Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56
Hearing dates:
15 February 2021
Date of orders:
12 April 2021
Decision date:
12 April 2021
Before:
Macfarlan JA at [1]; McCallum JA at [28]; Simpson AJA at [35]
Decision:
(1) Grant leave to appeal.
(2) Direct that within 14 days Ms Ozcan file and serve a notice of appeal in the form provided to the Court.
(3) Set aside the orders made by Deputy President Wood in her determination of 21 April 2020.
(4) In lieu thereof, order that the respondent pay compensation to Ms Ozcan pursuant to s 66 of the Workers Compensation Act on the basis that she suffered a 15% whole person impairment as a result of injuries incurred on 14 November 2011.
(5) Order the respondent to pay Ms Ozcan’s costs of her application for leave to appeal and appeal.
Catchwords:
WORKERS COMPENSATION – compensation for non-economic loss – determining degree of permanent impairment – worker suffered injuries to shoulder and spine in an incident and suffered further injuries to spine in later incidents – whether WPI resulting from injuries should be aggregated – injuries from first incident materially contributed to injuries in later incidents – all injuries “resulted from” and “arose out of” first incident
WORKERS COMPENSATION – proceedings before Commission – appeal against decision of presidential member in point of law – whether presidential member erred in construing s 322(2) and (3) of Workplace Injury Management and Workers Compensation Act 1998 – error of law established and issue in question potentially a matter of some significance – leave to appeal granted
STATUTORY INTERPRETATION – presumption from amendment – whether absence of amendment indicates considered choice of legislature to adopt a certain interpretation – artificial and unpersuasive to attribute to Parliament a consciousness of the judicial interpretation contended to have informed the relevant amendments
State Government Insurance Commission v Oakley (1990) 10 MVR 570
Texts Cited:
Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2020, Thomson Reuters)
Category:
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56
Case
[2021] NSWCA 56
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal to the Court of Appeal of New South Wales by Ms Ozcan against a decision of a presidential member of the Workers Compensation Commission. The dispute centred on the assessment of Ms Ozcan's permanent impairment for the purposes of workers compensation, specifically whether injuries sustained in later incidents should be aggregated with an initial injury, given that the initial injury materially contributed to the subsequent injuries.
The primary legal issue before the Court of Appeal was whether the presidential member had erred in law in their construction of sections 322(2) and (3) of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW). This involved determining whether all of Ms Ozcan's injuries, including those from later incidents, could be considered as having "resulted from" and "arisen out of" the first incident for the purpose of calculating her whole person impairment.
The Court found that the presidential member had erred in law. It reasoned that the legislative intent, as evidenced by the wording of the Act and the absence of specific amendments to counter a particular judicial interpretation, supported the aggregation of impairments where an initial injury materially contributed to subsequent injuries. The Court rejected the argument that the absence of amendment implied legislative acceptance of a narrow interpretation, finding it artificial to attribute such consciousness to Parliament. Consequently, the Court granted leave to appeal, set aside the previous orders, and ordered that compensation be paid on the basis of a 15% whole person impairment resulting from the initial injury.
Orders
Orders of the court
(1) Grant leave to appeal.
(2) Direct that within 14 days Ms Ozcan file and serve a notice of appeal in the form provided to the Court.
(3) Set aside the orders made by Deputy President Wood in her determination of 21 April 2020.
(4) In lieu thereof, order that the respondent pay compensation to Ms Ozcan pursuant to s 66 of the Workers Compensation Act on the basis that she suffered a 15% whole person impairment as a result of injuries incurred on 14 November 2011.
(5) Order the respondent to pay Ms Ozcan’s costs of her application for leave to appeal and appeal.