Pidcock Panel Beating Pty Ltd v Nicolia - [2017] NSWWCCPD 32

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Pidcock Panel Beating Pty Ltd v Nicolia [2017] NSWWCCPD 32
APPELLANT:	Pidcock Panel Beating Pty Ltd
RESPONDENT:	Christopher John Nicolia
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-5551/16
ARBITRATOR:	Mr R Bell
DATE OF ARBITRATOR’S DECISION:	16 February 2017
DATE OF APPEAL DECISION:	25 July 2017
SUBJECT MATTER OF DECISION:	Leave to appeal an ‘interlocutory decision’; s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; referral for a further assessment of the degree of permanent impairment; Sch 8, Pt 2A of the Workers Compensation Regulation 2016 and section 329(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998, Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Curwoods Lawyers
Respondent:	Somerville Laundry Lomax Solicitors
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Certificate of Determination dated 16 February 2017 is revoked, and the following order is made in its place: “The proceedings are dismissed.”

INTRODUCTION

This appeal involves questions going to the referral of the worker for further medical assessment of permanent impairment, in reliance on Sch 8, Pt 2A of the Workers Compensation Regulation 2016 (the Regulations), introduced by the Workers Compensation Amendment (Transitional Arrangements for Weekly Payments) Regulation 2016 (the 2016 Regulation).

BACKGROUND

Christopher John Nicolia (the respondent) was employed by Pidcock Panel Beating Pty Ltd (the appellant) as a manager. He suffered a conceded employment injury involving both knees on 7 August 2008. He claimed lump sum compensation on 26 June 2012, and commenced proceedings no 12543/12 (the earlier proceedings). He was assessed by Dr Oates, an Approved Medical Specialist (AMS) on 14 October 2013. A resultant Medical Assessment Certificate (MAC) dated 25 October 2013 certified 14 per cent whole person impairment in respect of the lower extremities (13 per cent right, 1 per cent left). In an appeal by the respondent to a Medical Appeal Panel, the MAC was confirmed on 11 March 2014. The respondent recovered lump sum compensation in the earlier proceedings, consistent with the MAC, in a Certificate of Determination dated 11 April 2014 (dealing with the s 66 of the Workers Compensation Act 1987 (the 1987 Act) entitlement) and in a s 66A agreement dated 3 June 2014 (dealing with entitlement pursuant to s 67).
The respondent underwent bilateral total knee arthroplasties on 30 October 2015. Dr Harrison, orthopaedic surgeon, reported to the respondent’s solicitors on 5 May 2016, certifying whole person impairment of 30 per cent (right lower extremity), 20 per cent (left lower extremity) and 7 per cent (lumbar spine). This represented a combined permanent impairment of 48 per cent. The respondent’s solicitors made a claim pursuant to s 66 of the 1987 Act, for 48 per cent permanent impairment, on 26 July 2016. The appellant issued a s 74 notice dated 19 August 2016. It denied the further claim on the basis that the respondent had previously made a claim for permanent impairment compensation after 19 June 2012, for which he had received compensation.

THE ARBITRAL PROCEEDINGS

The respondent commenced these proceedings by Application to Resolve a Dispute registered on 28 October 2016 (the Application). He claimed permanent impairment compensation in respect of the 48 per cent assessment. The appellant relied on its earlier s 74 notice, and additionally denied ‘injury’ to the lumbar spine.
On 25 November 2016 the respondent’s solicitors wrote to the Commission. They requested that the matter be “referred to an AMS for reconsideration of the original assessment [in
Dr Oates’ MAC dated 25 October 2013] pursuant to the Commission’s power under s 329(1)(b)” of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It said that the reconsideration could “be made pursuant to s 329(1)(a) or s 329(1A)”. The letter requested, in the alternative, that the matter be referred “back for reconsideration (as an alternative to appeal) due to the deterioration” in the respondent’s condition. It referred to the power in s 327(6) of the 1998 Act.
The 2016 Regulation commenced on 16 December 2016, inserting Sch 8, Pt 2A into the Regulations.
The matter was listed for arbitration hearing on 9 February 2017. Mr Willis appeared for the respondent, and Mr Barnes for the appellant. The claim in respect of the lumbar spine was discontinued (T10.4–5). No oral evidence was adduced, counsel made submissions and the Arbitrator delivered an extempore decision.
At the commencement of the arbitration hearing, the Arbitrator said that there had been discussions during the “conciliation phase”. He said:
“… generally the applicant wants me to refer both lower extremities to an Approved Medical Specialist under section 329 of the 1998 Act for further medical assessment and that's in the light of an amendment of the Workers Compensation Regulation 2016 …” (T1.37–41)
And:
“… the developments that have occurred since the Application was filed changed the basis of the Application such that the applicant essentially seeks not to rely on the claim by letter of 26 July 2016 but to, as indicated at the telephone conference, seek a referral under section 329(1)(b) by me for further assessment by an Approved Medical Specialist on the basis of paragraph 28D of the amendment to the regulation. The respondent objects to such a referral …” (T3.22–30)
The appellant submitted that the Arbitrator had “no power to deal with” the additional claim pursuant to s 66 of the 1987 Act (T4.33). The appellant’s counsel referred to written submissions of the appellant’s solicitors, dated 28 November 2016. He referred to non-compliance by the respondent with Registrar’s Guideline – Requests for Reconsiderations under Section 329(1A), 350(3) and 378 of the Workplace Injury Management and Workers Compensation Act 1998 (the Registrar’s Guideline) which deals with requests for reconsideration. The appellant referred to s 329(1A) of the 1998 Act, and conceded that the Arbitrator had the power to “remit a matter to the [R]egistrar for referral to an AMS for the additional assessment. The new regulations give efficacy to that concept …” It was submitted, however, that it was arguable that this would be prevented because of the non-compliance with the Registrar’s Guideline (T7.14–30).
The respondent’s counsel referred to the bilateral knee replacements as “a significant change in circumstances” (T8.9–13). He submitted that s 66(1A) of the 1987 Act had no effect on the application to refer the respondent for “one more assessment”, submitting that the referral was “within your power in s 329” (T8.25–32). He described the 2016 Regulation as “a vehicle whereby you can refer the matter for further assessment”.
The appellant’s counsel, in reply, accepted that the 2016 Regulation provided “scope and compass for a further assessment”. He made the point that the Regulation provided “only for a further assessment”, it did “not provide for one further claim” (T9.11–4). He submitted that the Commission did “not have any power to deal with” the second claim, which was “not allowed”. He submitted that the “only thing that would be available” was “a referral pursuant to section 329”; if the Guidelines had not been followed, it may be that the respondent “should reapply to the [R]egistrar in accordance with those [G]uidelines” (T10.12–9).
The Arbitrator said that it was “clear that the amended regulation is applicable” to the respondent. It would be oppressive, “if the original nature of the claim for further permanent impairment and the application based on that were to preclude him from seeking the benefits of the amended regulation” (reasons T1.28–33). He did not accept that the Registrar’s Guideline “should operate to prevent the progress of this matter”. There was “no apparent prejudice” to the appellant, the 2016 Regulation altered the situation, “section 329(1)(b) should be used to allow the [respondent] access to that amendment”. The Arbitrator said that the “claim and the section 74 notice … are effectively obviated by the amendment and as a result of that, the [respondent] no longer seeks to rely on that claim” (reasons T1.40–2.11).
Pursuant to s 329(1)(b) of the 1998 Act, the Arbitrator remitted the matter to the Registrar for referral to an AMS for further medical assessment of both lower extremities. The appellant was given leave to obtain and file a report and assessment from an independent medical examiner. The Arbitrator referred to “those submissions before me”, and said that there were one or two points he had alluded to, but he thought “the submissions were completed before the new amendment was published”. I infer this was a reference to the appellant’s submissions dated 28 November 2016.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties 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.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met. The Arbitrator made an order referring the matter for further medical assessment, and also made associated procedural orders dealing with the documents to be made available to the AMS, and lodgment by the appellant of a report from an independent medical specialist. There was no order for the payment of compensation. Ordinarily, if no compensation is awarded, when applying s 352(3)(a) of the 1998 Act, it is appropriate to have regard to the amount of the claim as particularised: Grimson v Integral Energy [2003] NSWWCCPD 29 at [30]. That is the pleaded lump sum claim, which well exceeds $5,000. However, I note that the Arbitrator, in his reasons, said that that claim was “effectively obviated” by the 2016 Regulation, and that the respondent no longer relied on that claim (see [12] above). Notwithstanding the Arbitrator’s remarks, it does not appear that the claim for lump sum compensation was formally withdrawn. Although it is not free from doubt, given the respondent’s concession, I accept that the quantum threshold in s 352(3) is satisfied.

THE NATURE OF THE APPEAL PURSUANT TO SECTION 352

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

INTERLOCUTORY DECISION AND LEAVE

There is an issue regarding whether the appeal is against an ‘interlocutory decision’, and if so, whether leave should be granted pursuant to s 352(3A) of the 1998 Act, which provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The Commission, dealing with s 352(3A) and whether a decision is ‘interlocutory’, has frequently applied Licul v Corney [1976] HCA 6; (1994) 180 CLR 213, where Gibbs J at 225 said:
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co. v. Ghosh [[1971] 2 QB 597] - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v. Nominal Defendant [[1966] HCA 36; 117 CLR 423], should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”
The making of an order remitting the matter to the Registrar, for referral to an AMS for further medical assessment, does not finally dispose of the rights of the parties. The level of the respondent’s permanent impairment, which will be relevant at least to the application of s 39 of the 1987 Act, is unresolved. If the further lump sum claim pursuant to s 66 continues to be pursued, it is clearly not determined by the Arbitrator’s orders. At least on the pleadings, issues remain between the parties going to the application of s 66(1A) of the 1987 Act.
If the issue is considered purely from the standpoint of whether the respondent might obtain an assessment greater than either 20 per cent (‘worker with high needs’) or 30 per cent (‘worker with highest needs’), this does not finally dispose of the rights of the parties. The respondent’s entitlement to receive weekly compensation, for example, beyond the period specified in s 39 of the 1987 Act, remains dependent on his being otherwise entitled to the payment of weekly compensation pursuant to s 38: see the ‘Note’ to s 39(2).
It follows that the appellant requires leave pursuant to s 352(3A) of the 1998 Act to bring the appeal.
In the letter to the Commission dated 25 November 2016, the respondent’s solicitors requested “that the matter be referred to an AMS for reconsideration of the original assessment pursuant to the Commission’s power under s 329(1)(b)”. It was submitted that such a reconsideration “can be made pursuant to s 329(1)(a) or s 329(1A)”. Alternatively, it was requested that the matter be referred “back for reconsideration (as an alternative to appeal)” due to the respondent’s “deterioration”.
The respondent submits that the claim was originally “for additional lump sum compensation”, but “this changed to a request for reconsideration of the previous award of lump sum compensation”. It submits that if the “reconsidered MAC” results in “a higher level of impairment, there is nothing to stop the Commission from reconsidering its earlier Certificate of Determination pursuant to s 350(3)” of the 1998 Act. The respondent submits that a “further MAC” would be “new information”, and the 2016 Regulation represented “a significant change in the law”. These matters would need to be dealt with after the “further MAC”. Prior to then, the referral pursuant to s 329(1)(b) should run its course. The respondent submits that leave should not be granted to appeal what is an interlocutory decision.
There have been a number of Presidential decisions dealing with leave, in circumstances where the decision under appeal is interlocutory, and involves orders for referral to an AMS. In Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50 President Keating DCJ at [22] said:
“I accept that if leave is refused, the matter would then proceed to an AMS to determine the extent of any whole person impairment suffered by Ms Lee. At that point, final orders would be entered and the Club would be entitled to lodge a further appeal. I am satisfied that it is desirable for the proper and effective determination of the dispute that the issues for determination be resolved now because, as the Club submits, if the issues are resolved in its favour it will avoid an unnecessary referral to an Approved Medical Specialist, thus avoiding further costs and delay.”
It has been held by O’Grady DP that a MAC which “has come into being by reason of an invalid referral … must be treated as a nullity”: Al-Nouri v Al-Nouri Pty Ltd [2010] NSWWCCPD 85 at [60]. It is appropriate to deal with the validity of the referral, before any medical assessment is conducted pursuant to that order. If the appellant’s argument is accepted, the referral to an AMS in the circumstances was erroneous, and should not proceed. It is desirable, for the proper and effective determination of the dispute, that the issue be resolved now. I grant leave pursuant to s 352(3A) of the 1998 Act.

THE ISSUES RAISED ON THE APPEAL

The appeal raises the following grounds:
(a) error in the application of s 329(1)(b) of the 1998 Act (ground no 1);
(b) error in the application of Sch 8, Pt 2A, cl 28D of the Regulations (ground no 2), and
(c) failure to give proper reasons for the reconsideration order pursuant to s 329(1)(b) of the 1998 Act (ground no 3).

