Marrone v Employers Mutual Ltd
[2013] SASCFC 67
•2 July 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Case Stated)
MARRONE v EMPLOYERS MUTUAL LIMITED AS AN AGENT FOR WORKCOVER CORPORATION OF SOUTH AUSTRALIA
[2013] SASCFC 67
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice White)
2 July 2013
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW
Question of law referred by the Full Bench of the Workers Compensation Tribunal - whether, in the determination of a worker's entitlement to lump sum compensation for non-economic loss under s 43 of the Workers Rehabilitation and Compensation Act 1986 (SA), two or more disabilities having more than one cause are to be treated as arising from the same trauma only when it is the same event, or series of events, which causes both disabilities, or whether it is sufficient that at least one of the separate causes of these disabilities is common to both.
Held: Section 43(6) applies when one and the same trauma causes two or more disabilities.
Workers Rehabilitation and Compensation Act 1986 (SA) s 3, s 43, s 43A, s 46, s 54, s 86A, s 113 and Schedule 3; Workers Rehabilitation and Compensation (Employer Payments) Amendment Act 2011 (SA) s 4 and Schedule 1; Workers Compensation Act 1971 (SA) s 69; Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA) s 24; Workmen's Compensation Act 1932 (SA) s 26; Workers Rehabilitation and Compensation Regulations 2010 (SA) Reg 39 and Schedule 4; Motor Accidents Compensation Act 1999 (NSW) s 44 and s 69, referred to.
Marrone v WorkCover Corporation [2011] SAWCT 8; Wardleworth v Green (1996) 66 SASR 421; NRMA Insurance Ltd v Motor Accidents Authority of NSW [2004] NSWSC 567; (2004) 61 NSWLR 264; Allianz Australia Insurance Ltd v Crazzi [2006] NSWSC 1090; (2006) 68 NSWLR 266; Spry v Manser (1993) 60 SASR 586; Manser v Spry (1994) 181 CLR 428; Australian Eagle Insurance Co Ltd v Federation Insurance Ltd (1976) 15 SASR 282; WorkCover Corporation v Beckwith (Unreported, Supreme Court of South Australia, Full Court, Doyle CJ, Bollen and Nyland JJ, 1 August 1996, Judgment No S5794); Workers Rehabilitation and Compensation v Hillier & Van Wyk (1997) 193 LSJS 57, considered.
MARRONE v EMPLOYERS MUTUAL LIMITED AS AN AGENT FOR WORKCOVER CORPORATION OF SOUTH AUSTRALIA
[2013] SASCFC 67Full Court: Kourakis CJ, Sulan and White JJ
KOURAKIS CJ: This case stated raises as a question of law the proper construction of the term “arising from the same trauma” in s 43(6) of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Act”). “Trauma” is defined by s 3(1) of the Act to mean an event, or series of events, out of which a compensable disability arises. The question is whether two discrete compensable injuries arise out of the same series of events, within the meaning of that statutory term, if one or more events in that series are common, but not the exclusive, causes of both injuries.
The construction for which the worker, Marrone, contends would give an affirmative answer to that question. Marrone contends that if the event, or events, which cause a compensable injury are integers in a series, which series also includes events which caused another compensable injury, both injuries arise out of the same series of events. On the other hand the Compensating Authority contends that any two compensable injuries do not arise out of the same series of events unless all of the events forming the series are the exclusive causes of both injuries.
On a textual analysis I find the Compensating Authority’s construction to be the strongest. If events A and B are the only causes of injury Y, and events A, B and C are the only causes of injury Z it can be accepted that each of the events A and B are causes of both injury Y and injury Z. Put in another way, injuries Y and Z have, as common causes, events A and B which form part of a series of events which includes the other cause of injury Z. However event C is not also a cause of injury Y. Injury Y arises out of the series of events A:B whereas injury Z arises out of the series of events A:B:C. The two series, self evidently, are not identical. The series which caused injury Y is a subset of the series which caused injury Z. To hold that it is sufficient if the injuries share one or more common, but not all, causes is to substitute for the phrase “arising out of the same [event or series of events]” the phrase “arising out of an event or events which are part of a series of events”.
It is convenient to observe now that the preceding paragraph assumes that the connection between events which constitutes them a series is a causal one. All events which have operated as a cause of an impairment comprise a series. Causal chains in personal injury cases may extend over many years and encompass a range of industrial and non-industrial events. The facts of this case serve as an example of that notorious feature of personal injury litigation. I will return to the significance of this observation at the conclusion of the next part of my reasons in which I consider the industrial context of s 43(6) of the Act.
The Industrial Context
Statutory workers compensation schemes have historically provided:
·compensation for loss of earnings by way of weekly payments of average weekly earnings or a part thereof proportionate to the extent of incapacity;
·a redemption of the prospective loss of earnings compensation (usually capped);
·medical expenses;
·compensation to dependents when the injury results in death;
·a lump sum disability payment for the impairment of a faculty calculated as a percentage of a sum fixed for the total loss of that faculty which is proportionate to the loss of use of the faculty.
It is the last form of compensation which is in issue in these proceedings.
Sections 43 and 43A of the Act are the descendants of a long line of statutory provisions which have provided for the payment of lump sum compensation which is proportionate to the extent of the impairment of a faculty (impairment compensation). The maximum compensation payable for the total loss of a particular faculty generally has been fixed as a percentage of a prescribed sum which is payable in the case of specified catastrophic injuries such as a total and incurable paralysis of the limbs or a total loss of sight. I will refer to that sum as the prescribed maximum award. The percentages of the prescribed maximum award payable for the total loss of other, lesser, faculties were generally fixed in such a way that the sum of the awards made for multiple serious impairments sustained in a single work accident might exceed the prescribed maximum award. In order to ensure that a worker who had sustained multiple impairments from a work accident did not receive a greater award than a worker who had sustained a single catastrophic impairment, the impairment compensation provisions have commonly provided that the impairment compensation awards payable for multiple impairments arising out of the same “occurrence”[1] or “events”[2] must not exceed the prescribed maximum award.
[1] Workers Compensation Act 1971 (SA), s 69(7).
[2] Workers Rehabilitation and Compensation Act 1986 (SA), s 43 & Sch 3.
The amendments to the Act made by the Workers Rehabilitation and Compensation (Scheme Review) Act 2008 (SA) (the 2008 amendment) to Part 4 Division 5 of the Act mark a substantial departure from the historical model. Awards for multiple impairments arising out of the same events are no longer made by accumulating separate awards payable for the impairment of discrete faculties. Instead, a single award is made based on an “assessment” of the workers “whole of person” impairment.[3] The 2008 amendment did not repeal the prohibition against impairment compensation awards for multiple injuries arising out of the same trauma exceeding the prescribed maximum award.[4] However, the provision is now largely unnecessary because the 2008 amendment also empowered the Minister to further moderate the award payable in the case of multiple injuries by allowing the resulting disabilities to be treated as a single disability in accordance with the WorkCover Guidelines.[5] The nature of the whole of person assessment required, somewhat elliptically, by the Act, is given form by regulations and Ministerial guidelines, referred to as WorkCover Guidelines, published pursuant to s 43A(3) of the Act.
[3] Ibid, s 43(3) & Sch 3.
[4] Ibid, s 43(6)(b).
[5] Ibid, s 43(6)(a).
Plainly enough neither the regulations nor the WorkCover Guidelines to which I am about to refer can govern the proper construction of the Act. However, they do illustrate the way in which multiple “disabilities arising from the same trauma … may together be treated as one disability” in accordance with s 43(6) of the Act and the way in which an assessment of whole of person impairment” may be made in accordance with s 43(3) of the Act. The nature of the regulations and guidelines contemplated, and authorised, by s 43 of the Act itself, can inform the construction of the term “same trauma”.
The WorkCover Guidelines prescribe the method of assessment of a worker’s injury or injuries to arrive at a percentage value for his or her whole of person impairment. The WorkCover Guidelines provide that if more than one faculty is impaired as a result of a compensable event, a single whole of person impairment is calculated according to a table appearing in the American Medical Association’s “Guides for the evaluation of permanent impairment”, 5th edition (the AMA(5) Guide). The AMA(5) Guide includes a table which produces a single combined whole of person impairment by moderating any two individual impairments. The table is constructed so that the moderated assessment, naturally enough, never exceeds a 100 per cent whole of person impairment. It is for that reason that the express prohibition against recovery of more than the prescribed maximum award is unnecessary given the current form of the WorkCover Guidelines.
The AMA(5) Guide allows the combination of two injuries, each of which produce a whole of person impairment of less than five per cent, to be combined and treated as a single impairment which may meet or exceed the five per cent threshold.
For example, disabilities to an arm and leg sustained in the same trauma producing whole of person impairments of 4 per cent and 3 per cent respectively, when combined in the table result in a whole of person impairment of 5 per cent.
The Workers Rehabilitation and Compensation Regulations 2010 (SA) (the Regulations) prescribes the sum payable for each percentage whole of person impairment calculated in accordance with the WorkCover Guidelines. The regulations set the award payable by reference to the minimum levels of compensation fixed by Schedule 3 of the Act. Schedule 3 of the Act fixes the minimum impairment compensation payable pursuant to the regulations for prescribed ranges of impairment as follows:
Degree of whole of person assessment Minimum compensation payable under regulations under s 43(2) 5% - 9%
(inclusive)$10,000 10% - 29% $17,500 30% - 54% $75,000 55% - 69% $250,000 70% - 100% $400,000
The Act provides that the minimum amounts are to be increased annually in accordance with the inflation index.
Schedule 3 of the Act commences at 5 per cent because s 43(4) of the Act provides that there is no entitlement to impairment compensation if the worker’s degree of permanent impairment is less than 5 per cent. Schedule 4 of the Regulations fixes the amounts payable for each percentage increase in the whole of person impairment above the threshold, in accordance with a quadratic formula derived from the minimum amounts prescribed by Schedule 3. When graphically reproduced, those amounts take the form of a parabolic curve connecting the points reflecting the minimum awards prescribed by Schedule 3 of the Act. However, the regulations do not provide for the payment of anything more than the amount prescribed in the 70 per cent to 100 per cent range, even if the whole of person impairment exceeds 70 per cent.
It can be seen from Schedule 4 of the Regulations that for whole of person impairments, at the upper end of the range, the lump sum payable is more than two times higher than the amount payable for a whole of person impairment which is half as great. For example, in the case of a 2010 injury a whole of person impairment of 30 per cent results in an award of impairment compensation of $79,924, but a 60 per cent whole of person impairment attracts an award of $316,772.
The combination of several impairments to produce a single whole of person impairment in accordance with the WorkCover Guidelines may result in an award of impairment compensation which, in some cases, is more and, in other cases, is less than the sum of the individual impairment awards. The difference is the result of the exponential increases in the amounts prescribed by Schedule 4 of the Regulations for impairments at the upper end of the range. If, for example, a worker sustains two disabilities which are separately assessed at 30 per cent whole of person impairment, the combined whole of person impairment for both is 51 per cent. The sum prescribed by Schedule 4 of the Regulations for a 2010 injury resulting in a 51 per cent whole of person impairment is $227,983, which is significantly greater than two times the award of $79,924 which is payable for a whole of person impairment of 30 per cent.
On the other hand, at the lower end of the range of impairments, the combined whole of person impairment attracts a smaller award than would have been paid if the awards for the separate impairments had been accumulated. For example, a single whole of person impairment of 8 per cent attracts an award of $15,307, whereas two such impairments when combined produce a single whole of person impairment of 15 per cent which attracts an award of only $28,486.
Finally, it should be observed that because Schedule 4 of the Regulations caps impairment compensation awards at the 70 per cent whole of body impairment level, the single combined whole of person impairment assessment mandated by the WorkCover Guidelines, for injuries arising out of the same trauma, will disadvantage a worker who suffers several impairments the sum of which exceeds 70 per cent. However, in that respect, the cap imposed by the regulations also disadvantages workers with a whole of person impairment of more than 70 per cent due to a single catastrophic impairment.
In summary, when impairments of different faculties are treated in isolation, the provisions would disadvantage workers who suffered multiple faculty impairments which, separately, fall below the threshold, and workers with multiple impairments at the higher end of the range. On the other hand, treating the impairments of different faculties as a single whole of person impairment disadvantages workers suffering from multiple impairments at the lower end of the range.
Despite the complexity of the detail to which I have referred, the purpose of s 43(6) of the Act is reasonably clear. It is to reduce what are arguably arbitrary differences between awards of compensation payable to workers with comparable overall impairments depending on whether their impairment arises from the loss of use of a single, or multiple, faculties. The range, nature and extent of impairments caused by an industrial occurrence or event is often a matter of chance. For example, a fall might cause different injuries to several limbs or may result in a single serious, or even, catastrophic spinal injury. Workers would have a valid sense of grievance if the impairment compensation awards made in such cases were not reasonably proportionate to whole of person impairments.
The purpose of s 43(6) of the Act is to provide greater impairment compensation consistency between awards when all of the impairments have been caused by the same events. It ensures that workers with a comparable single whole of person impairment generally receive similar awards, whether the whole of person impairment results from the loss of a single or multiple faculties.
If injuries arise out of a completely different event or events, or from additional events, it is less likely that their differential treatment will engender a sense of grievance, because it is more generally accepted that injuries arising out of different circumstances will result in separate awards of compensation.
The primary purpose of the extended definition of the term “same trauma” is probably to cover injuries which are caused by a series of repetitive work duties or protracted exposures to injurious environments.
The practical operation and industrial context of s 43(6) of the Act which I have discussed in the preceding paragraphs suggests that the narrower, literal construction of the phrase “series of events” is legislatively intended for the following reason. If impairments which share a common cause arise out of the same series of events for the purpose of s 43(6) of the Act, subsequent compensable impairments sustained many years after an initial compensable impairment and in very different circumstances will be combined to constitute a single whole of person impairment. That is the significance of the causal relationship between events which constitute a series for the purpose of s 43(6) of the Act to which I earlier referred. An impairment to one faculty in the first of a series of industrial events may be the cause of one or more industrial accidents in other workplaces over the course of the worker’s life which results in impairments to a number of other faculties.
The making of an additional award of compensation based on a separate assessment of the subsequent impairment suffered in those circumstances would not raise concerns or grievances of the kind to which I have earlier referred. Indeed, if the impairments were combined, some difficult questions would arise as to whether the scale of awards extant at the time that the earlier or subsequent impairments were sustained should be engaged.
The Authorities
The construction I would give the term “same trauma” for the purposes of s 43 of the Act is the same as the meaning attributed to that term as it is used in s 53(7) of the Act by this Court and the High Court in Manser v Spry[6]. The cases of Wardleworth v Green[7] (Wardleworth) and Workers Rehabilitation and Compensation Commission v Hillier & Van Wyk[8] (Hillier) do not bear on the extension of the definition of “same trauma” to include a series of events. In Wardleworth both the damage for which the third party tortfeasor was liable, and the compensable injury were sustained in the motor vehicle accident. The Full Court held that the circumstance that WorkCover was also liable to pay compensation by reason of a subsequent work related aggravation was of no consequence. Similarly in Hillier both the damage for which the surgeon was liable and the injury which WorkCover was bound to compensate were sustained in the negligently performed operation. Again it was of no consequence that WorkCover was also liable to pay the same compensation by reason of the earlier work injury which had placed the worker on the operating table.
[6] Spry v Manser (1993) 60 SASR 586; Manser v Spry (1994) 181 CLR 428, 434.
[7] (1996) 66 SASR 421.
[8] (1997) 193 LSJS 57.
Conclusion
For the above reasons both the text and context of the s 43(6) of the Act combine to support the construction proposed by the Compensating Authority. That construction is also consistent with the decisions of this Court and the High Court in Manser v Spry.
The series must include all of the events out of which the injury arose; it must be a comprehensive series. Questions may arise as to whether a step in the progression of an impairment is part of the internal physiological pathogenesis of the injury of whether it is caused by an external event, but any two impairments do not arise out of the same series unless all of the events in the series have operated as a cause of both impairments.
I would answer the question posed: “Yes”.
SULAN J: I would answer the question “Yes”. I agree with the reasons of White J.
WHITE J. By s 43 of the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act), a worker who suffers a compensable disability resulting in a permanent impairment of a defined type is entitled to compensation for non‑economic loss by way of a lump sum.
Section 43(6) addresses the circumstance of a worker who suffers two or more compensable disabilities arising from the same trauma:
(6) If a worker suffers 2 or more compensable disabilities arising from the same trauma—
(a) the disabilities may together be treated as 1 disability to the extent set out in the WorkCover Guidelines (and assessed together using any combination or other principle set out in the WorkCover Guidelines); and
(b) the worker is not entitled to receive compensation by way of lump sum under subsection (2) in respect of those disabilities in excess of the prescribed sum.[9]
[9] By s 4 and Schedule 1 of the Workers Rehabilitation and Compensation (Employer Payments) Amendment Act 2011 (SA), which came into operation on 1 July 2012, all references to “compensable disability” in the Workers Rehabilitation and Compensation Act 1986 (SA) have been replaced by the term “compensable injury”. That change is of no consequence for present purposes, and I will continue to use the expression “compensable disability”, that being the term in force at times relevant to the referral of the question to this Court.
The Full Bench of the Workers Compensation Tribunal has referred for the opinion of this Court[10] a question concerning the proper construction and application of s 43(6). In substance the issue is whether multiple disabilities having more than one cause will arise from the same trauma in the manner contemplated by the opening line of the subsection if at least one of the causes is common to both. Before identifying the question more closely, it is appropriate to outline the circumstances giving rise to it.
[10] See Workers Rehabilitation and Compensation Act 1986 (SA), s 86A(1).
Background Circumstances
Mr Marrone suffered compensable disabilities to his right elbow, right forearm and right shoulder as a result of repetitive lifting activities. These disabilities were treated as having been suffered on 8 June 2006.[11] The pain and limitations from the right shoulder disability were initially minor but worsened over the ensuing months. As a result, Mr Marrone was given modified duties and eventually underwent surgery before returning again to modified duties.
[11] Apparently under s 113(1) of the Workers Rehabilitation and Compensation Act 1986 (SA).
By reason of the disabilities in his right arm and shoulder, Mr Marrone made increased use of his left arm, both in activities of daily living and in the performance of his modified duties. In about early 2007, he developed pain and discomfort in his left shoulder. This pain and discomfort worsened and it was accepted that, for the purposes of the WRC Act, Mr Marrone had suffered a compensable disability to the left shoulder on or around 2 April 2009.[12]
[12] Under s 113(1) of the Workers Rehabilitation and Compensation Act 1986 (SA).
The compensating authority, Employers Mutual Ltd (EML), accepted in the Tribunal, in proceedings for a judicial determination, that the disability to Mr Marrone’s left shoulder “occurred due to compensatory overuse of the left arm following the disability to the right shoulder and elbow”.[13] Hannon DP did not make a specific finding as to the nature of the left shoulder disability but found that the “factors contributing to the ongoing development of the disability in addition to the continued increased use of the left arm in compensation for the right elbow/shoulder disability included the ongoing and repetitive nature of the work duties done with the left arm, and an aggravation of a pre‑existing degenerative condition of the left shoulder”.[14]
[13] Marrone v WorkCover Corporation [2011] SAWCT 8 at [34].
[14] Ibid at [35].
Hannon DP then considered whether the left shoulder disability could be said, for the purposes of s 43(6) of the WRC Act, to have arisen from the same trauma as did the injuries to the right arm and shoulder. He concluded that it did:
[53]The worker’s left shoulder disability developed gradually. He first became partially incapacitated for work by the disability on or about 2 April 2009. Under s 113(1) of the Act, the left shoulder disability is to be deemed to have occurred on 2 April 2009.
[54]Notwithstanding this conclusion, the left shoulder disability, as a matter of fact, arose from the same event as the right elbow/shoulder disability, namely the event causing injury to the right elbow/shoulder on 8 June 2006. The causal connection arises from the fact that the right elbow/shoulder disability led to an increased use by the worker of his left arm for activities of daily living and work. This increased use materially contributed to the development of the left shoulder disability. The fact that other events contributed to that disability, and that left shoulder pain was not first experienced by the worker until after 8 June 2006, does not mean that a finding cannot be made on the evidence that the disabilities arose from the same trauma.
[55]The worker has established that he suffers from a right elbow/shoulder disability and a left shoulder disability which arose from the same trauma. He is entitled to have those disabilities assessed as one disability under s 43(6) of the Act.
Following a later decision on other issues,[15] which is not relevant for present purposes, Hannon DP made orders quantifying Mr Marrone’s entitlement to non‑economic loss, reflecting his conclusion that the compensable disabilities should be assessed as having arisen from the same trauma.
[15] Marrone v WorkCover Corporation [2012] SAWCT 21.
The Question Referred
EML appealed to the Full Bench against the determination of Hannon DP. The Full Bench then referred the following question for the opinion of this Court:
Did [Hannon DP] err in law in his interpretation of the expression “2 or more compensable injuries arising from the same trauma” for the purpose of s 43(6) when he concluded that the worker’s disability to his right shoulder/elbow and the worker’s disability to his left shoulder arose from the same trauma?
This seems to be the same question as was raised for the Tribunal’s determination by EML’s notice of appeal.
A question framed in these terms requires identification of the interpretation of the expression “2 or more compensable injuries arising from the same trauma” adopted by Hannon DP. That interpretation can best be seen in [50] of the his Honour’s reasons:
In the circumstances of the present case, where, as I have found, there is a causal connection between the loss of function of the right arm/shoulder following the initial disability, and the subsequent overuse of the left arm and the development of the left shoulder disability, it is open to conclude on the evidence that the latter disability arises from the same event as gave rise to the initial disability on 8 June 2006. It must be recognised that on occasions the facts may demonstrate that more than one event might have “caused” the disability. Obviously such events may include two or more employment events as well as events with no connection to employment. The fact that there were other contributing factors to the left shoulder disability, such as the subsequent repetitive work activities, combined with a degenerative condition of the left shoulder, does not break the causal chain between the event of 8 June 2006, which caused the right elbow/shoulder disability, and the resultant overuse of the left arm which of itself materially contributed to the onset of the left shoulder disability. Nor is the chain of causation broken by the fact that the disability did not develop until some time after the event of 8 June 2006. A commonsense evaluation indicates that the causative events extend back to and include that event.[16]
(Citation omitted)
Hannon DP’s interpretation can also be inferred from his rejection of EML’s submission that, although there was a causal relationship between the two disabilities, the fact that the left shoulder disability arose from events subsequent to the right elbow/shoulder disability meant that they could not be said to arise from the same trauma.
[16] Marrone v WorkCover Corporation [2011] SAWCT 8 at [50].
In effect, Hannon DP considered that s 43(6) is to be construed as meaning that disabilities having more than one cause will arise from the same trauma if at least one of the causes is common to both. That would be so even if the other material causes of the disabilities were separate and distinct events.
Statutory Provisions
Section 43 of the WRC Act provides for a form of lump sum compensation for non‑economic loss for disabilities resulting in permanent impairment. An eligible worker who suffers such a disability may recover either the whole or a portion of a prescribed sum. As at 2 April 2009, s 43 provided:
(1)Subject to this Act, if a worker suffers a compensable disability resulting in permanent impairment as assessed in accordance with section 43A, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non‑economic loss by way of a lump sum.
(2)Subject to this section, the lump sum will be an amount that represents a portion of the prescribed sum calculated in accordance with the regulations.
(3)Regulations made for the purposes of subsection (2) must provide for compensation that at least satisfies the requirements of Schedule 3 taking into account the assessment of whole of person impairment under this Division.
(4)An entitlement does not arise under this section if the worker's degree of permanent impairment is less than 5%.
(5)An entitlement does not arise under this section in relation to a psychiatric impairment.
(6)If a worker suffers 2 or more compensable disabilities arising from the same trauma—
(a) the disabilities may together be treated as 1 disability to the extent set out in the WorkCover Guidelines (and assessed together using any combination or other principle set out in the WorkCover Guidelines); and
(b) the worker is not entitled to receive compensation by way of lump sum under subsection (2) in respect of those disabilities in excess of the prescribed sum.
(7) If—
(a) a compensable disability consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior compensable disability; and
(b) compensation by way of lump sum has been previously paid under this section, or a corresponding previous enactment,
there will be a reduction of the lump sum payable under this section in respect of the disability by the amount of the previous payment unless such a reduction is incorporated into the provisions of the WorkCover Guidelines.
(8) For the purposes of this section, the prescribed sum is—
(a) unless a regulation has been made under paragraph (b)—$400 000 (indexed); or
(b) a greater amount prescribed by regulation for the purposes of this definition.
(9) In connection with the operation of subsection (8)—
(a) the amount to be applied with respect to a particular disability is the amount applying under that subsection at the time of the occurrence of that disability; and
(b) an amount prescribed by regulation under paragraph (b) of that subsection must be indexed so as to provide annual adjustments according to changes in the Consumer Price Index.
(10)For the purposes of this section, any degree of impairment will be assessed in accordance with section 43A (and the WorkCover Guidelines).
(11)Compensation is not payable under this section after the death of the worker concerned.
(12) In this section—
WorkCover Guidelines means the guidelines published under section 43A.
As can be seen, the lump sum compensation is to be calculated in a manner specified in regulations made under the WRC Act and by reference to guidelines, known as “the WorkCover Guidelines”, published by the Minister under s 43A of the WRC Act (subss (2)‑(3) and (10) above). An entitlement to lump sum compensation for non‑economic loss does not arise unless the degree of permanent impairment is at least five per cent (subs (4)). Subsection (6) concerns the circumstance of a worker who has suffered two or more compensable disabilities arising from the same trauma, and subs (7) the circumstance of a worker whose disability consists of the worsening of a previous disability for which compensation under s 43 has previously been paid.
A disability is defined in s 3(1) of the WRC Act to mean (relevantly) a physical or mental injury.[17] Such a disability is compensable if it arises from employment (s 30(1)). Section 30 goes on to specify the circumstances in which a disability is to be regarded as arising from employment. Generally speaking, a disability will arise from employment if the employment was a material contributor to the occurrence of the disability.
[17] However, s 43(5) excludes lump sum compensation being paid under s 43 in respect of a psychiatric impairment.
At the time relevant to this case, the term “trauma” was defined in s 3(1) of the WRC Act as follows:
trauma means an event, or series of events, out of which a compensable disability arises;
I agree with counsel for EML that the term “event” in this definition connotes a physical happening of some kind. This is consistent with the primary meaning of “event” given by the Macquarie Dictionary as “anything that happens or is regarded as happening; an occurrence, especially one of some importance”.[18]
[18] Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers, 5th ed, 2009).
The reach of the expression “series of events” in the definition of “trauma” is not entirely clear. Some features of the expression may be noted. The term “series” and not a term such as “combination” is used. In addition, the expression “out of which a compensable disability arises” governs the phrase “series of events” as much as the term “event”. This suggests that the expression “series of events” connotes a number of events, connected to one another in a relevant way, which give rise to a compensable disability.
The manner of expression of the definition indicates that the matters giving rise to the requisite connection between the events must go beyond the mere fact that a compensable disability has arisen from them. It implies that there must be some relationship between the events, perhaps temporal or sequential, or of some other quality, such as the nature of the events, which establishes a degree of “connectedness”. In practical terms, the expression seems apt to encompass the kinds of sequences of events from which a disability develops gradually. The WRC Act makes specific reference to such disabilities, in particular, in s 113.
The parties’ submissions did not address these matters and it is accordingly inappropriate to express a concluded view. It is sufficient to say that the expression “series of events” does seem to connote more than just any combination of events, occurring randomly, from which a compensable disability may arise.
The issue of construction in this case arises because a compensable disability may have more than one cause and, in particular, may be the result of more than one trauma.[19] That being so, there is an ambiguity in the opening line of subs (6). Does it refer only to disabilities arising from the one event, or the one series of events, or does it encompass disabilities arising from two or more events or series of events, providing that at least one trauma is a material cause common to both?
[19] See, for example, Wardleworth v Green (1996) 66 SASR 421.
Legislative History and Context
A conclusion that two or more compensable disabilities arise from the same trauma has three consequences in the context of s 43. First, the disabilities may together be treated as one disability in the manner set out in the WorkCover Guidelines and assessed together in accordance with those Guidelines (subs (6)(a)). Secondly, assessment of the disabilities in that way may enable a worker more easily to satisfy the threshold requirement for entitlement to a s 43 payment by showing that the combined effect of the disabilities is a permanent impairment of at least five per cent (subs (4)). Thirdly, subs (6)(b) imposes a cap on the lump sum compensation to which a worker may be entitled in respect of more than one disability arising from the same trauma.
When the WRC Act was first enacted in 1986, only the third of these effects was pertinent. The counterpart provision, then contained in s 43(7), was as follows:
(7)Where a worker suffers two or more compensable disabilities arising from the same trauma, the worker shall not be entitled to receive compensation by way of lump sum in respect of those disabilities in excess of the prescribed sum.
The former s 43(7) was amended in minor ways, which are not presently material, before 2008. A substitution of the former s 43 was effected by s 24 of the Workers Rehabilitation & Compensation (Scheme Review) Amendment Act 2008 (SA). Subsection (6) was then enacted in (relevantly) its present form. However, as can be seen, the opening line of subs (6) remains materially the same as the opening line of the former subs (7). Further, the present subs (6)(b) repeats the language of the former s 43(7) so as to impose a cap on the entitlement of the worker who suffers two or more disabilities arising from the same trauma.
It is possible that the substitution of the provision by the 2008 amendment had the effect of altering the meaning of the expression used in the opening line of s 43(6). However, I can see no indication that that was so and, bearing in mind that subs (6) continues the cap on a worker’s entitlement to lump sum compensation using the same expression, there is no reason to suppose that some change in meaning was intended. Instead, it is reasonable to understand the present terms of s 43(6) as providing for additional consequences when two or more disabilities arise from the same trauma in the sense which that expression has had since its first enactment.
When s 43(6) is understood in this way, it can be seen that one submission made on behalf of Mr Marrone lacks force. That was the submission that the opening line in subs (6) is to be construed beneficially because its sole or principal purpose is to facilitate satisfaction by workers of the five per cent threshold requirement. As has been seen, satisfaction that two or more disabilities arise from the same trauma may have the effect of enlarging a worker’s entitlement in one respect, but limiting it in another. Accordingly, s 43(6) is not entirely beneficial so as to warrant application of the principle that beneficial and remedial provisions should be given a broad and liberal construction.
Provisions such as s 43 providing for lump sum compensation in respect of permanent disabilities have been commonplace in workers’ compensation legislation. The tables specifying the compensation for such disabilities were often, inelegantly, referred to as “Maims Tables”.
The immediate predecessor to the WRC Act was the Workers Compensation Act 1971 (SA). Section 69(1) of that Act contained a table fixing the percentage of a fixed sum to which workers were entitled in respect of specified injuries. In the Workmen’s Compensation Act 1932 (SA), which preceded the 1971 Act, s 26 was the corresponding provision.
Each of s 26 of the 1932 Act and s 69 of the 1971 Act contained a provision corresponding to s 43(7) in the WRC Act when first enacted. In the 1932 Act, s 26(5) provided:
(5)Where a workman suffers by the same accident from more than one of the injuries mentioned in the said table, he shall not be entitled in any case to receive in respect of fixed sums mentioned in the said table more than $9,000.
(Emphasis added)
Section 69(7) of the 1971 Act provided:
(7)Where a worker suffers by the same occurrence from more than one of the injuries mentioned in the said table, he shall not be entitled in any case to receive in respect of fixed sums mentioned in the said table more than $20,000.
(Emphasis added)
On one view, it could be said that these provisions contain the same ambiguity as does s 43(6). However, on their face their effect was to limit the entitlement of injured workers, and therefore the liability of their employers, in respect of multiple injuries arising from the one accident or the one occurrence. It meant that the potential liability of an employer for compensation under the tables in respect of each accident or occurrence was finite. This was of assistance to employers in obtaining the requisite insurance in respect of such liabilities
The expression in the opening line of subs (6) is not the same as that of either of its predecessors. In addition, it uses the defined term “trauma” which is given an extended meaning in s 3(1). Those matters give rise to the possibility that the different wording is intended to have a different meaning. It is also the case that under the WRC Act the liability to pay compensation is placed on the WorkCover Corporation[20] whereas under the 1932 and 1971 Acts the liability was imposed on employers.
[20] Workers Rehabilitation and Compensation Act 1986 (SA), s 46.
However, to my mind, these differences, with one exception, are not presently material. The WRC Act, in a number of instances, has used modern language to describe old concepts, without any apparent difference in meaning or effect. The use of the terms “disability” and “compensable disability” instead of “injury” and “compensable injury” provides a ready example. As already noted, s 4 and Schedule 1 of the Workers Rehabilitation and Compensation (Employer Payments) Amendment Act 2011 (SA) have effected a reversion to the term “injury” without any apparent change in meaning. Further, as already noted, one of the primary meanings of the term “trauma” is that of “occurrence”. That was the noun used in s 69(7) of the 1971 Act.
The exception is the phrase “series of events” in the definition of “trauma”. The 1932 and 1971 Acts did not have any counterpart to this phrase. The inclusion of the phrase in the definition of “trauma” in the WRC Act appears to be a legislative recognition that a compensable disability may arise from a single incident or from a series of incidents. It has the effect, in any event, of broadening the disabilities to which s 43(6) will apply. For the reasons given earlier, that broadening seems confined to disabilities arising from a succession of traumas connected in some way by time, sequence or character and not just from the circumstance that, in combination, they have given rise to a compensable disability.
However, despite this broadening of the disabilities to which s 43(6) may apply, the essential nature and purpose of the opening line appear unchanged.
To my mind, the legislative history of s 43(6) assists in the construction of its opening line. It is strongly suggestive that the expression “same trauma” is a reference to a particular event, or series of events, which result in two or more disabilities, rather than encompassing compensable disabilities, whenever occurring, which share a common material cause. The enlargement of the application of s 43(6) effected by the inclusion of the expression “series of events” in the definition of “trauma” does not warrant a different construction.
Section 43(9) supports the understanding of s 43(6) just outlined. It provides (relevantly) that the prescribed sum to be applied with respect to a particular disability is the amount applying at the time of the “occurrence” of that disability. It also provides for annual indexation of the prescribed sum. In the case of disabilities which develop gradually, which may be the case for many disabilities arising from a series of events, the time of occurrence is governed by s 113(1) of the WRC Act.[21] If s 43(9) contemplated two or more disabilities suffered at different times being treated as one disability, it is natural to suppose that it would have provided for the selection of the prescribed sum to be applied in such cases.
[21] Section 113(1) of the Workers Rehabilitation and Compensation Act 1986 (SA), as it was at 2 April 2009, provided:
(1)A disability (not being noise induced hearing loss) that develops gradually or is a disease shall be deemed to have occurred when the worker first becomes totally or partially incapacitated for work by the disability.
Finally, s 43(7) addresses the circumstance of exacerbated or recurrent compensable disabilities which result in permanent impairments. It operates to preclude double compensation. The fact that such disabilities, which will usually be attributable to successive traumas, are addressed in subs (7) appears to be a strong indication that the opening line of s 43(6) does not encompass disabilities arising from multiple traumas, with just one trauma a shared material cause.
Use of Delegated Legislation
In their submissions concerning the proper construction of s 43(6), both counsel referred to the Workers Rehabilitation and Compensation Regulations 2010 (SA), in particular Reg 39 and Sch 4, made under the WRC Act, and to the Guidelines published by the Minister under s 43A.
In general it is not appropriate to use delegated legislation for the purpose of construing the enactment under which the delegated legislation was made.[22] Thus, in contexts similar to the present, the Supreme Court of New South Wales has declined to use the Medical Guidelines issued under s 44 of the Motor Accidents Compensation Act 1999 (NSW), and the Claims Assessment Guidelines issued under s 69, in the construction of that Act.[23]
[22] DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011) at [3.41].
[23] NRMA Insurance Ltd v Motor Accidents Authority ofNSW [2004] NSWSC 567 at [28]; (2004) 61 NSWLR 264 at 270; Allianz Australia Insurance Ltd v Crazzi [2006] NSWSC 1090 at [17], (2006) 68 NSWLR 266 at 274.
As the authors of Statutory Interpretation in Australia point out, it is permissible in some circumstances to have regard to regulations which, together with the principal act, form part of a legislative scheme in order to ascertain the nature of the scheme. It may also be helpful to refer to delegated legislation as a direct aid to construction of an ambiguous or obscure statutory provision if an act and a set of regulations made under it, establish an interdependent regime.[24] However, that is not this case. As already noted, the opening line of s 43(6) has been in that form since the first enactment of the provision (then s 43(7)) in 1986 and well before the making of the Regulations and the publication of the WorkCover Guidelines.
[24] DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011) at [3.41].
For these reasons I do not propose to have regard to the Regulations or to the WorkCover Guidelines.
Relevant Authorities
The present case is not the first in which this Court has considered the expression “arising from the same trauma”. Sections 54(5) and (7) of the WRC Act entitle a compensating authority which has paid, or is liable to pay, compensation to an injured worker to recover the amount so paid from a third party wrongdoer in defined circumstances. This is an independent statutory right of recovery. The compensating authority’s entitlement arises only if the injured worker is entitled to recover damages from the wrongdoer in pursuance of rights “arising from the same trauma” as gave rise to the entitlement to compensation.[25] Section 54(5), as in force at 2 April 2009, provided:
[25] Workers Rehabilitation and Compensation Act 1986 (SA), s 54(7).
(5) Where—
(a) compensation is paid or payable under this Act in respect of a compensable disability;
(b) a right of action exists against a person other than the employer for damages in respect of the disability,
the person by whom the compensation is paid or payable is entitled to recover from that other person the amount of the compensation in accordance with subsection (7).
Section 54(7) provided (relevantly):
(7) Where—
(a) compensation is paid or payable to a person (the injured party) under this Act;
(b) the injured party has received, or is entitled to, damages from another person (the wrongdoer) in pursuance of rights arising from the same trauma as gave rise to the rights to compensation under this Act;
(c) the person by whom the compensation is paid or payable under this Act (the claimant) is entitled to recover the amount of the compensation by virtue of subsection (5) or (6),
then the following provisions apply:
(d) the claimant is entitled to recover the amount of compensation paid or payable under this Act from the wrongdoer or the injured party but subject to the following qualifications:
(i)no amount may be recovered from the wrongdoer in excess of the wrongdoer's unsatisfied liability to the injured party; and
(ii)the claimant must exhaust its rights against the wrongdoer before recovering against the injured party; and
(iii)no amount may be recovered from the injured party in excess of the amount of the damages received by the injured party; and
...
In Spry v Manser[26] the Full Court considered two questions in relation to WorkCover’s entitlement under s 54(7). Those questions were stated in a case in which the worker, Ms Spry, had suffered neck and back injuries in a vehicular collision in 1988 which was unrelated to her employment, and, in 1991, an aggravation of those injuries in compensable circumstances. The first question related to the impact which the sums paid or to be paid to, or on behalf of, Ms Spry under the WRC Act should have on the assessment of her damages in the action against the wrongdoer. Cox J (with whom Duggan and Debelle JJ agreed) held that those sums should not have any effect on the assessment of damages against the wrongdoer.[27]
[26] (1993) 60 SASR 586.
[27] Ibid at 591.
The second question related to WorkCover’s entitlement to recover from the wrongdoer the amounts of compensation it had paid in respect of the 1991 compensable aggravation. Cox J held that s 54(7) did not give rise to such an entitlement, saying:
The words “in pursuance of rights arising from the same trauma as gave rise to the rights to compensation under this Act” are words of definition or limitation, qualifying the “damages” the receipt of which, or entitlement to which, by the injured party is made a condition of the claimant’s recovery rights under par (d). This seems to be expressing, though perhaps not as clearly, the circumstances that conditioned the recovery provisions of the 1971 Act – that the one situation gave rise uno ictu to the employer’s liability to pay the worker compensation and someone else’s liability to pay the worker damages. ... I conclude that the notion that the expression “the same trauma” in sub‑s (7) [of the WRC Act] is conveying is that it will be one and the same event, or series of events, that has given rise to both the right to damages and the right to compensation. [Counsel for the compensating authority] submitted that it would be enough if one event in a series founded the right to damages and another event in the same series the right to compensation. Notwithstanding the duplex form of the “trauma” definition, I do not think that the respective rights could be said in such a case to arise from the same trauma.[28]
(Emphasis added)
[28] Ibid at 593.
The tortfeasor appealed to the High Court against this Court’s answer to the first question. That appeal was upheld but it is apparent that, in doing so, the High Court upheld the reasoning of Cox J with respect to the proper understanding of s 54(7).[29] The Court held:
[Subsection] (7) operates only when the rights in pursuance of which the damages are received arise from the event, or series of events, out of which the right to compensation under the Act arises. If damages are received pursuant to rights which arose from the tortious infliction of the original injury and the right to compensation arose out of a subsequent event which exacerbates the original injury, sub‑s (7) does not operate. It operates only when the tortious infliction of an injury is the event out of which the right to compensation arises.[30]
(Emphasis in the original)
The Court went on to hold that subss (5) and (7) have no application to a case in which the right to compensation arises from an event subsequent to the tort in which the original injury was inflicted.[31] Of significance for present purposes is the endorsement by the High Court of the proposition that, in order for rights to arise from “the same trauma” for the purposes of s 54(7)(b), it must be one and the same event, or series of events, which gives rise to both the right to damages and the right to compensation.
[29] Manser v Spry (1994) 181 CLR 428.
[30] Ibid at 433-4.
[31] Ibid at 434.
EML argued that similar reasoning should be applied in the present case. However, as Hannon DP observed, Manser v Spry can be distinguished because, unlike the present case, there was no suggestion in that case that the 1988 injury had caused or contributed to the occurrence of the 1991 injury.
The circumstances considered by this Court in Wardleworth v Green[32] are closer to the present. Mr Green suffered injuries to his left knee in a motor vehicle accident in 1989. That injury gave rise to a claim for damages against the other driver and a claim for compensation under the WRC Act. Mr Green suffered a further injury to his left knee in a slipping accident at work with a different employer in 1990 for which he received compensation. In the trial of Mr Green’s damages claim against the driver, the Judge found that the slip in 1990 was not due to the injured state of his left knee, but that the injury sustained in that incident was the result of continuing disability in the left knee. The Judge went on to find that, but for the existing disability at the time of the slip, Mr Green would not have sustained further injury in the slipping accident. On that basis he found that Mr Green’s total incapacity was attributable to the injury sustained in the motor vehicle accident. Thus, Wardleworth was a case, like the present, of successive and causally related compensable disabilities.
[32] (1996) 66 SASR 421.
The question was whether s 54(7) entitled WorkCover in these circumstances to recover from the driver the payments of compensation which it had paid both before and after the 1990 slipping accident. Doyle CJ, with whom Bollen and Nyland JJ agreed, recognised that Manser v Spry was a different case on the facts. However, Doyle CJ considered it appropriate to apply the reasoning of the High Court as set out in the passage quoted earlier. He did so by considering the rights of an injured worker who has suffered a disability attributable to successive injuries, one of which is an aggravation of an existing disability.
Relying on the decision of King J (as he then was) in Australian Eagle Insurance Co Ltd v Federation Insurance Ltd[33] and other authorities, Doyle CJ held that the final disability of Mr Green was not to be attributed exclusively to the 1990 slipping accident. This allowed the conclusion that Mr Green’s right to compensation under the WRC Act arose from the injury sustained in the motor vehicle accident which was also the event out of which his right to claim damages arose. It followed therefore that WorkCover was entitled to recover from the third party wrongdoer the payments of compensation already made and yet to be made in respect of the left knee injury.
[33] (1976) 15 SASR 282.
As I have said, the circumstances in Wardleworth v Green are much closer to the present and, accordingly, counsel for Mr Marrone relied on it in relation to the construction of s 43(6).
The Full Court, also comprised of Doyle CJ, Bollen and Nyland JJ, applied the reasoning of Wardleworth v Green in WorkCover Corporation v Beckwith,[34] a judgment delivered on the same day as Wardleworth v Green.
[34] Unreported, Supreme Court of South Australia, Full Court, Doyle CJ, Bollen and Nyland JJ, 1 August 1996, Judgment No S5794.
Counsel for Mr Marrone also referred to Workers Rehabilitation and Compensation v Hillier & van Wyk.[35] That case involved a very particular set of circumstances. A worker suffered compensable disabilities to her back in 1988 and 1989 for which she underwent surgery in February 1992. Unfortunately, the surgery miscarried by reason of a mistake by the surgeon, and the worker thereby suffered a further compensable disability. WorkCover paid compensation to the worker after February 1992. The worker recovered damages from the surgeon because of his negligent performance of the operation. The question was whether WorkCover had a first charge on those damages under s 54(7)(e) of the WRC Act.
[35] (1997) 193 LSJS 57.
This depended upon whether the compensation paid by WorkCover after the negligent operation, which had been claimed by the worker by reference to the disabilities suffered in 1988 and 1989, could be regarded as having been paid in respect of the same compensable disability for which the negligent surgeon had paid damages. The resolution of this issue turned on the proper construction of s 54(5) of the WRC Act, rather than s 54(7)(b). Hence, the reasons of Doyle CJ (with whom Matheson J agreed) did not rest explicitly on Manser v Spry. Olsson J, the third member of the Court, did, however, appear to place greater emphasis on Manser v Spry.
All members of the Court concluded that compensation is paid or payable for the purposes of s 54(5) if, although in fact paid by WorkCover in relation to an earlier disability, it could also have been claimed by the worker in respect of a disability giving rise to an entitlement to damages against a wrongdoer. The fact that the worker in Hillier had claimed, and WorkCover had paid, the compensation after February 1992 in respect of the 1988 and 1989 injuries was therefore immaterial. It was sufficient to attract the operation of s 54(5) that WorkCover could have made those same payments in respect of the compensable disability suffered in February 1992, and that was the disability in respect of which the worker had her right of action against the surgeon.
As the decision in Hillier turned more on s 54(5) than s 54(7) it is not necessary for present purposes to analyse the reasoning of the Full Court further. The following observation of Doyle CJ is, however, pertinent:
In the usual case, the problems presented by this case will not arise. Usually, I suspect, one and the same event will be the injury that causes the compensable disability and the event that gives rise to the right to damages. Nor, in the usual case, will there be another event which is arguably also an injury constituting a compensable disability in respect of which the compensation could have been paid. In the usual case, the causal link between the entitlement to compensation and the entitlement to damages will be found in one and the same “trauma” as defined ...
But cases like the present are likely to arise from time to time. That is, cases in which, after the occurrence of a compensable disability, there is a further event which is said to be a compensable disability and which also gives rise to a right to claim damages.[36]
[36] Ibid at 64.
Counsel for Mr Marrone submitted that this passage too was consistent with a view of s 43(6) encompassing disabilities having multiple causes provided that at least one of the causes was common to both.
Consideration
For the reasons given earlier, I consider that the legislative context and history of s 43(6) indicate strongly that it is confined to the circumstance in which one and the same event, or series of events, causes multiple compensable disabilities. With the exception of disabilities arising from a series of events, it has no application to traumas suffered successively.
The construction of the expression “rights arising from the same trauma” by the High Court in Manser v Spry supports this understanding of s 43(6). However, Manser v Spry concerned the construction and application of s 54(7)(b) in factual circumstances different from the present.
The application of the reasoning of Manser v Spry by this Court in Wardleworth v Green, Beckwith and, to a lesser extent, Hillier, in relation to s 54(5) and s 54(7)(b), suggests that “rights” will arise from the same trauma if a disability in respect of which damages are paid, and in respect of which compensation could have been paid, had a common cause, even though other causes were disparate events. That supports the construction for which Mr Marrone contended.
In my opinion, the reasoning in Wardleworth, Beckwith and Hillier is not decisive of the proper construction of s 43(6). Section 54(7)(b) refers to “rights” arising from the same trauma as gave rise to the “rights” to compensation, whereas s 43(6) refers to “compensable disabilities” arising from the same trauma. The emphasis in the former is on the legal entitlement and the bundle of circumstances giving rise to it, whereas in the latter it is on a physical occurrence. There is a close relationship between the two because it could be said that the existence of the right is dependent on the happening of the occurrence. However, the difference in wording reflects the different subject matter of the two provisions and perhaps a difference in emphasis.
It also appears that the expression “compensable disabilities” may not be used in s 43(6) with exactly the same meaning as in s 54(5), to which s 54(7) gives effect. Section 54(5) uses the term “disability” in the sense of “injury”. The subject matter of s 43, on the other hand, is permanent impairments resulting from compensable disabilities (see subss (1)-(4) and (10)). It is the impairments, and not the disabilities causing them, for which the lump sum compensation is payable. In this context, s 43(6) seems to use the expression “compensable disabilities” in reference to the resulting impairments or at least to both the disabilities and the impairments, rather than to the disabilities which cause those impairments. It is true that s 43(1) distinguishes the compensable disability, on the one hand, and the resulting impairment, on the other, but the distinction does not seem to be maintained in subs (6). The disabilities to which it refers seem to be injuries in the sense of impairments. The same was true of the counterpart provision in the 1971 Act as s 69 of that Act used the word “injury” to describe the impairments in the table for which compensation was payable. The reference in s 43(9)(a) to the prescribed sum to be applied with respect to a particular “disability” seems to be a similar usage of the term “disability”.
These differences, or changes of emphasis, suggest that the reasoning in this Court’s previous decisions concerning s 54(5) and (7) should not be regarded as governing the construction of s 43(6). That being so, I consider it appropriate to give effect to the construction of s 43(6) which arises naturally from its legislative context and history.
Conclusion
For these reasons, I consider that the opening line of s 43(6) should be understood as referring to a worker who suffers two or more compensable disabilities arising from one and the same trauma. Accordingly, I would give an affirmative answer to the question referred for this Court’s opinion.
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