Matilda Cruises Pty Ltd v Sweeny - [2018] NSWWCCPD 37

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Matilda Cruises Pty Ltd v Sweeny [2018] NSWWCCPD 37
APPELLANT:	Matilda Cruises Pty Ltd
RESPONDENT:	Darren Sweeny
INSURER:	GIO Workers Compensation as agent for icare NSW
FILE NUMBER:	A1-488/18
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	22 March 2018
DATE OF APPEAL DECISION:	31 August 2018
SUBJECT MATTER OF DECISION:	Section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998: leave to appeal an interlocutory decision; the nature of referral for assessment of the degree of permanent impairment pursuant to clause 11 and Part 2A of Schedule 8 of the Workers Compensation Regulation 2016 (the Regulation); application of clause 28D of Part 2A of Schedule 8 of the Regulation: ‘one further assessment’
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Sparke Helmore Lawyers
Respondent:	Santone Lawyers
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Arbitrator’s Certificate of Determination dated 22 March 2018 is confirmed.

INTRODUCTION

This employer’s appeal raises issues going to s 39 of the Workers Compensation Act1987 (the 1987 Act), and the availability of referral to an Approved Medical Specialist (AMS) pursuant to Pt 2A of Sch 8 of the Workers Compensation Regulation 2016 (the Regulation). For reasons which follow, the appeal does not succeed.

BACKGROUND

Darren Sweeny (the respondent) suffered an injury to his right knee, the occurrence of which is not disputed, in the course of his employment on 19 November 2004. He was working as a chef on a cruise vessel operated by Matilda Cruises Pty Ltd (the appellant) when he slipped whilst descending a stairwell. He underwent anterior cruciate ligament reconstruction in about February 2005, together with subtotal medial meniscectomy and microfracture lateral femoral condyle. He suffered aggravations when he attempted to resume work.[1] Apart from an attempted return to part-time work in a service station over a few weeks, he has not worked since about May 2005.[2] The respondent underwent a revisionary anterior cruciate ligament reconstruction on 16 March 2010. He came to a right total knee replacement on 21 December 2017. He subsequently had inpatient rehabilitation for two weeks at Mt Wilga Private Hospital.[3] In his statement dated 11 January 2018, he stated that he was still wearing a knee brace due to instability, and was using “crutches to get around”.[4]
[1] Dr Roe’s report 28 March 2008, Dr Patrick’s report 23 September 2016, in Application for Assessment by an Approved Medical Specialist (Application), pp 24, 49–50.
[2] Dr Pillemer’s Medical Assessment Certificate (MAC) dated 2 May 2012, Application p 66, Dr Pillemer’s MAC dated 24 April 2017, p 3, in Response to Application for Assessment by an Approved Medical Specialist (Response).
[3] Dr Prendergast’s report dated 9 January 2018, Application p 21.
[4] Respondent’s statement dated 11 January 2018, Application p 17.
The appellant has paid for the respondent’s medical treatment to date. It made voluntary payments of weekly compensation. It wrote to the respondent on 1 February 2017, informing him that his entitlement to weekly compensation would cease “towards the end of 2017”, as he would, by then, have received 260 weeks of compensation, subsequent to 1 January 2013.[5]
[5] Application, pp 3–4.
The respondent’s degree of permanent impairment resulting from his injury was assessed previously, for the purpose of claims for lump sum compensation. On 22 February 2007, a Medical Assessment Certificate (MAC) of Dr Pillemer, an AMS, was issued, in matter number 15581/06. It certified 12% whole person impairment in respect of the right lower extremity.[6] The Commission issued a Certificate of Determination dated 13 April 2007, awarding a sum of $15,500 pursuant to s 66 of the 1987 Act for this impairment, and noting that entitlement to compensation pursuant to s 67 of the 1987 Act, for pain and suffering, would be proceeded with at a later date.[7] The respondent was assessed again by Dr Pillemer, and MACs were issued on 2 May 2012 and 22 May 2012, in matter number 1363/12.[8] Dr Pillemer certified that the respondent suffered from 7% whole person impairment. This assessment was subject to an appeal to an Appeal Panel (MAP), which substituted a MAC dated 11 October 2012, certifying 12% whole person impairment,[9] that is, the same as previously assessed. The respondent was assessed for a third time by Dr Pillemer, and a MAC issued dated 24 April 2017, in matter number 629/17. This again assessed 12% whole person impairment.[10] As the assessments in the MACs issued in 2012 and 2017 did not exceed the impairment compensated in 2007, the subsequent claims did not yield any additional lump sum compensation pursuant to s 66 of the 1987 Act.
[6] Application, p 62.
[7] Application, p 82.
[8] Application, pp 63–80.
[9] Response, p 5.
[10] Response, p 7.
The respondent’s solicitors, by email on 24 January 2018, informed the appellant’s insurer that the respondent had recently undergone surgery, and requested a concession that the respondent had “not reached maximum medical improvement” and was “therefore not stable for the purpose of assessment of whole person impairment”. The insurer replied by email on the same date, stating:
“Regarding maximum medical improvement, this is for the Workers Compensation Commission to determine. Please apply this matter to the Commission and if they deem Mr Sweeny has not reached MMI [maximum medical improvement], then his benefits will be reinstated and reviewed.”[11]

THE ARBITRAL PROCEEDINGS

[11] Application, pp 1–2.

The respondent’s solicitors lodged the Application, commencing the current proceedings in the Commission, on 31 January 2018. It sought “[a]ssessment as to whether the degree of permanent impairment is fully ascertainable (section 319(g), Workplace Injury Management and Workers Compensation Act 1987 [sic, 1998])” (the 1998 Act).
The appellant’s solicitors lodged a Response on 6 February 2018. It included written submissions opposing referral of the matter to an AMS for assessment of permanent impairment. The submissions stated that the further assessment was precluded by s 322A of the 1998 Act. The respondent had already been assessed on three occasions.
The matter was listed for arbitration hearing on 26 February 2018. Mr Morgan appeared for the respondent, instructed by Mr Santone. Mr Guest, solicitor, appeared for the appellant. The matter proceeded on the documentary evidence and the legal representatives addressed. The appellant also relied on the written submissions attached to its Response. The Arbitrator reserved his decision.
The appellant’s argument, briefly stated, was that s 322A of the 1998 Act prevented a worker from having more than one assessment of permanent impairment. Section 322A(3) prevented referral of a medical dispute to an AMS for assessment in the circumstances. The appellant submitted that the respondent had already been assessed twice since 19 June 2012. To the extent that Sch 8, cl 28D of the Regulation permitted one further assessment of permanent impairment, this had taken place in 2017. The appellant submitted the application was misconceived, and should be struck out.[12] The appellant also submitted that there had not been a formal claim for weekly compensation, which would enable the Commission “to make orders resulting from the dispute”. Mr Guest appropriately conceded that he was not taken by surprise by the arguments the respondent made.[13]
[12] Appellant’s arbitral written submissions, [4]–[10].
[13] Transcript 26 February 2018, T24.28–25.26.
Mr Morgan referred to s 39(3) of the 1987 Act, particularly the opening words, “For the purposes of this section …”. He submitted that s 39(3) comprised “a direction as to a course that’s to be taken for determining and controlling” the operation of the section. The provision was only for the purposes of s 39. Acceptance of the appellant’s argument would render s 39 “useless”, which could not have been the drafter’s intent. The “two sections can’t sit together” (I infer s 39(3) and s 322A). The interpretation selected should be that which will give most cogent effect to the purposes of the Act. The purposes of the section “contemplate scenarios where a worker’s condition might deteriorate”. The respondent’s entitlement to weekly compensation would be affected, if the assessment provision in s 39(3) can never be used.[14]
[14] T10.13–28.
Mr Morgan suggested that cl 28D of the Regulation should be put to one side, and the focus should be on s 39 of the 1987 Act. Section 39 also has a role to play for workers injured after commencement of the Workers Compensation Legislation Amendment Act 2012 (the 2012 Amending Act), not just existing recipients of weekly payments.[15]
[15] T11.20–25.
During the course of addresses, the following exchange occurred:
“ARBITRATOR: Right. So section 39(2) says the section does not apply injured workers which injury results over 20 per cent. And Mr Guest says well, you can’t ever find out because he’ll have to make another claim, is that correct?

