Ottomen Pty Ltd ATF Labour ADM t/as Otto Design Interiors v Lee-Chee - [2013] NSWWCCPD 42

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Ottomen Pty Ltd ATF Labour ADM t/as Otto Design Interiors v Lee-Chee [2013] NSWWCCPD 42
APPELLANT:	Ottomen Pty Ltd ATF Labour ADM t/as Otto Design Interiors
RESPONDENT:	Serge Ah-Lam Lee-Chee
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-11763/12
ARBITRATOR:	Mr M Douglas
DATE OF ARBITRATOR’S DECISION:	7 May 2013
DATE OF APPEAL DECISION:	14 August 2013
SUBJECT MATTER OF DECISION:	When is a claim for permanent impairment compensation “made”; savings and transitional provisions; cl 15 of Div 3 of Pt 19H of Sch 6 to the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Gillis Delaney
Respondent:	Whitelaw McDonald
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 7 May 2013 is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

As a result of amendments to s 66 of the Workers Compensation Act 1987 (the 1987 Act) made by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), a worker who receives an injury that results in a degree of permanent impairment of 10 per cent or less has no entitlement to lump sum compensation for that impairment. The amendment, which was passed by Parliament on 22 June 2012, and received Royal assent on 27 June 2012, “extends to a claim for compensation made on or after 19 June 2012, but not to such a claim before that date”.
This appeal concerns when the worker made a claim for permanent impairment compensation for a nine per cent whole person impairment due to a hearing loss injury. If he made his claim when his solicitor mailed it to the employer on 18 June 2012, as contended by the worker, and found by the Arbitrator, he is entitled to have his claim assessed under the 1987 Act as in force prior to the amendment.
If he made his claim when the employer received the letter on or after 19 June 2012, as contended by the employer, his entitlement to permanent impairment compensation must be determined under the new provisions and, as his impairment is under the s 66 threshold, he has no entitlement to permanent impairment compensation.

BACKGROUND

The facts are not in dispute. The worker, Mr Lee-Chee, works for the appellant employer, Ottomen Pty Ltd ATF Labour ADM t/as Otto Design Interiors (the appellant). He has suffered an injury in the nature of a loss of hearing of such a nature as to be caused by a gradual process under s 17 of the 1987 Act. There is no dispute that his employment with the appellant was employment to the nature of which the injury was due.
On 1 May 2012, Dr Scoppa, ear, nose and throat physician, examined Mr Lee-Chee and assessed him to have binaural hearing impairment of 18 per cent, which equates to a whole person impairment of nine per cent. Dr Scoppa reported his findings to Mr Lee-Chee’s solicitors on 5 May 2012.
By letter dated 18 June 2012, Mr Lee-Chee’s solicitors forwarded to the appellant, by ordinary pre-paid post, a notice of injury, a WorkCover permanent impairment claim form, Dr Scoppa’s medical report, and a quote for the cost of hearing aids. The letter, which, for convenience, I will refer to as “the letter of claim”, advised the appellant that:
“[Mr Lee-Chee] claims pursuant to the Workplace Injury Management Act 1988 [sic] and we put you on notice that we will commence proceedings under the time limits prescribed by this Act:
1.Deemed date of injury – 18 June 2012;
2.Section 66 lump sum of $12,335.00 in respect of a nine per cent whole person impairment;
3.Section 60 expenses – digital hearing aids in the sum of $5,210.00;
4.Costs and disbursements;
5.Or such further orders as the Commission deems appropriate.”
On 25 June 2012, the appellant wrote to Mr Lee-Chee’s solicitors acknowledging receipt of the letter of claim. (Before the Arbitrator, the appellant’s counsel conceded that his client had received the letter on 19 June 2012.)
On 27 July 2012, the appellant’s insurer wrote to Mr Lee-Chee’s solicitors advising that it would be making a “nil offer” because the 2012 amending Act had received assent and compensation was no longer payable under s 66 of the 1987 Act for any impairment of 10 per cent whole person impairment or less.
On 3 September 2012, the insurer issued a s 74 notice disputing liability on the ground that Mr Lee-Chee had not made a claim for permanent impairment compensation until on or after 19 June 2012 and, as Dr Scoppa had assessed the degree of permanent impairment from the injury to be nine per cent, Mr Lee-Chee had no entitlement to such compensation.
After a contested arbitration hearing, Arbitrator Douglas determined on 7 May 2013 that Mr Lee-Chee made his claim for permanent impairment compensation when his solicitor posted the letter of claim on 18 June 2012. The Commission issued a Certificate of Determination on 7 May 2013 in the following terms:
“1. That the matter be remitted to the Registrar for the purpose of referring the following medical disputes for assessment by an Approved Medical Specialist:
(a)Whether the provision to applicant and the fitting of two resound micro OTE wireless (AL761-DRW) hearing instruments is reasonably necessary as a result of the applicant’s injury of hearing loss;
(b)The degree of permanent impairment of the applicant as a result of the applicant’s injury of hearing loss deemed to have happened on 18 June 2012;
(c)Whether any portion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion;
(d)The nature and extent of loss of hearing suffered by the applicant;
(e)Whether the applicant’s impairment is permanent, and
(f)Whether the degree of permanent impairment of the applicant is fully ascertainable.”
The appellant has appealed the Arbitrator’s decision that Mr Lee-Chee made a claim for permanent impairment compensation on 18 June 2012.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the appellant that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred:
(a)     in finding that a claim forwarded by Mr Lee-Chee’s solicitors by post on 18 June 2012 and received by the appellant on 19 June 2012 had been made on 18 June 2012;
(b)     in failing to follow Watts v Vickers, Lim [1917] L.J.K.B. 177 (Watts);
(c)     in considering the WorkCover Guidelines generally, the Arbitrator failed to have regard to the distinction contained within the Guidelines between a claim being served, a claim being received and a claim being made;
(d)     in failing to have due regard to the relationship between the amending legislation and the Guidelines;
(e)     in considering retrospectivity, the Arbitrator erred in applying the rule too broadly and in failing to have regard to its proper context;
(f)      in considering the beneficial nature of the legislation as being relevant where the purpose of the amendment was to limit workers’ entitlements;
(g)     in looking beyond Watts, and
(h)     in failing to have regard to the Arbitrators’ decisions in Pietrobon v Alliance Marketing Corporation Pty Ltd [2013] NSWWCC 11 (Pietrobon) and Hobson v Port Waratah Coal Services Ltd [2013] NSWWCC 145 (Hobson).
I propose to set out the relevant legislation and Guidelines and then, essentially following the appellant’s submissions (though no headings were used in those submissions), deal with the above issues under the following headings: Watts, the Guidelines, retrospectivity and statutory interpretation, beneficial legislation, and Pietrobon and Hobson.

LEGISLATION AND GUIDELINES

On 27 June 2012, the 2012 amending Act received Royal assent, and the amendments introduced by Sch 2 (relating to permanent impairment compensation) commenced on that date. The 2012 amending Act includes the following relevant savings and transitional provision: cls 3 and 15 of Pt 19H of Sch 6 to the 1987 Act provide:
“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.”
“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 before that date.”
Prior to the amendments introduced by the 2012 amending Act, s 66(1) of the 1987 Act read as follows:
“A worker who receives an injury that results in permanent impairment 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.”
As a result of the amendments, s 66(1) now provides:
“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.”
The provisions dealing with the manner of making a claim for compensation have a long history. For the present appeal, it is convenient to start with s 92 of the 1987 Act, as it was in its original form, though it was extensively amended before its repeal in 1998. It provided:
“92 Making a claim for compensation
(1)     A claim for compensation shall be –
(a)in writing;
(b)in such form as may be prescribed by the regulations or approved by the Board;
(c)accompanied by such medical certificates or other documents as may be prescribed by the regulations; and
(d)made in such manner as may be prescribed by the regulations.
(2)   Compensation may not be recovered under this Act unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months of the date of death.
(3)   If a claim for compensation and a medical certificate or other document are not given or served at the same time, the claim for compensation shall be deemed not to have been made until the day on which the remaining document is given or served.
(4)   The failure to make a claim in accordance with subsection (1) or within the period referred to in subsection (2) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause.”
The reference to “the regulations” in s 92(1)(b) was a reference to the Workers Compensation (General) Regulation 1987, which provided for service of a claim in terms that were later substantially incorporated into s 92A of the 1987 Act, which was introduced by the Workers Compensation (Benefits) Amendment Act 1989. Section 92A provided:
“92A Manner of making claim for compensation
(1)     The manner of making a claim for compensation is by serving the claim on the employer from whom the compensation is claimed.
(2)     If there is more than one employer, a claim for compensation may be made by serving the claim on any one of those employers.
(3)     A claim for compensation may be made by serving the claim on an insurer who has indemnified the employer in respect of the claim if:
(a)the person making the claim has reason to believe that the employer may not forward the claim to the insurer in accordance with section 93(1)(a); or
(b)the employer has refused to receive the claim; or
(c)the person making the claim cannot identify or find the employer; or
(d)the employer (being a natural person) is dead; or
(e)the employer (being a corporation) has been wound up.
(4)     For the purposes of this clause, a claim for compensation is served on a person if:
(a)it is given personally to the person; or
(b)it is delivered or sent by post to the residence or any place of business of the person; or
(c)it is served in any other manner authorised by sections 528, 529 and 530 of the Companies (New South Wales) Code.”
Sections 92 and 92A were repealed by the Workers Compensation Legislation Amendment Act 1998, which also inserted ss 65 and 66 in the 1998 Act. Sections 65 and 66 remain current, but only deal with claims made before 1 January 2002 (s 60A of the 1998 Act). They provide:
“65    Making a claim for compensation
(1)     A claim for compensation must be:
(a)in writing, and
(b)in such form or contain such information as may be prescribed by the regulations or approved by the Authority, and
(c)in the case of a claim for weekly payments of compensation-accompanied by a medical certificate that is in or to the effect of the approved form, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in the determination of the claim, and
(d)accompanied by such additional medical certificates or other documents as may be prescribed by the regulations, and
(e)made in the manner prescribed by section 66.
…”
“66    Manner of making claim for compensation
(1)     The manner of making a claim for compensation is by serving the claim on the employer from whom the compensation is claimed.
(2)     A claim for compensation may be made by serving the claim on an insurer who has indemnified the employer in respect of the claim if:
(a)the person making the claim has reason to believe that the employer may not forward the claim to the insurer in accordance with section 69 (1) (a), or
(b)the employer has refused to receive the claim, or
(c)the person making the claim cannot identify or find the employer, or
(d)the employer (being a natural person) is dead, or
(e)the employer (being a corporation) has been wound up.
…
(3)     For the purposes of this section, a claim for compensation is served on a person if:
(a)it is given personally to the person, or
(b)it is delivered or sent by post to the residence or any place of business of the person, or
(c)it is served in any other manner authorised by sections 109X and 601CX of the Corporations Act 2001 of the Commonwealth.”
The applicable provisions relating to making claims after 1 January 2002 are those in Ch 7 of the 1998 Act, which is headed “New Claims Procedures”. This Chapter commenced on 1 January 2002, having been introduced by the Workers Compensation Legislation Amendment Act 2001. Division 1 of Pt 2 of Ch 7 relates to “Notice of Injury”. Division 2 of Pt 2 of Ch 7 is headed “Making a Claim for Compensation or Damages”. Section 260 of Div 2 of Pt 2 provides:
“260 How a claim is made
(1)     A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines.
(2)     The WorkCover Guidelines may make provision for or with respect to the following matters in connection with the making of a claim:
(a)the form in which a claim is to be made,
(b)the manner in which a claim is to be made,
(c)the means by which a claim may be made,
(d)the information that a claim is to contain,
(e)requiring specified documents and other material to accompany or form part of a claim,
(f)such other matters as may be prescribed by the regulations.
…
(4)     The WorkCover Guidelines can also provide for any of the following matters in connection with the making of a claim:
(a)waiving the requirement for the making of a claim in specified cases (such as cases in which notice of injury has been given or provisional weekly payments of compensation have commenced),
(b)providing for the time at which a claim is taken to have been made in any case in which the requirement for the making of a claim has been waived,
(c)providing for the time when a claim is taken to have been made in a case in which requirements of the Guidelines with respect to the making of the claim have been complied with at different times.
...”
An employer who receives a claim or any other documentation in respect of a claim must, within seven days after receiving the claim or documentation, forward it to the employer’s insurer (s 264).
Part 3 of Ch 7 is headed “Dealing With Claims”. Divisions 1 and 2 of Pt 3 have special provisions for the commencement of weekly payments after the initial notification of injury and are not directly relevant to the current claim for permanent impairment compensation. Within 21-days “after a claim for weekly compensation payments is made” the person on whom the claim is made must determine the claim by accepting liability and commencing weekly payments or disputing liability (s 274(1)). Similar provisions apply to claims for medical expenses in Div 3 (s 279(1)).
Division 4 of Pt 3 of Ch 7 is headed “Claims for Lump Sum Compensation and Work Injury Damages Claims”. The person on whom a claim for permanent impairment compensation or work injury damages is made must, within certain time limits, determine the claim by accepting liability and making a reasonable offer of settlement, or disputing the claim (s 281(1)). The claim must be determined within one month after the degree of permanent impairment first becomes fully ascertainable, or within two months after the claimant has provided the insurer with all “relevant particulars about the claim” (s 281(2)). The phrase “relevant particulars about the claim” is defined in s 282.
A person who fails to determine a claim for compensation as and when required by Pt 3 is guilty of an offence, unless the person has a reasonable excuse for the failure (s 283(1)).
The applicable WorkCover Guidelines referred to in s 260 were, at the time of this claim, the WorkCover Guidelines for Claiming Workers Compensation Benefits (the Guidelines) issued by the WorkCover Authority of NSW on 13 March 2012 and made under s 376(1) of the 1998 Act. Part 5 of the Guidelines dealt with claims for permanent impairment compensation, where the injury occurred after 1 January 2002 and where no prior claim for any other compensation had been made with respect to the injury. Relevantly, it provided:
“Part 5 MAKING AND HANDLING A CLAIM FOR PERMANENT IMPAIRMENT COMPENSATION (PERMANENT IMPAIRMENT AND PAIN AND SUFFERING)
To be eligible for permanent impairment compensation under section 66 of the 1987 Act a worker must have sustained an injury, as defined in section 4 of the 1998 Act that resulted in permanent impairment.
1.      Minimum Information Required for a Worker to Initiate a Claim
If a claim is already in progress for the injury and the insurer has sufficient information regarding the injury sustained and is satisfied that the injury has resulted in permanent impairment and that it has reached maximum medical improvement, then the permanent impairment claim form is not required. If this claim proceeds as a dispute to the Workers Compensation Commission, a claim form is not to be required.
A permanent impairment claim form is required if a worker is initiating a claim for permanent impairment and pain and suffering (if applicable) related to an injury and has not previously made a claim in respect of the injury or if the insurer does not have sufficient information about the injury for which the claim is being made.
2.      Relevant Particulars about a Claim. (Refer to section 282 of the 1998 Act).
The claim must include relevant particulars about the claim.
2.1For injuries pre 1 January 2002:
…
2.2     For injuries from 1 January 2002:
•the injury received, as identified in claim for workers compensation. If no claim for compensation has been made, it will be necessary to separately make such a claim
• all impairments arising from the injury
• whether the condition has reached maximum medical improvement
• the amount of whole person impairment assessed in accordance with the WorkCover Guides for the evaluation of permanent impairment
• a medical report completed in accordance with the WorkCover Guides for the evaluation of permanent impairment by a medical specialist with qualifications and training relevant to the body system being assessed who has been trained in the WorkCover Guides
• if there is more than one impairment that requires assessment by different medical specialists, one specialist must be nominated as lead assessor and determine the final amount of whole person impairment
• if the claim is for permanent impairment of hearing, a copy of the audiogram used by the medical specialist in preparing the report that accompanies the claim.
3.      …

4. Employer Action on Receipt of a Claim for Permanent Impairment

Within 7 days after an employer receives a claim, the employer must send the claim to the insurer responsible for covering the worker for compensation. From then on, if the insurer requests more information, the employer must respond within 7 days of receiving the request with all information that is reasonably obtainable. The employer must also forward to the insurer within 7 days of receipt any documentation the employer receives in respect of the claim. Reference section 264 (1) and (2) of the 1998 Act.
Failure by the employer to forward the information to the insurer within 7 days, where the information is in the employer’s possession or reasonably obtainable, renders the employer liable for prosecution under section 264 (1) of the 1998 Act.
5. Insurer Action on Receipt of a Claim for Permanent Impairment
Reference section 281 of the 1998 Act.

When an insurer receives a claim for permanent impairment the insurer must determine the claim by the latest date of either:
(a) within 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by an approved medical specialist; or
(b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim
For (a) above, ‘fully ascertainable as agreed by the parties’ means that

•the claimant has reached maximum medical improvement
•the medical report has been prepared by a WorkCover trained assessor of permanent impairment in accordance with the WorkCover Guides for the evaluation of permanent impairment
•the medical report has been provided to the insurer
•the level of permanent impairment (as per the medical report) is agreed by the insurer.

Claim to be determined within 1 month from the receipt of the report. For (b) above the following applies:
•If the insurer considers the report is not in accordance with the WorkCover Guides the insurer advises the injured worker within 2 weeks of receipt of the claim that further information is required and seeks clarification from the author, with a copy of the request sent to the injured worker’s legal representative. If the required information is not forthcoming within 10 working days the insurer arranges an independent medical examination.
•The insurer will determine the worker’s entitlements and advise the worker within 2 months from the date of the examination of the worker or within 1 month of receiving that report, whichever is the earlier.

Referrals for an independent medical examination are only to be made when one or more of the questions outlined in “reasons for referral” on page 5 of the Guidelines on Independent Medical Examinations and Reports are sought.
The offer of payment to the injured worker must be in accordance with a properly completed report by a trained assessor of permanent impairment. If there is more than one way to assess the level of impairment the more beneficial result is to be chosen. (See paragraph 3.5 in the WorkCover Guides for the evaluation of permanent impairment).
When an offer is made it should be accompanied by the medical report on which this offer is based, see also Clause 8 in relation to a “complying agreement”.
If the claim is served on the insurer, the insurer must notify the employer that a claim has been made within 2 working days.
If the insurer cannot find a current policy that covers a claim within 7 days after the claim is made, then the insurer is to either:
•contact the employer, and the person who made the claim, and request more information in order to identify the policy. If the policy still cannot be identified, then the insurer is to inform the employer and the person who made the claim that the insurer is not the current insurer. The insurer must then refer the claim to WorkCover’s Claims Assistance Service; or
•pass the claim to the current insurer, if the identity of the current insurer can be determined and notify the worker in writing.