RELEVANT LEGISLATIVE PROVISIONS

The definition of a ‘medical dispute’ in s 319 of the 1998 Act reads:
“medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:
(a)     the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b)     the worker’s fitness for employment,
(c)     the degree of permanent impairment of the worker as a result of an injury,
(d)     whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e)     the nature and extent of loss of hearing suffered by a worker,
(f)     whether impairment is permanent,
(g)     whether the degree of permanent impairment of the injured worker is fully ascertainable.”
Section 293 of the 1998 Act provides:
“293 Medical assessment
(1)     When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may, in accordance with this section, refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment.
(2)     If the dispute concerns the degree of permanent impairment (including hearing loss) of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Part 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment.
(3)     The Registrar may not refer for assessment:
(a)a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b)a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”
Section 321 of the 1998 Act provides:
“321 Referral of medical dispute for assessment
(1)     A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.
(2)     The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.
(3)     The Commission may not refer for assessment under this Part a medical dispute concerning permanent impairment (including hearing loss) of an injured worker.
(4)     The Registrar may not refer for assessment under this Part:
(a)a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b)a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”

Section 329 of the 1998 Act provides:
“329   Referral of matter for further medical assessment or reconsideration
(1)     A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by:
(a)the Registrar as an alternative to an appeal against the assessment as provided by section 327, or
(b)a court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration.
(2)     A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”
Section 66(1A) of the 1987 Act provides:
“(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”
Section 322A of the 1998 Act provides:
“One assessment only of degree of permanent impairment
(1)     Only one assessment may be made of the degree of permanent impairment of an injured worker.
(2)     The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3)     Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of assessment and a medical assessment certificate under this Part.
(4)     This section does not affect the operation of section 327 (Appeal against medical assessment).”
Schedule 8 Pt 2A of the Regulations provides:
“Part 2A Special provisions for existing recipients of weekly payments—2012 amendments
28A Interpretation
(1)     Words and expressions used in this Part have the same meaning as in Part 19H of Schedule 6 to the 1987 Act.
(2)     The following provisions are deemed to be amended to the extent necessary to give effect to this Part:
(a)section 39 of the 1987 Act,
(b)Part 19H of Schedule 6 to the 1987 Act,
(c)section 322A of the 1998 Act.
28B   Application and operation of Part
(1)     This Part takes effect on and from 1 October 2012.
(2)     This Part applies to an injured worker who is an existing recipient of weekly payments.
28C 5 year limit on weekly payments
Section 39 of the 1987 Act (as substituted by the 2012 amending Act) does not apply to an injured worker if the worker’s injury has resulted in permanent impairment and:
(a)     an assessment of the degree of permanent impairment for the purposes of the Workers Compensation Acts is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
(b)     the insurer is satisfied that the degree of permanent impairment is likely to be more than 20% (whether or not the degree of permanent impairment has previously been assessed).
28D Further permanent impairment assessments
(1)     This clause applies to an injured worker if the degree of permanent impairment resulting from the worker’s injury is or has been assessed for the purposes of the Workers Compensation Acts.
(2)     Section 322A of the 1998 Act does not operate to prevent a further assessment being made of the degree of permanent impairment resulting from the worker’s injury for the purposes of Part 3 of the 1987 Act.
(3)     However, only one further assessment may be made of the degree of permanent impairment resulting from the worker’s injury.”
The ‘Explanatory note’ to the 2016 Regulation provides:
“Explanatory note
The object of this Regulation is to make further transitional arrangements in respect of the application of certain amendments made by the Workers Compensation Legislation Amendment Act 2012 to injured workers receiving weekly payments of workers compensation immediately before 1 October 2012. Those amendments limited the entitlement to weekly payments of compensation to an aggregate period of 260 weeks (except in the case of workers assessed as having more than 20% permanent impairment) and provided that an injured worker may have only one assessment of permanent impairment. The Regulation provides that:
(a) the 260-week limit on entitlement to weekly payments of compensation does not apply to certain injured workers whose degree of permanent impairment has not been assessed or has been determined by an insurer to be more than 20%, and
(b) an injured worker whose degree of permanent impairment has been assessed may have one further assessment of permanent impairment for the purposes of determining the worker’s entitlement to benefits under the Workers Compensation Act 1987.
This Regulation is made under the Workers Compensation Act 1987, including section 280 (the general regulation-making power) and Parts 19H and 20 of Schedule 6.”
Section 39 of the 1987 Act provides:
“Cessation of weekly payments after 5 years
(1)     Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.
(2)     This section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.
Note. For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.
(3)     For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).”

THE APPELLANT’S SUBMISSIONS

The appellant, in its submissions dated 28 November 2016 (handed up at the arbitration hearing) referred at some length to the respondent’s alleged non-compliance with the Registrar’s Guideline for requests dealing with reconsideration. This is not raised by the appellant in this appeal. This is appropriate; the Guideline is essentially a guide for legal practitioners and others, and does not have statutory force: Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2007] NSWCA 149; 4 DDCR 607 per Campbell JA (Hodgson JA agreeing) at [91].
The appellant’s submissions refer to the decision in Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56 (Milosavljevic). In that decision at [59], Roche DP said:
“a. … Once the Commission makes a decision in respect of the dispute and a Certificate of Determination is issued, it is, except as otherwise provided in the 1998 Act, ‘final and binding on the parties and is not subject to appeal or review’ and is not to open to challenge (section 350 of the 1998 Act). In the present matter, the Commission issued a Certificate of Determination on 14 September 2007, which decided the issue in dispute in this matter. That determination has not been challenged by way of an appeal to a Presidential member under section 352 and is therefore final and binding on the parties. There is therefore no basis on which to require a further assessment of Ms Milosavljevic’s condition under section 329. Her claim has been determined and there is now nothing to assess;
…
e. section 329 gives no power to overturn a Commission’s determination;
…
g. the fact that section 329 gives power to allow for a further referral does not mean that that power is without limit and can be used where the dispute in question has been the subject of a binding determination by the Commission, as it has in the present matter.”
The appellant, relying on the above, submits that the earlier proceedings were determined, and the dispute in respect of permanent impairment was finalised. There was no remaining dispute and no power to refer the matter for further assessment pursuant to s 329(1)(b). The submissions dealing with ground no 3 deal with similar arguments, going to whether there was power to make the referral pursuant to s 329. These arguments are dealt with below.
The appellant refers to the ‘Explanatory note’ to the 2016 Regulation. It refers to the continued operation of s 66(1A), and the decision of ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 (Goudappel). It submits that the respondent is not entitled “to an additional claim for lump sum compensation.”
The appellant, in its submissions in reply, submits:
“The Appellant Employer concedes that the Respondent Worker is entitled to a further assessment in accordance with cl 28D, but that this is for the purpose of assessing whether s 39 of the 1987 Act applies to him, ie whether he is entitled to weekly compensation benefits beyond the 5 years prescribed by s 39. He is not entitled to a further claim for permanent impairment compensation, and this is in fact what the Respondent Worker is seeking.”
If a matter is referred for further assessment pursuant to s 329, the resultant MAC “prevails over any previous certificate as to the matter to the extent of any inconsistency”: s 329(2) of the 1998 Act. Any MAC, resulting from a further referral, could be relevant to the application of, for example, s 39, s 59A, s 60AA and whether a worker is one of ‘high’ or ‘highest needs’ within the definitions in s 32A (in each case, of the 1987 Act). It could, on the respondent’s submissions, be relevant to whether there is some basis for the recovery of additional lump sum compensation, on the basis of s 350(3) of the 1998 Act or otherwise. This is not to conclude that such a MAC necessarily would have such consequences. It would depend on construction of the relevant provisions of the Acts and Regulations, in the particular circumstances. However the Arbitrator’s order referring the matter for further assessment was not restricted solely to the application of s 39 of the 1987 Act, and the referral could have consequences going beyond s 39.

THE RESPONDENT’S SUBMISSIONS

The respondent notes the provisions of s 66(1A) of the 1987 Act and s 322A of the 1998 Act. He submits that cl 28D of Pt 2A of Sch 8 of the Regulations had the effect of “nullifying, to the extent of one further medical assessment, the provisions of s 322A”. The respondent submits that the Arbitrator’s order for referral “correctly” was pursuant to s 329(1)(b), not s 329(1)(a) or s 327 (as an alternative to appeal). The “Arbitrator made the reconsideration order pursuant to cl 28D”. Clause 28D(2) provides that a further assessment is “for the purposes of Part 3 of the 1987 Act”. Part 3 includes not only provisions for the payment of weekly compensation, “but also lump sum compensation. It therefore allows a further assessment for a claim or previous claim under s 66.”
The respondent submits that, in the absence of a “vehicle available to afford a worker to make use of this recent addition to the Regulations”, the Arbitrator correctly used the provisions of s 329(1)(b). He submits:
“Should the further assessment allow for a greater level of impairment the matter should be remitted to the Arbitrator for determination as to whether the previous award should be reconsidered pursuant to s 350 of the WIM Act.”
The respondent’s submissions note that this argument was “not the subject of the Arbitrator’s decision that is appealed against, and that the issue should be argued before the Arbitrator in the first instance.” The respondent submits that previous authorities such as Milosavljevic should be distinguished as they predated commencement of cl 28D. The respondent submits that the availability of reconsideration pursuant to s 350(3) is “a decision yet to be made”, and cannot be the subject of the current appeal.

SUPPLEMENTARY SUBMISSIONS

On 22 June 2017 a Direction was issued to the parties, requiring them to address the following by 29 June 2017:
“1. Whether, the claim in respect of the lumbar spine having been discontinued (T10.4–5), and if the respondent worker no longer relies on the further claim for lump sum compensation in his solicitor’s letter dated 26 July 2016 (T3.21–31), there is any reason why the matter could not be referred by the Registrar pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) (s 321), to an Approved Medical Specialist, for a further permanent impairment assessment in respect of the left and right lower extremities, in accordance with Pt 2A of Sch 8 of the Workers Compensation Regulation 2016 (Pt 2A).
2. Whether it was for any reason necessary that the Arbitrator’s referral, relying on Pt 2A, be made pursuant to s 329 rather than s 321 of the 1998 Act.
3. Whether the parties object to the making of an order on appeal, remitting the matter to the Registrar, for referral to an Approved Medical Specialist, to make a ‘further assessment’ (within the meaning of Pt 2A cl 28D) of the respondent’s whole person impairment (both lower extremities – knees) resulting from injury on 7 August 2008. What is the basis of any such objection?”
The respondent lodged supplementary submissions on 26 June 2017 in the following terms:
“1.     The Respondent agrees that the matter ought to be referred for a further permanent impairment assessment in respect of the left and right lower extremities.
2.     The Respondent would be grateful for an opportunity to respond to the Applicant’s submissions in this regard.
3.     The Respondent has no objection in this respect.”
The appellant lodged supplementary submissions on 27 June 2017. In relation to the first matter raised in the Direction (referral by the Registrar pursuant to s 321 of the 1998 Act), it is a ‘medical dispute’ that may be referred pursuant to s 321. The appellant submits that the medical dispute was determined by the Certificate of Determination dated 11 April 2014, it is no longer before the Commission. If the respondent no longer makes the further claim in his solicitor’s letter dated 26 July 2016, there is no purpose in referring the matter for further assessment, there would no longer be a medical dispute to refer. In this regard, the respondent is not entitled to any further lump sum compensation, he has had his one such claim, made after 19 June 2012.
On the second matter raised in the Direction, s 321 requires a medical dispute for referral, whereas s 329 allows for referral in certain circumstances, of a matter that has already been assessed. If the further lump sum claim is not made, there is no longer a medical dispute to refer pursuant to s 321. The appellant reiterates its point that once the one lump sum claim in the earlier proceedings was determined, on 11 April 2014, there was no longer power to refer the matter pursuant to s 329 (citing Milosavljevic and Adriaansen v Dungog & District Retirement Living Limited [2016] NSWWCCPD 36 (Adriaansen)). The purpose of Pt 2A of Sch 8 of the Regulations is to ascertain whether s 39 applies to a worker.
Dealing with the third of the matters raised in the Direction, the appellant says that it does not oppose the making of an order for further assessment within the meaning of cl 28D. It does object to a further assessment for the purpose of a further claim for permanent impairment.
Following lodgement and service of the appellant’s submissions, an email was forwarded by the Commission to the respondent’s solicitors, stating that, to the extent that the above Direction had not been complied with, they had until 4pm on 29 June 2017 to do so. No further submissions were received.

CONSIDERATION

The nature of the proceedings

The claim attached to the Application is that set out in the respondent’s solicitors’ letter dated 26 July 2016. It is a claim for further lump sum compensation pursuant to s 66 of the 1987 Act, based on Dr Harrison’s assessment of 48 per cent whole person impairment in his report dated 5 May 2016. That is the only claim pleaded in the Application.
The respondent’s claim dated 26 July 2016 was a second claim for compensation pursuant to s 66 of the 1987 Act. On its face, the respondent was precluded from making this claim by s 66(1A) of the 1987 Act. This claim was “a totally separate and discrete claim” from that pursued in the earlier proceedings: Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250; 13 DDCR 281 (Cram Fluid) per Emmett JA at [11], Gleeson JA at [82]–[84]. Where there has already been one claim for lump sum compensation, in respect of permanent impairment that results from an injury, s 66(1A) disentitles a worker from making a claim for further lump sum compensation resulting from the injury: Cram Fluid per Gleeson JA, Beazley ACJ and Emmett JA agreeing, at [91] and [133]–[134]. Section 66(1A) has been held to be the “leading provision” to which s 66A(3)(c) of the 1987 Act “must give way”, where it conflicts with s 66(1A): Cram Fluid at [104]–[110].
There is provision in Sch 8, cl 11 of the Regulations for a “further lump sum compensation claim”, where a worker made an earlier lump sum claim prior to 19 June 2012. This provision was introduced by the Workers Compensation Amendment (Lump Sum Compensation Claims) Regulation 2015 (the 2015 Regulation). In general terms, Sch 8, cl 11 provides that one further such claim can be made on or after 19 June 2012. This did not assist the respondent, as he had not had a lump sum compensation claim before 19 June 2012, and lump sum compensation was paid in respect of his claim made on 26 June 2012 (that is, after 19 June 2012). The appellant relied on this in the s 74 notice dated 19 August 2016.
The appellant’s s 74 notice (adopted at Part 3 of its Reply) denied liability. It referred to the issue:
“We note that you have previously made a claim for whole person impairment entitlements after 19 June 2016 [sic, 19 June 2012] and in view of the legislative provisions outlined above, the current claim for additional benefits is not maintainable.”
The earlier proceedings were concluded by the issue of the Certificate of Determination dated 11 April 2014 (concluding the s 66 claim) and the s 66A agreement dated 3 June 2014 (concluding the s 67 component). Consistent with the passages from Milosavljevic quoted at [39] above, there was then “no basis on which to require a further assessment”. I have previously applied Milosavljevic in Adriaansen.
Referral by the Registrar pursuant to s 329(1)(a), as an alternative to a medical appeal, was not available. There was no MAC to appeal from in the current proceedings. A medical appeal was not available in the earlier proceedings, as those proceedings had been the subject of determination by the Commission: ss 327(6) and (7) of the 1998 Act, Miloslavjevic at [59].
The issue raised by the appellant was a statutory defence, pursuant to s 66(1A) and associated provisions, which precluded the further claim pursuant to s 66. It raised a ‘liability’ issue (see the discussion in Favetti Bricklaying Pty Limited v Benedek [2017] NSWSC 417 (Favetti Bricklaying) at [78]–[80]). To the extent that a ‘medical dispute’ existed in the proceedings, such a dispute could not be referred for assessment under Div 7 of Pt 7 of the 1998 Act until that ‘liability’ issue was determined by the Commission: ss 293(2) and (3)(a), and 321(4)(a) of the 1998 Act, Favetti Bricklaying at [78]–[80].

When the current proceedings were registered on 28 October 2016, the further claim pursuant to s 66 was precluded by s 66(1A) of the 1987 Act, the 2015 Regulation did not assist the respondent in making the further claim, and s 329 of the 1998 Act did not provide a vehicle by which the respondent could have a further medical assessment (consistent with Milosavljevic). These issues were raised in the appellant’s s 74 notice and its submissions dated 28 November 2016. A referral pursuant to s 321 could not be made by the Registrar until the ‘liability’ issue had been determined by the Commission. Against this background, was there a basis for the referral made by the Arbitrator?

The state of the proceedings and whether there was a ‘medical dispute’

At the arbitration hearing the appellant’s counsel announced, apparently after consultation with counsel for the respondent, without objection, that the “claim for the lumbar spine is discontinued formally in the proceedings” (T10.4–5). There was no other formal amendment to the Application. The Arbitrator announced that the respondent no longer sought to rely on the claim dated 26 July 2016, but sought referral for further assessment “on the basis of paragraph 28D of the amendment to the regulation” (see [8] above).
It was not, at the arbitration hearing, apparent what relief the respondent sought; it was said that the claim made on 26 July 2016 was not being pursued. No other claim for compensation was relied on in its place. It is apparent, from the submissions on appeal, that the respondent continues on a path that, if a further medical assessment certificate is higher than that in the earlier proceedings, the recovery of further lump sum compensation may be available (see [44]–[45] above).
In the Commission “it is not necessary or desirable to rely upon strict pleadings to define the issues between the parties”: Far West Area Health Service v Colin Robert Radford [2003] NSWWCCPD 10 (Radford) at [24], applied in Rinker Group Limited v Mackell (No.2) [2009] NSWWCCPD 97 at [241]. It is necessary that a party be afforded procedural fairness, and notice of the case against it: South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (Edmonds) at [90], Radford at [34]. It is necessary that the claim being made be identified sufficiently that other parties can respond to it, and that the Commission can identify the claim and relief with which it is dealing.
The respondent’s solicitors’ letter to the Commission dated 25 November 2016 (which predated commencement of the 2016 Regulation) requested “reconsideration” of the MAC dated 25 October 2013. It based this request on each of the three limbs in s 329. It did not suggest that any additional head of compensation was claimed, beyond that in the letter of claim dated 26 July 2016. It submitted that “reconsideration” was available as an alternative to appeal due to the deterioration in the respondent’s condition, referring to s 327(6). This submission ignored s 327(7).
The claim for compensation being pursued by the respondent was not apparent, at the arbitration hearing, when the referral was made. The appellant submits that there was no ‘medical dispute’ between the parties that could have been referred, pursuant to s 321 of the 1998 Act. The dispute raised in the earlier proceedings was determined in the Certificate of Determination dated 11 April 2014. If the respondent no longer pursued the lump sum claim made on 26 July 2016, there was no remaining ‘medical dispute’ to refer. The submission that there was no relevant ‘medical dispute’ is correct. The ‘medical dispute’ the subject of the earlier proceedings had been determined and a Certificate of Determination issued. The claim made on 26 July 2016 potentially created a ‘medical dispute’. However, the appellant did not, in its s 74 notice, raise an issue falling within the definition of a ‘medical dispute’ in s 319 of the 1998 Act. The claim made on 26 July 2016 was, in any event, said not to be pursued.
Even if there had been a ‘medical dispute’ flowing from the claim made on 26 July 2016, it could not have been referred for medical assessment pursuant to s 321 in the circumstances, because of the ‘liability’ issue which was raised, and not determined by the Commission.

The form of order made by the Arbitrator

The Arbitrator’s order was pursuant to s 329(1)(b) of the 1998 Act, for remitter to the Registrar, for referral by the Registrar to an AMS, for further medical assessment of both lower extremities. The Commission is constituted by the President, the Deputy Presidents, the Arbitrators and the Registrar: s 368(1) of the 1998 Act. The Registrar may exercise all of the functions of an Arbitrator: s 371(1) of the 1998 Act. However, s 375(4) of the 1998 Act provides:
“The Registrar does not constitute, and does not exercise functions as, the Commission (except when acting as an Arbitrator pursuant to the Registrar’s power to exercise the functions of an Arbitrator).”
The order of the Arbitrator (who constituted the Commission: s 375(1) of the 1998 Act) was to remit the matter to the Registrar, so that the referral for further medical assessment was to be made by the Registrar. Whilst the form of the referral does not stipulate it, clearly in the circumstances this was to assess permanent impairment. Section 329, pursuant to which the order was made, provides for referral of a matter by the Registrar in two circumstances, set out in subcll (1)(a) and (1A) of that section.
The first of these is that in s 329(1)(a), “as an alternative to appeal against the assessment”. Section 327(6) provides that such a referral under s 329 may be made “only if the matter could otherwise have proceeded on appeal under this section”. That condition could not be satisfied, as no appeal lay where the dispute concerned (that in the earlier proceedings) had been the subject of determination by the Commission: s 327(7).
The second of these is that in s 329(1A), “to the approved medical specialist for reconsideration” (emphasis added). The Arbitrator did not order reconsideration pursuant to s 329(1A), and the order was not described in that fashion. Reconsideration pursuant to s 329(1A) is a process different to further assessment pursuant to s 329(1). Section 329(1A) involves referral “to the approved medical specialist for reconsideration” (emphasis added). It is used to refer a matter back to the AMS who issued a MAC, to reconsider the matter, typically in light of further submissions or evidence, for example medical investigations (see the process referred to in Smith v NSW Police Force [2013] NSWWCCPD 61 by way of example). It has been held that the power to deal with applications under s 329(1A) resides in the Registrar (or the Registrar’s delegate), not in an Arbitrator, and no Presidential appeal lies from such a decision by the Registrar: Conargo Shire Council v Quor [2007] NSWWCCPD 245; 6 DDCR 506 per Roche DP at [35]. There are occasions in the submissions, at the arbitration hearing and on this appeal, where there is reference to the Arbitrator’s order as one for “reconsideration” (see the respondent’s submissions on appeal at [16]). It was not.
The Arbitrator’s referral was for further assessment, pursuant to s 329(1)(b). Further assessment pursuant to s 329(1)(b) may be made by “a court or the Commission”. Such an order could not be made by the Registrar. The form of the Arbitrator’s order was inconsistent with an order pursuant to s 329(1)(b).

The nature of the power under section 329(1)(b)

In Read v Liverpool City Council [2007] NSWSC 320 Malpass AsJ, at [27], referred to s 329 of the 1998 Act:
“… it may be that s 329 was intended to provide a remedy in cases where no grounds of appeal can be made out but the dictates of justice require a further referral for assessment.”
In Milosavljevic Roche DP at [58(c)–(d)] said:
“c. it is correct that in Mansour I noted (at [68]) that section 329 is in ‘broad unlimited terms’, but the facts in Mansour were totally different to those in the present case ... The question that arises in the present matter was not in issue in Mansour, as no determination had been made prior to the order under section 329. My reference to section 329 being in ‘broad unlimited’ terms was a reference to the fact the section provides no guidance as to how or when it is to be used. That is not to say that the section stands outside the terms of the Workers Compensation Acts. It doesn’t, and it must be read in the context of that legislation. There is nothing to indicate that the legislature intended that section 329 could be used in an unrestrained or unlimited way regardless of the Commission’s previous orders or determinations. The exact scope of section 329 must be determined on a case-by-case basis;
d. Malpass AsJ may well be correct in stating that section 329 can be used where no grounds of appeal under section 327 are made out, but ‘the dictates of justice require a further referral for assessment’. Whether the dictates of justice require a further referral requires a careful consideration of the facts in each case, but whether such a referral can be made is always subject to the Commission’s jurisdictional limits;”
In the same decision at [59(a), (e) and (g)] the Deputy President said:
“a. the suggestion that a dispute exists if a worker is still aggrieved with a finding is fundamentally wrong. A dispute is triggered once a claim is denied (see Divertie v Startrack Express Pty Ltd [2008] NSWWCCPD 45). Once the Commission makes a decision in respect of the dispute and a Certificate of Determination is issued, it is, except as otherwise provided in the 1998 Act, final and binding on the parties and is not subject to appeal or review’ and is not to open to challenge (section 350 of the 1998 Act). In the present matter, the Commission issued a Certificate of Determination on 14 September 2007, which decided the issue in dispute in this matter. That determination has not been challenged by way of an appeal to a Presidential member under section 352 and is therefore final and binding on the parties. There is therefore no basis on which to require a further assessment of Ms Milosavljevic’s condition under section 329. Her claim has been determined and there is now nothing to assess;”
“e. section 329 gives no power to overturn a Commission’s determination;”
“g. the fact that section 329 gives power to allow for a further referral does not mean that that power is without limit and can be used where the dispute in question has been the subject of a binding determination by the Commission, as it has in the present matter.”
I accept the correctness of the above passages in Milosavljevic dealing with s 329. They are consistent with the clear words of s 350(1) of the 1998 Act.

The availability of the order in the circumstances

The dispute the subject of the earlier proceedings had been determined, in a way which was final and binding, and was not susceptible to referral for further assessment pursuant to s 329(1)(b). The claim dated 26 July 2016 did not give rise to a ‘medical dispute’ within the meaning of s 319 of the 1998 Act, as the only issue raised by the appellant was, in general terms, whether the respondent was entitled to bring a second claim for lump sum compensation in the circumstances.
Even if the claim dated 26 July 2016 had generated a ‘medical dispute’, such a dispute could not be the subject of being “referred again”, within the meaning of s 329(1), as it would not previously have been “referred for assessment under this Part”. Such a ‘medical dispute’ would require referral for assessment pursuant to s 321 of the 1998 Act. The only further claim which was made, on the evidence, since the earlier proceedings, was that dated 26 July 2016, for further lump sum compensation. That claim could not have been referred pursuant to s 321, until the ‘liability’ issue was “determined by the Commission”.
It flows from the above that the Arbitrator’s referral pursuant to s 329(1)(b) was not, in the circumstances, available. It is necessary that that order be set aside. Ground no 1 is upheld.

Schedule 8, Part 2A of the Regulations

The parties were requested to address whether they objected to an order being made on this appeal, for referral to an Approved Medical Specialist for further assessment within the meaning of Sch 8, Pt 2A, cl 28D of the Regulations. The respondent submits that he does not object to such an order. The appellant submits that it does not oppose the making of such an order, but does oppose a further assessment for the purpose of a further claim for permanent impairment. The indeterminate state of the pleadings remains a difficulty.
The 2016 Regulation “applies to an injured worker who is an existing recipient of weekly compensation”: Sch 8, Pt 2A, cl 28B of the Regulations. That term has the same meaning as in Sch 6, Pt 19H, cl 1 of the 1987 Act. Both parties have approached the matter, and the appeal, on the basis that the respondent falls within that definition, and that the 2016 Regulation applies to him.
The respondent’s situation is subject to cl 28D of the Regulation. His “degree of permanent impairment resulting from [his] injury is or has been assessed for the purposes of the Workers Compensation Acts”: subcl (1). Sub-clause (2) provides:
“(2) Section 322A of the 1998 Act does not operate to prevent a further assessment being made of the degree of permanent impairment resulting from the worker’s injury for the purposes of Part 3 of the 1987 Act.”
The appellant’s argument that the respondent cannot validly make a second claim for lump sum compensation, notwithstanding the 2016 Regulation, may well be correct. Schedule 6, Pt 19H, cl 5(4) of the 1987 Act confers a power, to make regulations of a saving or transitional nature, which are deemed to amend the provisions of the Workers Compensation Acts, “consequent on the enactment of the 2012 amending Act”. The 2015 Regulation introduced cl 11 of Sch 8 of the Regulations, which conferred an entitlement to make a further lump sum compensation claim in certain circumstances. There was a corresponding provision in cl 11(5), which provided that s 66 and Sch 6, Pt 19H, cl 15 of the 1987 Act, s 322A of the 1998 Act and cll 10 and 19 of Sch 8 of the Regulations, were to be read subject to cl 11. This had the effect amongst other things that s 66(1A) and Sch 8, cl 10 of the Regulations did not prevent the making of a further lump sum compensation claim, which was available because of cl 11: see Avni v Visy Industrial Plastics Pty Ltd [2016] NSWWCCPD 46 and Draca v Formtec Group (NSW) Pty Limited [2016] NSWWCCPD 53.
In contrast, cl 28A of Sch 8 of the 2016 Regulation provides that s 39 and Sch 6, Pt 19H of the 1987 Act, and s 322A of the 1998 Act, are “deemed to be amended to the extent necessary to give effect to this Part”. It is noteworthy that this transitional provision does not provide for amendment of s 66 of the 1987 Act (which includes s 66(1A)) or Sch 8, cl 10 (previously cl 11) of the Regulations (the clause on which Goudappel turned). The respondent submits that cl 28D(2) refers to a “further assessment being made … for the purposes of Part 3 of the 1987 Act”. Part 3 deals with benefits, and includes Div 4, compensation for non-economic loss (of which s 66 is a part). The problem with this argument is that the 2016 Regulation does not amend s 66(1A) or Sch 8 cl 10 of the Regulations.
The context in which the 2016 Regulation was made is consistent with the ‘Explanatory Note’ to the Regulation, set out at [36] above. The 2016 Regulation is a statutory rule: s 21 of the Interpretation Act 1987 (the Interpretation Act). A construction that promotes the purpose or object of a statutory rule is to be preferred to a construction that does not: s 33 of the Interpretation Act, IW v City of Perth [1997] HCA 30; 191 CLR 1; 94 LGERA 224; 146 ALR 696; 71 ALJR 943 per Brennan CJ and McHugh J at 11–12.
The stated purpose of the 2016 Regulation is to provide for one further assessment of permanent impairment for a worker in the respondent’s position (an ‘existing recipient’ whose degree of permanent impairment has previously been assessed). This will be relevant to whether or not such a worker is subject to the otherwise disentitling application of s 39(1) of the 1987 Act. The 1987 and 1998 Acts are to be read together: s 2A of the 1987 Act. It is necessary to construe the Acts as a whole: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 at [69], K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 at [4]. The 2016 Regulation is of a beneficial character, and is to be construed beneficially: Goudappel at [29]. The High Court in Master Education Services Pty Limited v Ketchell [2008] HCA 38; 236 CLR 101 at [19] said (excluding references):
“… Regulations are to be construed according to ordinary principles of construction. That requires that they be placed in their statutory context.”
In Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; 78 NSWLR 704 Allsop P (Giles, Hodgson, Tobias and Macfarlan JJA agreeing) at [12] said (excluding references):
“It is the language of Parliament that must be interpreted and construed. … However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed.”
The 2016 Regulation, whilst it relaxes the prohibition in s 322A against a further assessment of the degree of permanent impairment, does not itself provide a vehicle for a referral for further assessment to be made. The respondent submits:
“Noting that there is currently no vehicle available to afford a worker to make use of this recent addition to the Regulations, the Arbitrator was right to invoke the power to direct that the Respondent worker be re-examined under the provisions of s 329(1)(b).”
I do not accept this submission. The scheme of the Workers Compensation Acts, dealing with the jurisdiction of the Commission, is discussed in Edmonds at [55]–[69]. The legislative framework relevant to assessment of lump sum compensation is discussed in Edmonds at [75]–[80]. The jurisdiction of the Commission, and the scheme of the Workers Compensation Acts, going to the assessment of permanent impairment, is discussed in Favetti Bricklaying at [22]–[48] and [75]–[80]. The application of the 2016 Regulation falls within the jurisdiction of the Commission: s 105(1) of the 1998 Act. If there is a relevant dispute about a claim, it may be referred to the Commission: s 288(1) of the 1998 Act, Divertie v Startrack Express [2008] NSWWCCPD 45; 6 DDCR 26 at [26]. A dispute about whether a worker’s permanent impairment is “more than 20%”, for the purposes of s 39(2) of the 1987 Act, falls within the definition of a ‘medical dispute’ in s 319 of the 1998 Act. It is a dispute about “the degree of permanent impairment of the worker as a result of an injury”. The ‘medical dispute’ may then be referred for assessment in the normal way, pursuant to s 321 of the 1998 Act. It constitutes “a medical dispute concerning permanent impairment” within the meaning of s 321(4)(a) of the 1998 Act, even if it is not a claim for lump sum compensation: Favetti Bricklaying at [76]–[80]. Such a dispute cannot be referred “where liability is in issue and has not been determined by the Commission”.
Section 329(1) provides for “a matter referred for assessment” to be “referred again”, that is, the same matter that was previously referred. It is conceivable that, on a referral for a “further assessment” within the meaning of cl 28D, a worker may seek to refer body parts or systems that were not the subject of an earlier referral, for example consequential conditions. This could potentially give rise to a ‘liability’ dispute which would require determination by the Commission, before assessment by an Approved Medical Specialist: State of New South Wales v Bishop [2014] NSWCA 354; 14 DDCR 1. The ‘medical dispute’ referred for the purposes of Sch 8, Pt 2A of the Regulations may not be identical to that referred previously. The scheme of the Acts provides for ‘liability’ issues to be determined, prior to referral to an Approved Medical Specialist: ss 293(2) and (3), and 321(4)(a) of the 1998 Act. There is nothing in Sch 8, Pt 2A of the Regulations which suggests that it is necessary, in giving effect to that Part, that the “further assessment” should involve referral pursuant to s 329, rather than referral of the relevant ‘medical dispute’ pursuant to s 321.

It is incorrect that there is no vehicle available for assessment within the meaning of cl 28D, other than s 329(1)(b) of the 1998 Act. Typically, the need for assessment within the meaning of cl 28D will arise in the context of a ‘medical dispute’, which (subject to the determination of any necessary ‘liability’ issues) will be referred for assessment pursuant to s 321 of the 1998 Act. This process falls within “the terms of the Workers Compensation Acts”. It is consistent with the scheme of the Acts (see Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 per Kirby P at 723G, Studorp Ltd v Robinson [2012] NSWCA 382 per Hoeben JA (Allsop P and Meagher JA agreeing) at [46]. It avoids the use of s 329 “in an unrestrained or unlimited way” (see the passages of Miloslavjevic quoted at [73] above). Difficulties associated with the use of the referral power in s 329 are apparent from the circumstances of the current matter. The matter was referred in circumstances where the real nature of the claim was not apparent from the pleadings, given the respondent’s ultimate lack of reliance on them. To the extent to which the claim and pleadings assisted, the referral involved a further claim for lump sum compensation which had been denied, consistent with s 66(1A) of the 1987 Act, Goudappel and Cram Fluid, and where that ‘liability’ issue remained unresolved.
For the above reasons, there was error in how Sch 8, Pt 2A, cl 28D was applied in the circumstances, particularly its procedural interaction with Ch 7, Pt 7 of the 1998 Act. Ground no 2 is upheld to this extent.
There may be occasions where the dictates of justice require a further referral pursuant to s 329 of the 1998 Act, in connection with the 2016 Regulation. As was observed in Milosavljevic at [58], the scope of the section “must be determined on a case-by-case basis”.
The appellant, in ground no 2, also specifically addresses the issue of whether the 2016 Regulation provides for or facilitates a further claim for lump sum compensation, where such a claim has already been made (in this instance, after 19 June 2012). The respondent submits that this issue cannot and should not be decided at this point, as it was not decided by the Arbitrator. The respondent has not, in its submissions on this appeal, withdrawn from its position that cl 28D “allows a further assessment for a claim or previous claim under s 66”. It additionally submits that a further MAC “would allow the Commission to reconsider its previous determination pursuant to s 350 of the WIM Act at a later stage of proceedings”.
The respondent submits that the “nature of the proceedings was in the form of a reconsideration of the previous award”. The matter is not pleaded as a reconsideration application pursuant to s 350(3) of the 1998 Act. There has been no formal request for reconsideration pursuant to s 350(3), and accordingly, no response to that from the appellant. The respondent’s solicitors’ letter dated 25 November 2016 dealt (in part) with reconsideration of the medical assessment certificate pursuant to ss 327 and 329, not with reconsideration of the Commission’s decision in the earlier proceedings. There could be no basis for reconsideration pursuant to s 350(3) on the evidence as it currently stands, where the earlier claim pursuant to s 66 was decided consistent with a Medical Assessment Certificate which was “conclusively presumed to be correct”: s 326(1) of the 1998 Act.
It is unnecessary to decide the specific issue, going to the interaction between s 66(1A) of the 1987 Act and the 2016 Regulation, for the purposes of the current appeal. This was not an issue decided, or dealt with, by the Arbitrator. It was not argued in detail on the arbitration hearing, or on this appeal. A second s 66 claim was made in writing, was the subject of the Application, was said not to be relied on at the arbitration hearing, but remains in the Application. There is no other claim for compensation in the Application. The respondent describes the proceedings as “in the form of a reconsideration of the previous award”, when no such application has been formally made. These proceedings are not a suitable vehicle for dealing with the s 66(1A) issue, and indeed it is doubtful whether the second claim pursuant to s 66 is being pursued.

Orders on the appeal

The appellant does not, on this appeal, oppose an order referring the matter for further assessment within the meaning of Sch 8, Pt 2A, cl 28D of the Regulations. This is with the specific proviso that it does “object to a further assessment being made for the purpose of a further claim for permanent impairment”. For reasons given above, referral pursuant to either s 321 or s 329 of the 1998 Act is not available, on the current state of the proceedings. Notwithstanding the appellant’s limited consent, it is not appropriate to make an order for referral for medical assessment, on either basis, given the doubt about the nature of the respondent’s claim. Re-determination by another Arbitrator would be of little utility. What the respondent really seeks is a further referral for medical assessment. As the matter currently stands, there is no ‘medical dispute’ that could be referred pursuant to s 321, and nothing to be referred again for further assessment pursuant to s 329(1)(b), as the earlier proceedings were concluded by a final and binding decision.
In my view, the appropriate order is that the Application be dismissed. If it transpires that the respondent seeks to pursue a second claim pursuant to s 66, he can make such an Application, and the ‘liability’ issue can be appropriately dealt with, before any referral pursuant to s 321 (assuming a ‘medical dispute’ then exists) is made. If the respondent does not seek to pursue a second claim pursuant to s 66, and seeks a ‘further assessment’ within the meaning of Sch 8, Pt 2A, cl 28D, I would anticipate that the appellant (again, assuming there is a ‘medical dispute’) would consent to such a course, consistent with its position on this appeal. In either instance any necessary referral for medical assessment could be dealt with pursuant to s 321 of the 1998 Act.
It is, in the circumstances, unnecessary to deal with the challenge to the adequacy of the Arbitrator’s reasons.
This appeal was complicated by the lack of definition of the case being pursued by the respondent, and the relief the respondent sought. The various specific bases of referral available pursuant to s 329 of the 1998 Act were referred to in a sometimes interchangeable fashion. The basis of the claim the respondent brings remains, at this point, unclear. Discussions between the parties and the Arbitrator during the conciliation conference were, as is customary, not recorded. If matters are subject to oral applications to amend, it is desirable that the applications and their outcome be placed clearly on the record.

DECISION

Leave to appeal is granted pursuant to s 352(3A) of the 1998 Act.
The Certificate of Determination dated 16 February 2017 is revoked, and the following order is made in its place:
“The proceedings are dismissed.”

Michael Snell
Deputy President

25 July 2017