MR GUEST: That’s correct, Arbitrator.

MR MORGAN: And we say section 39, sub (3) has to have some work to do and when looks at that in parallel with 322A, 322A, sub (2), the limitation that’s being contemplated by the drafters there is clearly directed towards disputes in relation to permanent impairment, commutation or claims in work injury damages.

ARBITRATOR: Yes, but that argument has been run. I’m bound to follow the Presidential level decisions on that.

MR MORGAN: But you’re also interpreting and seeking to interpret the operation of the Act, need to look at the particular section with reference to the rules relating to interpretation and interpretation which gives it its best effect.

ARBITRATOR: Because it’s beneficial - - -

MR MORGAN: Legislation.

ARBITRATOR: - - - legislation.

MR MORGAN: It’s looking to provide a benefit to a worker in order to determine whether the worker was entitled to a benefit. There needs to be an AMS assessment and what is specific, as we submit here, and we say a strong point, is that the section clearly contemplates the examination purely being limited to the operation of that section.
…
MR MORGAN: It can’t limit, it needs to be looked at in both terms. It [s 39] can’t be simply said that it’s there to rule workers out where it clearly contemplates benefits being paid in the event that a certain threshold is reached or can’t be ascertained if the threshold can be reached as here.

ARBITRATOR: Well, isn’t that the situation that one logically comes to that if Mr Guest is correct and you’ve already had your one bite at the cherry, as it were, you can never qualify for the benefit, if you like, of section 39(2) or (3).
MR MORGAN: Yes, that's it in a nutshell …”[16]

THE ARBITRAL DECISION

[16] T14.6–16.1.

The Commission issued a Certificate of Determination dated 22 March 2018, accompanied by eight pages of reasons.
The Arbitrator said he was satisfied that a claim had been made seeking referral of the matter to an AMS for the purpose of establishing whether permanent impairment was fully ascertainable. The appellant invited the respondent to make the application.
The Arbitrator set out the relevant legislation. He said it was common ground that the respondent was an existing recipient of weekly payments (Sch 6, Pt 19H, cl 1 of the 1987 Act). He noted Sch 8, Pt 2A, cl 28C(a) of the Regulation, which provided that s 39 of the 1987 Act did not apply, if an assessment of permanent impairment was pending, and had not been made because an AMS had declined on the basis that maximum medical improvement had not been reached and the degree of permanent impairment was not fully ascertainable. This required that an application be made to an AMS.[17] The appellant submitted that this could not be done, as it was precluded by s 322A of the 1998 Act, the respondent having already been assessed by an AMS.[18]
[17] Reasons, [30].
[18] Reasons, [31].
The Arbitrator noted the respondent’s reliance on the opening words of s 39, “For the purposes of this section …”. He said that he rejected the respondent’s argument, that this was sufficient to put an assessment of permanent impairment, for the purposes of s 39, outside the operation of s 322A, with the effect of distinguishing the decision in Merchant v Shoalhaven City Council.[19] However, the Arbitrator said that he did accept the respondent’s argument that, as a basic tenet of statutory construction, “the exemptions contained within s 39 must have work to do”. [20]
[19] [2015] NSWWCCPD 13; 16 DDCR 200 (Merchant).
[20] Reasons, [36].
Referring to the clause’s title, the Arbitrator said that Sch 8, cl 11 of the Regulation dealt with “Lump Sum Compensation: Further Claims”. The Arbitrator said that the legislative power that enabled the respondent to make his further lump sum claim in 2017 was Sch 8, cl 11, and the MAC dated 24 April 2017 “was issued pursuant to that power”. He said that Pt 2A of Sch 8 dealt with weekly payments. Clauses 28C and 28D fell within this Part. The provision in cl 28D(2), that s 322A does not prevent a further assessment being made, does not relate to an “additional lump sum permitted by cl 11, which in the end is the gravamen of the [appellant’s] submission”. The Arbitrator said that cl 28C(a) of the Regulation exempts a worker from the application of s 39 of the 1987 Act, where an AMS has declined to make an assessment of permanent impairment on the basis that maximum medical improvement has not been reached. Clause 28D of the Regulation provides the mechanism whereby the application may be made, that cl 28C(a) stipulates is required. The one further assessment referred to in cl 28D(3) is that allowed by cl 28, not the additional lump sum claim permitted by Sch 8, cl 11.[21]
[21] Reasons, [39]–[41].
The Arbitrator said that the authorities to which he was referred, Merchant, Abu-Ali[22] and Davison,[23] concerned a different section (s 32A of the 1987 Act), “which did not have a machinery clause specifically enabling a further assessment to be made”. This rendered those decisions of “limited value”.[24] The Arbitrator remitted the matter, for referral to an AMS, to assess whole person impairment.

ON THE PAPERS

[22] Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25 (Abu-Ali).

[23] Davison v State of New South Wales [2015] NSWWCCPD 47 (Davison).

[24] Reasons, [42].

Section 354(6) of the 1998 Act provides:
“(6) 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 without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. The respondent does not submit to the contrary.

INTERLOCUTORY DECISION

Section 352(3A) of the 1998 Act provides:
“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.”
In Licul v Corney Gibbs J (as his Honour then was), dealing with whether an order was interlocutory, said it “... 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?”[25]
[25] [1976] HCA 6; 180 CLR 213; 50 ALJR 439,[11].
The parties agree that the decision appealed against is interlocutory, and the appellant seeks leave that the appeal proceed. The appellant submits that, if the appeal were to succeed, this would avoid the cost of a further AMS assessment. It submits that the subject matter is relevant to the determination of many other claims, involving s 39 of the 1987 Act.[26] The respondent opposes the granting of leave. He refers to the long history of the claim, his medical condition, and he submits the appellant should not be granted an indulgence, particularly given the “pettiness” of the dispute raised initially by the insurer (see [5] above).[27]
[26] Appellant’s submissions, [6].
[27] Respondent’s submissions, [6].
The statutory test is whether “determining the appeal is necessary or desirable for the proper and effective determination of the dispute”. Deputy President Roche, in Collingridge v IAMA Agribusiness Pty Ltd, described this as requiring “a consideration of the nature of the dispute and the orders sought on appeal”.[28]
[28] [2011] NSWWCCPD 31; 10 DDCR 174, [17].
The respondent is an ‘existing recipient of weekly payments’, who has previously had “a further lump sum compensation claim” pursuant to cl 11 of Sch 8 of the Regulation, in respect of which a MAC was issued. The dispute is one going to whether he is entitled, pursuant to Pt 2A of Sch 8 of the Regulation, to have a further assessment of the degree of permanent impairment resulting from his injury. The purpose of the further MAC is to determine whether he is entitled to weekly payments beyond an aggregate period of 260 weeks, on the basis that his situation falls within cl 28C(a) of Pt 2A of Sch 8 of the Regulation. If the appellant’s appeal succeeds, and the respondent is not entitled to have a further assessment pursuant to cl 28D of the Pt 2A, he will have no further entitlement to weekly payments of compensation, beyond those previously paid voluntarily, due to the operation of s 39 of the 1987 Act.
The issue is a significant one between the parties, the outcome of which has the potential to permanently conclude the respondent’s entitlement to weekly payments. If the appeal is not determined at this point, the respondent would undergo medical assessment by an AMS, and the appellant would then be potentially entitled to appeal. Deputy President O’Grady has held that a MAC brought into being by reason of an invalid referral must be treated as a nullity: Al-Nouri v Al-Nouri Pty Ltd.[29] It is desirable that the validity of the referral be dealt with on appeal, before the assessment by an AMS occurs. The granting of leave is desirable for the proper and effective determination of the dispute. This is consistent with the approach previously taken in a number of Presidential appeals, in circumstances involving challenge to orders for referral to an AMS: Campbelltown Tennis Club Ltd v Lee,[30] DP World Sydney Limited (formerly known as Container Terminals Australia Pty Limited) v Kelly,[31] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan.[32]
[29] [2010] NSWWCCPD 85, [60].
[30] [2013] NSWWCCPD 50, [18]–[22].
[31] [2011] NSWWCCPD 43, [13].
[32] [2016] NSWWCCPD 23, [47]–[55].
I grant leave to appeal pursuant to s 352(3A) of the 1998 Act.

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a) The Arbitrator erred in finding that Sch 8, Pt 2A, cl 28C of the Regulation provided an additional right to an assessment by an AMS when an additional AMS assessment had already occurred pursuant to cl 11. (Ground No 1)
(b) The Arbitrator erred in finding that Sch 8, Pt 2A, cl 28C of the Regulation provided a further right of AMS assessment separate to the right under Sch 8, cl 11, when that clause had not been relied upon by the worker and the appellant was not asked to make submissions on that Part. (Ground No 2)

LEGISLATION

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 66(1A) of the 1987 Act provides:
“(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”
Section 319 of the 1998 Act defines a ‘medical dispute’:
“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 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.
(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 assessment and a medical assessment certificate under this Part.
(4)    This section does not affect the operation of section 327 (Appeal against medical assessment).”
Schedule 8, Pt 1, cl 11 of the 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.”
Schedule 8, Pt 2A of the Regulation provides:
“Part 2A Special provisions for existing recipients of weekly payments—2012 amendments
28A   Interpretation
(1)    Words and expressions used in this Part have the same meaning as in Part 19H of Schedule 6 to the 1987 Act.
(2)    The following provisions are deemed to be amended to the extent necessary to give effect to this Part:
(a)  section 39 of the 1987 Act,
(b)  Part 19H of Schedule 6 to the 1987 Act,
(c) section 322A of the 1998 Act.
28B   Application and operation of Part
(1)    This Part takes effect on and from 1 October 2012.
(2)    This Part applies to an injured worker who is an existing recipient of weekly payments.
28C   5 year limit on weekly payments
Section 39 of the 1987 Act (as substituted by the 2012 amending Act) does not apply to an injured worker if the worker’s injury has resulted in permanent impairment and:
(a)     an assessment of the degree of permanent impairment for the purposes of the Workers Compensation Acts is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
(b)     the insurer is satisfied that the degree of permanent impairment is likely to be more than 20% (whether or not the degree of permanent impairment has previously been assessed).
28D   Further permanent impairment assessments
(1)    This clause applies to an injured worker if the degree of permanent impairment resulting from the worker’s injury is or has been assessed for the purposes of the Workers Compensation Acts.
(2) Section 322A of the 1998 Act does not operate to prevent a further assessment being made of the degree of permanent impairment resulting from the worker’s injury for the purposes of Part 3 of the 1987 Act.
(3)    However, only one further assessment may be made of the degree of permanent impairment resulting from the worker’s injury.”

APPELLANT’S SUBMISSIONS

Relating to Ground No 1

The appellant states it was common ground that the claim litigated, in matter no 629/17, was the respondent’s one further lump sum claim permitted under cl 11 of the Regulation. The Arbitrator then found that cl 28D of the Regulation “provided a further right of assessment in relation to the [respondent’s] weekly benefits rights … additional to the AMS assessment under Clause 11.” The appellant submits that Pt 2A “does not have as it purposes [sic] weekly benefits provisions”. Rather it “confirms the category of workers that the provisions apply to being existing recipients”.[33]
[33] Appellant’s submissions, [10]–[12].
The appellant refers to cl 28D(2) of the Regulation, which provides for “a further assessment” for the purposes of Pt 3 of the 1987 Act. Part 3 deals with benefits, including lump sum compensation, weekly payments and medical expenses. The appellant argues that cl 28D relates to assessments for permanent impairment compensation also, not only weekly payments. Clause 28D(3) provides that only one further assessment may be made. This is for the purposes of Ch 3. The words should be given their “simple meaning”. The respondent has “exhausted his entitlement to one further assessment … obtained in relation to his lump sum claim in 2017”.[34]
[34] Appellant’s submissions, [13]–[17].
The appellant submits that if there was an entitlement to a further assessment for the purpose of the weekly entitlement, additional to that permitted under cl 11, the legislature could have indicated that. Such an interpretation could, it is submitted, cause difficulties in the operation of the legislation. There could be a binding MAC for the purposes of a worker’s weekly entitlement, different to an earlier binding MAC obtained for the purposes of the lump sum and work injury damages provisions. The scheme of the Acts provides for a single MAC, “issued to determine all subsequent medical disputes arising under the Act, with one additional assessment being allowed for a small class of existing recipients”. It would be “a perverse result that would allow multiple binding MACs to be issued without specific legislative support”.[35]
[35] Appellant’s submissions, [19]–[22].

Ground No 2

The appellant submits that the Arbitrator’s decision turned on the application of cl 28D of the Regulation. The respondent’s submissions before the Arbitrator did not rely on this provision, but rather on a construction of s 39 of the 1987 Act, rejected by the Arbitrator, that s 39 itself provided for a further assessment for the purposes of s 39 only. The Arbitrator raised cl 28D with the respondent’s counsel, who did not seek to rely on it. The Arbitrator did not seek further submissions from the appellant, going to the construction of cl 28D which he ultimately accepted. This is submitted to have been a denial of procedural fairness.[36]
[36] Appellant’s submissions, [23]–[25].

Appellant’s submissions in reply

The appellant lodged further submissions, in reply to those of the respondent described below under “Respondent’s submissions”.
The appellant accepts that the respondent is entitled to raise a Notice of Contention, and says those submissions do not take it by surprise. The appellant submits that reading a right to medical assessment into the words of s 39(3) is inconsistent with the plain meaning of the text, and the Arbitrator was correct to reject this argument. Section 39(3) does not provide a further right of assessment, but rather clarifies the method of assessment. The appellant submits that s 39 is “clearly a disentitling provision, designed to ensure that for workers with less than 21% WPI, weekly benefits cease after a maximum of 260 weeks”.[37]
[37] Appellant’s submissions in reply, [5]–[10].
The appellant refers to Presidential decisions in Merchant and Abu-Ali. It submits these decisions linked assessment for the purposes of Div 2 of the 1987 Act (which includes s 39) to assessment for the purposes of recovery of non-economic loss in Div 4. It submits this is consistent with a broader intention to restrict workers to one lump sum compensation claim (s 66(1A) of the 1987 Act) and one binding assessment in relation to any medical dispute (s 322A of the 1998 Act). Due to the amending regulation, as an ‘existing recipient’, the respondent was entitled to an additional assessment for the purposes of one further lump sum claim. This was the assessment by Dr Pillemer in 2017. Under the “clear terms” of cl 28D(3) this was the only further assessment to which he was entitled.[38]

RESPONDENT’S SUBMISSIONS

[38] Appellant’s submissions in reply, [10]–[17].

Ground No 1

Part 2A of the Regulation addresses the entitlements of ‘existing recipients of weekly payments’, that is, recipients who were in receipt of weekly payments immediately before the commencement of the ‘weekly payments amendments’ introduced by the 2012 Amending Act. The respondent submits this “evidences clear statutory intent for that class of workers to have in effect a separate mechanism to process the transition of their weekly compensation payments into the new regime”. Clause 28A(2) “specifically references s 39”. The Arbitrator correctly identified that there was an entitlement to bring a further lump sum claim found in cl 11 of Sch 8. The Arbitrator identified that Pt 2A allowed a referral of the respondent as “an existing recipient of weekly compensation” (emphasis in original), which had no relevance to an examination for the purpose of lump sum entitlements.[39]
[39] Respondent’s submissions, [9].
The respondent makes an alternative submission by way of a ‘Notice of Contention’. It submits the Arbitrator erred in dismissing the respondent’s argument that s 39 of the 1987 Act, through the operation of s 39(3), is “in effect quarantined from those parts of the Act that otherwise impose limits on medical examinations to assess permanent impairment”. The respondent relies on the opening words of s 39, “For the purposes of this section …”. The respondent submits that all words in a statute must be given some meaning and effect, citing Commonwealth v Baume[40] and Project Blue Sky Inc v Australian Broadcasting Authority.[41] The words “For the purposes of this section …” indicate an intent to establish a pathway for determining whether a worker falls within s 39 of the 1987 Act.[42]
[40] [1905] HCA 11; 2 CLR 405.
[41] [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 (Project Blue Sky).
[42] Respondent’s submissions, [8].

Ground No 2

The submissions, which were prepared by the respondent’s counsel, said that he had not had an opportunity to read the transcript of the Arbitration hearing, but his recollection was that the submissions dealt with the “breadth and impact” of Pt 2A and cl 11 of the Regulation.[43]

SUPPLEMENTARY SUBMISSIONS

[43] Respondent’s submissions, [10].

My earlier decision in Pidcock Panel Beating Pty Ltd v Nicolia[44] arose from a different factual background to the current appeal. Like the current appeal, it dealt with the operation of Pt 2A of the Regulation, which was inserted by the Workers Compensation Amendment (Transitional Arrangements for Weekly Payments) Regulation 2016. The decision in Nicolia was not addressed by either party. A Direction dated 23 July 2018 was issued in the following terms:
“The attention of the parties is drawn to the decision in Pidcock Panel Beating Pty Ltd v Nicolia [2017] NSWWCCPD 32 (Nicolia).
It is noted that the issue raised in this matter is one of statutory interpretation. It is noted that ground 2, of the grounds of appeal, raises an allegation that the Arbitrator, in relying on Sch 8, Pt 2A, cl 28D of the Workers Compensation Regulation 2016 (the Regulation), decided the matter before him on a basis not relied on by Darren Sweeny (the respondent). The appellant submits that, if the Arbitrator was considering determining the matter on such a basis, further submissions should have been sought from the appellant dealing with Sch 8, Pt 2A of the Regulation. It is submitted that the appellant was denied procedural fairness in this regard.
The parties are directed to lodge and serve further written submissions addressing the following:
1. Whether the Arbitrator erred in his reasoning and orders, in determining the matter, relying inter alia on Sch 8, Pt 2A of the Regulation. To the extent to which it is relevant, the parties are directed to address the applicability of the reasoning in Nicolia.
2. Any other matters the parties seek to address going to the application of s 322A of the Workplace Injury Management and Workers Compensation Act 1998, and its operation in concert with the Sch 8 of the Regulation.
3.     Subject to the appellant being afforded procedural fairness, which if it did not occur previously should be achieved by the above orders, whether there is any reason why the issues of statutory interpretation raised in the matter cannot or should not be decided on this appeal.
4.     The appellant is directed to lodge and serve written submissions addressing the above on or before the close of business on 3 August 2018.
5.     The respondent is directed to lodge and serve written submissions addressing the above on or before the close of business on 10 August 2018.”
[44] [2017] NSWWCCPD 32 (Nicolia).
Both parties lodged submissions in response to this Direction.

Appellant’s supplementary submissions

The appellant “requests that the issues of statutory interpretation raised in the matter be dealt with in this appeal”.[45]
[45] Appellant’s supplementary submissions, [3].
The appellant submits that there was a binding MAC dated 24 April 2017, there was thereafter no ‘medical dispute’ in accordance with the legislation, and the application should have been dismissed.[46]
[46] Appellant’s supplementary submissions, [5].
The appellant observes that cl 28A(2) of the Regulation provides for the amendment of s 322A to the extent necessary to give effect to give effect to Pt 2A. Clause 28D(2) provides that s 322A of the 1998 Act does not prevent a further assessment. The appellant submits that, save for those amendments to the operation of s 322A, that section otherwise binds the respondent in relation to any further medical dispute. On a plain reading of cl 28D(3), only one further assessment can be made. The appellant submits this one further assessment was that conducted in 2017. That assessment occurred after insertion into the Regulation of the amendments contained in Pt 2A. The respondent has already been assessed for the purposes of cl 28D(1). Clause 28D(3) then prevents any further assessment.[47]
[47] Appellant’s supplementary submissions, [8]–[13].
The appellant submits the operation of the Acts is as follows:
(a) Section 322A prima facie does not allow further assessments where there is a MAC in existence.
(b) The “amending regulation” (Pt 2A) allows a further assessment for ‘existing recipients’, for the purposes of Pt 3 of the 1987 Act (which includes benefits by way of weekly payments, medical and related expenses and lump sum compensation).
(c) For the purposes of the current matter, that further assessment resulted in the MAC dated 24 April 2017. It was pursuant to cl 11 of the Regulation, and related to the further lump sum claim. This was the one further assessment allowed under cl 28D(3). It was binding regarding the extent of the respondent’s permanent impairment, a medical dispute could no longer arise: s 322A(2).
The appellant submits the Arbitrator should have dismissed the respondent’s application.

Respondent’s supplementary submissions

The respondent refers to the Arbitrator’s reasoning regarding the application of Pt 2A of Sch 8 (summarised at [15] above). The respondent submits that the Arbitrator correctly distinguished the decisions in Merchant and Davison, which involved a different issue, the aggregation of multiple medical assessments for the purposes of whether an injured worker was a ‘worker with high needs’ within the meaning of s 32A of the 1987 Act. The referral in 2017 was pursuant to cl 11 of the Regulation, which permits one further lump sum claim in certain circumstances. The current matter does not involve a further claim for lump sum compensation. Part 2A of Sch 8 applies in different circumstances, where the degree of permanent impairment is or has been assessed for the purposes of the Acts: cl 28D(1). The Arbitrator had observed that the purpose of Pt 2A (and the further assessment permitted by cl 28D(2)) related to weekly payments, not additional lump sum claims pursuant to cl 11.[48]
[48] Respondent’s supplementary submissions, [1]–[9].
The respondent submits that the approach taken by the Arbitrator was consistent with the approach in Nicolia. The power conferred by Sch 6, Pt 19H, cl 5(4) of the 1987 Act enabled the making of Regulations of a savings or transitional nature, which were deemed to amend the provisions of the 1987 Act. Clause 11 provided for amendment of specified parts of the workers compensation legislation, so that those provisions be read “subject to this clause”. Part 2A of the Regulation provided that specified provisions of the workers compensation legislation were “deemed to be amended to the extent necessary to give effect to this Part”. The relevant subclause in Pt 2A provides inter alia for consequential amendment of s 39 of the 1987 Act. The relevant subclause in cl 11 provides inter alia for consequential amendment of s 66 and Sch 6, Pt 19H, cl 15 of the 1987 Act, and cll 10 and 19 of Sch 8 of the Regulation (which were the subject of challenge in ADCO Constructions Pty Ltd v Goudappel[49]).[50]
[49] [2014] HCA 18; 254 CLR 1 (Goudappel).
[50] Respondent’s supplementary submissions, [11]–[15].

The respondent submits:
“The clear legislative purpose of Part 2A was to give existing recipients the ability to have a medical assessment which provided a determination, conclusively on referral to an approved medical specialist, with respect to rights and entitlements under the new scheme legislated in 2012. Such workers, who may have been assessed with respect to a medical dispute relating to lump sum compensation in the past, would be afforded the opportunity to have a further assessment with respect to a further entitlement to lump sums but also a medical dispute relating for example to an entitlement to weekly compensation.”[51]
[51] Respondent’s supplementary submissions, [16].
The respondent submits there was no earlier dispute or assessment with respect to the matters traversed in s 39. Part 2A provided for referral to an AMS in the circumstances. There was power to order the referral.[52]
[52] Respondent’s supplementary submissions, [17].
The respondent submits that the referral sought is not one in respect of a medical dispute relating to lump sum compensation, but rather assessment pursuant to s 321 of the 1998 Act, “on a medical dispute as to whether the degree of permanent impairment was fully ascertainable as the Act (as modified by the regulations) contemplates”.[53]

DISCUSSION

[53] Respondent’s supplementary submissions, [24].

The High Court in Master Education Services Pty Limited v Ketchell said “Regulations are to be construed according to ordinary principles of construction. That requires that they be placed in their statutory context.”[54] (excluding footnotes) In Goudappel the plurality, dealing with the construction of what is now cl 10 of the Regulation, said:
“The appropriate enquiry in the construction of delegated legislation is directed to the text, context and purpose of the regulation, the discernment of relevant constructional choices, if they exist, and the determination of the construction that, according to established rules of interpretation, best serves the statutory purpose.”[55]
[54] [2008] HCA 38; 236 CLR 101, [19].
[55] Goudappel, [28].
In Wilson v State Rail Authority of New South Wales Allsop P (as his Honour then was) summarised a number of principles of statutory construction:
“I am mindful that any initial engagement with enactment history and context might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers so that such divined intent can be transferred to the words used by Parliament. Such an enquiry would be misdirected. It is the language of Parliament that must be interpreted and construed. However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect.”[56] (excluding references)
[56] [2010] NSWCA 198; 78 NSWLR 704 (Wilson), [12].
Viewed in this way, the constructional choice focuses on cl 28D(3) of Pt 2A of the Regulation, and the interaction between cl 11 and Pt 2A.

The 2015 Amendment to the Regulation: Clause 11

Clause 11 (it was originally numbered cl 11A) was inserted into the Regulation by the Workers Compensation Amendment (Lump Sum Compensation Claims) Regulation 2015, and commenced from 13 November 2015, the date of its publication on the NSW Legislation website.
The Explanatory note to the Regulation provided:
“Explanatory note
The object of this Regulation is to make further transitional arrangements consequent on the enactment of the Workers Compensation Legislation Amendment Act 2012 with respect to claims for permanent impairment compensation. The Regulation will enable a worker who made a claim before 19 June 2012 for permanent impairment compensation in respect of an injury to make one further claim for compensation in respect of the permanent impairment that results from the injury.
This Regulation is made under the Workers Compensation Act 1987, including section 280 (the general regulation-making power) and Parts 19H and 20 of Schedule 6.”
The text of clause is set out at [34] above. Its application is not dependent on whether a worker is an ‘existing recipient of weekly payments’. It provides for one “further lump sum compensation claim” in respect of an “existing impairment”. An “existing impairment” is defined in subcl (6) as “a permanent impairment resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012”. A “further lump sum compensation claim” is defined as “a lump sum compensation claim made on or after 19 June 2012 in respect of an existing impairment”. The operation of cl 11 is discussed in Avni v Visy Industrial Plastics Pty Ltd[57] and Draca v Formtec Group (NSW) Pty Ltd.[58]
[57] [2016] NSWWCCPD 46.
[58] [2016] NSWWCCPD 53.
Relevant to the operation of s 322A of the 1998 Act, subcl (4)(c) of cl 11 provides:
“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.”
Subclause (5) provides:
“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.”

The 2016 Amendment to the Regulation: Part 2A

Part 2A was inserted into the Regulation by the Workers Compensation Amendment (Transitional Arrangements for Weekly Payments) Regulation 2016, and commenced from 16 December 2016, the date of its publication on the NSW legislation website.
The Explanatory Note to the Regulation provided:
“Explanatory note
The object of this Regulation is to make further transitional arrangements in respect of the application of certain amendments made by the Workers Compensation Legislation Amendment Act 2012 to injured workers receiving weekly payments of workers compensation immediately before 1 October 2012. Those amendments limited the entitlement to weekly payments of compensation to an aggregate period of 260 weeks (except in the case of workers assessed as having more than 20% permanent impairment) and provided that an injured worker may have only one assessment of permanent impairment. The Regulation provides that:
(a) the 260-week limit on entitlement to weekly payments of compensation does not apply to certain injured workers whose degree of permanent impairment has not been assessed or has been determined by an insurer to be more than 20%, and
(b) an injured worker whose degree of permanent impairment has been assessed may have one further assessment of permanent impairment for the purposes of determining the worker’s entitlement to benefits under the Workers Compensation Act 1987.
This Regulation is made under the Workers Compensation Act 1987, including section 280 (the general regulation-making power) and Parts 19H and 20 of Schedule 6.”
The text of Pt 2A is set out at [35] above. It commences from 1 October 2012 and the Part “applies to an injured worker who is an existing recipient of weekly payments”. Section 39(2) of the 1987 Act provides that s 39 “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%”. Clause 28C of Pt 2A provides two further circumstances where s 39 does not apply, where the injury has resulted in permanent impairment. The first is where:
“an assessment of the degree of permanent impairment for the purposes of the Workers Compensation Acts is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable” (cl 28C(a)).
The second is where:
“the insurer is satisfied that the degree of permanent impairment is likely to be more than 20% (whether or not the degree of permanent impairment has previously been assessed)” (cl 28C(b)).
Clause 28D of Pt 2A additionally makes provision for “[f]urther permanent impairment assessments”. Clause 28D “applies to an injured worker if the degree of permanent impairment resulting from the worker’s injury is or has been assessed for the purposes of the Workers Compensation Acts”. Subclause 28D(2) provides that s 322A “does not operate to prevent a further assessment being made of the degree of permanent impairment resulting from the worker’s injury for the purposes of Part 3 of the 1987 Act”. Subclause 28D(3) provides that “only one further assessment may be made of the degree of permanent impairment resulting from the worker’s injury”.
Subclause 28A(2) provides:
“The following provisions are deemed to be amended to the extent necessary to give effect to this Part:
(a) section 39 of the 1987 Act,
(b) Part 19H of Schedule 6 to the 1987 Act,
(c) section 322A of the 1998 Act.”

Consideration

Clause 11 of the Regulation provides for one further lump sum compensation claim in specified circumstances. It is restricted to injured workers with ‘an existing impairment’, who have made a lump sum claim before 19 June 2012 (see the definition of ‘existing impairment’). The respondent is such a worker. Subclause (4)(c) provides:
“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.” (emphasis added)
Subclause 11(5) is set out at [65] above. It provides for the consequential amendment of specified sections and clauses of the 1987 and 1998 Acts, and the Regulation, which are to be “read subject to this clause” (emphasis added). These limited amendments are those necessary for the operation of cl 11, in respect of ‘a further lump sum compensation claim’. Subclause (4)(c) restricts the operation of s 322A of the 1998 Act only “for the purposes of a further lump sum compensation claim”. That is, an assessment permitted pursuant to cl 11 could not be used for a purpose beyond the further lump sum claim allowed, in certain circumstances, by that clause. The application of s 322A is removed by cl 11 only to that extent. Clause 11 does not restrict the number of further assessments that can be made, but cl 11(2) restricts a relevant injured worker to “[o]nly one further lump sum compensation claim”.
Part 2A of the Regulation, unlike cl 11, applies to an ‘existing recipient of weekly payments’, which the respondent is. Clause 28D(1) provides:
“This clause applies to an injured worker if the degree of permanent impairment resulting from the worker’s injury is or has been assessed for the purposes of the Workers Compensation Acts.”
The respondent falls within cl 28D(1).
Clause 28D(2) provides that s 322A does not prevent a further assessment for the purposes of Pt 3 of the 1987 Act. Part 3 deals with benefits, including weekly payments, medical and related expenses, and lump sum compensation. However, the provisions of the Workers Compensation Acts that are “deemed to be amended” by Pt 2A are s 39 of the 1987 Act, Pt 19H of Sch 6 of the 1987 Act (the transitional provisions applying to the 2012 Amending Act) and s 322A of the 1998 Act.
The appellant’s essential argument is that described at [51] above. Whilst s 322A restricts an injured worker to a single MAC, the provisions in the Regulation provide for a further MAC in certain circumstances. Clause 11(4)(c) provides that s 322A does not “prevent an assessment being made under s 322 for the purposes of a further lump sum compensation claim”. The appellant argues that cl 28D(2) allows a further assessment for the purposes of Pt 3 of the 1987 Act (a Part which, it is submitted, includes both weekly payments and lump sum compensation). Clause 28D(3) restricts a worker to “only one further assessment”. A worker, the appellant submits, is not entitled to two further assessments, one relating to a further lump sum claim pursuant to cl 11(4)(c), and one pursuant to Pt 2A. Once one further assessment has been made, a second further assessment is precluded.
The respondent’s argument in response is that described at [55]–[56] above.
The Arbitrator concluded that the respondent was entitled to make his further lump sum claim in 2017 because of the provisions of cl 11, and that the MAC dated 24 April 2017 was issued on the basis of cl 11(4)(c). He reasoned that Pt 2A relates to weekly payments, and provides a “mechanism whereby the claimant may make the application to an AMS that clause 28C(a) stipulates is required”. The “words in cl 28D(2) permitting ‘a further assessment’ do not relate to the additional lump sum claim permitted by clause 11”.[59] That is, the assessment that led to the MAC dated 24 April 2017 did not fall within the words ‘one further assessment’ in cl 28D(3). The Arbitrator relied in part on the name of the Workers Compensation Amendment (Transitional Arrangements for Weekly Payments) Regulation 2016 which introduced Pt 2A into the Regulation. The Arbitrator misdescribed cl 11 as the “subject of the appeal to the High Court in Goudappel”.[60] There was a change in the numbering, and that clause is now Sch 8, cl 10; nothing turns on this.
[59] Reasons, [39]–[41].
[60] Reasons, [38].
Assessments permitted on the basis of cl 11 and Pt 2A of the Regulation are different. Access to cl 11 requires that an injured worker, before 19 June 2012, have made a lump sum compensation claim in respect of the relevant injury (see the definition of ‘existing impairment’ in cl 11(6)). Access to Pt 2A requires that the injured worker was an ‘existing recipient of weekly payments’ within the meaning of the definition in Sch 6, Pt 19H cl 1 of the 1987 Act (see Pt 2A, cl 28B(2)). These classes of injured worker are not coextensive. The scope of the assessments, under cl 11 and Pt 2A, are expressed differently. An assessment pursuant to cl 11 is “for the purposes of a further lump sum compensation claim”. An assessment pursuant to cl 28D is “for the purposes of Part 3 of the 1987 Act”. The consequential amendments to the Workers Compensation Acts and Regulation, contained in these provisions, are different (see subcll (3) and (5) of cl 11, and subcl 28A(2) and cl 28C of Pt 2A). Clause 11 permits an injured worker to make a “further lump sum compensation claim”, and such a claim “is not required to be greater than 10%”. The consequential amendments described in subcl 28A(2) of Pt 2A do not provide for amendment of s 66 of the 1987 Act.
In the current matter, the MAC dated 24 April 2017 described the date of injury (19 November 2004), the body parts / systems referred (right lower extremity (knee)), and the method of assessment (whole person impairment). It is clear, from the Certificate of Determination issued by the Commission dated 29 May 2017,[61] that matter no 629/17 (in which the referral at the time was made and the MAC dated 24 April 2017 was issued) involved a further lump sum compensation claim only. There are no other heads of claim referred to in the Certificate of Determination. This is consistent with a statement regarding the history of the matter made by the respondent’s counsel, without objection, at the arbitration hearing.[62] It follows, from the history of the matter, that the referral for assessment made in those proceedings was available, on the basis of cl 11(4)(c) of the Regulation.
[61] Application, p 83.
[62] T12.5–21.
It is appropriate that cl 28D of Pt 2A be read as a whole.[63] Subclause (2) provides that s 322A “does not operate to prevent a further assessment being made of the degree of permanent impairment resulting from the worker’s injury for the purposes of Part 3 of the 1987 Act”. Subclause (3) provides “only one further assessment may be made of the degree of permanent impairment resulting from the worker’s injury” (emphasis added).
[63] Taylor v Public Service Board(NSW) [1976] HCA 36; 137 CLR 208, per Barwick CJ, [11].
In Craig Williamson Pty Ltd v Barrowcliff Hodges J said:
“I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.”[64]
[64] [1915] VLR 450 at 452, quoted in Pearce & Geddes, Statutory Interpretation in Australia, 8th edition, p 151, see also Registrar of Titles (WA) v Franzon [1975] HCA 41; 132 CLR 611, [11].
There is nothing in subcl 28D(1) of Pt 2A that restricts the application of that subclause to an injured worker whose degree of permanent impairment has been assessed only once – subcl 28D(1) applies to an injured worker whose degree of permanent impairment “is or has been assessed”. There are varying bases on which more than one assessment could have been made before an injured worker seeks to invoke cl 28D(1). The injured worker may have had more than one assessment before commencement of the 2012 Amending Act. The injured worker may have been referred for further medical assessment or reconsideration pursuant to s 329 of the 1998 Act. The wording of subcl (1) does not exclude such injured workers from its operation.
The phrase ‘further assessment’ appears in both subcll 28D(2) and 28D(3). Subclause (2) refers to “a further assessment being made of the degree of permanent impairment resulting from the worker’s injury for the purposes of Part 3 of the 1987 Act”. Subclause (3) uses the phrase “a further assessment being made of the degree of permanent impairment resulting from the worker’s injury”. The wording is similar, but not identical. In both instances, the phrase ‘further assessment’ is used.
The words used in cl 11(4)(c) of the Regulation are different, and do not employ the phrase ‘further assessment’:
“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.”
The Explanatory note to the Workers Compensation Amendment (Transitional Arrangements for Weekly Payments) Regulation 2016, which inserted Pt 2A into the Regulation, is set out at [67] above. The Explanatory note provides context going to the existing state of the law and the mischief or object to which the Regulation was directed, to appropriate the words of Allsop P in Wilson, quoted above. “The 2016 Regulation is a statutory rule: s 21 of the Interpretation Act 1987 (the Interpretation Act). A construction that promotes the purpose or object of a statutory rule is to be preferred to a construction that does not: s 33 of the Interpretation Act, IW v City of Perth [1997] HCA 30; 191 CLR 1; 94 LGERA 224; 146 ALR 696; 71 ALJR 943 per Brennan CJ and McHugh J at 11–12.”[65]
[65] Nicolia, [84].
The context in which Pt 2A of the Regulation was made was that described in the Explanatory note. The object was “to make further transitional arrangements in respect of the application of amendments made by the [2012 Amending Act] to injured workers receiving weekly payments of workers compensation immediately before 1 October 2012.” The object specifically identified the 260-week restriction on the payment of weekly compensation, and that this limit did not apply to “workers assessed as having more than 20% permanent impairment”. The Regulation makes provision to exempt two classes of injured worker, additional to those exempted by s 39(2) of the 1987 Act. It additionally provides that “an injured worker whose degree of permanent impairment has been assessed may have one further assessment”, to determine “the worker’s entitlement to benefits” under the 1987 Act.

There is a difference between the classes of injured workers entitled to rely on cl 11 as opposed to Pt 2A. There is a difference in the effect of assessment pursuant to those two provisions. The language used to describe assessment pursuant to cl 11(4)(c) is different to the language used to describe assessment pursuant to Pt 2A. The difference in the wording in cl 28D, compared with that in cl 11(4)(c), is consistent with the view that there is a distinction between an assessment mandated by cl 11, and a ‘further assessment’ within the meaning of Pt 2A. Additionally, the broad reading of subcl 28D(3), for which the appellant argues, potentially involves inconsistency with s 329 of the 1998 Act.
In Project Blue Sky the plurality said:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.”[66] (excluding footnotes)
[66] [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841, [69].
In Goudappel the plurality said:
“It can be accepted, as was put by counsel for Mr Goudappel, that the WCA’s remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the WCA as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified.”[67] (excluding footnotes)
[67] Goudappel, [29].
The provisions of ss 39 and 66 of the 1987 Act (in their current form) and s 322A of the 1998 Act, were inserted into the Workers Compensation Acts by the 2012 Amending Act. The 2012 Amending Act has been said to “disclose a costs saving objective”.[68]
[68] Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250, per Gleeson JA, [122].
State of New South Wales v Chapman-Davis[69] involved an exemption to the application of the 2012 Amending Act, to police officers, paramedics and firefighters, in the transitional provisions found in cl 25 of Pt 19H of Sch 6 of the 1987 Act. Dealing with that exemption, Gleeson JA (McColl JA agreeing) said:
“While primacy must be given to the text, context and purpose of the WC Act and a court needs to be cautious about a priori assumptions based on its character or legislative history, the exemption attracts the principle stated by Deane J and Gaudron J (although in dissent on the facts) in Bird v The Commonwealth that workers compensation legislation is remedial in its character ‘and, like all such Acts, should be beneficially construed’.”[70] (references omitted)
[69] [2016] NSWCA 237 (Chapman-Davis).
[70] Chapman-Davis, [76].
In Hunter Quarries Pty Ltd v Mexon as Administrator for the Estate of the Late Ryan Messenger Payne JA (Gleeson JA agreeing), after referring to s 3 of the 1998 Act, said:
“The Workers Compensation Act does not pursue a single purpose of providing the maximum amount of benefits to workers at all costs. Where, as here, the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For this Court to construe the Workers Compensation Act as though it pursues only the purpose of providing benefits to workers to the fullest extent possible would be contrary to the manifest intention of the legislation.”[71]
[71] [2018] NSWCA 178, [64]–[66].
It is apparent that care must be taken, in dealing with the extent to which the beneficial nature of workers compensation legislation impacts upon its construction. The provisions of the Regulation, at issue in the current appeal, ameliorate the application of certain amendments made by the 2012 Amending Act. These are subss (1) and (1A) of s 66 of the 1987 Act, and s 322A of the 1998 Act (regarding lump sum compensation), and s 39 of the 1987 Act and s 322A of the 1998 Act (regarding weekly compensation beyond 260 weeks). These are the purposes of cl 11 and Pt 2A of the Regulation. This is consistent with the relevant Explanatory notes, and the provisions themselves. These provisions are, to that extent, beneficial. This is supportive of the construction which I apply.
The preferable construction of subcl 28D(3) is that “only one further assessment may be made” pursuant to Pt 2A of the Regulation. This construction is consistent with the object of Pt 2A, as described in the Explanatory note concerning the Workers Compensation Amendment (Transitional Arrangements for Weekly Payments) Regulation 2016, which inserted Pt 2A in the Regulation. It is consistent with a worker who is an ‘existing recipient’, who has previously been assessed, being entitled to one further assessment for the purposes of determining his or her entitlement to benefits. It follows that the respondent was entitled to the referral for further assessment made by the Arbitrator, unless he had previously had a further referral on the basis of Pt 2A.
For reasons given above, a referral for assessment of the degree of permanent impairment, based on cl 11(4)(c) of the Regulation, was available to the respondent when the referral was made in matter no 629/17. I have concluded that such a referral would not constitute a ‘further assessment’ within the meaning of cl 28D. It follows that, if the referral for assessment in matter no 629/17 was pursuant to cl 11, the respondent remains entitled to a ‘further assessment’ based on Pt 2A of the Regulation.
The referral was in proceedings (matter no 629/17) which involved only a ‘further lump sum compensation claim’ within the meaning of cl 11 of the Regulation. The respondent’s other entitlements were being met voluntarily by the appellant. The further lump sum claim could only have been brought on the basis of cl 11. Otherwise it would have been prevented by s 66(1A) of the 1987 Act, cl 15 of Pt 19H of Sch 6 to the 1987 Act, and cl 10 of Sch 8 to the Regulation. Subclause 11(5) of the Regulation provides that those provisions of the 1987 Act and Regulation are to be read subject to cl 11. The respondent was dependent on the consequential amendments effected by cl 11, for his further lump sum compensation claim to have efficacy. The referral for assessment, in matter no 629/17, was pursuant to cl 11, not Pt 2A of the Regulation. There is no basis on which that referral should be characterised as one pursuant to Pt 2A.
The appellant also raised an argument in its submissions dated 2 August 2018, responding to the Commission’s Direction, going to ‘claim’. It submits that the referral for further assessment, based on Pt 2A of the Regulation, was pursuant to s 321 of the 1998 Act. It submits that there was a binding MAC dated 24 April 2017 (in matter no 629/17); there was no remaining ‘medical dispute’ relating to the extent of permanent impairment, to be referred for assessment.[72]
[72] Appellant’s further submissions dated 2 August 2018, [4]–[5].
The definition in s 319 of the 1998 Act relevantly provides:
“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:
…
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
The circumstances in which the respondent’s solicitors sought a concession in this regard, and the appellant’s response (through its insurer) are described at [5] above. The Arbitrator dealt with the appellant’s submissions about ‘claim’ at [10]–[18] of his reasons. The Arbitrator concluded that the email correspondence dated 24 January 2018 was “proof that the claim was made”. He noted the appellant “acknowledged the claim and invited the [respondent] to make this application”. I cannot see error in how the Arbitrator dealt with this aspect. The point the appellant is making on the appeal may rather be that the earlier claim was concluded when a MAC was issued and orders made in matter no 629/17. This is true in so far as the claim on foot in matter no 629/17 is concerned. However, the exchange between the parties, on 24 January 2018, raised a further ‘medical dispute’, the existence of which was accepted by the appellant, in the response which it gave. It is a ‘medical dispute’ in which a MAC is “conclusively presumed to be correct”: s 326(1) of the 1998 Act. This issue was not raised separately as a ground of appeal. It is preferable, it being raised in the submissions, that it be dealt with.

CONCLUSION

Ground No 1 is rejected.
Ground No 2 does not arise. In the circumstances described above, the appellant has had an opportunity to address the application of Pt 2A of the Regulation, in its written submissions dated 2 August 2018. The appellant in those submissions requested “that the issues of statutory interpretation raised in the matter be dealt with in this appeal”.[73] Those submissions have been given consideration in this appeal. This is sufficient to afford the appellant procedural fairness.
[73] Appellant’s further written submissions dated 2 August 2018, [3].
The appeal is not successful. It is not, in the circumstances, necessary that the respondent’s Notice of Contention be dealt with.

DECISION

Leave to appeal is granted pursuant to section 352(3A) of the 1998 Act.
The Arbitrator’s determination dated 22 March 2018 is confirmed.

Michael Snell

Deputy President

31 August 2018