…”

SUBMISSIONS, DISCUSSION AND FINDINGS

Watts

Counsel for the appellant, Mr Callaway, submitted that the Arbitrator erred in not following Watts. That case concerned s 2 of Ch 58 of the Workmen’s Compensation Act 1906, which provided that proceedings for the recovery of compensation under the Act shall not be maintainable unless, among other things, “the claim for compensation … has been made within six months from the occurrence of the accident causing the injury”.
Mrs Watts received injuries at work on 15, 16 and 18 September 1915. The employer acknowledged that it received a notice of claim for compensation on 22 March 1916, but refused to accept it on the ground that it was not made within six months of the accident. Mrs Watts alleged that she posted a notice of claim to her employer on 29 December 1915, which the employer denied having received.
The County Court Judge accepted that Mrs Watts posted the letter on 29 December 1915 and held that that was a good notice of claim within six months. He also held that she had acted reasonably in not making a claim earlier, hoping to get better and return to work. The second finding was immaterial, if the claim was made on 29 December 1915.
Warrington LJ said (at 181) that the Act rendered “the making of a claim a condition of the maintenance of proceedings for recovery of compensation”. In answer to the question of whether the judge’s award could be supported, Warrington LJ said, at 181-182:
“I think there can be no question that a claim cannot be said to be made unless it is communicated to the employers. In the present case the claim, being in the form of a letter, is not ‘made’ unless the letter is delivered. There is a presumption that if a letter properly addressed is posted it is delivered to the addressee. In the present case there is a distinct finding that the letter in question was posted; and I think that, owing to the course taken at the hearing, it must be assumed to have been sufficiently addressed, and if received by the addressee to have been a claim on the employers. But the presumption is one capable of being rebutted, and evidence was called by the employers with that intent. If the Judge has found as a fact that the claim was delivered to the employers, notwithstanding this evidence, then I think the award would be unassailable in this Court. The question is whether he has so found.” (emphasis added)
Warrington LJ then found that, on the whole, the judge’s conclusion was that, though the letter did not reach the proper department, it did reach the employer and was there lost or neglected. Accordingly, the presumption arising from posting had not been rebutted and he dismissed the appeal. In other words, the trial judge having found that the claim had been received, the claim had been made within time.
Scrutton LJ, dissenting in the result, said (at 183) that the claim failed if the letter was not received, but succeeded if it was received. This implies that his Lordship agreed with Warrington LJ that a claim cannot be made unless it is communicated to the employer. After reviewing the judge’s reasons, which were inconsistent, Scrutton LJ would have upheld the appeal and remitted the matter for trial to another judge.
Lord Cozens-Hardy MR also referred to inconsistencies in the first instance decision and, though he thought that the trial was not satisfactory, having regard to the small amount involved, he held that the employers had not established that the award ought be set aside, but expressed no view on the issue of when a claim is made.
Mr Callaway submitted that, though Watts is an English decision, and relates to different legislation, the principle is essentially the same and cannot properly be distinguished. In the absence of competing authority, he submitted that the Commission should regard Watts as so persuasive as to be binding (Gaydon v Public Transport Commission of New South Wales [1976] 2 NSWLR 44 at 59 (Gaydon); Bassell v McGuiness [1982] 29 SASR 508 (Bassell)). He added that, unless it is “convinced that the interpretation is plainly wrong” (Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [134]–[135] (Farah Constructions)) the Commission should consider itself bound by Watts.
In Gaydon, Hutley JA observed that, if there is no inconsistent decision of the High Court or Privy Council, the NSW Court of Appeal must proceed on the basis that a decision of the Court of Appeal in England has to be shown to be wrong, if the NSW Court of Appeal is not to follow it. However, when there is an apparent conflict between the High Court and the Court of Appeal in England the full effect of the High Court decision should not be cut down to enable it to be reconciled with decision of the Court of Appeal in England.
Mahoney JA referred to a statement by Barwick CJ in Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 49 ALJR 302 at 305 that, in the absence of a relevant decision of the High Court, “the Supreme Court on appeal would be well advised as a general rule” to follow the decisions of the English Court.
Mr Callaway’s reliance on Gaydon and Bassell is misplaced as more recent High Court authority has superseded the statements in those cases. In Cook v Cook (1986) 162 CLR 376 Mason, Wilson, Deane and Dawson JJ said, at 390, that Australian courts will continue to obtain “assistance and guidance from the learning and reasoning of United Kingdom courts”. However, subject perhaps to the special position of decisions of the House of Lords given when appeals lay from Australia to the Privy Council, “the precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning”.
Farah Constructions provides the appellant with no assistance and does not support the proposition advanced by Mr Callaway. The High Court stated (at [135]) that intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction “on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong”. No such question arises in the matter before me because there is no relevant decision of an intermediate appellate court on “uniform national legislation”.
Mr Lee-Chee’s solicitor, Mr Bechelli, submitted that Watts concerned a different statutory scheme and, in any event, as the Arbitrator observed, Warrington LJ’s comments were obiter dicta.
The Arbitrator did not err in not following the observations by Warrington LJ in Watts as to when a claim is made. He was not bound to do so. Though the observations were a clear and direct statement of general principle, and therefore entitled to careful consideration, the case turned on the trial judge’s finding that the employer had received the letter of 29 December 1915 within the relevant six-month period. Therefore, the statements relied on by Mr Callaway were obiter dicta and not binding, regardless of whether there is any subsequent Australian authority on the issue and regardless of the status of English Court of Appeal decisions in Australia.
In any event, the provision with which Watts was concerned was similar to s 261(1) of the 1998 Act, which provides that “[c]ompensation cannot be recovered unless a claim for compensation has been made within 6 months after the injury or accident happened”. However, the present appeal does not concern s 261, which has detailed provisions dealing with the failure to make a claim within the period required, but concerns cl 15 of the savings and transitional provisions in Sch 6 of the 1987 Act. Clause 15 determines when workers, who have suffered injuries before 19 June 2012, and are claiming permanent impairment compensation as a result of those injuries, come under the amendments introduced by the 2012 amending Act. That is a different question, in a substantially different statutory context, to the question considered in Watts.

The Guidelines

Mr Callaway referred to the following passages in cl 5 of Pt 2 of the Guidelines:
“5. Insurer Actions when Served with a Claim
Once the insurer receives the claim for weekly compensation or medical compensation benefits, they are responsible for gathering further information from all relevant sources to enable the claim to be determined within 21 days, unless one of the following reasons for not determining the claim applies:
•…
•deficient claim, ie within 7 days after the insurer received the claim, the insurer has notified the worker in writing that the claim contains an error that is material, ie not obvious or typographical and how to correct that deficiency. This could include –
•worker has failed or refuses to sign the declaration form
•no medical certificate received (where weekly compensation payments are claimed).
The worker may correct the error at any time. When the error is corrected, the claim is then made and the insurer must determine it within 21 days of the correction being notified to them.
The insurer is also to notify the employer within 7 days that a claim has been made by their worker.”
He submitted that it was clear from the Guidelines, at least in respect of claims for weekly payments and medical expenses, “that receipt is the minimum prerequisite before a claim can be regarded as having been made”. He added that, given the expression used in cl 15 (“claim is made”), there is no basis to interpret a claim for lump sums differently.
I do not accept these submissions. Clause 5 of Pt 2 expressly applied to claims for weekly compensation, not to claims for permanent impairment compensation. The Guidelines for claims for permanent compensation are in quite different terms and, contrary to Mr Callaway’s submission, there is no reason to suggest that cl 5 of Pt 2 applies to such claims, which are dealt with (in detail) in Pt 5. It clearly does not. In any event, if it does apply, it does not lead to the conclusion urged by Mr Callaway.
The legislation places specific obligations on the person on whom a claim for weekly compensation has been made (s 274(1)). Section 283 makes the failure to comply with s 274 an offence. In these circumstances, it is understandable that, where a claim for weekly compensation is deficient, and the worker can correct that deficiency at any time, the 21-day period in s 274 runs from the time the error is corrected and not from when the claim was first made. That does not mean that the worker has not made a claim until the deficiency is corrected. Section 260 clearly envisages that a claim may not be made as required by the Guidelines and may yet constitute a “claim” (Tan v National Australia Bank Ltd [2008] NSWCA 198; 6 DDCR 363 (Tan) per Basten JA (Bell JA agreeing) at [38]).
Part 5 of the Guidelines deals with the making of claims for lump sum compensation and its detailed provisions (see [27] above) make no direct or indirect comment about when a claim has been “made” or how it is to be served.

Retrospectivity and statutory interpretation

Mr Callaway submitted that, in considering retrospectivity, the Arbitrator erred in “applying the rule to [sic] broadly and failed to have regard to the nature and context of the amendment in this case”. He said that the amendment is clearly expressed to be retroactive.
In interpreting cl 15, the Arbitrator had regard to the text used, the context of the legislation as a whole and its history (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355). He also observed that the provision of a statute being interpreted must be construed so that “it is consistent with the language and purpose of all the provisions of the statute” and that, on a prima facie basis, the provisions “are intended to give effect to harmonious goals” (Nau v Kemp & Associates [2010] NSWCA 164 at [22]).
Dealing with the history of the legislation, the Arbitrator noted that s 92A of the 1987 Act (see [20] above) expressly prescribed the manner and means by which a worker had to make a claim for compensation. It provided for service on an employer as part of the claim making process. He added that s 92A(4) also provided a process, when read with the Interpretation Act 1987 (NSW) (the Interpretation Act), to calculate the time at which a claim was made. If the claim was served personally, the claim was made at the time of service. If it was served by post, it was made on the fourth working day after posting (s 76 of the Interpretation Act). If service was effected in a manner authorised by the now repealed Companies (New South Wales) Code, the claim was made at the time it was delivered to the employer’s registered or principal office, or, if posted, four days after it was posted.
Section 66 of the 1998 Act applies to claims made before 1 January 2002 (see [21] above) and is in substantially the same terms as s 92A. Section 66(1) provides that a claim could be made by serving it on the employer from whom compensation was claimed. In some circumstances, the claim could be served on an insurer (s 66(2)). Section 66(3) is in the same terms, and performed the same function, as s 92A(4). Dealing with s 92A(4), Davies AJA (Priestley JA agreeing) held in Macrae v St Margaret’s Hospital (1999) 19 NSWCCR 1 (Macrae) that substantial compliance with the requirement for service by post in s 92A(4) was sufficient.
The Arbitrator correctly observed that neither the current legislation, nor the applicable Guidelines, make or made any provision “stipulating the method by which a worker is to send or communicate or bring to the attention of the employer or the insurer the claim form, documents and information comprising the worker’s claim” ([37]). In other words, there is now no equivalent of s 92A or s 66. For claims made after 1 January 2002, s 260 applies. That section provides that a claim “must be made in accordance with the applicable requirements of the WorkCover Guidelines”. The Guidelines are silent on the need for service of a claim for permanent impairment compensation before a claim can be made.
The Arbitrator then considered (at [39]) the context of the legislation, which includes Ch 7 of the 1998 Act which “governs, in a complex array of provisions, the processes by which workers are to access their entitlements following a work place injury” (Wattyl Australia Pty Ltd v McArthur [2008] NSWCA 326 per Beazley JA at [84]). He added, at [39]:
“In short, the provisions within the chapter, together with the Guidelines, set up the machinery whereby a worker with an entitlement to compensation conferred under the 1987 Act is able to realise the entitlement. The enabling of a worker to realise an entitlement to compensation or work injury damages is the cardinal purpose of this chapter, and indeed one of the fundamental elements of the legislation as a whole.”
In respect of the last sentence in the above passage, Mr Callaway submitted that the Arbitrator overlooked “that limitations, constraints and restrictions are fundamental to the legislation and the amending legislation has a specific purpose in that regard”.
I do not accept this submission, which has failed to address the matter the Arbitrator dealt with at [39], namely, the context of the legislation. It is undoubtedly true that legislation may impose limitations and constraints. However, if those limits are applied retrospectively, in a way that eliminates accrued rights, then clear language must be used. The issue in the present case is when do the limits and constraints imposed by cl 15 commence. Mr Callaway’s submission did not address the Arbitrator’s reasoning and did not advance the appellant’s position.
I agree with the Arbitrator’s statement that the key purpose of Ch 7 is to allow workers to realise an entitlement to compensation or work injury damages. The Arbitrator added (at [40]) that it is not critical to the achievement of this purpose that an employer comply with the times in ss 271(1), 274(1) and 281(1). I agree. Those sections deal with steps an employer (or insurer) must take after it has received the claim. They do not determine, for the purposes of cl 15, when the claim has been “made”.

The Arbitrator said (at [41]) that the Guidelines did not stipulate the time at which a worker’s claim is made, or provide a method by which the timing could be reckoned. He said (at [42]) that a textual analysis of cl 15 did not elucidate whether a claim for compensation is made at the time a worker has complied with the Guidelines and sent the claim to the employer, or at the time the employer receives it. Nor did he think the ambiguity in the meaning of the clause was made clear from the context of the legislation. I agree with these observations.
He observed (at [46]) that the right to permanent impairment compensation under s 66 is a significant statutory entitlement (Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355 per McColl JA at [77]) and that the repealing or limiting of that right requires clear and unambiguous language (Buck v Comcare [1996] FCA 1485; 66 FCR 359). He also referred to the decision of Spigelman CJ in Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 292; 74 NSWLR 257 where the Chief Justice said (at [69]) that retroactive statutes “are given retrospective application only to the extent necessitated by the clear intention of Parliament in the words of the statute”.
The Arbitrator concluded (at [52]) that the above authorities established that “a right conferred by statute on a person can subsequently only be taken away by the use of clear and unambiguous language”. This statement was clearly correct and I agree with it.
The right to permanent impairment compensation accrues at the time of the injury (Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318 at 327; TNT Australia Pty Ltd v Horne (1995) 36 NSWLR 630; 11 NSWCCR 497; Speirs v Industrial Relations Commission (NSW) [2011] NSWCA 206 at [85], 81 NSWLR 348). Dealing with these authorities, Basten JA (Bathurst CJ and Beazley P agreeing) observed in Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 at [32] that it followed that a “right” to compensation arises “at the date of injury, although quantification of the amount payable depended on agreement or an award of the Commission”.
Though it was not raised in parties’ submissions in this case, in a claim for permanent impairment compensation for an injury that is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, there will often be an issue as to when the injury was received. In Race v DTM Pty Ltd [2013] NSWWCC 238 (Race), the employer argued that there is no injury in such a case until the worker gives notice of injury under s 17(1) of the 1987 Act.
In rejecting that argument, Senior Arbitrator Snell applied the reasoning of Mahoney AP (Meagher JA agreeing) in Crisp v Chapman [1994] NSWCA 73; 10 NSWCCR 492 where his Honour held that it is wrong to treat s 15 or s 16 of the 1987 Act as creating liability for compensation. Each of those sections assumes that an injury has occurred and each provides the means of determining when the injury is deemed to have happened, by whom compensation is payable, and other ancillary matters. The Senior Arbitrator held that the same reasoning applies to s 17. I agree.
Mr Callaway submitted that Parliament has expressed, in the language used in cl 15, a clear intention that workers who made a claim on or after 19 June 2012 are to be caught by the new threshold provisions for permanent impairment compensation. This submission fails to address the uncertainty inherent in the expression “claim for compensation made on or after 19 June 2012” and really begs the critical question of when a claim is made.
The definitions of “claim” and “compensation” in the 1998 Act do not assist. A “claim” is defined in s 4 of the 1998 Act to mean “claim for compensation or work injury damages that a person has made or is entitled to make”. “Compensation” is defined to mean “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts”. There is no definition of when a claim is “made”.
It follows that, given the ambiguous language in cl 15, the context of the legislation as a whole, and the fact that the clause has the effect of removing an accrued right, it was open to the Arbitrator to interpret the clause in the manner he did and he did not err in his approach to the retrospectivity issue or the question of statutory interpretation generally.
An analysis of the history of the legislation also supports this conclusion. The legislature has replaced the requirement that a claim be made by service on the employer (and, in some cases, on the insurer) with a requirement that claims must be made “in accordance with the applicable requirements” of the Guidelines. With regard to claims for permanent impairment compensation, the applicable Guidelines do not expressly require service of the claim on the employer or insurer. This points strongly to an intention by Parliament to remove the need for service on the employer before it can be said that a worker has made a claim.

Beneficial legislation

The Arbitrator also considered (at [55]) the beneficial nature of the 1987 Act and the 1998 Act. He said that, if ambiguous, a provision in the legislation relating to the realisation of a benefit must “be construed so as to give the fullest relief which the fair meaning of its language will allow” (Bull v Attorney-General (NSW) [1913] HCA 60; 17 CLR 370). He acknowledged, however, that entitlements under such legislation should not depend on “distinctions which are too nice” (Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751 at 765).
He concluded (at [56]) that the ambiguity in the meaning of cl 15, in terms of when a claim is “made”, had to be resolved in a way that protects workers’ entitlements. That is achieved by finding that a claim is made at the time when the worker has complied with the Guidelines and sent the claim form and necessary documents to the employer, not when those documents are received by the employer. He said that such an interpretation ensured that the provisions achieve “harmonious goals”.
Mr Callaway submitted “the beneficial nature of the legislation is irrelevant in this context because it is the amending act that must be interpreted and that Act specifically limits entitlement”.
The principle that beneficial legislation should be given a liberal construction does not entitle the Commission to give it a construction that is unreasonable or unnatural (per McColl JA in Amaca Pty Ltd v Cremer [2006] NSWCA 164, citing IW v City of Perth [1997] HCA 30; 191 CLR 1 (at 11–12) per Brennan CJ and McHugh J). However, the established principle is that, where two constructions are possible, that which is favourable to the worker should be preferred (Wilson v Wilson’s Tile Works Pty Ltd [1960] HCA 63; 104 CLR 328 at 335 per Fullagar J). The interpretation “must be restrained within the confines of the actual language employed and what is fairly open on the words used” (Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638).
While I think it was an overstatement to say that the clause had to be interpreted in a way that protects workers’ rights, the Arbitrator was entitled to have regard to the beneficial nature of the legislation. The Arbitrator was required to interpret cl 15 in its proper statutory context. That context includes the beneficial nature of the legislation overall, the history of the claims provisions in that legislation and that a right to permanent impairment compensation is a right that accrues at the time of the injury. Consistent with the authorities, he applied the accepted methods of statutory interpretation. Interpreting “made” as meaning the date on which the claim was posted was not an unreasonable or unnatural construction of the clause.
I agree with the Arbitrator’s general approach and his conclusion, which was open, within the confines of the language used in cl 15. If he erred in adopting a beneficial approach to the interpretation of the relevant provisions and in his reference to “harmonious goals”, I do not believe that error makes any difference to the outcome. Applying the accepted principles of statutory interpretation, I would arrive at the same conclusion.

Pietrobon and Hobson

Mr Callaway submitted that the Arbitrator should have followed Pietrobon and Hobson. In Pietrobon, the Arbitrator held, relying on s 76 of the Interpretation Act, that a claim for permanent impairment compensation posted to the employer on 18 June 2012 had not been duly made prior to 19 June 2012 and she struck out the Application to Resolve a Dispute.
However, as Arbitrator Douglas found, that section only applies where an Act or instrument requires a document to be served by post. In that situation, the service of the document is taken to have been effected on the fourth day after the letter was posted. As there is no provision in the legislation or the Guidelines that requires that a claim be “made” by post, the Arbitrator correctly concluded that s 76 does not apply.
In Hobson, the facts were similar to the present matter and the Arbitrator found that the claim was made when received by the employer on 19 June 2012. He said, at [14]:
“There are a number of rights and obligations for both parties set in train when a claim is made by a worker on an employer. These include actions with a set time-frame. The Acts, the Regulation, the Rules, and the Guidelines all pre-suppose the parties doing prescribed things after a claim is made. The inherent reality of these prescriptions is that both parties need to be aware of the claim. This is consistent with the assumption that a claim is made on receipt. That is, there must be, as put by the respondent, mutuality ‘between the worker and employer.’”
Other than quoting the above passage, and submitting that Arbitrator Douglas erred in not following Hobson, Mr Callaway made no submissions in support of the approach taken in that case.
Though parts of the legislation may be predicated on the assumption that the employer has received the claim that is not determinative of when, for the purposes of cl 15, a claim has been “made”. This issue was discussed at [56] above and nothing in Hobson undermines the conclusion reached in that paragraph.
The suggestion that there must be “mutuality” was unsupported by any reasoned argument. There is nothing in the text of cl 15, or the context of the legislation as a whole, to suggest there must be “mutuality ‘between the worker and employer’”, as the Arbitrator found. It is untenable to suggest that a claim cannot be “made” unless and until certain steps have been taken by both sides, if that is what was suggested.
Hobson also noted (at [11]) that the “concept of rights accruing to the claimant worker when the person claimed against remains unaware is an awkward one”. This point overlooks the critical point that rights to compensation accrue at the time of the injury (see the authorities noted at [60] above).
Dealing with Macrae, on which the respondent relied, the Arbitrator in Hobson correctly observed (at [13]) that Macrae was not “directly on the point at issue”. However, he added that “the overall context of the consideration of the matter involved the assumption that a claim at the time had to be ‘received’ at a proper address in order to be duly made” and he did not “discern any intended change to that assumption since Macrae”.
Regrettably, the Arbitrator was not taken to the legislative history of s 92A (though he was aware that that section had been repealed) and, while the “assumption” to which he referred may have been appropriate in Macrae, in light of the significant changes in the legislation since that decision, it is no longer appropriate.
For the reasons outlined earlier in this decision, in the context of cl 15, when read with the legislation as a whole, including the legislative history referred to above, the correct view is that Mr Lee-Chee made his claim on the date it was posted, that is, on 18 June 2012, and that Hobson is incorrect.

Race

As the decision of Race was delivered after the appellant lodged its appeal in the present matter, I directed the parties to file further submissions dealing with any matters arising from it thought to be relevant to Mr Lee-Chee’s matter.
In Race, Senior Arbitrator Snell held that the claim for permanent impairment compensation in that case was “made” when placed in the document exchange on 18 June 2012, though it was not received by the employer until 21 June 2012. So far as is relevant to the current appeal, in the course of his decision, the Senior Arbitrator said, at [21]:
“(c)   Section 282 of the 1998 Act provides for the provision of relevant particulars about a claim for permanent impairment compensation. Section 281(2) defers the running of time for the purpose of determining a claim until all relevant particulars about the claim are provided. It is implicit in section 281(2) that a claim can be made, notwithstanding that additional relevant particulars need to be supplied. These sections contemplate that a claim for permanent impairment compensation can be on foot, in circumstances where all relevant particulars have not been supplied, that is when an employer (or insurer) does not necessarily know the claim it has to meet, and when it is not yet required to determine the claim.
(d)     The material forwarded on 18 June 2012 satisfied the relevant requirements of Part 5 of the Guidelines. It followed that, in forwarding the claim and supporting material on 18 June 2012, the applicant had done all that was required of him to make the claim in compliance with the applicable requirements of the Guidelines (and accordingly in compliance with section 260 of the 1998 Act). The Acts and Guidelines did not impose some further requirement that a claim was not made until it was received by an employer or its insurer.
(e)     To construe the Acts and Guidelines as imposing a further requirement of this nature would have the capacity to produce capricious results. Two workers, who had taken precisely the same steps in compliance with the Acts and Guidelines to claim permanent impairment compensation, prior to 19 June 2012, could be treated differently depending on the vagaries of the postal service. A construction of the Acts that avoids such a result is more consistent with acting ‘according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms’: section 354(3) of the 1998 Act.
(f)     The Acts and Guidelines recognised a distinction between the making of a claim, and its receipt by an employer or insurer. The construction adopted is consistent with the structure of the Acts and Guidelines. It is consistent with the historical context in which Chapter 7 was inserted into the 1998 Act, replacing (for new claims) sections 65 and 66 (which did contain a specific requirement for service) with section 260 (which did not). It is consistent with the overall beneficial nature of the 1987 and 1998 Acts, read as a whole.”
He added, at [23]:
“If mail is forwarded by document exchange rather than through the post, it remains possible that mail forwarded at the same time will arrive on different dates. Factors such as when DX dispatch boxes were cleared, when mail was transported from one DX facility to another, how long it took to transport mail from one facility to another, and when (and how frequently) a recipient cleared its incoming mail all could potentially affect when delivery occurred. The point at (e) in my view remains pertinent. The point at (e) is not, in any event, determinative of the conclusion which I reached, although it is supportive of it.”
Mr Lee-Chee’s solicitor stated that he relied on the reasoning in Race.
In respect of [21(c)], Mr Callaway submitted that it does not follow that the claim is “made” notwithstanding outstanding particulars. He said that s 282 is silent on the question of whether a claim is made before it is fully particularised. He argued that “particulars cannot be requested until the claim has been communicated however quaere [sic] whether it has been made in terms required by the legislation even at that point” (emphasis included in the submission). Clause 5 of Pt 2 of the Guidelines would suggest that it has not.
I do not accept this submission. I have already dealt with cl 5 of Pt 2 at [45] and [46] above. Whether a claim has been “made”, notwithstanding that some particulars may be outstanding, depends on the context in which that question arises. As held by Basten JA in Tan, s 260 clearly envisages that a claim may constitute a “claim” though it has not been made as required by the Guidelines (see [47] above). Section 281 deals with when time, within which a claim must be determined, starts to run. It must be determined either within one month after the degree of permanent impairment first becomes ascertainable, or within two months after the claimant has provided to the insurer all “relevant particulars about the claim”, which phrase is defined in s 282.
There is no suggestion, in either the legislation or the Guidelines, that a claim has not been made if the claimant has not provided all relevant particulars. Each case will turn on its own facts and the nature of the alleged deficiency in the particulars. Given that s 281 does not define when a claim is made, I am comfortably satisfied that a claim can be “made” even though some particulars may be outstanding. The purpose of ss 281 and 282 is to enable claims for permanent impairment compensation to be resolved expeditiously, fairly and without unnecessary expense. To that end, workers must provide “relevant particulars” about the claim. In the present matter, Mr Lee-Chee’s solicitors provided those particulars in the letter of claim.
In respect of [21(d)], Mr Callaway submitted that it cannot be said a worker has necessarily “done all that was required of him to make the claim” (if he merely posts the letter of claim). He said the fact that “no threshold requirement is spelt out for a claim to be made does not mean that posting or delivery by DX is sufficient” (emphasis included in the submission). If, Mr Callaway submitted, by way of example, a recalcitrant mail clerk mislaid a letter after it left the solicitor’s office but before it was posted or placed in the document exchange, then it could not be said that the worker had done all that was required.
Mr Callaway submitted that it is only when received that the worker has done all that is required. Until that happens, the worker is obliged to ensure that the claim has made its way to the employer. He said that the question of when the worker has done all that is required is determined by when the claim is communicated (to the employer). Hand delivery would ensure communication. Postage may not ensure communication at all and will not ensure communication until it is received.
Because the Guidelines do not address the issue, Mr Callaway argued that it is not enough that a worker has done all that was required of him “in compliance with the applicable requirements of the [G]uidelines”. He said that “compliance with the legislation is what is required”. The claim must be “made” and for it to be made it must be communicated (to the employer) (Watts).
These submissions may have had some force if the legislature had replaced s 92A and s 66(3) with a similar provision. It did not. Therefore, there is no legislative (or other) requirement that the worker ensure that the employer has received the claim before it can be said that the worker has “made” a claim. It may be that certain time limits (such as in s 281) do not commence to run until the claim is received, but that does not mean that the claim has not been made when it is posted.
In respect of [21(e)] and [23], Mr Callaway submitted that no “further requirement” was contended for (by the appellant) before a claim could be made. He said that when a claim is made may be influenced by any number of factors, both before and after the relevant documentation is completed. He argued that the mode of delivery may produce different dates on which the claim is “made”, though the claims were sent on the same day, is of no significance and is a factor that is substantially within the control of the applicant. He said that modes of delivery may include by hand, post, courier, document exchange, facsimile or email. It is then a question of fact as to when the claim was received.

I do not accept these submissions. The suggestion that the appellant did not contend for a “further requirement” is incorrect. The appellant is seeking an interpretation that requires workers to prove the employer “received” the claim before 19 June 2012, or that it was “communicated” to the employer prior to that date. Such an additional requirement is not justified by the legislation or the Guidelines.
In the context of cl 15, where certainty and precision are critical to deciding if a worker’s accrued rights have been removed, a construction that provides that certainty is preferable to one that will leave the issue to be determined by the uncertainties of the particular method of communication used.
What if, for example, a claim was “made” by forwarding it to the employer by facsimile or email at 5.05 pm on 18 June 2012, when the office was closed. If the document was not read until the office re-opened on the morning of 19 June 2012 then, on the appellant’s approach, the claim would not have been “communicated” or “received”, and no claim “made”, until 19 June 2012. Such a result would be capricious and irrational and a meaning of the language used that produces such a result is to be avoided (Tickle Industries Pty Ltd v Hann [1974] HCA 5; 130 CLR 321 per Barwick CJ at 331).
In respect of [21(f)], Mr Callaway submitted that the distinction between “the making of a claim, and its receipt by an employer or insurer” does not assist because the wording of the subject provision does not refer to either event but rather to a claim having been made.
I do not accept this submission. The Senior Arbitrator was correct to note that the Act and Guidelines distinguished between the making of a claim, and its receipt by the employer. Notwithstanding that distinction, the legislature has not defined when a claim is “made”. In particular, it has not stated that a claim is made only when the employer has received it. In the historical context of the claims provisions, that omission is significant.
Moreover, as already noted, cl 15 is concerned with the removal of an accrued right from a certain date, determined by reference to when the claim was made. An interpretation that gives certainty (the date of posting), rather than the uncertainties that are inherent in the date of “receipt” or “communication” is to be preferred.

CONCLUSION

It follows that the Arbitrator did not err in finding that Mr Lee-Chee made his claim for permanent impairment compensation when his solicitor posted the letter of claim on 18 June 2012. This construction promotes certainty for the change to the new threshold in s 66 of the 1987 Act and avoids the potentially capricious result that would follow from the alternative method urged by the appellant. It is an interpretation that is fairly open on the words used, having regard to the inherent ambiguity of the clause. That is especially so having regard to the history of the legislation, in particular, the decision not to replace ss 92A(4) and 66(3).

DECISION

The Arbitrator’s determination of 7 May 2013 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche
Deputy President

14 August 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE