Michell Australia Pty Ltd v Fordham - [2015] NSWWCCPD 15

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Michell Australia Pty Ltd v Fordham [2015] NSWWCCPD 15
APPELLANT:	Michell Australia Pty Ltd
RESPONDENT:	Thomas Fordham
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-3040/14
ARBITRATOR:	Mr J Harris
DATE OF ARBITRATOR’S DECISION:	22 October 2014
DATE OF APPEAL DECISION:	26 February 2015
SUBJECT MATTER OF DECISION:	Claim for further lump sum compensation; s 66 of the Workers Compensation Act 1987; effect of amendments to the Workers Compensation Act 1987 and the Workers Compensation Regulation 2010; whether further claim made after operation of amendments is defeated by application of the amended provisions when earlier claim made specifically sought such compensation under unamended provision
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hicksons Lawyers
Respondent:	Slater & Gordon Lawyers
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted pursuant to s 352 (3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. Paragraph [2] of the Arbitrator’s determination found in Certificate of Determination dated 22 October 2014 is amended by deletion of the words “pg 133-135 of the Application” which appear in parentheses and substituted with the words “p 21-22 of the amended Reply”. 3. The Arbitrator’s findings and orders found in the Certificate of Determination dated 22 October 2014 are otherwise, for the reasons stated herein, confirmed.

INTRODUCTION

This appeal concerns the proper construction and application of the provisions of the Workers Compensation Act 1987 (the 1987 Act), following amendments effected by the passage of the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) and relevant regulations. The question raised concerns the entitlement to lump sum compensation of Mr Thomas Fordham as against his former employer Michell Australia Pty Ltd (the appellant) in the following circumstances.
Mr Fordham received relevant injury on 20 September 1989. Lump sum compensation was claimed by him and paid by the appellant in 2004. A claim for further lump sum compensation was made by Mr Fordham on 6 January 2014. The appellant declined that claim.
In proceedings before Arbitrator John Harris in which Mr Fordham sought orders with respect to further lump sum compensation, the appellant asserted that the 1987 Act, in its amended terms, had application to the relevant facts and that Mr Fordham’s further claim was defeated by operation of s 66 of that Act. That assertion was rejected by the Arbitrator and a determination was made on 22 October 2014 as is found in a Certificate of Determination as follows:
“The determination of the Commission in this matter is as follows:
1. I find that the applicant is [sic] can make one further claim for lump sum compensation pursuant to s 66(1A) of the 1987 Act;
2. The matter is remitted to the Registrar for referral to an Approved Medical Specialist (‘AMS’) as follows:

Dates of Injury: 20 September 1989
Body Parts/Systems: Back;
Loss of efficient use of the right leg at or above the knee;
Loss of efficient use of the left leg at or above the knee;
Loss of efficient use of sexual organs

I note the previous complying agreement (p 133–135 of the Application, [sic, pg 21—22 of the amended Reply])

Method of Assessment: Table of Disabilities
3. The documents to be sent to the AMS are:
a)The Application to Resolve a Dispute and all attached documents;
b)Application to Admit late documents filed by the Respondent and dated 16 July 2014 (Amended Reply);
c)Application to Admit late documents filed by the Respondent and dated 7 October 2014;

d)Application to Admit late documents filed by the Applicant and dated 20 October 2014;

4. The Respondent has leave to respond by 4 November 2014 to the late documents filed by the Applicant on 20 October 2014;
5. The attendance at the Approved Medical Specialist is not to occur before 11 November 2014.”

The appellant challenges the Arbitrator’s findings made in the course of his reasons, which were delivered extempore on the day of hearing, and the finding and orders noted in the Certificate of Determination.

PRELIMINARY MATTERS

Thresholds

The appellant asserts that the time requirements of s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met and suggests in submissions that the monetary thresholds prescribed by s 352(3) have been met. Mr Fordham makes no submission concerning the threshold provisions as to time and quantum.
There has been no award of compensation made. In such circumstances the question as to whether the monetary threshold has been met requires that the quantum of the compensation claimed must be ascertained. It is clear, having regard to [5.6] of Mr Fordham’s application, that the amount of compensation “at issue on the appeal” exceeds the relevant threshold.
The time requirements as to commencement of the appeal, as asserted by the appellant, have been met.

Interlocutory

The appellant asserts in submissions that “the Arbitrator’s decision is a final determination which effectively determines the appellant’s [sic, Mr Fordham’s] entitlement to claim further lump sum compensation and is not an interlocutory decision”. Mr Fordham makes no submission concerning the question as to whether the challenged decision is interlocutory or otherwise.
Whilst it is correct, as suggested by the appellant, that the Arbitrator has determined there is no statutory bar to Mr Fordham proceeding with his application seeking further lump sums, no final order has been made. The rights of the parties have not been finally disposed of and thus, in my view, the decision is interlocutory: see Licul v Corney [1976] HCA 6; 180 CLR 213; 50 ALJR 439 per Gibbs J at 443–444. In the circumstances the appellant requires leave to proceed with the appeal (s 352(3A)). Such leave is not to be granted unless the Commission is of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.
The questions raised on this appeal have been determined in earlier Presidential decisions on appeal (Roche DP in Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34 (Caulfield) and the President of the Commission, Keating DCJ in Cram Fluid Power Pty Ltd v Green [2014] NSWWCCPD 84 (Cram Fluid)). Those decisions each determined the dispute in the worker’s favour and both Presidential members were guided in their reasoning by the decision of the High Court of Australia in ADCO Constructions v Goudappel [2014] HCA 18; 88 ALJR 624 (16 May 2014) (Goudappel). In such circumstances it might appear that the Commission would not be of the opinion that determination of this appeal is necessary or desirable in terms of s 352(3A). However, since the date of delivery of the Arbitrator’s decision, the Court of Appeal has delivered its decision in the matter of Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 (22 December 2014) (Sukkar) which decision is relied upon by the appellant in support of its challenge. Mr Fordham, in his Notice of Opposition to the appeal, seeks to distinguish Sukkar from the present matter upon its facts, Sukkar being concerned with an allegation of a second hearing loss injury (s 17 of the 1987 Act).
In the circumstances I am of the opinion that leave should be granted to the appellant to proceed with the appeal and I so order.

ON THE PAPERS

The Commission, if satisfied that sufficient information has been supplied to it in connection with the proceedings, may exercise functions under the Act without holding any conference or formal hearing: s 354(6) of the 1998 Act.
The appellant submits that the appeal “cannot be determined on the papers” and states that the appeal “requires an oral hearing.” The only submission made in support is that the appeal raises “significant legal issues.”
Submissions put on behalf of Mr Fordham are somewhat conflicting. At [2.3] of the Notice of Opposition it is submitted that the appeal may proceed “on the papers”. Reference is later made to what was a pending appeal in the matter of Sodexo Australia Pty Ltd v Khan (file number A1-985/14) (Khan) which, it was said, raises issues similar to those raised in the present appeal. Mr Fordham submits that “both this appeal and the appeal in Khan… should be heard together” (at [28]). In the alternative Mr Fordham “seeks leave to be heard in the appeal in Khan”.
During preparation of this decision, the determination of the appeal in Khan was published on 18 February 2015 ([2015] NSWWCCPD 12). In the circumstances neither option sought by Mr Fordham is possible. I should record my view that neither option was appropriate in any event.
Having regard to all circumstances, in particular the availability to the Commission of detailed submissions put on behalf of each party which address relevant authority, I consider it appropriate to proceed “on the papers” as is permitted by s 354(6), and this is the course I adopt.

FRESH EVIDENCE

The appellant seeks leave pursuant to s 352(6) of the 1998 Act to adduce additional evidence on the appeal. That subsection provides:
“6. Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The additional evidence in question is described as “the notice of claim dated 15 March 2004”. This evidence related to a claim for lump sum compensation, which, it is common ground, was paid in 2004. Mr Fordham does not oppose the admission of the document into evidence.
All relevant details of the agreement made in 2004 concerning the claim for lump sum compensation and payment of same are either established on the evidence presently before the Commission or are admitted. There is, in my view, no basis upon which the appellant should be granted leave to adduce the additional evidence. There is no suggestion that the document was not available at the time of hearing before the Arbitrator and, further, in my view, failure to grant leave would not cause substantial injustice. Leave is refused.

FACTUAL BACKGROUND

The facts of the matter are largely uncontroversial. As earlier noted, Mr Fordham received injury in the course of his employment with the appellant on 20 September 1989. A copy of an agreement between the parties entered into pursuant to s 66A of the 1987 Act is in evidence. That agreement was made on 20 December 2004 and provided for the payment of lump sums as follows:
“15 per cent back $9,000
2 per cent right leg $15,000
5 per cent left leg $3,750
5 per cent left arm $3,750
S[ection] 67 lump sum $7,000."
By reason of continuing pain and disability Mr Fordham underwent a left L5/S1 discectomy at the hands of Dr YAE Ghabrial, orthopaedic and spinal surgeon, on 17 December 2008. That procedure involved laminectomy and decompression as well as rhizolysis of L5 and S1 nerve roots.
A claim in respect of alleged further loss of function of body parts was made by Mr Fordham against the appellant on 6 January 2014. It was alleged that the losses have increased so far as the back (to 25 per cent), right leg (to 10 per cent) and left leg (to 20 per cent). An additional claim was made in respect of an alleged 20 per cent loss of efficient use of sexual organs. A further sum was claimed pursuant to s 67 of the 1987 Act as it stood before the 2012 amending Act.
The evidence reveals that the appellant’s insurer responded to the 2014 claim by letter dated 1 April 2014 in which a compromise offer was made. It is plain that the offer was not accepted and that subsequently the insurer declined liability. Whilst s 74 of the 1998 Act requires that notice of the dispute, which is to include a statement of the reason for disputing liability, must be given to a claimant, no such notice is in evidence. This subject was raised by the Arbitrator with the appellant’s counsel, Mr Phillip Perry. The Arbitrator was informed that the issue for determination was not to be found in the evidence (T1.31–34). It was made clear by counsel that the appellant asserted that, on the facts, Mr Fordham was prevented by the terms of s 66(1A) of the 1987 Act from bringing the claim for further lump sum compensation.

ISSUES IN DISPUTE

The grounds of appeal relied upon, which in some respects are confusing, are as follows:
“1. The arbitrator erred in law in holding that the worker’s claim was not defeated by sec 66(1A) Workers Compensation Act 1987 (‘the 1987 Act’).
2. The arbitrator erred at law in regarding [sic] the application of sec 66(1A) of the 1987 Act contended for by the employer to be a retrospective application.
3. The arbitrator erred in law in concluding that sec 66(1A) was, relevantly, ‘particularly unclear’ (page 26, lines 3–4).
4. Having determined that the worker’s current claim was caught by the amendments as provided by clause 19, schedule 8 of 2010 Workers Compensation Regulations and sec 66(1A) of the 1987 Act (page 23, lines 16–20), the arbitrator erred in law in failing to take clause 19 into account in determining the application of sec 66(1A) to the worker’s claim.” (emphasis in original)

THE ARBITRAL PROCEEDINGS

At the outset of the proceedings, counsel appearing on behalf of the appellant confirmed that his client asserted that s 66(1A) of the 1987 Act prevented Mr Fordham from “[making] a further claim for lump sum compensation” (T1–2). Counsel argued that “the case turns on the manner in which one interprets the words, ‘only one claim can be made under this Act for permanent impairment of [sic] compensation in respect of the permanent impairment that results from an injury’”. Counsel was there narrating the terms of s 66(1A).
To permit some understanding of argument advanced before the Arbitrator and his reasons for determination, it should be noted that, before the 2012 amending Act, there was, except in cases of industrial deafness, no limiting threshold of permanent impairment or permanent loss of a thing mentioned in the Table (the latter being relevant to injuries occurring prior to the 2002 amendments to the legislation). Nor was there any legislative constraint as to the making of multiple claims for lump sum compensation in respect of the one injury. Such matters were the subject of change following operation of the amending Act as set out below.
The relevant provisions concerning amendment of a worker’s rights to lump sum compensation effected by the amending Act and the Regulation are as follows:
Section 66 of the 1987 Act:
“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.
…”
Schedule 6, Part 19H, clause 3 of the 1987 Act:
“Application of amendments generally
3(1) Except as provided by this Part or the regulations, an amendment made by the 2012 amending Act extends to:
(a)  an injury received before the commencement of the amendment, and
(b)  a claim for compensation made before the commencement of the amendment, and
(c)  proceedings pending in the Commission or a court immediately before the commencement of the amendment.
(2)    An amendment made by the 2012 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.”
Schedule 6, Part 19H, clause 15 of the 1987 Act:
“Lump sum compensation
15 An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.”
Schedule 8, clause 11 of the Workers Compensation Regulation 2010:
“Lump sum compensation
11(1) The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.
(2)    Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).”
Schedule 8, clause 19 of the Workers Compensation Regulation 2010:
“Only one claim for permanent impairment compensation—injuries received before 1.1.2002
19(1) In the application of section 66 (1A) of the 1987 Act to a claim resulting from an injury received before 1 January 2002:
(a)  a reference in that subsection to permanent impairment compensation is taken to be a reference to lump sum compensation payable under Division 4 of Part 3 of the 1987 Act (as in force immediately before 1 January 2002), and
(b)  a reference in that subsection to permanent impairment is taken to be a reference to an injury of a kind to which any such lump sum compensation applies.
(2) Section 66 (1A) of the 1987 Act is deemed to be amended to the extent necessary to give effect to this clause.”
It was acknowledged by the appellant at the hearing before the Arbitrator that the decision in Caulfield had addressed the question concerning the application of s 66(1A) but it was argued that Caulfield could be distinguished from the present case. During exchanges between the Arbitrator and counsel it was established that the appellant’s assertion was that, by reason of the operation of cl 19 of the Workers Compensation Regulation 2010 (the 2010 Regulation), which came into operation on 21 December 2012, the amended provisions of s 66, in particular s 66(1A), apply “in respect of injuries before 1102 [sic, 2002]” (at T6.6).
The transcript of the proceedings then records a lengthy exchange between the Arbitrator and both counsel. It is recorded (at T15.18–35) that the appellant relied upon the decision of BP Australia Ltd v Greene [2013] NSWWCCPD 60 (Greene) as supporting the argument that s 66(1A) has application to the present facts. The argument seemed to focus upon the operation of cl 19 of Sch 8 to the Regulation.
No clear argument put on behalf of Mr Fordham is discernible upon an examination of the transcript. This may be explained upon the basis that the Arbitrator had stated to counsel that, whilst cl 19 must be taken to be relevant to the facts, he further stated that he was “… not with [counsel for the appellant] that [s 66(1A) is] retrospective or, to be more precise, that the amending legislation doesn’t give [Mr Fordham] one claim after the date [of operation of the amending Act]” (at T16.13–17). The Arbitrator proceeded to deliver his reasons for determination of the dispute.

THE ARBITRATOR’S REASONS

Before attempting to summarise the Arbitrator’s reasoning I note that the difficulty encountered in perceiving exactly what arguments were advanced by counsel is, to an extent, overcome by matters recorded in the course of the Arbitrator’s determination. Such matters are noted below.

The Arbitrator identified the first “issue” for determination as follows:
“The liability issue raised by [the appellant] is that [Mr Fordham] is not entitled to bring a further claim for lump sum compensation by virtue of s 66(1A) of the 1987 Act and the effect of [cl 19 of Sch 8 to the Regulation].”
The Arbitrator noted that the parties had made reference to the decision of Caulfield in the course of argument. The submission put by the appellant’s counsel was that Caulfield “turned upon the effect of [Sch 6 Pt 19H cl 15 and cl 11 of Sch 8 to the Regulation]”. That submission was accepted by the Arbitrator.
Reference was then made by the Arbitrator to the decision of the Commission in Greene which decision had been raised earlier by counsel. The Arbitrator recorded the appellant’s submission that the decision of Greene (in particular [129] of that decision) “indicated that cl 19 [of Sch 8 of the Regulation] unequivocally referred to pre–2002 scheme and the reference to the clauses in Caulfied are irrelevant” (at T22.4–7). The Arbitrator accepted that submission. The Arbitrator then stated:
“[Counsel for Mr Fordham] submitted that…while it was accepted cl 19 applied, it only applied with respect to what it expressly dealt with, that is the operation of s 66(1A) of the 1987 Act. That submission is consistent with what is said by Deputy President Roche in Green [sic, Greene] and I accept that submission.”
The Arbitrator then stated his acceptance of the submission put by the appellant’s counsel “… that Caulfield does not apply and that I should look at [cl 19 of Sch 8] to the Regulation”. The Arbitrator stated immediately thereafter that (at T23.1–5):
“However, I also accept [Mr Fordham’s counsel’s] submission that cl 19 only applies in so far as it deems s 66(1A) of the 1987 Act to apply to injuries received before 2002.”
The Arbitrator found that the claim made on 6 January 2014 by Mr Fordham “clearly post-dates the amended Regulation and the section as amended”, and stated further (at T23.16–20):
“… I am of the view that the current claim brought by Mr Fordham is caught by the amendments as provided by cl 19 Sch 8 of the 2010 Workers Comepnsation Regulations and s 66(1A) of the 1987 Act.”
The Arbitrator proceeded to identify a separate “issue” as being “whether Mr Fordham is precluded from bringing this claim because he has previously made his ‘one’ claim for lump sum compensation.” The submission made by the appellant’s counsel was then recorded as follows (at T23.25–29):
“…the wording of s 66(1A) as to only ‘one claim’ means only one claim made at any time and that [Mr Fordham] has received compensation for his one claim.”
It was noted by the Arbitrator that he had not called upon Mr Fordham’s counsel to address on that last mentioned “issue”. The Arbitrator proceeded to consider a number of authorities which addressed the subject of statutory construction and made reference also to s 30 of the Interpretation Act 1987 which legislation concerns the effect of amendment or repeal of Acts and statutory rules. The Arbitrator immediately proceeded to consider whether the amendments operated “retrospectively”.
The Arbitrator expressed his view that “it is particularly unclear that the subsection is designed [sic] to act retrospective[ly].” He then stated his conclusion as follows:
“In my view, the section is prospective. It is not clearly retrospective, as stated by Dixon CJ in [Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261] it clearly should be to apply retrospectively.
For those reasons, I am of the view that I do not accept that s 66(1A) is retrospective in that it operates to apply to anyone who has had a claim for lump sum compensation before the date of the operation of the amendment so that they have lost their future rights” (at T26.16–24).
The Arbitrator, after stating that there was no relevant authority “on the point”, reached the further conclusion that (at T27.1–9):
“For these reasons I find that although cl 19 of the 2010 Regulations apply to [Mr Fordham], they only apply in so far as s 66(1A) applies to the applicant’s claim. That would mean that this is his one and only claim within the meaning of that section. I agree with [Mr Fordham’s counsel’s] submission that the operation of that Regulation does not affect the Applicant’s entitlements pursuant to s 67 of the 1987 Act.”
The Arbitrator proceeded to address matters not relevant to the present appeal, following which he made the finding and orders noted at [3] above.

DISPOSITION OF THE APPEAL

Whilst the appellant relies upon the grounds noted above at [24], the fundamental challenge made is that the Arbitrator had erred in determining that the provisions of s 66(1A) have no application on the present facts and thus do not prevent Mr Fordham proceeding with his claim (ground one). Further error is said to be demonstrated by the Arbitrator’s rejection of the appellant’s argument as to “retrospectivity” of the amended provisions (ground two). A complaint is made concerning the Arbitrator’s statement, noted at [39] above, that the provisions of s 66(1A) are “particularly unclear”. That complaint is not an assertion of failure by the Arbitrator to state adequate reasons, as is his duty, but simply an assertion of error as to construction of the subsection. It is put that its “meaning is clear, ‘only one claim can be made’”. Lastly it is suggested that error is demonstrated by the Arbitrator’s suggested failure to take into account the provisions of cl 19 to Sch 8 of the Regulation.
I have formed the view that the Arbitrator’s reasoning does in fact demonstrate error, however it remains to be determined as to whether such error has relevantly affected his decision.
It may be seen from the summary of the Arbitrator’s Reasons, (between [31] and [41] above) that attention was focused upon, firstly, the operation of cl 19 of Sch 8 to the Regulation and, secondly, the question of “retrospectivity” of s 66(1A). That focus came about, no doubt, by reason of the manner in which argument was advanced at the hearing of the arbitration. No careful attention was given in argument to the relevant transitional provisions other than, as wrongly asserted by the respondent’s counsel, that those provisions, which had been carefully considered in Caulfield, were of no relevance.
That assertion was founded upon an argument, repeated on this appeal, which relied upon matters stated in Greene which suggested that cl 19 of Sch 8 (and, as was relevant in Greene, cl 18 of that Schedule) demonstrate that the legislature “has indicated an intention that [injuries received before the 2002 amendments] should continue to be assessed and compensated under the Table of Disabilities, subject to the one claim restriction” (Greene per Roche DP at [149]).
I respectfully accept the correctness of the last mentioned statement made in Greene. It is clear that the purpose of cl 19 was to overcome an omission concerning pre-2002 permanent loss cases in the amending Act. However, as has been made clear in Goudappel, Caulfield and recently, Sukkar, the transitional provisions must be applied to determine whether a claim is caught by the “claim restrictions”. The Arbitrator failed to correctly address those transitional provisions. Those provisions, and relevant authority, some of which were published after the hearing before the Arbitrator, are discussed below.
So far as the question of “retrospectivity” is concerned, I am of the view that the Arbitrator has erred in asking a wrong question, that being whether the amendments operated retrospectively. As the plurality in Goudappel observed:
“26. … The characterisation of cl 11 as ‘retrospective’ was something of a distraction, as was the argument about the statutory power to make savings and transitional regulations taking effect prior to the dates of gazettal. The characterisation of cl 11 as ‘retrospective’ is possible only by attributing to ‘retrospective’ the extended meaning referred to by Fullagar J in Maxwell v Murphy [1957] HCA 7; 96 CLR 261. As was observed in Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117 at 133:
‘Interference with existing rights does not make a statute retrospective. Many if not most statutes affect existing rights.’”
As was emphasised by the plurality in Goudappel, the proper construction of the relevant provisions required attention to the text of the relevant clauses. Their Honours reached the following conclusion (at [29]–[30]):
“29. …The purpose of the provision must be identified. The evident purpose of cl 5 was to expand the regulation-making power so as to allow regulations to be made which could affect pre-existing rights. The purpose of cl 11, made pursuant to cl 5(4), was clear enough. It applied the new s 66 to entitlements to permanent impairment compensation which had not been the subject of a claim made before 19 June 2012 that specifically sought compensation under the old s 66. Its purpose was patently not beneficial.
30. There was no constructional choice which would enable cl 11 to be interpreted so as to avoid its application to Mr Goudappel's entitlement.”
It may be seen that Mr Fordham’s entitlement to pursue his claim required a determination, not of “retrospectivity” but of the proper application of cl 11 to the relevant facts. The Arbitrator’s failure to address that question constitutes error on his part.

Application of clause 11

It is of significance in my view that Mr Fordham had, in 2004, claimed and received lump sum compensation. The question raised is whether such claim was “a claim that specifically sought compensation under s 66 or s 67 of the 1987 Act” in terms of cl 11.
Guidance concerning this question may be gained from the analysis of relevant matters found in the decision of the plurality in Goudappel. The facts in Goudappel concerned an injury received on 17 April 2010; a claim for workers compensation benefits (not expressly including a claim for lump sum compensation) made on 19 April 2010, and the making of a claim by Mr Goudappel seeking lump sum compensation on 20 June 2012. Reference was made by their Honours to the manner in which the matter was addressed by the Court of Appeal (Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94; 11 DDCR 534 (Goudappel No 1)) when the following was noted by their Honours (at [9]):
“The Court of Appeal …, held that none of the provisions of the WIM Act or the WorkCover Guidelines required an injured worker to make a separate claim for lump sum compensation. That conclusion was not in issue on this appeal. The consequence for this appeal was that Mr Goudappel's original claim for compensation made on 19 April 2010 can be taken as subsuming a claim for permanent impairment compensation, even though a later claim specifically directed to such compensation was lodged on 20 June 2012. The amendments to the WCA and the transitional regulation therefore fall to be considered and applied on that basis. That does not mean, however, that the original claim could be said to be ‘a claim that specifically sought compensation under section 66’ for the purpose of the disentitling regulation which was in issue in this appeal.”
The High Court in Goudappel found that the regulation in question was validly made. On the facts of that case, Mr Goudappel’s claim was defeated by the amendments as applied in accordance with the savings and transitional provisions.
The present case is different. Mr Fordham had made a claim before 19 June 2012 that specifically sought compensation under the old s 66. Having regard to the High Court’s findings in Goudappel, it appears to follow that Mr Fordham’s claim was not defeated by the amended provisions. Such a tentative conclusion needs to be tested having regard to the decision of the Court of Appeal delivered on 22 December 2014 in Sukkar. Reference to that authority is made by both parties in submissions.
It is convenient at this point to note that, following completion of this decision in draft form, Mr Fordham forwarded to the Commission a document which set forth two pages of submissions concerning the decision in Sukkar. Mr Fordham had earlier, as noted above, made limited submissions on that decision. In his Notice of Opposition Mr Fordham had stated that he “seeks leave to respond to any further submissions made by [the appellant] in relation to the decision in Sukkar”. Having regard to my conclusions appearing below, there is, in my opinion, no need to grant such leave nor to take into account those further submissions.
The facts of Sukkar concerned a worker who had been exposed to loud industrial noise for many years. Mr Sukkar made a claim for, and was paid, lump sum compensation in 1996 in respect of hearing loss as assessed at that time. A claim with respect to further hearing loss was made by Mr Sukkar on 19 June 2012.
The question of Mr Sukkar’s entitlement to pursue the 2012 claim was to be determined having regard to the manner of operation of the amendments and the savings and transitional provisions earlier discussed.
It is important to note that Mr Sukkar’s claims each fell within the terms of s 17 of the 1987 Act which relevantly provides:
“17   Loss of hearing—special provisions
(1)    If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect:
(a)  for the purposes of this Act, the injury shall be deemed to have happened:
(i)  where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or
(ii)  where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
…”
In Sukkar, two questions of law had, by leave, been addressed by the President of the Commission, Keating DCJ. The first of those questions is of relevance to the present matter. His Honour, in answering those questions, concluded on the facts that the terms of s 17 deemed that the happening of the injury occurs on the date notice of injury was given. His Honour found that:
“In this case the deemed date of injury is 19 June 2012, the date of notification of Mr Sukkar’s further loss of hearing. That is also the date of claim.”
Having regard to the date of injury so determined, his Honour concluded that Mr Sukkar’s entitlement to compensation for such further loss is to be determined in accordance with the provisions of the Act as amended following operation of the 2012 amending Act. Mr Sukkar sought leave to appeal.
Each member of the Court of Appeal (McColl JA, Basten JA and Beech-Jones J) approached the appeal differently. McColl JA concluded (between [75] and [78]) that “because of the combined operation of s 17 of the 1987 Act and cl 15 of Sch 6 to the 1987 Act, the amended s 66 applied” (at [77]).
It was noted by Basten JA that Mr Sukkar had argued that, having made a “prior claim, being the 1996 claim, he was not covered by cl 15…”. Reliance was placed by Mr Sukkar upon cl 11. His Honour then stated (at [106]):
“The effect of cl 11 was to preclude reliance on the old form of s 66 with respect to a claim made prior to 19 June 2012, unless the claim specifically sought lump sum compensation. The 1996 claim fell within the exception. However, that did not assist the applicant because, not only had that claim been disposed of, but it could not give rise to an entitlement to compensation for loss of hearing after August 1996. It followed that the 2012 Amendment Act applied to the only extant claim, namely that made on 19 June 2012.”
His Honour concluded that the answer to the first question addressed by Keating P should be varied. That question and the varied answer were as follows:
“Q1 Do the amendments to the Div 4, Pt 3 of the Workers Compensation Act 1987 (the 1987 Act) introduced by Sch 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for permanent impairment compensation for hearing loss (to which s 17 of the 1987 Act has application) made on or after 19 June 2012 when a worker has made a previous claim for permanent impairment compensation for hearing loss prior to 19 June 2012?
Ans A claim for lump sum compensation for permanent impairment made on or after 19 June 2012 is a claim to which the 2012 Amending Act applies by virtue of the transitional provision in cl 15, Pt 19H, Sch 6 to the 1987 Act. If there is an unresolved claim, specifically for lump sum compensation for permanent impairment, made before 19 June 2012, the 2012 Amending Act will not apply to it.”
The argument advanced by Mr Sukkar concerning the first of the two questions addressed by Keating DCJ was said by Beech-Jones J (at [123]) as being founded upon the contention that:
“… [clause 15 and clause 11] confer some form of immunity from the amendments … if he just happened to have previously made a claim for workers compensation prior to then.”
His Honour found that contention to be “misconceived”. His Honour stated (at [123]):
“The reference to ‘claim’ in those provisions is clearly directed to the claim under consideration which in this case was the claim made on 19 June 2012 …”.
Following a notation of argument put by Mr Sukkar, Beech-Jones J expressed the following views (at [131] and [132]):
“… It is correct to state, as the above submission does, that those amendments do not apply to a claim for compensation under s 66 of the Act that was made before 19 June 2012.
However, it is not correct to state that s 66(1A) is not engaged in respect of a claim made on or after 19 June 2012 if there had previously been a claim made before 19 June 2012. When s 66(1A) is applied to a claim made on or after 19 June 2012 it restricts a worker to making one claim ‘under this Act’. The phrase ‘this Act’ is referring to the entirety of the Workers Compensation Act of which the amendments introduced in June 2012 forms part…”
His Honour then expressed the view (at [133]):
“...On and from 19 June 2012 s 66(1A) mandates that there shall only be one claim for permanent impairment compensation in respect of the permanent impairment that results from an injury. In doing so it may operate on facts antecedent to it coming into force including the existence of an earlier claim but it does no more than that.”
His Honour (at [136]) stated his agreement with Basten JA as to proposed orders.

The appellant’s submissions

The appellant’s submissions in reply address the decisions in Cram Fluid and Sukkar. CramFluid was published a few days before the publication of the Court of Appeal’s decision in Sukkar. In Cram Fluid, the President Keating DCJ, determined that the amendments discussed above had no application to a further claim made by Mr Green, the worker in that matter, given the fact that he had made a claim specifically seeking compensation under s 66 before June 2012. That conclusion was reached upon reliance of that stated by the High Court in Goudappel. His Honour also stated (at [78]) of Cram Fluid:
“It is prudent to keep in mind the use of the past tense [in cl 11] – ‘specifically sought’ rather than the present tense – ‘specifically seeking’.”
The appellant argues that Cram Fluid was wrongly decided. It is noted in submissions that Cram Fluid is presently the subject of a “holding appeal”. It is submitted that the Commission might “regard it as appropriate that the determination of the present appeal abide the decision of the Court of Appeal [in Cram Fluid].”
Having considered argument as recorded between [4] and [15] of the appellant’s submissions in reply, I do not consider it appropriate to defer determination of this appeal as suggested, and further, I reject the assertion that the conclusion reached by Keating DCJ in Cram Fluid is wrong. My reasons for so concluding arise from a consideration of the decision in Sukkar together with the decision of Goudappel as appears below.

The appellant, as may be expected, places reliance upon the reasons expressed by Basten JA and Beech-Jones J in Sukkar. It is put that those “comments” made by their Honours, which I have attempted to outline above, “were intended to have application to claims for lump sum compensation generally” (at [16]). It was noted earlier in that submission that “Sukkar was primarily concerned with issues that related to industrial deafness.” It is put that the amendment to the answer to the first question addressed by the Court demonstrates, by the exclusion of any reference to hearing loss, that the answer was to be “relevant generally”.
Submissions cite the passages of the judgment of Beech-Jones J which are noted above, and it is put (at [24] of submissions):
“It is clear that the comments made by Beech-Jones J above cannot be said to apply only to claims for hearing loss. If the reasoning was intended to apply only to claims of that nature, the answer to question 1 formulated by their Honours would specifically provide for that application.”
The appellant’s primary argument is to be found at the conclusion of submissions (at [27]) where it is put:
“[Mr Fordham] does not have an unresolved claim for lump sum compensation which was made prior to 19 June 2012. His claim for lump sum compensation, made after 19 June 2012, is subsequently, [sic] defeated by s 66(1A) of the 1987 Act.”

Consideration

There can be no doubt that the reasons stated by Basten JA and by Beech-Jones J each afford support for that last quoted submission. However the persuasive nature of their Honours comments must be evaluated in the light of that which was stated by the High Court in Goudappel which is noted at [48] above. As earlier noted, cl 11, as decided by the High Court, “applied the new s 66 to entitlements to permanent impairment compensation which had not been the subject of a claim made before 19 June 2012 that specifically sought compensation under the old s 66 ” (emphasis added).
In my view, that last statement of the High Court constitutes part of the ratio of the decision and, in so far as the comments of Basten JA and Beech-Jones J may be seen to conflict, I am bound to follow the reasoning expressed by the plurality in Goudappel.
The force of those comments made by Basten JA concerning “any extant claim” must, in my view, be considered having regard to his Honour’s earlier comments in Goudappel No 1 at [16] where it was said (albeit concerning cl 15), following an examination of the provisions governing claims generally:
“None of these provisions suggest that the Acts required, in June 2012, that an injured worker must make a separate claim for lump sum compensation: rather they are consistent with the contrary conclusion. It must follow that cl 15 did not require the application of the amended s66 where the worker was able to rely upon a claim made prior to 19 June 2012 to establish an entitlement to permanent impairment compensation. ”

The same observation, in my view, may be made in the context of cl 11.

It must also be remembered that the subject matter of Sukkar concerned the special provisions of s 17 of the 1987 Act which , as earlier noted, govern hearing loss claims. Subject to that section, the date of claim (or if relevant, the last day of relevant employment) determines the date of injury. It was upon that basis, that is that the Court was dealing with an injury deemed to have been received after the amendment, that McColl JA determined that the “claim” was caught by the amendments.
Mr Fordham had, in 2004, made a claim that specifically sought compensation under s 66 and is thus in my opinion not prevented by the amendments to proceed with his claim for further lump sum compensation. A similar conclusion was reached by Roche DP in Khan.
It follows that the Arbitrator’s ultimate conclusion was correct and may be seen as not affected by the errors earlier identified. In the circumstances the Arbitrator’s finding and orders should, for the reasons stated herein, be confirmed, subject to the amendment of [2] as appears in the orders below.

DECISION

Paragraph [2] of the Arbitrator’s determination found in Certificate of Determination dated 22 October 2014 is amended by deletion of the words “pg 133-135 of the Application” which appear in parentheses and substituted with the words “p 21-22 of the amended Reply”. The Arbitrator’s findings and orders found in the Certificate of Determination dated 22 October 2014 are otherwise, for the reasons stated herein, confirmed.

Kevin O'Grady
Deputy President

26 February 2015

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE