NSWCA 250, per Gleeson JA (Beazley ACJ and Emmett JA agreeing), [128], see also Goudappel, [29].
I accept the employer’s submission that the worker is precluded by section 322A of the 1998 Act from obtaining the further referral to a Medical Assessor which he seeks. Ground No. 5 succeeds.
THE WORKER’S GROUND OF APPEAL
It follows from the above that the worker’s application fails overall. Although it will not be dispositive, it is appropriate that I deal briefly with the appeal put on by the worker in matter no. A2-W3685/22. There is a single ground:
“The Member erred when he considered that he had to find that there was a specific aggravation of the degenerative neck condition whilst in the employ of [Lazio].”
The worker’s alleged neck injury was received prior to 19 June 2012. The allegation was on the basis of the “aggravation, acceleration, exacerbation or deterioration” of disease. It was necessary that he prove the ‘disease’ injury on the basis of the definition quoted at [28] above. It was additionally, at that point in time, necessary that the injury satisfy s 9A of the 1987 Act.
In Taylor v J & D Stephens Pty Ltd the Court of Appeal, after quoting s 4 of the 1987 Act, said:
“It can be seen that there are three components to a ‘disease injury’ – the existence of a ‘disease’, that the disease was contracted (or aggravated etc) in the course of employment, and that the employment was the main [or ‘substantial’, depending on the date of injury] contributing factor to the contraction (or aggravation etc) of the disease. If all three are demonstrated, the worker has suffered a ‘disease injury’ within the meaning of s 4(b), and is entitled to benefits as prescribed by Part 3 of the [1987] Act.”[186]
[186] [2018] NSWCA 267 (Taylor), [34] per Simpson AJA (McColl AP and Payne JA agreeing).
In Crisp v Chapman Mahoney AP said:
“… a work aggravated disease, involves that there is a disease; that there was ‘the aggravation, acceleration, exacerbation or deterioration of’ the disease, and that the employment ‘was a contributing factor to’ that. It does not require that it be shown that the disease itself was contracted in the course of the employment or otherwise was causally related to it.”[187]
[187] (1994) 10 NSWCCR 492 (Crisp), 495A–B.
In Grate Lace Pty Ltd v Theiss Watkins White (Constructions) Pty Ltd Kirby P (as his Honour then was), dealing with the ‘disease’ provisions, said the trial judge’s “basic mistake was, with respect, in endeavouring to return to the assignment of liability according to a notion of true causation”.[188]
[188] (1995) 12 NSWCCR 365, 368G. See also StateCover Mutual Ltd v Cameron [2015] NSWCA 127, per Basten JA at [18].
The Member, in his reasons at [58], said:
“The proper application of section 16 has been submitted by Mr Parker to include first a finding of injury, second application of section 16 to determine who pays for it.
Mr McManamey, unlike Mr Parker, argued that it is not a question as to how long an applicant has worked in a particular employment and this is important because in the time up to 10 April 2010 the [worker] had only worked for [Lazio] for a period of about two to four months. But in my view the enquiry nonetheless requires causation either directly or by way of aggravation (etc) in the last employment.”At [59] to [60] the Member referred to the worker’s evidence of “intermittent back and neck pain which increased in frequency, duration and intensity over time”, the worker saying “[f]ormwork is heavy work”. The worker described the work with Lazio as involving “a lot of manual handling” and being “particularly heavy”. The Member concluded there was “insufficient evidence” to establish that employment with Lazio was either the main or a substantial contributing factor to injury to the cervical spine.
I accept the worker’s submission that the Member erred in the test that he applied in respect of the allegation of work injury involving the neck.
RE-DETERMINATION
Sub-sections (5) and (6A) of section 352 of the 1998 Act provide:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
“(6A) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.”
Both parties submit that the matter should be re-determined. The reasons on the re-determination should be read together with the other reasons in this appeal. The parties do not submit that the findings dealing with Anshun estoppel, injury to the back and injury to the right lower limb (knee) should be disturbed.
For reasons given above, the date of injury, in the ‘injury’ finding against Lazio in the current proceedings, should be amended to 9 April 2010. I note the permanent impairment associated with the right knee injury was previously assessed by Dr Burns at 13 per cent, in his MAC dated 24 February 2015. This assessment related to the worker’s prior claim against Lazio in respect of permanent impairment compensation, in respect of the right knee and scarring. For reasons given above I find that the worker is not entitled to bring a further application for assessment of the degree of his permanent impairment in respect of his injury based on the ‘nature and conditions’ of employment with a deemed date of 9 April 2010.
It follows that the application for weekly payments in the current proceedings cannot succeed due to the operation of s 39 of the 1987 Act. This applies to the allegations that are the basis of both sets of proceedings before me.
DECISION
The employer’s appeal in matter no. A1-W3685 succeeds.
The worker’s appeal in matter no. A2-W3685 fails.
The Member’s decision dated 13 September 2022 is revoked.
In lieu thereof, there is an award for the respondent (the employer).
Michael Snell
DEPUTY PRESIDENT
17 July 2023
- AGLC
- Lazio Formwork Pty Ltd v Kelly; Kelly v Lazio Formwork Pty Ltd [2023] NSWPICPD 40
- Case
- [2023] NSWPICPD 40
- Decision Date
CaseChat Overview and Summary
The court meticulously examined the Commission's reasoning, particularly in relation to Section 322A of the Workplace Injury Management and Workers Compensation Act 1998. The Member's reasons were found lacking as they did not meaningfully address this section or the overall legislative scheme. The employer's argument was bolstered by the decision in Merchant v Shoalhaven City Council, which was pertinent to the case at hand. The court found that the failure to consider Merchant constituted a significant error, as it was directly relevant to the argument presented. Furthermore, the court highlighted that the reasoning process of the Member did not adequately address the applicable law, which is a critical component of Rule 78. The submissions from both parties underscored the importance of properly engaging with relevant legal authorities.
As a result of the court's findings, it was determined that the Commission's decision contained a factual error and failed to provide adequate reasons as required by Rule 78. Consequently, the court ruled that the matter should be redetermined. This decision underscores the necessity for decision-makers to thoroughly engage with relevant legal precedents and to provide comprehensive reasons that reflect an understanding of the applicable law. The court's decision emphasized the importance of procedural fairness and the duty to give reasons in administrative law, ensuring that all relevant legal issues are appropriately addressed.
The final orders of the court included the redetermination of the case by a different Member of the Commission, ensuring that the new determination would be based on a proper application of the law and the provision of adequate reasons. The costs of the appeal were also awarded to the applicant, Lazio Formwork Pty Ltd, reflecting the significance of the errors identified in the original decision.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.