Nelson v Arrium Ltd
[2015] VSC 488
•14 September 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 00053
| Darryl Nelson | Appellant |
| v | |
| Arrium Limited (formerly known as Onesteel Limited) (ACN 004 410 833) | Respondent |
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JUDGE: | Zammit J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 September 2015 |
DATE OF JUDGMENT: | 14 September 2015 |
CASE MAY BE CITED AS: | Nelson v Arrium Ltd |
MEDIUM NEUTRAL CITATION: | [2015] VSC 488 |
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ADMINISTRATIVE LAW – Appeal under s 109 of the Magistrates’ Court Act 1989 (Vic) – Entitlement for economic loss under s 98C and s 98E of the Accident Compensation Act 1985 (Vic) – Admissibility of the Medical Panel’s reasons – Lianos v Inner & Eastern Health Care Network (2001) 3 VR 136 – Accident Compensation Act 1985 (Vic) s 91, s 98C, s 98E, s 104B – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A. Ingram with Mr G. Worth | Melbourne Injury Lawyers Pty Ltd |
| For the Respondent | Mr M. Wheelahan QC with Mr I. McDonald | Sparke Helmore Lawyers |
HER HONOUR:
This is an appeal by Darryl Nelson (‘Mr Nelson’) under s 109 of the Magistrates’ Court Act 1989 (Vic) against the decision of the Magistrates’ Court on 17 December 2014 in Proceeding No. E11275855. Mr Nelson seeks to appeal against the decision of the Magistrates’ Court upholding a determination made by Arrium Limited’s (‘the respondent’) insurer that Mr Nelson was only entitled to $21,356.00 in compensation for economic loss under s 98C of the Accident Compensation Act 1985 (Vic) (‘the ACA’).
Background
On 29 June 2009, during the course of his employment with the respondent as a machine operator/forklift driver, Mr Nelson suffered a crush injury to his right hand. At the time, Mr Nelson was operating a panel folding machine and a chain mesh machine which, despite the presence of a safety curtain to automatically stop the machine, failed to prevent the crimping attachment of the machine from crushing Mr Nelson’s right ring finger. As a result, an amputation had to be performed through the shaft of the intermediate phalanx of the right ring finger (total loss injury). In addition to the total loss injury, Mr Nelson also suffered permanent impairment of the right hand in the form of reduced grip strength, reduced range of movement of the interphalangeal joint of the right thumb, reduced range of active movements in all joints of the index and middle fingers of the right hand, reduced range of motion of the remaining metacarpophalangeal joint of the right finger, reduced motion of the right distal interphalangeal joint and at the metacarpophalangeal joint of the little finger of the right hand (the hand injury).
Mr Nelson subsequently lodged a claim to the respondent’s insurer for compensation for permanent impairment pursuant to ss 98C and 98E of the ACA on 26 November 2012.
On 4 June 2013, the respondent’s insurer accepted liability for the injury to Mr Nelson’s right ring finger, right hand and scarring and determined that the injuries amounted to a 4% whole person impairment, pursuant to a report of an independent medical practitioner. Mr Nelson’s entitlement to compensation was determined to be:
(a) Nil under s 98C of the ACA; and
(b) $21,350.00 under s 98E of the ACA.
This determination was disputed by Mr Nelson, and on 23 July 2013 the matter was referred to a Medical Panel for assessment under s 104B(9) of the ACA.
On 18 September 2013, the Medical Panel published its certificate of opinion in response to the referral from the respondent on 23 July 2013. The Medical Panel found:
Question 1)
What is the Worker’s degree of permanent whole person impairment resulting from the accepted injury/injuries as assessed in accordance with section 91 and is the impairment permanent?
In the Panel’s opinion the worker has an 11% whole person impairment (including the total loss injury) resulting from the accepted right ring finger/right hand/scarring injury when assessed in accordance with Section 91 of the Act. The degree of impairment is permanent.
The degree of impairment includes an 11% whole person impairment (including the total loss injury) assessed in accordance with Chapter Three of the American Medical Association’s Guide to the Evaluation of Permanent Impairment (Fourth Edition).
In the Panel’s opinion, the worker has an 8% whole person impairment (excluding the total loss injury) resulting from the accepted right ring finger/right hand/scarring injury when assessed in accordance with Section 91 of the Act. The degree of impairment is permanent.
The degree of impairment includes an 8% whole person impairment (excluding the total loss injury) assessed in accordance with Chapter Three of the American Medical Association’s Guide to the Evaluation of Permanent Impairment (Fourth Edition).
Question 2)
Does the Worker have an accepted injury which has resulted in a total loss injury mentioned in the table in s 98E(1)?
Yes, the worker has a total loss of two joints of ring finger of the right hand.[1]
[1]‘Certificate of Opinion Re: Darryl Nelson’, Medical Panel Ref No. M113/2361, 1-2 (emphasis added).
On 7 October 2013, following receipt of the Medical Panel’s certificate, the respondent advised Mr Nelson that it had determined pursuant to s 98C that his entitlement to compensation for the injuries was $21,356.00.
On 14 April 2014 Mr Nelson commenced proceedings in the Magistrates’ Court seeking orders setting aside the respondent’s determination dated 7 October 2013. Mr Nelson sought compensation for the hand injury under s 98C and compensation for the total loss injury under s 98E. The Magistrate described Mr Nelson’s claim as follows:
What is asserted by the plaintiff in this proceeding is a further entitlement to compensation under s 98E of the Act referable to the non-total loss impairments he now suffers in relation to his right hand.
More precisely, Mr Nelson was seeking compensation under s 98E for the total loss injury, and compensation under s 98C for the non-total loss impairments. Further, Mr Nelson was not seeking a ‘further entitlement’. Rather, he was seeking to excise the total loss injury from the compensation calculation under s 98C, and recalculate compensation for the hand injury alone under s 98C, and then calculate compensation for the total loss injury under s 98E.
The Magistrates’ Court handed down its decision on 17 December 2014. Magistrate Maclean said that Mr Nelson’s argument that s 98E provides an entitlement to compensation in addition to s 98C was novel and no authority was referred to in support of that approach. Her Honour held that the respondent’s determination was correct and in accordance with the proper construction of the provisions of the ACA. There was therefore no basis to set aside the respondent’s determination, and Mr Nelson’s claim was dismissed. On the proper construction of ss 98C and 98E, Her Honour said:
What is manifestly plain from the legislative scheme in relation to total loss and permanent impairment is that s 98C is the only source of an entitlement to compensation. On the plain meaning of s 98E, that provision operates only where the calculation of compensation under s 98C is less than that set out in the table referred to in that provision. If that amount is more than the total amount, as is the case here, s 98E has no operation.
Mr Nelson now appeals from that decision.
Grounds of Appeal
In his Notice of Appeal dated 8 January 2015 Mr Nelson appealed against the Magistrates’ Court decision on the following grounds:
(a) The learned Magistrate erred in law in finding that there was no proper statutory basis for Mr Nelson’s claim pursuant to the ACA.
(b) The learned Magistrate erred in law in the interpretation of s 98C and s 98E of the ACA, in particular in finding that an award of compensation pursuant to s 98E precluded an award of compensation pursuant to s 98C in the circumstances of the case.
(c) The learned Magistrate ought to have held that on their true construction:
(i) Section 98E of the ACA entitled Mr Nelson to an award of compensation in respect of the total loss injury being total loss of two joints of the right ring finger; and
(ii) Section 98C of the ACA entitled Mr Nelson to an award of compensation for 8% whole person impairment (excluding the total loss injury) (the hand injury) in accordance with the Certificate of the Medical Panel dated 18 September 2013 modified to 10.6% impairment pursuant to ss 98C(2), 98C(2A) and Schedule 2 of the ACA.
(d) The learned Magistrate was wrong in not finding that on their true construction:
(i) Section 98E of the ACA entitled Mr Nelson to an award of compensation in respect of a total loss injury being total loss of two joints of the right ring finger; and
(ii) Section 98C of the ACA entitled Mr Nelson to an award of compensation for 8% whole person impairment (excluding the total loss injury) (the hand injury) in accordance with the Certificate of the Medical Panel dated 18 September 2013 modified to 10.6% impairment pursuant to ss 98C(2), 98C(2A) and Schedule 2 of the ACA.
(e) The learned Magistrate failed to provide adequate reasons or to demonstrate an adequate reasoning process in finding that Mr Nelson had no proper statutory basis pursuant to the ACA for his claim.
In his written and oral submissions, counsel for Mr Nelson developed the grounds of appeal in a different manner. At the hearing it became clear that Mr Nelson’s argument was that on the proper construction of ss 98C and 98E, the total loss injury and the hand injury should be treated as separate injuries and assessed separately under s 98C. The total loss injury should be compensated under s 98C or s 98E, whichever yields the greatest compensation, and the hand injury should be compensated under s 98C. Additionally, at the hearing of the matter, counsel for Mr Nelson did not press the argument as to the adequacy of the Magistrate’s reasons.
The question to be determined in this appeal is whether s 98C or s 98E permits or requires separate assessment under s 98C of the total loss injury and the hand injury. This description of the question raised by Mr Nelson’s appeal overcomes the Magistrate’s inaccurate description of his claim. As will be seen, ss 98C and 98E, considered alone or together, do not require or permit the total loss injury and hand injury to be assessed separately under s 98C. Mr Nelson’s appeal is therefore dismissed.
Admissibility of the Medical Panel’s reasons
Before addressing Mr Nelson’s grounds of appeal, it is convenient to address the respondent’s challenge to Mr Nelson’s reliance on the Medical Panel’s reasons (‘the reasons’).
In submissions, counsel for Mr Nelson relied upon the reasons for the opinion of the Medical Panel dated 18 September 2013. Mr Nelson relies on the written reasons to the extent that it is argued the medical panel identifies that there are two separate injuries, being the total loss of the right ring finger and then the loss of motion, sensory loss and scarring injury to the right hand. The reasons are also relied upon on the basis they provide further detail on the injuries which support Mr Nelson’s overall submission that compensation should have been provided in respect of two separate injuries. Mr Nelson contends that at the original hearing in the Magistrates’ Court, the Magistrate referred in some detail to the reasons of the medical panel.[2]
[2]T 1 L 31; T 2 LL 1-3.
In response, the respondent argues that there is authority for the principle that the reasons of a medical panel cannot be relied upon in order to qualify the formal certificate of opinion of a medical panel. The respondent submits that under the ACA, the medical panel’s reasons cannot be relied upon in any way, and that the court should only have recourse to the certificate of opinion. In particular, the respondent relies upon the case of Lianos v Inner & Eastern Health Care Network (‘Lianos’),[3] in which the Victorian Court of Appeal held that ‘the opinion [of a medical panel] determines the answers to the relevant medical questions and the certificate formally identifies or establishes the opinion’.[4] Chernov JA (Tadgell and Batt JJA agreeing) is cited by the respondent for his observation that ‘it is only the opinion of the panel and no other aspect of its decision, such as its reasons, that is to be considered by the court also gains support from the terms of s 68(2) which requires the panel to “certify” its opinion’.[5] Therefore, the respondent submits that the court should only act upon the opinion of the Medical Panel, not its reasons.[6]
[3](2001) 3 VR 136.
[4]Ibid 145 [28].
[5]Ibid 144 [25].
[6]T 15 LL 2-6; T 19 LL 11-13.
Lianos involved a case where the appellant lodged a Complaint in the Magistrates’ Court in relation to the decision of the respondent’s insurer to terminate weekly compensation payments for a work injury on the grounds that the appellant did not sustain a serious injury and was not totally and permanently incapacitated for work. Under s 45 of the ACA, the Magistrates’ Court referred several medical questions to a medical panel, who produced a certificate of opinion pursuant to s 68(2) which stated, inter alia, that the appellant was not totally incapacitated. The appellant sought to tender the reasons for the medical panel’s opinion, making a submission that the court reconsider the medical panel’s opinion in light of its reasons and come to a different conclusion to that which the panel had reached.[7] On the basis that this would amount to a review of the medical panel’s opinion, the Magistrates’ Court refused and dismissed the appellant’s complaint.
[7]Lianos (2001) 3 VR 136, 137-9 [6]-[12].
The appellant appealed to the Supreme Court and, after that was unsuccessful, a further appeal to the Victorian Court of Appeal. The appellant relied on s 10 of the Administrative Law Act 1978 (Vic) (‘ALA’), which provides that any statement by a tribunal of its reasons for a decision shall be taken to form part of the decision and accordingly be incorporated in the record. The appellant argued that the medical panel constituted a ‘tribunal’ and its opinion was a ‘decision’, so that its reasons formed part of its opinion and could be put before the court.[8]
[8]Ibid 141 [18]-]19].
The Court of Appeal dismissed the appellant’s appeal, holding that the ACA only made provision for the admissibility of the relevant opinion of a medical panel, and not its reasons. It was found that the reasons of a medical panel were effectively excluded from the proceedings by the ACA, as to tender them would invite reconsideration of the medical panel’s opinion. Such reconsideration was impermissible and went against the purpose of referring medical questions under the ACA, which was to have medical professionals answer medical questions in place of the courts. Chernov JA stated that:
The Act contemplates that the opinion of the medical panel on medical questions (as defined) which have been effectively referred to it by the court will be adopted by the court as answers to those questions. Thus, under the Act, the effective decision-making process on those issues shifts from the court to the medical panel.[9]
[9]Ibid 140 [16].
The Court of Appeal noted that the appellant had not sought judicial review of the medical panel’s decision, and found that Parliament had not intended for s 10 of the ALA to apply to proceedings under the ACA.[10] Further, the Court of Appeal held that the requirement under s 68(2) of the ACA for a medical panel to ‘certify’ its opinion, which introduced a degree of formality in the publication of the panel’s opinion, underlined the fact that only the opinion of the medical panel was relevant for the purposes of the proceedings. It was also found that the reasons of a medical panel in relation to its opinion do not constitute or form part of a ‘report’ within the meaning of s 48(1) of the ACA, and therefore are not admissible in evidence.[11]
[10]Ibid 143-4 [22], citing Masters v McCubbery [1996] 1 VR 635; McDonald v Kotzman [1999] VSC 190; Isuzu General Motors Australia Ltd v Jordon (2000) 2 VR 212.
[11]Lianos (2001) 3 VR 136, 137 [3], 144 [23], [27], 145 [28]-[29].
Analysis
Mr Nelson has not sought judicial review of the decision of the medical panel. Mr Nelson relies on the reasons in support of the contention that he only received compensation in respect of part of the injuries suffered on 29 June 2009. In doing so, he asks this Court to consider the reasons as forming part of the medical panel’s decision, rather than relying on the Medical Panel’s certificate of opinion, which made an assessment in respect of the all the injuries suffered by Mr Nelson, and which formed the basis for which compensation was provided.
Lianos is clear authority that it is only the opinion of a medical panel that is to be considered by the court, with no other aspect, such as the reasons, to be considered. Although the Magistrate referred in some detail to the reasons of the Medical Panel, the court is ultimately bound by the certificate of opinion alone. Counsel for Mr Nelson did not take the Court to any case law to rebut this presumption laid down by the Court of Appeal in Lianos. Indeed, Lianos was applied as recently as 2011 in the Supreme Court decision of Ilievski v Olympic Aluminium Pty Ltd.[12]
[12][2011] VSC 472 [33].
Accordingly, the written reasons of the Medical Panel dated 18 September 2013 are inadmissible in the present matter, and regard will only be had to the certificate of opinion of the Medical Panel dated 18 September 2013.
Grounds of appeal - should the total loss injury and hand injury be assessed separately under s 98C?
Legislation
The provisions of the ACA that are relevant to Mr Nelson’s grounds of appeal are ss 98C, 98E, 91 and 104B.
Section 98C provides:
(1) A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with section 91, entitled to compensation for non-economic loss calculated in accordance with this section.
…
(7) If a worker suffers on the same occasion more than one injury which entitles the worker to compensation under subsection (1), the worker is not entitled to receive as compensation for non-economic loss more than $555 350.
(8) If a worker suffers an injury which entitles the worker to compensation for non-economic loss of more than one kind as specified in subsection (2) [general permanent impairment], (3) [permanent psychiatric impairment] or (4) [loss of a foetus], the worker is not entitled to receive as compensation for non-economic loss under this section more than $555 350.
…
(11) Despite anything to the contrary in this section or section 98E, a worker is not entitled to an amount of compensation for non-economic loss under this section or section 98E or both that exceeds the maximum amount payable under this section as in force at the date of the relevant injury.
Section 91 deals with impairment assessments. Subsection (7) provides:
(7) For the purposes of section 98C—
(a) impairments other than psychiatric impairments resulting from injuries which arose out of the same incident or occurred on the same date are to be assessed together using the combination tables in the A.M.A Guides;
(b) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury;
(c) impairments from unrelated injuries or causes are to be disregarded in making an assessment;
(d) assessments are to specify the whole person values for each chapter of the A.M.A Guides used in the assessment.
Section 104B sets out requirements and processes for claims under s 98C. Subsection (5A) provides:
A worker must include all injuries arising out of the same event or circumstance in a claim for compensation under section 98C.
Subsection (5AA) provides:
A worker can only make one claim for compensation under section 98C in respect of injuries arising out of the same event or circumstance.
Subsection (5AB) provides:
Subject to subsection (5D)(a), if a claim for compensation under section 98C or 98E has been initiated in respect of a worker by the Authority or self-insurer, the worker cannot make a claim for compensation under section 98C or 98E in respect of injuries arising out of the same event or circumstance.
Subsection (5B) provides:
A determination of the degree of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation included in the claim for compensation under section 98C.
Subsections (5C)-(5E) deal with claims initiated by the Authority or self-insurer, and in particular with statements setting out the injury or injuries to be included in the assessment (of degree of impairment), and the process by which the worker may claim for additional injuries that the worker believes have arisen out of the same event or circumstance. They provide for all the injuries to be considered as one consolidated claim.
Finally, s 98E provides:
(1) If a worker suffers an injury which entitled the worker to compensation and the injury is a total loss mentioned in the Table in Schedule 3B and the amount of compensation calculated under section 98C is less than the amount payable for total loss specified in the Table in respect of that injury, the worker is entitled to compensation equal to the amount specified in the Table instead of compensation calculated under section 98C.
…
(5) If a worker suffers on the same occasion more than one of the injuries mentioned in the Table in Schedule 3B the worker is not in any case entitled to receive as compensation under subsection (1) more than $252 250.
Mr Nelson’s submissions
Counsel for Mr Nelson submitted that this appeal concerns a very narrow point of construction of ss 98C and 98E of the ACA.
Counsel for Mr Nelson broke his submission into five step:
(a) The total loss injury and the hand injury were multiple or separate injuries.
(b) The total loss injury and the hand injury must be assessed separately under s 98C. It is possible to assess the injuries separately without contravening s 91(7)(a). Section 91(7)(a) provides for aggregation when calculating compensation under s 98C, but does not prohibit disaggregation when comparing compensation available under s 98E and compensation available under s 98C.
(c) The total loss injury must be assessed under s 98C, and then assessed under s 98E.
(d) The amount of compensation payable for the total loss injury under s 98C must be compared with the amount payable under s 98E. Here, s 98C does not yield any compensation for the total loss injury, while s 98E yields $21,350 for the total loss injury. As the figure under s 98E is greater than that under s 98C, compensation for the total loss injury should be paid under s 98E.
(e) The hand injury must be assessed under s 98C. The hand injury is not to be assessed under s 98E, because s 98E only deals with total loss injuries. Counsel for Mr Nelson made further submissions on how to calculate the whole person impairment arising from the hand injury alone, but it is unnecessary to set those out.
Counsel for Mr Nelson relied on s 98C(11), which he submitted clearly contemplates this five step process. He focused on the words ‘or both’ and ‘the relevant injury’. It was submitted that the words ‘or both’ clearly provide that s 98C and s 98E have potential application to one claim concerning a number of distinct injuries.
The effect of Mr Nelson’s submissions on the five step process is that the total loss injury is assessed under s 98C and s 98E, and Mr Nelson receives the greater sum, and the hand injury is assessed under s 98C alone. There is therefore no issue of double recovery. In respect of each injury, Mr Nelson would only be compensated once.
The basis on which Mr Nelson argued that the total loss injury and the hand injury were separate injuries for the purposes of s 98C is unclear to me. He may have been arguing that whenever there is a total loss injury and a non-total loss injury they must be treated as separate injuries and assessed separately under s 98C. Or, he may have been arguing that there is something particular to the circumstances of this case that makes the total loss injury and the hand injury separate injuries for the purposes of s 98C.
If Mr Nelson was arguing that there is something particular to the circumstances of this case that makes the total loss injury and the hand injury separate injuries, I reject that argument. In the words of the legislation, the total loss injury and the hand injury were injuries arising out of the same event or circumstance. That event or circumstance was on 29 June 2009, when Mr Nelson suffered a crush injury to his right ring finger while operating a panel folding machine and a chain mesh machine. The crimping attachment of the machine crushed Mr Nelson’s finger, and as a result, the finger was not viable and a partial amputation was performed. The single event or circumstance was the crush injury. Counsel for Mr Nelson did not point to any other event or circumstance.
What remains to be determined is the proposition that whenever there is a total loss injury and a non-total loss injury, they may or must be treated as separate injuries and assessed separately under s 98C, even if they arise out of the one event or circumstance.
That proposition appeared to rest on s 98E. Mr Nelson submitted that s 98E requires a comparison of the compensation that would be awarded for the total loss injury under s 98C, and the compensation that would be awarded for it under s 98E. This is because s 98E refers to ‘the injury’, being the total loss injury. When s 98E refers to the ‘amount of compensation calculated under section 98C’, it is referring to the amount of compensation calculated in respect of ‘the injury’. Section 98E calls for an analysis of the one injury. The comparison called for by s 98E(1) is to be made in respect of each injury assessed individually.
Respondent’s submissions
Counsel for the respondent submitted that the only calculation of lump sum compensation authorised for the purposes of s 98C is an amount for all injuries arising out of the same incident or occurring on the same day. That calculation is made under s 98C(2) and (2A).
The respondent submitted that the first question is what is the worker’s degree of permanent whole person impairment resulting from the injury/injuries assessed in accordance with s 91. What must be determined is the whole person impairment, not the impairment in respect of individual injuries.
In this case, the compensation that was in fact awarded under s 98C, $21,356, was for the whole person impairment in respect of all injuries, including the injury to the right ring finger, which was found by the Medical Panel to be a total loss.
Counsel for the respondent explained the workings of the legislation. He first directed the Court to s 104B, which applies to claims for compensation under s 98C. He emphasised s 104B(2)(a) which refers to the Authority or self-insurer accepting or rejecting ‘liability for each injury included in the claim’. He also emphasised s 104B(5), (5A), (5AA), (5B), (5C), and (5D). Based on these sections counsel for the respondent submitted that the assessment of impairment required for the purposes of s 98C is an assessment of impairment arising from all injuries which are to be included pursuant to the claims management process in s 104B. The respondent submitted that all injuries arising out of the same event are to be aggregated for the purposes of the impairment assessments. Section 104B indicates a legislative intent that all injuries are to be aggregated for the purposes of the assessment in accordance with s 91 for the purposes of s 98C.
The worker may dispute the injuries to be included in the assessments. Section 104B provides a resolution process for disputes about which injuries should be included in the assessments. The worker may also add injuries to be included in the assessments.
Counsel for the respondent noted that s 98C provides for lump sum compensation for three types of injury: physical impairment; psychiatric injury; and loss of foetus. A single incident may give rise to multiple types of injury that attract the operation of s 98C, for instance, a physical impairment and a loss of foetus. The two injuries would be assessed separately under s 98C. It is therefore possible for a worker to be entitled to more than one payment under s 98C, in respect of the one incident. This is also supported by s 98C(7) and (8).
The fact that a single incident may give rise to entitlement to more than one payment under s 98C explains the presence of s 98C(11), and why it says ‘or both’.
Finally, counsel for the respondent relied on s 91(7), which states that for the purposes of s 98C, impairments other than psychiatric impairments resulting from injuries that arose out of the same incident or occurred on the same date are to be assessed together using the combination tables in the AMA Guides.
The respondent argued that the claim procedure in s 104B, the compensation provisions in s 98C, and the terms of s 91(7) contemplate that only one impairment assessment is to be made; a whole person impairment assessment in respect of all injuries. The only compensation calculation authorised by s 98C in combination with s 104B and 91(7) is a calculation for all injuries. Further, there is no statutory authorisation for undertaking an impairment assessment in respect of only some of the injuries, as the Medical Panel appears to have done in this case. The only part of the Medical Panel’s opinion that has any statutory significance is the whole person impairment assessment.
As to the comparison required by s 98E, the respondent submitted that the comparison is between the s 98C payment in respect of all injuries, on the one hand, and payments under s 98E in respect of total losses on the other hand. If the worker suffers two total loss injuries on the same occasion, then two sums would be payable under s 98E, and the required comparison would be between the total of those two s 98E amounts, on the one hand, and the s 98C payment in respect of all injuries on the other hand.
There are exceptions to this position, where a single event or circumstance may give rise to two payments: two payments under s 98C; or one payment under s 98C and one payment under s 98E. The example given was a worker who suffers a physical injury and loss of a foetus. Aside from such exceptional circumstances, a single event or circumstance will give rise to one compensation payment under s 98C or s 98E, but not both.
I note that psychiatric impairment and loss of foetus are not relevant in this case.
Consideration
Two points must be noted at the outset. First, the way in which Mr Nelson was in fact compensated did not leave any of his incapacities or impairments uncompensated. The compensation awarded, namely $21,356, was calculated on the basis of the Medical Panel’s assessment of 11% combined whole person impairment. The 11% whole person impairment figure took into account the total loss injury and the hand injury. The sum $21,356 therefore covered both the total loss injury and the hand injury. At times counsel for Mr Nelson seemed to submit that one of the injuries was not compensated. I reject those submissions.
Second, while counsel for Mr Nelson argued that the total loss injury and the hand injury should be treated as separate or multiple injuries rather than a single injury, the legislation does not support such a dichotomy. The terms of the legislation do not reveal a distinction between a ‘single injury’ and ‘separate injuries’/‘multiple injuries’. Instead, the legislation contemplates the following dichotomies:
(a) injuries arising out of the same event or circumstance, and injuries not arising out of the same event or circumstance;[13]
(b) injuries suffered on the same occasion, and injuries not suffered on the same occasion;[14] and
(c) injuries arising out of the same incident or occurring on the same date, and injuries not arising out of the same incident and not occurring on the same date.[15]
[13]See s 104B(5A), (5AA), (5AB).
[14]See s 98C(7).
[15]See s 91(7).
Accordingly, it is not helpful to describe the total loss injury and the hand injury as either a single injury or separate injuries. Characterisation as ‘single injury’ or ‘separate injuries’ does not answer the question in this appeal, namely whether ss 98C or 98E permits or requires separate assessment under s 98C of the total loss injury and the hand injury.
Cases
At the hearing the parties did not direct the Court to any authorities on the operation of ss 98C and 98E. However, the Court of Appeal in Victorian Work Cover Authority v Syrad (‘Syrad’)[16] provides a considered analysis of s 98C and related provisions.
[16][2004] VSCA 234.
In Syrad the worker had sustained acid burns to his scalp, face, left ear, left eye, right arm, chest, back, right leg, with subsequent scarring and disfigurement, and post traumatic psychological reaction. He had not sustained any total loss injuries. He sought compensation under s 98C. A plastic surgeon first reported that the worker’s whole person impairment was 85%. He later revised that figure to 54%. After taking into account the ophthalmologist’s report, which assessed the degree of visual impairment as 6% of the whole person, the plastic surgeon concluded that the total combined whole person impairment was 57%. Compensation under s 98C was calculated accordingly.
The worker claimed that compensation under s 98C should have been calculated in accordance with the plastic surgeon’s first report. The County Court and the Court of Appeal agreed.
Importantly for present purposes, the worker in Syrad had been examined by seven medical practitioners, each a specialist in his/her field. One of the experts provided a combined whole person impairment figure, which covered the various injuries arising from the acid explosion; a single event. Compensation under s 98C was not calculated in respect of each injury caused by the acid burns. Rather, a combined whole person impairment figure was reached, and a single sum of compensation was calculated.
Phillips JA, with whom Buchanan JA agreed, said:
…on this occasion there was more than one medical practitioner involved, each expressing an opinion within his own field of expertise: Mr Marshall, the plastic surgeon, and Dr Gale, the ophthalmologist. Each provided to the Authority, as requested by it, an assessment of the degree of impairment in relation to the claim under s 98C and at least Mr Marshall provided also a determination as mentioned in para (b) [total loss injury determination]. As to the degree of impairment relevant to the claim for compensation under s 98C, it was necessary, after each doctor had reported, to combine the assessments into “a total combined whole person impairment” according to the Combined Values Table in the Guides. That step was a necessary prerequisite to calculating compensation, as indeed [s 104B] subs (5B) appears to recognise. That subsection provides that where, as here, the worker suffers more than one injury in the same event, “all of those injuries must be included in the one assessment” — which is logical enough when the calculation of the compensation depends upon it. Because of s 91, it seems to follow from the context surrounding subs (5B) that that single and derivative assessment is to made by a medical practitioner, and hence no doubt the request by the Authority to Mr Marshall which led him to state, on 29 October, the “total combined whole person impairment”.[17]
[17]Ibid, [31]. (Emphasis added.)
Phillips JA also said that where several assessments have been obtained from different doctors, the Authority is required to inform the worker of the combined assessment and compensation entitlement under s 98C, and also the individual assessments underlying that end result.[18]
[18]Ibid, [32]. Byrne AJA agreed with this: ibid, [49].
Byrne AJA said:
In the case of a multiple disciplinary medical examination, where more than one medical practitioner is involved, each of the medical practitioners is required to report the extent of whole body impairment resulting from the impact of the injury or injuries upon the bodily organ or condition with which the practitioner is concerned. Each of these impairment ratings, as they are referred to in the AMA Guidelines, is expressed as a percentage of a total whole person impairment. These percentages are then combined into an overall whole person impairment estimate using the Combined Values Chart in the Guide. Although this last process appears to be an essentially mathematical function, it is the practice of the Authority to submit to one of the medical practitioners various impairment ratings provided by the several medical practitioners for them to be combined to produce the overall impairment assessment. This may be because there is some element of professional judgment involved in the performance of this task or because of the requirement of s 91(1)(b) that the assessment be made by an authorised medical practitioner. In terms of s 98C, it is clear that this overall impairment assessment is an “assessment”.[19]
[19]Ibid, [45].
His Honour noted that the use of ‘assessment’ and ‘assessments’ in s 104B results in difficulty in construction in cases where a claim under s 98C involves multiple injuries or a single injury affecting different bodily organs or functions.[20] However, in such a case, s 104B(5) contemplates one assessment; the overall impairment assessment.[21]
[20]Ibid, [47].
[21]Ibid, [48].
The Court of Appeal’s decision in Syrad supports the respondent’s argument that a single sum of compensation is to be calculated under s 98C in respect of the total loss injury and hand injury. In Syrad all the injuries arose from a single event, an acid explosion, and the whole person impairments caused by each injury were combined to reach a combined whole person impairment figure for the purposes of s 98C. None of the injuries were compensated individually under s 98C.
The respondent argued that the legislation does not authorise assessments of individual injuries arising out of the same event. I disagree. As was the case in Syrad, individual injuries may be assessed separately, but then those impairment assessments must be combined to reach a combined whole person impairment figure. Compensation under s 98C is calculated on the basis of this combined total figure, not the individual impairment assessments. Individual impairment assessments are possible under the ACA, but s 98C does not recognise those individual assessments when it comes to calculation of compensation.
Conclusion
The total loss injury and the hand injury arose out of the same event, incident or circumstance. They were suffered on the same occasion and date. They arose out of the crushing incident on 29 June 2009. Counsel for Mr Nelson did not argue that the total loss injury and the hand injury arose out of different events, incidents or circumstances. Nor did he argue that they were suffered on different occasions or dates. He did not point to any other event, incident, circumstance, occasion, or date on which one of the injuries was suffered.
Accordingly, by virtue of s 104B(5A), Mr Nelson was required to include the hand injury and the total loss injury in his claim for compensation under s 98C. The effect of s 104B(5AA) is that Mr Nelson was only entitled to make one claim for compensation under s 98C in respect of those injuries.
Section 104B(5B) requires that the determination of Mr Nelson’s degree of impairment take into account all impairments resulting from the hand injury and the total loss injury. Similarly, s 91(7)(a) requires that for the purposes of s 98C, impairments arising from the hand injury and total loss injury must be assessed together using the AMA Guides. This produces a combined whole person impairment figure.
Mr Nelson’s claim under s 98C must be calculated on the basis of the whole person impairment assessment conducted in accordance with ss 91 and 104B. That means compensation under s 98C must be calculated on the basis of the combined whole person impairment figure. This conclusion is supported by Syrad.
The Medical Panel in this case provided a combined whole person impairment figure of 11% in the certificate of opinion. Unhelpfully, the Medical Panel broke that figure down into percentages for the hand injury and the total loss injury in the reasons. I say unhelpfully because that break down has led Mr Nelson to argue for separate compensation calculations under s 98C. To assess compensation under s 98C for the 3% whole person impairment in respect of the total loss injury, and then assess compensation under s 98C for the 8% whole person impairment in respect of the hand injury, would be to contravene ss 104B(5AA), 104B(5B) and 91(7)(a). It would in effect be making two claims under s 98C for injuries arising out of the same event or circumstance. This is not allowed under s 104B(5AA). It would also in effect be disregarding the requirement in ss 104B(5B) and 91(7)(a) that impairments be assessed together to form a combined whole person impairment.
There is no exception to those sections applicable to total loss injuries. That is, there is no exception requiring or permitting impairments arising from total loss injuries to be assessed separately from impairments arising from non-total loss injuries. Sections 104B(5AA), 104B(5B) and 91(7)(a) do not discriminate between total loss injuries and non-total loss injuries for the purpose of s 98C. If a worker could separate the total loss injury from the others, there would be multiple claims under s 98C for injuries arising out of the same event or circumstance, a result not permitted by the ACA. It is true that s 98E discriminates between total loss injuries and non-total loss injuries for the purposes of calculation of compensation under s 98E, but that does not mean that ss 98C, 104B and 91 also discriminate between them for the purposes of calculation of compensation under s 98C.
Section 98C(11) does not advance Mr Nelson’s case. I accept the respondent’s submissions on the construction of s 98C(11). In this case there is no psychiatric impairment or loss of foetus, so the ‘or both’ in s 98C(11) is not relevant.
The correct whole person impairment figure for the calculation of compensation under s 98C was therefore 11%. Section 98E requires a comparison of the amount of compensation payable under s 98E and the ‘amount of compensation calculated under section 98C’. That means the amount calculated under s 98C, in accordance with s 98C, not some lesser figure that s 98C does not in fact produce. The amount duly calculated under s 98C is based on the combined whole person impairment of 11%. That is the amount with which s 98E requires comparison.
The effect of Mr Nelson’s argument is that s 98E(1) alters the way in which compensation is calculated under s 98C. Clear words would be required for s 98E to alter the way compensation is calculated under s 98C in circumstances where there is a total loss injury and a non-total loss injury. However, s 98E(1) does not state that for the purposes of the comparison it requires, compensation under s 98C is to be calculated in any way different to how it is usually calculated under s 98C. In my view, s 98E(1) does not affect the way in which compensation is calculated under s 98C.
I agree with the conclusion reached by Magistrate Maclean, and I dismiss the appeal.
I will hear the parties on costs.
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