Merchant v Shoalhaven City Council - [2015] NSWWCCPD 13

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Merchant v Shoalhaven City Council [2015] NSWWCCPD 13
APPELLANT:	Warwick Merchant
RESPONDENT:	Shoalhaven City Council
FIRST INSURER:	QBE Workers Compensation Ltd
SECOND INSURER:	Self-insured
FILE NUMBER:	A1-1861/14
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	14 October 2014
DATE OF APPEAL DECISION:	23 February 2015
SUBJECT MATTER OF DECISION:	Statutory interpretation; meaning of “whose injury” in s 32A of the Workers Compensation Act 1987; whether the section permits multiple injuries to be aggregated to reach the impairment threshold for seriously injured worker; s 8(b) of the Interpretation Act 1987; whether singular includes the plural; whether contrary intention appears in the legislation; failure to determine issue in dispute; determination of issue not argued
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Slater & Gordon Lawyers
First Insurer: Second Insurer:	Bartier Perry Moray & Agnew
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 14 October 2014 is revoked. 2. The Miscellaneous Application of 14 April 2014 is dismissed. 3. No order as to costs.

INTRODUCTION

This appeal concerns the construction of the term “seriously injured worker” in s 32A of the Workers Compensation Act 1987 (the 1987 Act). In particular, the issue concerns whether it is permissible to aggregate impairments that have resulted from injuries to different body parts, in a series of unrelated incidents, to meet the required permanent impairment threshold of more than 30 per cent to be characterised as a “seriously injured worker”.
A finding that a worker is a “seriously injured worker” has significant implications in terms of the benefits available under the workers compensation legislation. Such workers receive significantly more generous benefits than other claimants. For example, the limitations on the entitlement to medical and related expenses under s 59A of the 1987 Act do not apply.

BACKGROUND

On 26 October 1988, the appellant worker, Warwick Merchant commenced employment with the respondent, Shoalhaven City Council, as a ganger. His employment with the respondent was terminated on 12 April 2013, due to his incapacity arising from a number of work related injuries for which liability has been accepted.
On 25 October 1989, Mr Merchant injured his back, right leg and left leg whilst operating a jackhammer on a sandstone shelf.
On 6 April 1992, Mr Merchant further injured his back when he was removing rolls of plastic from a truck.
On 12 March 1996, Mr Merchant sustained a bilateral hernia as a result of repeated bending and lifting.
On 5 August 2010, Mr Merchant sustained an injury to his right shoulder/right arm while he was lifting shutters weighing approximately 25 kilograms off a truck.
It is relevant to note that the respondent was insured by QBE Workers Compensation Ltd (QBE) up to 30 June 2004, after which it became self-insured.
On 1 March 2002, Mr Merchant commenced proceedings in the Compensation Court of New South Wales (6043/02). He sought lump sum compensation in respect of impairments to the back and both legs. He relied on the injuries sustained on 25 October 1989, 6 April 1992 and the nature and conditions of his work from 26 October 1988. Those proceedings were resolved and Terms of Settlement dated 20 June 2002 note consent orders that lump sum compensation be paid to the worker in the following amounts:
(a)     $9,000 in respect of 15 per cent permanent impairment of the back;
(b)     $5,625 in respect of 7.5 per cent permanent loss of use of Mr Merchant’s right leg at or above the knee;
(c)     $5,625 in respect of 7.5 per cent permanent loss of use of Mr Merchant’s left leg at or above the knee, and
(d) $9,750 pursuant to s 67.
In a report dated 17 May 2012, Dr Searle a consultant orthopaedic surgeon, acting as an independent medical examiner, made the following assessments of impairment, under s 66 as it applied to injuries received prior to 1 January 2002, namely under the Table of Disabilities, in respect of the injury on 25 October 1989:
(a)     30 per cent permanent impairment of the back;
(b)     12 per cent permanent loss of the efficient use of the right leg at or above the knee, and
(c)     15 per cent permanent loss of the efficient use of the left leg at or above the knee.
Dr Searle also assessed a whole person impairment of three per cent as a result of the shoulder injury on 5 August 2010.
In a report dated 18 May 2012, Dr Desmond Rea, plastic and reconstructive surgeon, assessed Mr Merchant to have 14 per cent whole person impairment in respect of his hernia injury.
On 16 September 2012, Mr Merchant commenced proceedings in the Commission (No 11393/2012). The application was in relation to the injuries to the back and legs sustained on 25 October 1989. He sought additional lump sum compensation.
In a report dated 11 October 2012, in response to a request from Mr Merchant’s solicitors which is not in evidence, Dr Searle assessed Mr Merchant’s impairments applying “AMA 5 and the WorkCover Guides”. He concluded Mr Merchant suffered 13 per cent whole person impairment in relation to his lumbar spine which when combined with the three per cent whole person impairment arising from the shoulder injury on 5 August 2010 resulted in a combined impairment of 16 per cent whole person impairment.
On 16 January 2013, Dr Thomas Rosenthal, an occupational physician, acting in his capacity as an Approved Medical Specialist (AMS) issued a Medical Assessment Certificate (MAC), in which he assessed Mr Merchant’s permanent impairment arising from the incident on 25 October 1989. The following assessments were made: 25 per cent in respect of the back; 10 per cent in respect of loss of efficient use of the right leg at or above the knee, and 10 per cent in respect of loss of efficient use of the left leg at or above the knee.
Also on 16 January 2013, Mr Merchant commenced further proceedings in the Commission (matter no 758/2013) seeking orders for weekly compensation and medical expenses relying on the injuries referred to above. On or about 20 June 2013, he lodged an Amended Application to Resolve a Dispute in which he sought compensation in respect of eight per cent whole person impairment of the “right upper extremity” arising from the injury on 5 August 2010. The claim for weekly payments was subsequently discontinued.
On 26 February 2013, the Commission issued a “Certificate of Determination – Consent Orders” in matter 11393/2012. The following orders were entered:
“1. The Respondent is to pay the Applicant $9,750 as lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987.
2. The Respondent is to pay the Applicant $7,000 for further pain and suffering pursuant to s 67 of the Workers Compensation Act 1987.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”
On 1 November 2013, Dr Yiu-Key Ho, orthopaedic surgeon, also acting in his capacity as an AMS issued a MAC, in which he assessed Mr Merchant to have nine per cent whole person impairment of his right upper extremity in respect of the injury of 5 August 2010.
On 26 November 2013, Arbitrator Harris issued a Certificate of Determination – Consent Orders (matter no 758/13). The orders entered included an order that the respondent (self-insurer) pay the applicant $12,375 pursuant to s 66 of the 1987 Act in respect of nine per cent whole person impairment as assessed by Dr Ho.
On 26 November 2013, Mr Merchant’s legal representatives, Slater & Gordon Lawyers, wrote to Moray & Agnew, the respondent’s legal representative for the period of risk from 1 July 2004 when the respondent was self-insured, stating:
“I.     In respect of the back and both legs we note by a MAS [sic, AMS] Certificate by Dr Rosenthal that [Mr Merchant] has been assessed as follows:
·30% [sic, 25%] impairment of the back
·10% of the right leg
·10% of the left leg
II.      Medical assessment by Dr Ho for the right upper extremity 9% whole person impairment.
III.    Assessment by Dr Rea in respect of [Mr Merchant’s] inguinal hernia condition 14% whole person impairment
IV.    We further note that Dr Searle by report dated 11 October 2012 opined that the applicant had the following impairment in respect of his lumbar spine:-
·Table 15-3, lumbar category III (radiculopathy: impairment of sensation, positive nerve root tension, consistent imaging findings), 13% whole person impairment
·3% for activities of daily living.
We therefore submit [Mr Merchant] is a seriously injured worker in accordance with the provisions of the Act.
We therefore seek your agreement that he is classified as same and proceed to transition him in accordance with the relevant provisions and await your advice.” (emphasis in original)
On 27 November 2013, Slater & Gordon Lawyers wrote to Bartier Perry, the legal representative for QBE, in the same terms quoted above.
On 16 December 2013, Bartier Perry wrote to Slater & Gordon Lawyers advising that “our instructions are to deny your client is a seriously injured worker under the new threshold”.
On 14 April 2014, Mr Merchant filed in the Commission a Miscellaneous Application (No 1861/2014) claiming “[a]ssessment as to whether the degree of permanent impairment is more than 30% (section 32A, Workers Compensation Act 1987 – seriously injured worker)” (emphasis in original). Under “Part 6 – Submissions in Support” the following is recorded:
“i. Refer letter to Moray Agnew dated 26 November 2013
ii. Letter 27 November 2013 to Messrs Bartier Perry solicitors”.
On 5 May 2014, the respondent self-insurer issued a s 74 notice declining Mr Merchant’s claim for compensation as a seriously injured worker pursuant to s 32A of the 1987 Act. Under the heading “Statement of matters in dispute” the following is recorded:
“(a) Whether your claim was duly made;
(b)     Whether you sustained any permanent impairment of your shoulder or hernia that would qualify you as a seriously injured worker in accordance with the Act;
(c)     Whether any WPI reaches the required threshold;
(d)     Whether you are able to amalgamate any WPI from the multiple injuries you have sustained over many years;
(e)     Credit;
(f)      Any other issues which flow from the above.”
Under the heading “Statement of insurer and claimant issues relevant to the matters in dispute” the following is recorded:
“(a) Amalgamation of numerous injuries on numerous and varied dates;
(b)     Claim duly made noting that there is no assessment provided of you being evaluated as suffering any WPI for any injury for which Council as a self insurer are liable that complies with the legislation;
(c)     Causation of any WPI as different to that assessed prior to this claim;
(d)     Substantial contributing factor if WPI differs from that assessed prior to this claim;
(e)     Credit.”
On 13 August 2014, arbitration proceedings in matter number 1861/2014 were held before Arbitrator John Wynyard following which he reserved his decision.
On 14 October 2014, the Commission issued a Certificate of Determination in the following terms:

“1. There will be an award for the respondent.”

The Arbitrator found that the claim failed for two reasons. First, the total whole person impairment had not been assessed by an AMS as required. Second, the construction issue had previously been considered and determined by Senior Arbitrator Snell in Hogan v Mercy Care Centre [2014] NSWWCC 349 (Hogan).

PRELIMINARY MATTERS

Before proceeding to deal with an appeal, the Commission must determine whether the Application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act (the 1998 Act). There is no dispute that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

ON THE PAPERS

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.”
Bartier Perry, on behalf of QBE, has sought an oral hearing. It submits:
“Taking into account the legal issues raised in this matter, it should be open for the President to list the appeal is listed [sic] for oral argument. The opponent is otherwise satisfied with the matter being dealt with on the papers.”
Both the appellant and the self-insurer submit that the matter is suitable to be determined on the papers without the need for a formal hearing.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties, 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.

THE SUBMISSIONS BEFORE THE ARBITRATOR

Mr McManamey of counsel, who appeared for Mr Merchant, submitted that the definition of injury in s 32A does not express itself as requiring the impairment to have resulted from a single injury. Mr McManamey submitted that is because of the application of s 8(b) of the Interpretation Act 1987 which is relevantly in the following terms:
“In any Act or instrument:
…
(b) a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form,
…”
Mr McManamey submitted (at T7.20) that applying s 8(b) of the Interpretation Act has the effect that s 32A properly reads:
“Seriously injured worker means a worker whose injury or injuries have resulted in permanent impairment”.
Therefore, it was submitted that so long as a worker has suffered from a grand total of 30 per cent whole person impairment from compensable injuries, provided they result from injuries within the meaning of s 4, then the definition of “seriously injured worker” in s 32A is satisfied.
Mr McManamey argued that such an interpretation is consistent with the use of the term seriously injured worker in s 59A and in s 38 (which were introduced into the legislation by the Workers Compensation Legislation Amendment Act 2012). Those provisions provide that seriously injured workers are relieved from the cap on the availability of reimbursement for medical expenses and are relieved of the necessity to have regular work capacity assessments.
Mr McManamey drew in aid of such a conclusion the second reading speech by the then Treasurer, now Premier Mr Baird. Mr McManamey further submitted that the construction for which he contended was supported by the fact that the language used in s 32A, “a worker whose injury..”, is different from the language used in s 65 and s 66 which refer to “an injury”. He submitted that the legislature, having chosen to use different language in s 32A, intended that the provision not be limited to “an injury”.
Mr Morgan of counsel, who appeared for the respondent in the interests of QBE, submitted that the entitlement to compensation under the 1987 Act begins with an entitlement arising under s 9 in that a worker who has received “an injury” shall be entitled to compensation from the worker’s employer in accordance with the provisions of the Act. He submitted that s 9 is not couched in terms of a worker having suffered “injuries” but refers to a worker who “has received an injury”.
Mr Morgan argued that the definition of seriously injured worker in s 32A could not be satisfied by adding together the impairments arising from a range of injuries sustained over a worker’s whole working life. Subject to any disentitling provisions, Mr Morgan argued that, having satisfied s 9, the assessment of the degree of permanent impairment is assessed in accordance with the provisions of s 65 to determine the level of impairment and hence the level of liability for non-economic loss.
Ms Grotte of counsel, who appeared for the respondent in its interests as a self-insurer, submitted that the presumption created by s 8(b) of the Interpretation Act can be displaced by contrary intention. She argued that a contrary intention is evident when one takes into account the provisions of s 66 and s 322, and the interpretation of those provisions as discussed in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288 (Edmed).

THE ARBITRATOR’S REASONS

At the hearing on 13 August 2014, Arbitrator Wynyard identified the issue before him as follows (at T4.33):
“ARBITRATOR: We discussed that at the teleconference and I was invited – this was a test case to see whether any past WPI for different injuries at different times could be aggregated for the purposes of 32A.”
Notwithstanding the Arbitrator’s formulation of the issue before him and his acknowledgement that the issue was being ventilated as a test case concerning the interpretation of s 32A of the 1987 Act, his analysis of the issues and reasons for decision are sufficiently brief for them to be extracted in full:
“23. I understand Mr McManamey to be submitting that the phrase ‘permanent impairment’ relates to permanent impairment as defined under the Table of Disabilities which was the method therein mandated for the assessment of injuries to the back, neck and pelvis, as well as WPI and not permanent impairment as defined in Chapter 7 of the 1998 [Act], which refers to permanent whole person impairment.
24. The permanent impairment assessed by Dr Searle of 30 percent WPI [sic] (Exhibit A) on 17 May 2012 has not been the subject of any assessment by an AMS and the binding authority before me is terms of settlement in matter number 6043/2002 signed by the legal advisors on 20 June 2002, and presumably, converted into an order of the Compensation Court.
25. The basis of the claim thus becomes speculative and must fail.
26. The interpretation of the term ‘permanent impairment’ in s 32A was considered by Senior Arbitrator Snell in Hogan v Mercy Care Centre [2014] NSWWCC 349 (23 September 2014). With respect I adopt my Senior colleague’s reasons, which considered similar argument.”

ISSUES IN DISPUTE

The appellant worker submits that the Arbitrator erred when he:
(a) failed to consider whether impairments resulting from different injuries could be aggregated to determine if Mr Merchant was a seriously injured worker, and
(b) decided the case on the basis that had not been argued by the parties and failed to consider the submissions that were made.

SUBMISSIONS ON APPEAL

The appellant’s submissions

Ground one

Mr Bussoletti, solicitor, who prepared the initial submissions on appeal (Mr McManamey of counsel preparing the reply submissions) submitted that applying s 8(b) of the Interpretation Act produces the result that the reference to injury in s 32A is a reference to injuries unless a contrary intention can be found in the legislation.
Mr Bussoletti submitted that the construction for which he contends is consistent with the intention evidenced by the then Treasurer’s second reading speech to ensure that seriously injured workers, that is, those workers with an impairment level of over 30 per cent, receive additional benefits in terms of medical expenses and the less stringent requirements with respect to work capacity assessments and entitlement to weekly payments. He submitted:
“It would be a strange result, and contrary to the intention of the legislation, to restrict the more sympathetic treatment of workers who have greater than 30 per cent impairment to only those who have the requisite impairment resulting from single injury.”
It is submitted that no assistance can be gained from the principles discussed in Edmed. That is because Edmed concerned the circumstances in which the effects of multiple injuries can be aggregated to meet the threshold for compensation under s 66. Section 66 refers to the term “an injury” as did s 67 (now repealed). The use of the indefinite article “an” before the word “injury” in s 66 and s 67 indicates that those provisions are concerned with a singular injury whereas it is submitted that the language “whose injury” in s 32A does not import the notion of a singular injury when read in conjunction with s 8(b) of the Interpretation Act.

Mr Bussoletti further submitted:
“the application of the interpretation as proposed does not lead to any difficulties when determining the amount of compensation or who is to pay. The fact that someone is a seriously injured worker does not create the original liability to pay.”
Mr Bussoletti argued that, for example, any liability in respect of medical expenses would depend upon the body part being treated. Liability for those expenses would fall upon the employer or insurer liable for the injury to that body part.
In cases where liability results from more than one injury, as would often be the case for weekly payments, the provisions of s 22 of the 1987 Act would apply. This approach, it is submitted, is consistent “with the terms of s 22 and the comments of Justice Clark[e] in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87 (Baltica)”.
Mr Bussoletti submitted that the correct approach is to first determine the entitlement of the injured worker and then consider the question of apportionment between each employer or insurer liable to pay the compensation.

Ground two

The Arbitrator determined the matter by considering whether the reference to impairment in s 32A was also a reference to impairment of the back as assessed by applying the Table of Disabilities. That was not a submission that was made by the appellant worker. The Arbitrator made no reference to the submissions that had been made.
The appellant worker submits that the Arbitrator erred by not determining the matter on the basis argued before him. He submits that those issues should now be decided by the Presidential member hearing the appeal. There are no relevant factual matters in issue which would prevent such a determination.
The relief sought by the appellant is that the decision of the Arbitrator be revoked and the matter remitted to the Registrar for referral to an AMS to assess the degree of impairment resulting from all of the injuries claimed.

The respondent’s submissions (in the interests of QBE)

Ground one

Mr Morgan submits that the interpretation of s 32A “seriously injured worker” should begin with an understanding that s 9(1) of the 1987 Act establishes the legislative framework in the context in which s 32A operates, namely: “a worker who has received an injury (and, in the case of the death of the worker, his or her dependents) shall receive compensation from the worker’s employer in accordance with this Act” (emphasis added).
An employer’s obligation to pay compensation arises from receipt of an injury either of one incident or from one “pathology” involving two or more incidents. This is so because of the use of the indefinite article “an” in s 9(1).
Where aggregation of assessment of permanent impairment has been permitted, it has been limited to impairments arising out of the same incident or pathology: Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354; Galluzzo v Little [2013] NSWCA 116 (Galluzzo) and Edmed.
Contrary to the appellant’s submission, s 32A is not merely a threshold provision. It has the important consequences in terms of compensation obligations, particularly those arising from s 59A(4), which has the effect of removing the cap on compensation for treatment and associated services. It is also relevant in terms of prohibiting regular work capacity assessments pursuant to s 38(5) of the 1987 Act, for workers who satisfy the definition of “seriously injured worker”.
Further if the appellant’s interpretation of s 32A is to be preferred an employer or insurer’s obligations in respect of claims which had long since been resolved would be triggered the moment that worker crosses the 30 per cent threshold as a result of the aggregation of the effects of multiple injuries over an extended period of employment.
Contrary to the appellant’s arguments, a consideration of the implications of s 9 of the 1987 Act cannot be quarantined from a consideration of the operation of s 32A. As a basic tenet of statutory construction every passage in a document must be read not as if it were entirely divorced from its context but as part of a whole instrument: Metropolitan Gas Co v Federated Gas Employees’ Industrial Union [1925] HCA 5; 35 CLR 449 per Isaacs and Rich JJ at 455.
The presumption arising from s 8(b) of the Interpretation Act only applies to the extent that a contrary intention does not appear from the specific legislation that it considered: Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170 per Basten JA at [44]. A contrary intention is clearly evidenced when one considers its context in the scheme of the 1987 and 1998 Acts relating to the assessment of permanent impairment.
It is not controversial that where there is a dispute about the level or degree of permanent impairment such as in this case, the impairment would need to be assessed by an AMS before any final order or classification can be made.
A medical dispute as defined in s 319 includes a dispute concerning the degree of permanent impairment of a worker as a result of “an injury”: s 319(c).
The existence of the indefinite article “an” in s 319(c) is suggestive of an AMS assessment occurring only in relation to singular injuries and evidencing an intention that any presumption arising from the application of s 8(b) of the Interpretation Act is negatived.
Mr Morgan submits that his submission is strengthened by the presence of s 322A(1) of the 1987 Act which provides only one assessment may be made of the degree of permanent impairment of an injured worker. If the appellant’s submissions are accepted they may well constitute a requirement for additional and impermissible assessments of impairment.
Even if extrinsic aids are available to assist in the interpretation of s 32A, there is nothing in the then Treasurer’s speech to support the appellant’s contention. Had Parliament intended that aggregation of permanent impairment assessment of injuries arising out of separate incidents might occur for the purposes of classifying a worker as seriously injured, it would not be in the manner proposed by the appellant.
Accepting the appellant’s proposition would run counter to the requirements of s 323(1) of the 1998 Act which requires an AMS to deduct the proportion of impairments due to previous injuries, whereas the appellant’s proposition envisages that impairments arising from previous injuries should be aggregated.

Ground two

The submission that the Arbitrator ignored the submissions that were made before him ignores the Arbitrator’s reference with approval to the reasons of Senior Arbitrator Snell in Hogan.
In rejecting the argument that a simple addition of various percentages previously compensated can be used as a means of establishing that the applicant is a seriously injured worker, Senior Arbitrator Snell found, in Hogan, that such a construction of the statute had the capacity to produce unjust and capricious results. By adopting the reasoning of the Senior Arbitrator the Arbitrator in this matter thus effectively dealt with the appellant’s original submissions.

The respondent’s submissions (in its interests as a self-insurer)

Ground one

Ms Grotte concedes that the Arbitrator did not deal in his decision and Statement of Reasons with the issue before him, namely whether the word “injury” as found in s 32A “refers to both a singular injury and more than one injury”.
Ms Grotte submits that the Arbitrator disposed of this dispute instead by finding that the degree of permanent impairment had not been the subject of an AMS assessment. She submits that it was open to the Arbitrator to deal with the matter on that basis and therefore no error has been demonstrated.
The Arbitrator stated (at [26] of the Reasons) that the interpretation of the term “permanent impairment” in s 32A was considered by Senior Arbitrator Snell in Hogan. Senior Arbitrator Snell determined that the phrase meant permanent impairment assessed in accordance with s 65 of the 1987 Act and accordingly did not include assessments made under the former Table of Disabilities. The Arbitrator in the current proceedings adopted Senior Arbitrator Snell’s reasons. Ms Grotte submits that it was open to the Arbitrator to dispose of the dispute in that manner and no error of law has therefore been identified. Therefore, the decision of the Arbitrator ought to be confirmed.
Ms Grotte submitted that if the above submissions are rejected and it is found that the Arbitrator erred in not considering submissions made on behalf of the appellant in relation to the meaning of “injury” in s 32A then the following submissions are made.
In relation to the Interpretation Act argument, Ms Grotte submits that there need be no confinement of attention to any particular section of the Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.
Having referred to the relevant principles of statutory interpretation, Ms Grotte submitted that the phrase “degree of permanent impairment” refers to an assessment for the purpose of Div 4 of the 1987 Act. She submitted therefore that the phrase “degree of permanent impairment” must be consistent with the provisions of s 65, Div 4 of the 1987 Act and other entitlement provisions in the legislation.
Section 65(2) of the 1987 Act specifically refers to a situation where a worker received more than one injury arising out of the same incident. In such a situation those injuries can be treated as one injury for the purpose of Div 4. The word “injury” in section 65(2) has been held to refer to both the injurious event and the pathology arising from it: Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 and Edmed.
The word “injury” is used across various interlocking provisions of the 1987 Act and should be interpreted consistently across all provisions.
Whilst the legislation under consideration is remedial and ought to be considered beneficially, that does not mean that every section is to be interpreted in a beneficial way without regard to the context and purpose of the particular section: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 at [29].
The purpose of the relevant provision is to identify a special category of injured workers who are assessed as reaching a threshold of serious permanent impairment. Ms Grotte said “this purpose would not be achieved in circumstances where a worker has twenty different and distinct small injuries over an extended working life which add up to 30 per cent, because such a worker could not [sic] classified as ‘seriously injured’”.
Should the appellant’s contentions be accepted it would lead to anomalous results concerning questions as to where the liability for compensation arising from classification as a seriously injured worker would lie. She submitted that there is no certainty or clarity as to how such matters would be determined.

The appellant’s submissions in reply

Although the primary submissions were lodged by Mr Merchant’s solicitor, Mr Bussoletti, the submissions in reply were prepared by Mr McManamey.
Mr McManamey made the following submissions in response to the submissions made by the respondent in the interests of the self-insurer: first he submitted that the Arbitrator was entitled to dismiss the Application as he was not bound by the opinion of Dr Searle.
Somewhat inconsistently, Mr McManamey submitted that the Arbitrator’s obligation was to refer the matter for assessment by an AMS. To do otherwise was to determine the claim “contrary to the Act”.
The Arbitrator did not err by applying the reasoning in Hogan. It is submitted that that case was of no relevance to the issues in these proceedings except to the extent that it supports the appellant’s contention that the Arbitrator should have referred the matter to an AMS for assessment of the whole person impairment applying AMA 5 and the WorkCover Guides.
With respect to the submissions on the question of statutory interpretation, Mr McManamey submits that the interpretation for which he contends is consistent with the context of the Act as a whole. This is evidenced by the presence of s 22 of the 1987 Act which contemplates circumstances where incapacity or impairment results from more than one injury, as explained in Baltica. The section only has work to do when the entitlement to compensation results from more than one injury. That is contrary to the submission that the entitlement to compensation is always to be determined by reference to a single injury.
The reference to Div 4 in s 32A merely means that the assessment of impairment must be made in accordance with AMA 5 and the WorkCover Guides. It does not restrict the assessment of the consequences to one injury: Galluzzo and Galluzzo t/as Riverwood Chemworld Chemist v Little [2011] NSWSC 1581. The fact that assessments are made in accordance with AMA 5 and the guidelines which specifically provide for the combining of assessments in respect of different body parts to create a single assessment of whole person impairment points to the interpretation that the reference to “whose injury” is a reference to injury or injuries.
Section 65 only operates for the purposes of Div 4. Mr McManamey submitted:
“Section 32A and the other sections that refer to seriously injured worker appear in other divisions. The terms of s 65 and its restriction to Div 4 is consistent with ‘injury’ having a different meaning in those divisions.”
Mr McManamey submitted that s 322 uses the wording “same injury” and “same incident”. The context restricts the meaning of “injury” and “incident” to the singular. He further submitted that “s 322 must be read with s 65 as they deal with the same subject matter. Section 32A is dealing with a different matter”.
With respect to the submissions made on behalf of QBE, Mr McManamey submitted that no guidance can be gained from the terms of s 9 “… it has long been recognised that an entitlement to weekly compensation and medical expenses can result from more than one injury (see State of New South Wales v Stewart [2015] NSWWCCPD 1)”.
The interpretation contended for by the appellant is no more absurd than that contended for by the respondent. Even if the question of whether a worker is seriously injured depends upon the effects of a single injury, there will still be the possibility of a worker crossing the threshold many years after the weekly compensation first ceases, for example as a result of subsequent surgery. There may be circumstances where a subsequent injury contributes to the impairment, for example a subsequent injury that contributes to the same pathology resulting in the requisite impairment.
No conclusion can be reached from the terms of s 322A. Subsection 2 limits the operation of the section to disputes about claims for permanent impairment compensation, commutations and work injury damages, but not disputes about whether the worker is seriously injured. That, it is submitted, is consistent with the fact that those matters are about the consequences of a single injury or incident. The failure to mention seriously injured worker in s 322A is consistent with “injury” in s 32A not being so restricted.
Equally there is nothing in the wording of the definition of a medical dispute that evinces a contrary intention.
The terms of the Interpretation Act should prevail as there is nothing in the legislation to evidence a contrary intent.

DISCUSSION AND FINDINGS

The Arbitrator correctly identified the issue before him as involving a question of construction concerning the definition of “seriously injured worker” in s 32A of the 1987 Act. The case was argued on the basis that the definition when read in conjunction with s 8(b) of the Interpretation Act causes the definition of “seriously injured worker” to be satisfied so long as a worker has suffered a total of 30 per cent whole person impairment arising from compensable injuries, whether or not that threshold was reached as a result of one injury or by aggregating impairments from multiple unrelated injuries. I shall refer to this as the construction issue.
The Arbitrator did not determine the construction issue. Instead, the Arbitrator rejected the Application for the reasons referred to at [28]. Namely because the whole person impairment alleged had not been assessed by an AMS, and because he found that the construction issue had been considered and determined by Senior Arbitrator Snell in the matter of Hogan, which the Arbitrator adopted for the purpose of disposing of the issue before him in this matter.
In Hogan Senior Arbitrator Snell did not determine the construction issue. The issue in that matter focused on whether impairments assessed under the Table of Disabilities applying to injuries sustained prior to 1 January 2002, could be added together to reach the 30 per cent impairment threshold provided for in s 32A. Having found against the worker on that issue The Senior Arbitrator in Hogan made orders referring the matter to an AMS for further assessment, presumably on the basis that the construction issue would only need to be considered in the event that the whole person impairment reached the required threshold. As a subsequent assessment by an AMS found that the worker was not suffering from a whole person impairment of greater than 30 per cent the construction issue was not further considered or determined. The facts in Hogan are also distinguishable from those in this matter because in Hogan there was only one injury, namely a back injury.
The Certificate of Determination in the matter of Hogan was issued on 23 September 2014 that is, after the arbitration hearing on 13 August 2014 in the present matter. Although the Arbitrator based his decision on the analysis in the matter of Hogan, he did not inform the parties of his intention to do so or provide them with any opportunity to make any submissions as to the relevance of that decision on the issues before him. In my view that constituted a denial of procedural fairness (Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [78]–[79]. However, as that issue was not argued on appeal I make no findings about it and it does not form part of my decision.
I reject the submission that it was open to the Arbitrator to dismiss the Application on the grounds stated by him. The Arbitrator decided the case on a basis that had not been argued by the parties and he failed to consider the submissions that were made. That was an error. It follows that ground two is upheld and therefore the construction issue must be re-determined. As there are no credit issues involved it is appropriate that I conduct the re-determination and that is the course I propose to adopt.

Re-determination

Mr McManamey’s argument depends entirely upon an acceptance of the presumption created by s 8(b) of the Interpretation Act to support his interpretation of the construction of s 32A.
The presumption created by s 8(b) is displaced where a contrary intention appears in the legislation when read as a whole (s 5 of the Interpretation Act).
The Privy Council stated in Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651; [1970] AC 827 (Dilley) (at 656, 846) in reference to the application of the presumption:
“It follows that the mere fact that the reading of words in a section suggests an emphasis on a singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears, there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.”
In Pfeiffer v Stevens [2001] HCA 71; 209 CLR 57; 185 ALR 183; 76 ALJR 269, the High Court considered the application of s 32C of the Acts Interpretation Act (QLD), the Queensland equivalent of s 8(b) of the Interpretation Act. McHugh J (Gleeson CJ and Hayne J agreeing) said (at [56]):
“An intention contrary to the Acts Interpretation Act may appear not only from the express terms or necessary implication of a legislative provision but from the general character of the legislation itself.”

The principles of statutory construction were recently discussed in Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 where McColl JA noted that the 1987 and 1998 Acts must be construed in accordance with the principles identified in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 where, at [69]–[70] the plurality (McHugh, Gummow, Kirby and Hayne JJ) said (footnotes omitted):
“69. 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.
70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.”
In Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 the Chief Justice stated at [4]:
“The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose.”
A fundamental flaw in the appellant’s submissions, both before the Arbitrator and on appeal is that they fail to come to terms with a consideration of the ordinary and grammatical sense of the words used in s 32A having regard to their context and the legislative purpose of the Act as a whole.
It is therefore necessary to consider the statutory scheme in some detail in order to construe the words used in s 32A in their proper context and to determine if a contrary intention to the proposition advanced by the appellant is evident.
The entitlement to compensation begins with an entitlement arising under s 9 of the 1987 Act which provides:

“9 Liability of employers for injuries received by workers-general

(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.” (emphasis added)

As Mr Morgan submitted s 9 is not couched in terms of a worker having suffered “injuries” or “received injury”.
Injury is relevantly defined in s 4 of the 1987 Act as follows:
“‘injury’:
(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) …”
The definition of “seriously injured worker” is satisfied when the degree of permanent impairment has been assessed for the purposes of Div 4 to be more than 30 per cent. Therefore, satisfaction of the threshold in s 32A is expressly linked to an assessment having been made under Div 4 of the 1987 Act.
Division 4 of the 1987 Act provides the mechanism for the assessment of compensation for non-economic loss and includes ss 65 to 73. Relevantly s 65 and s 66 provide:
“65   Determination of degree of permanent impairment
(1)    For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2)    If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
Note: The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.
(3)    If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.” (emphasis added)
“66    Entitlement to compensation for permanent impairment
(1)    A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note: No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(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.
…” (emphasis added)
Section 66(2) provides a formula for the assessment of permanent impairment compensation depending on the degree of assessed impairment which is not presently relevant.
As noted above, s 65 provides that for the purposes of Div 4 the degree of permanent impairment that results from an injury is to be assessed as provided by that section and Pt 7 of Ch 7 of the 1998 Act (Medical assessment). Part 7 Ch 7 comprises of ss 319–331.
Relevantly, the provisions of Pt 7 Ch 7 provide:
“319 Definitions
In this Act:
approved medical specialist means a medical practitioner appointed under this Part as an approved medical specialist.
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.” (emphasis added)
“322 Assessment of impairment
(1)    The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2)    Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3)    Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note: Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4)    An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”
The operation of s 322(2) and (3) was considered by the Commission in Edmed at [26]–[27]. Deputy President Roche stated:
“[26] … That the term ‘injury’ can have two different meanings is acknowledged in section 322(3) of the 1998 Act where reference is made to ‘Impairments that result from more than one injury arising out of the same incident...’ (emphasis added). This reference to ‘injury’ can only mean the ‘pathology’ that has resulted from the relevant work ‘incident’ or injurious event. For example, if a worker falls and suffers a broken leg and separate and distinct nerve damage in the arm, he or she has suffered more than one ‘injury’ (an injured leg and an injured arm) within the terms of section 322(3) resulting from the one ‘incident’. In other words, he or she has suffered more than one pathology (‘injury’) as a result of the one incident or injurious event. Those ‘injuries’ are to be assessed together. This interpretation is consistent with section 65(2) of the 1987 Act and is uncontroversial.
[27] The difficulty arises when a worker suffers one pathology (‘injury’) as a result of several independent ‘incidents’ or injurious events. This situation is partly addressed in section 322(2), which provides that ‘Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker’ (emphasis added). The reference to ‘the same injury’ in section 322(2) cannot be a reference to ‘the same incident’ because that situation is dealt with in section 322(3). The expression ‘the same injury’ is not defined but it follows that if ‘injury’ in section 322(3) means ‘pathology’ (as it must), then, for the section to be logically consistent, it must mean the same in section 322(2). If ‘injury’ in section 322(2) means ‘pathology’ then, for section 322(2) to be consistent with section 322(3), impairments resulting from the ‘same injury’ (the same pathology) are to be ‘assessed together’ regardless of whether they arise from the same ‘incident’ or separate incidents.” (emphasis included in the original)
The statements at [26] in Edmed were considered by the NSW Court of Appeal in Galluzzo. In reference to Deputy President Roche’s analysis in Edmed (at [26]), Barrett JA (Ward JA and Tobias AJA agreeing) said in Galluzzo (at [41]):
“[41] This, in my respectful opinion, is an accurate summary, subject to one modification. The provisions envisage that an ‘injury’ (or several ‘injuries’) will ‘arise from’ an ‘incident’ and that one or more ‘impairments’ will ‘result from’ the ‘injury’ (or ‘injuries’); and that it is ‘impairment’ or ‘impairments’ that must be assessed. The penultimate sentence in the quoted extract should therefore read:
‘The impairments resulting from those ‘injuries’ are to be assessed together.’”
The WorkCover Guides for the Evaluation of Permanent Impairment (3^rd edition, 1 February 2009) are consistent with this interpretation. The WorkCover Guides state (at 1.18):
“Multiple impairments
1.18 Impairments arising from the same injury are to be assessed together (section 322(2) of the 1998 Act). Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker (section 322(3) of the 1998 Act), with the exception of impairments arising from psychological and psychiatric injuries.”
The satisfaction of the definition of “seriously injured worker” is linked by s 32A to an injury within the use of that term in s 65 and s 66 (through the reference to Div 4). The use of the indefinite article “an”, referring to an injury in s 65 and s 66, points strongly to the conclusion that these provisions are intended to apply to a single injury. Mr McManamey conceded as much in the proceedings before the Arbitrator at (T11.18). He said:
“MR McMANAMEY: Yes. I'll just come to that to highlight it. What EDMed [sic, Edmed] and the cases were about was the application of ss 65, 66 and 67 and they are in different terms because in s 65, it clearly reads that, ‘The impairment that results from an injury is to be assessed as provided by this section.’ It clearly does limit it to the one compensable injury. The same wording appeared in s 66, ‘He receives an injury that results in a degree of permanent impairment.’ You can’t read it the other way and s 67 was the same.”
These provisions point unequivocally to the contrary intention to that expressed in s 8(b) of the Interpretation Act. In my view there is nothing in Div 4 or Pt 7 Ch 7 that would be consistent with multiple and unrelated injuries being aggregated so as to meet the threshold for “seriously injured worker”. The text and context of the legislation points clearly the other way.
Mr McManamey submitted in reply that the reference to “injury” in s 65 and the “same injury” in s 322 operate only for the purpose of Div 4, namely for the purpose of determining entitlements to permanent impairment compensation. He submitted that that is “consistent with ‘injury’ having a different meaning in those divisions” to the application of s 32A as it applies elsewhere in the legislation. The submission is unsupported by any reasoned argument or authority and I reject it. The issue is whether the words “whose injury”, linked as it is to Div 4 admit of the possibility of those words meaning ‘injuries”. Clearly they do not.
Mr McManamey submitted in reply that the reference to Div 4 in s 32A merely means that the assessment of impairment must be made in accordance with AMA 5 and the WorkCover Guides. He argued that this does not restrict the assessment to the consequences of one injury. He submitted that, as explained in Galluzzo, (but without reference to any particular passage/s), AMA 5 specifically provides for the combining of assessments in respect of different body parts to create a single assessment of whole person impairment. That submission takes the decision in Galluzzo out of context.
In Galluzzo the worker suffered impairments to both knees and the lumbar spine from a single injurious event. The impairments to the right knee and lumbar spine had reached maximum medical improvement, but the condition of her left knee had not. The NSW Court of Appeal was concerned, among other things, with the question of whether, as a matter of statutory construction, it was permissible for a medical assessment to be undertaken and concluded before permanent impairment from all injuries suffered had stabilised. Barrett JA (Ward JA and Tobias AJ agreeing) concluded (at [58]–[60]) that such an approach was within the discretion of an AMS. Contrary to Mr McManamey’s submission the ratio in Galluzzo is restricted to a consideration of multiple impairments arising from a single incident.
I also reject Mr McManamey’s submission that the reference to Div 4 in s 32A merely means that the assessment of impairment must be made in accordance with AMA 5 and the WorkCover Guides. The submission ignores the fact that Div 4 includes s 65 and s 66. For the reasons already explained the reference in those provisions to injury is a reference to a singular injury.
Applying the principles discussed in Dilley and Pfeiffer I am satisfied that any presumption created by s 8(b) of the Interpretation Act is displaced by the contrary intention which is evident from the legislation when read as a whole.
This conclusion is reinforced when one considers that the ordinary and grammatical sense of the statutory words used, namely “whose injury”, having regard to their context and the legislative purpose, are consistent with the conclusion that “injury”, referring to a singular injury, is the preferred construction. Had the legislature intended that the definition of “seriously injured worker” in s 32A have the meaning for which the appellant contends namely, “a worker whose injury or injuries have resulted in permanent impairment”, it could easily have said so but did not.
This conclusion is also consistent with the presence of s 322A of the 1998 Act which provides:
“(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).”
Mr McManamey argued in reply that s 322A(2) “limits the operation of the section to disputes about claims for permanent impairment compensation, commutations and work injury damages but not to disputes about whether the worker is seriously injured”. He added “the failure to mention seriously injured worker in section 322A is consistent with section 32A not being so restricted”. I disagree. The limitation on the number of assessments in s 322A applies to “any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury…” (s 322A(2)) (emphasis added). Whilst the matters referred to by Mr McManamey are certainly included as matters to which the limitation applies, the sub-section expressly applies to any further assessment.
I accept that in the event of ambiguity, resort may be had to reference to extrinsic materials to assist in the interpretation of legislative provisions. I do not accept in this case that ambiguity exists, but even if it did no assistance is gained from the Minister’s second reading speech as it does not touch upon the issues with which this appeal is concerned.
Contrary to the appellant’s submissions (and Mr McManamey’s submissions in reply), the apportionment provisions in s 22 of the 1987 Act do not advance the appellant’s case. Section 22 only has work to do in terms of apportioning liability between employers or insurers after the entitlement to compensation arising from more than one injury has been determined.
The issue for determination in this appeal concerns whether impairments arising from multiple unrelated injuries, that is, injuries that have caused different pathology, can be aggregated to reach the required threshold to trigger additional entitlements under the legislation. Merely because machinery exists to deal with the apportionment of liability arising from more than one injury does not support the conclusion that the reference to the words “whose injury” in s 32A should be construed as a reference multiple injuries. This conclusion is strengthened by the relevant provisions of Div 4 and Ch 7 Pt 7 which indicate to the contrary for the reasons I have already indicated.

Independent of the above reasoning, I note that on 3 September 2014 the Workers Compensation Amendment (Existing Claims) Regulation 2014 (the existing claims regulation) came into operation. Schedule one amended the Workers Compensation Regulation 2010. Relevantly one of the measures introduced by the existing claims regulation was to reduce the threshold for excluding the operation of s 59A (which limits the payment of medical expenses), for existing claimants, from 30 per cent to 20 per cent. The transitional provisions in Part 19H of Sch 6 to the 1987 Act are deemed to be amended to give effect to the regulation.
Clause 28 of the existing claims regulation provides:
“Medical and related expenses
(1) An existing claim is exempt from the operation of section 59A (Limit on payment of compensation) of the 1987 Act in respect of the following compensation until the injured worker reaches retiring age:
(a)compensation payable to an injured worker under Division 3 of Part 3 of the 1987 Act if the worker’s injury has resulted in permanent impairment of greater than 20%,
(b)compensation payable in respect of the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries),
(c)compensation payable in respect of the modification of a worker’s home or vehicle.
(2) A worker’s injury is considered to have resulted in permanent impairment of greater than 20% only if the injury has resulted in permanent impairment and:

(a)the degree of permanent impairment has been assessed for the purposes of Division 4 of Part 3 of the 1987 Act to be greater than 20%, or
(b)an assessment of the degree of permanent impairment 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
Note: Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c)the insurer is satisfied that the degree of permanent impairment is likely to be greater than 20%.

(3) In this clause:
retiring age has the same meaning as in section 52.” (emphasis added)

It is evident that the use of the words “the worker’s injury” in cl 28(1)(a) and “the injury” in cl 28(2) of the existing claims regulation evinces an intention by the legislature that existing claimants will only be exempt from the operation of s 59A when the threshold is reached by an impairment resulting from a single injury. This is consistent with the statutory language in s 65 and s 66 of the 1987 Act and Pt 7 of Ch 7 of the 1998 Act, where the words “the injury” are consistently applied.

CONCLUSION

The Arbitrator erred by failing to determine the issue before him and by deciding the matter on a basis not argued in the proceedings before him. Therefore, the Arbitrator’s determination of 14 October 2014 is revoked.
As there is no entitlement to aggregate Mr Merchant’s various impairments, the Application fails and is dismissed.

DECISION

The Arbitrator’s determination of 14 October 2014 is revoked.
The Miscellaneous Application of 14 April 2014 is dismissed.

COSTS

No order as to costs.

Judge Keating
President

23 February 2015

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE