Return to Work Corporation of South Australia v Watkins
[2017] SASCFC 149
•10 November 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v WATKINS
[2017] SASCFC 149
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Nicholson)
10 November 2017
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - INJURY, DISEASE OR DISABILITY - OTHER MATTERS
WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - DISCONTINUATION OF PAYMENTS
Appeal from a decision of the Full Bench of the South Australian Employment Tribunal upholding an appeal from a single presidential member of the Tribunal who had dismissed the worker’s application to review the determination of Return to Work SA’s agent who rejected the worker’s claim for weekly payments of income maintenance following surgery for a compensable injury.
The respondent suffered an injury to her right arm in the course of her employment on 4 December 2014. She returned to work on modified duties and restricted hours on 8 December 2014, and by 2 February 2015, had resumed working full time on modified duties. On 11 February 2015 the appellant issued a determination discontinuing her weekly payments. The respondent continued to experience persistent pain and discomfort in her arm and arrangements were made for a surgical procedure to be undergone on 31 August 2015, for which payment was approved by an agent for the appellant. The respondent was wholly incapacitated for work until 21 September 2015 and claimed weekly payments of income maintenance for the period 31 August 2015 to 21 September 2015.
At issue on appeal is the interaction between the Transitional Provisions in Part 10 to Schedule 9 of the Return to Work Act 2014 (SA) and s 7(6) of that Act. In particular, whether a worker, who had an original injury compensable under the (repealed) Worker’s Rehabilitation and Compensation Act 1986 (SA), who, following the commencement of the Return to Work Act 2014, underwent surgery as a consequence of that injury, resulting in incapacity for work, is entitled to weekly payments in respect of that incapacity.
Held (per Stanley J; Kourakis CJ and Nicholson J agreeing): Appeal dismissed.
1. The surgical injury was a “new injury” within the terms of clause 29(1)(b) or clause 29(2) of Part 10 to Schedule 9 of the Return to Work Act 2014. As such, the Return to Work Act 2014 applies to it and clause 37(6) does not.
2. As a result, s 7(6) of the Return to Work Act 2014 applies to the extent that the injury resulting from the surgery is taken to constitute part of the original work injury which occurred on 4 December 2014, being before the designated day of 1 July 2015.
3. The respondent’s entitlement to weekly payments is to be determined pursuant to s 39(3) of the Return to Work Act 2014. Accordingly, the respondent is entitled to weekly payments of income maintenance for the period 31 August 2015 until 21 September 2015.
Return to Work Act 2014 (SA) Part 10 to Schedule 9, s 7, s 39; Workers Rehabilitation and Compensation Act 1986 (SA) s 30, s 30A, s 35, s 36, referred to.
Lovatt v WorkCover Employers Mutual Ltd (Virgina Nursery Pty Ltd) [2008] SAWCT 31; Pennington v Return to Work SA [2016] SAET 38; Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; Mueller v Dalgety & Co Ltd (1909) 9 CLR 693; In re Coal Economising Gas Company (1875) 1 Ch D 182; Re Levy; exparte Walton (1881) 17 Ch D 746; Commissioner of Taxation v Comber (1986) 10 FCR 88, considered.
RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v WATKINS
[2017] SASCFC 149Full Court: Kourakis CJ, Stanley and Nicholson JJ
KOURAKIS CJ: I would dismiss the appeal. I agree with the careful and succinct analysis of the statutory scheme essayed by Stanley J.
It is comforting that the result of that analysis is that an injury which did not occur until after the repeal of the Worker’s Rehabilitation and Compensation Act (1986) (SA) (the repealed Act) and the enactment of the Return to Work Act 2014 (SA) (the RTW Act) need not be treated as an injury which pre-existed the enactment of the latter. Both the repealed Act and the RTW Act limit, and reduce, entitlements to compensation by way of weekly payments of income maintenance by reference to periods of incapacity of fixed duration after the occurrence of a compensable injury. The limited statutory purpose of s 7(6) of the RTW Act is to ensure that income maintenance entitlements for incapacity following a medical intervention are calculated as if the medical treatment was provided on the date that the injury, for which the treatment was provided, occurred. Accordingly, s 7(6) of the RTW Act does not speak to the definitions of ‘existing’ and ‘new’ injury in clause 29(1) of the transitional provisions of Schedule 9 of the RTW Act (the Schedule).
Clause 37(6) of the Schedule applies only to existing injuries for the reasons given by Stanley J. Once the limited scope of the deeming effected by s 7(6) of the RTW Act is accepted, it is plain that the injury sustained by the respondent when she underwent surgery after the enactment of the RTW Act was not solely attributable to a trauma pre-dating the RTW Act. Her claim for income maintenance was therefore not precluded by cl 37(6) and her incapacity fell within a period after the occurrence of her ‘original’ injury in which income maintenance was payable pursuant to s 39 of the RTW Act.
None of the steps by which this conclusion is reached requires a categorisation of the original injury as a new injury or ‘composite’ injury. In particular, the conclusion does not necessarily mean that a worker who is entitled to weekly payments pursuant to clause 37 of the Schedule by reason of an existing injury attributable solely to trauma inflicted before the enactment of the RTW Act loses that entitlement if he or she is subsequently incapacitated following medical treatment.
STANLEY J:
Introduction
This is an appeal from a decision of the Full Bench of the South Australian Employment Tribunal.
The Full Bench upheld an appeal from a single presidential member of the Tribunal who had dismissed the worker’s application to review the determination of Return to Work SA’s agent who rejected the worker’s claim for weekly payments of income maintenance following surgery for a compensable injury.
The appeal concerns the interaction between the Transitional Provisions of the Return to Work Act 2014 (SA) (the RTW Act) found in Part 10 to Schedule 9 to that Act and s 7(6) of the RTW Act. At issue is whether a worker, who had an original injury that was compensable under the Worker’s Rehabilitation and Compensation Act 1986 (SA) (the repealed Act), who, following the commencement of the RTW Act underwent surgery as a consequence of that injury, resulting in incapacity for work, is entitled to weekly payments in respect of that incapacity.
The facts
The respondent suffered an injury to her right arm in the course of her employment on 4 December 2014. The following day a metal plate and screws were inserted in her arm. She returned to work on 8 December 2014 on modified duties and restricted hours. The respondent returned to work on 5 January 2015 working reduced hours of five hours per day. On 2 February 2015 the respondent resumed working full time on modified duties. On 11 February 2015 the appellant issued a determination discontinuing the respondent’s weekly payments on the basis she had returned to full time work on modified duties. The determination was made pursuant to s 36 of the repealed Act. From 18 March 2015 the respondent was still incapacitated and was working restricted duties. She received weekly payments of income maintenance pursuant to the repealed Act in respect of the time she had off work. The respondent continued to experience persistent pain and discomfort in her arm and in June 2015 arrangements were discussed with her surgeon for her to undergo a removal of the plate and screws. Return to Work SA’s agent approved payment for this procedure. It was performed on 31 August 2015. The plates and screws were removed and the respondent was wholly incapacitated for work as a result of that surgery until 21 September 2015. On that date she returned to work full time but on modified duties.
The respondent claimed weekly payments of income maintenance for that period between 31 August 2015 and 21 September 2015. The appellant rejected that claim. This is the dispute between the parties.
Relevant statutory provisions
The RTW Act commenced operation on 1 July 2015. The repealed Act was repealed as from that date. For the purposes of the RTW Act, 1 July 2015 is the designated day.
Part 10 of Schedule 9 to the RTW Act are the Transitional Provisions.
Clause 27(1) defines the expressions “existing injury” and “new injury” by reference to the provisions of clause 29(1) which provide:
29 – General provision
(1) Subject to the other provisions of this Part, this Act applies to and in relation to—
(a) an injury that is attributable to a trauma that occurred before the designated day and that is a compensable injury under the repealed Act (an existing injury); and
(b) an injury that is attributable to a trauma that occurred on or after the designated day (a new injury).
(2) For the purposes of subclause (1), an injury that is partially attributable to a trauma that occurred before the designated day and partially attributable to a trauma that occurred on or after the designated day will be taken to be a new injury within the ambit of subclause (1)(b).
(3) Subject to the other provisions of this Part—
(a) a reference in this Act to a work injury will be taken to include a reference to a compensable injury under the repealed Act; and
(b) this Act will apply to a compensable injury under the repealed Act as if this Act had been in operation before the injury occurred.
(4) Nothing in this Part is intended to give rise to an entitlement under this Act and the repealed Act so as to give rise to double entitlements.
Clause 30(1) provides:
(1) The question about whether an existing injury is compensable will be determined under sections 30 and 30A of the repealed Act (as in existence immediately before the designated day).
Clause 37 provides:
37 – Weekly payments for workers
(1) In this clause—
(a) the first transitional period is the period of 52 weeks from the designated day; and
(b) the second transitional period is the period of 52 weeks beginning immediately after the end of the initial transitional period; and
(c) a reference to an entitlement period is a reference to an entitlement period under Part 4 Division 4 of the repealed Act; and
(d) a Category A worker is, in respect of an existing injury, a worker who, immediately before the designated day, was still entitled to receive a weekly payment during the first entitlement period in respect of any incapacity for work in respect of that injury; and
(e) a Category B worker is, in respect of an existing injury, a worker who, immediately before the designated day, was still entitled to receive a weekly payment during the second entitlement period in respect of any incapacity for work in respect of that injury; and
(f) a Category C worker is, in respect of an existing injury, a worker who, immediately before the designated day, was still entitled to receive a weekly payment during a period occurring after the end of the second entitlement period in respect of any incapacity for work in respect of that injury.
(2) Subject to this Part, a worker who, in respect of an existing injury, is incapacitated for work at any time during the period beginning on the designated day and ending 104 weeks from the designated day, will be entitled to weekly payments in respect of that incapacity in accordance with the following principles:
(a) if any incapacity for work occurs within the first transitional period—
(i) in the case of a Category A worker—the worker is entitled to weekly payments under section 39(1)(a)(i) or (ii) of this Act as if references to the first designated period in section 39(1)(a) were references to the first transitional period; and
(ii) in the case of a Category B worker—the worker is entitled to weekly payments under section 39(1)(b)(i) or (ii) as if references to the second designated period in section 39(1)(b) were references to the first transitional period and as if references to "80%" in section 39(1)(b)(i) or (ii) were substituted with "90%"; and
(iii) in the case of a Category C worker—the worker is entitled to weekly payments under section 39(1)(b)(i) or (ii) of this Act as if references to the second designated period in section 39(1)(b) were references to the first transitional period;
(b) if any incapacity for work occurs within the second transitional period—the worker is entitled to weekly payments under section 39(1)(b)(i) or (ii) of this Act as if references to the second designated period in section 39(1)(b) were references to the second transitional period.
(3) Subject to subclauses (4) and (5), a worker has no entitlement to weekly payments under this Act or the repealed Act in respect of an existing injury after the end of the second transitional period (and this subclause will apply instead of section 39(3) of this Act in relation to existing injuries).
(4) An entitlement under this clause has effect subject to any other provision of this Act (including any provision that applies under or subject to this Part) that provides for the suspension, reduction or discontinuance of weekly payments.
(5) Subclause (3) does not apply in relation to a seriously injured worker.
(6) To avoid doubt, a person who, before the designated day, has ceased to have an entitlement to weekly payments on account of a discontinuance under section 36 of the repealed Act is not entitled to weekly payments under this clause (or under the repealed Act).
Section 7 of the RTW Act provides for the circumstances where that Act applies to an injury. It is in the following terms:
7 – Injury must arise from employment
(1) This Act applies to an injury if (and only if) it arises from employment.
(2) Subject to this section, an injury arises from employment if—
(a) in the case of an injury other than a psychiatric injury—the injury arises out of or in the course of employment and the employment was a significant contributing cause of the injury; and
(b) in the case of a psychiatric injury—
(i) the psychiatric injury arises out of or in the course of employment and the employment was the significant contributing cause of the injury; and
(ii) the injury did not arise wholly or predominantly from any action or decision designated under subsection (4).
(3) In connection with the application of subsection (2) to an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury (a prescribed event)—
(a) in the case of an injury other than a psychiatric injury—employment must be a significant contributing cause of the prescribed event; and
(b) in the case of a psychiatric injury—
(i) employment must be the significant contributing cause of the prescribed event; and
(ii) the prescribed event must not arise wholly or predominantly from any action or decision designated under subsection (4),
and then the injury is only compensable to the extent of and for the duration of the relevant aggravation, acceleration, exacerbation, deterioration or recurrence.
(4) The following are designated for the purposes of subsection (2)(b)(ii) and (3)(b)(ii):
(a) reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker or a decision of the employer not to renew or extend a contract of service;
(b) a decision of the employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with the worker's employment;
(c) reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment;
(d) reasonable action taken in a reasonable manner under this Act affecting the worker.
(5) For the purposes of this Act, a worker's employment includes—
(a) attendance at the worker's place of employment on a working day but before the day's work begins in order to prepare, or be ready, for work; and
(b) attendance at the worker's place of employment during an authorised break from work; and
(c) attendance at the worker's place of employment but after work ends for the day while the worker is preparing to leave, or in the process of leaving, the place; and
(d) attendance at an educational institution under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; and
(e) attendance at a place to receive a medical service, to obtain a medical report or certificate (or to be examined for the purpose), to receive recovery/return to work services or for the purposes of a recovery/return to work plan, or to apply for, or receive, compensation for a work injury.
(6) Any injury attributable to surgery or other treatment or service performed with due care and skill by a person professing to have particular skills and undertaken or provided while attending at a place referred to in subsection (5)(e) will be taken to constitute part of the original work injury.
(7) An injury does not arise from employment if it arises out of or in the course of the worker's involvement in a social or sporting activity, except where the activity forms part of the worker's employment or is undertaken at the direction or request of the employer.
(8) An injury that arises out of or in the course of a journey arises from employment if (and only if)—
(a) the journey is undertaken in the course of carrying out duties of employment; or
(b) the journey is between—
(i) the worker's place of residence and place of employment; or
(ii) the worker's place of residence or place of employment and—
(A) an educational institution the worker attends under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; or
(B) a place the worker attends to receive a medical service, to obtain a medical report or certificate (or to be examined for that purpose), to receive recovery/return to work services or for the purposes of a recovery/return to work plan, or to apply for, or receive, compensation for a compensable injury,
and there is a real and substantial connection between the employment and the journey being undertaken at the time of the accident out of which the injury arises.
(9) However, the fact that a worker has an accident in the course of a journey to or from work does not in itself establish a sufficient connection between the accident and the employment for the purposes of subsection (8)(b).
(10) The journey between places mentioned in subsection (8)(b) must be a journey by a reasonably direct route but may include an interruption or deviation if it is not, in the circumstances of the case, substantial, and does not materially increase the risk of injury to the worker.
(11) If—
(a) a worker's injury consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a pre-existing coronary heart disease; and
(b) the injury arises in the course of employment,
it will be presumed, in the absence of proof to the contrary, that the employment was a significant contributing cause of the injury.
It is also necessary to refer to s 39 of the RTW Act which provides for weekly payments for designated periods for workers who are not seriously injured. It provides:
39—Weekly payments over designated periods for workers other than seriously injured workers
(1)Subject to this Act, if a worker, other than a seriously injured worker, suffers a work injury that results in incapacity for work, the worker is entitled to weekly payments in respect of that incapacity in accordance with the following principles:
(a)if any period of incapacity for work occurs within the period of 52 weeks from the date on which the incapacity for work first occurs (the first designated period)—
(i)for any period during the first designated period when the worker has no current work capacity—the worker is entitled to weekly payments equal to the worker's notional weekly earnings; and
(ii)for any period during the first designated period when the worker has a current work capacity—the worker is entitled to weekly payments equal to the difference between the worker's notional weekly earnings and the worker's designated weekly earnings;
(b)if any period of incapacity for work occurs within the period of 52 weeks beginning immediately after the end of the period that applies under paragraph (a) (the second designated period)—
(i)for any period during the second designated period when the worker has no current work capacity—the worker is entitled to weekly payments equal to 80% of the worker's notional weekly earnings; and
(ii)for any period during the second designated period when the worker has a current work capacity—the worker is entitled to weekly payments equal to 80% of the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.
(2)For the purposes of this section, the designated weekly earnings of a worker will be taken to be the current weekly earnings of the worker in employment or self‑employment (if any) but not so as to include a prescribed benefit.
(3)A worker has no entitlement to weekly payments under this section in respect of a work injury after the end of the period of 104 weeks from the date on which the incapacity for work first occurs (that is, after the end of the second designated period).
Reasons of the Tribunal
At first instance Gilchrist DP held that the worker was not entitled to weekly payments in respect of the period from 31 August 2015 to 21 September 2015. Referring to earlier decisions of the Workers Compensation Tribunal in Lovatt v WorkCover Employers Mutual Ltd (Virginia Nursery Pty Ltd)[1] and the Employment Tribunal in Pennington v Return to Work SA[2] he upheld the determination of the appellant’s agent to dismiss the worker’s claim for weekly payments.
[1] [2008] SAWCT 31.
[2] [2016] SAET 21.
In Lovatt the Tribunal held that subsequent surgery for a work-related injury constituted a separate compensable disability in respect of which a worker could elect to bring a claim under the repealed Act. In Pennington the Full Bench held that the effect of clause 37(6) of the Transitional Provisions was that workers who were not in receipt of weekly payments on 1 July 2015 due to those payments having been discontinued under s 36 of the repealed Act were not entitled to receive weekly payments under either the RTW Act or the repealed Act. The Deputy President said:[3]
In my view, the submissions advanced by [Return to Work] in connection with 7(6) of the RTW Act must be accepted. The words “will be taken to constitute part of the original work injury” as they appear in that subsection are clear and unambiguous. Their clear purpose is to change the position as identified in Lovatt. In contrast to the position with earlier workers compensation legislation in this State, surgery is no longer regarded as a “new injury”. Under the RTW Act, if there are rights to compensation flowing from surgery, they arise because of the original injury. This creates an insurmountable obstacle for Ms Watkins. As a result of her circumstances, namely the lawful discontinuance of her weekly payments pursuant to s 36 of the WR&C Act prior to the designated day, means that by force of cl 37 of sch 9 of the transitional provisions of the RTW Act, as construed in Pennington, she has no ongoing entitlement to weekly payments in respect of that injury.
[Citation omitted].
[3] [2016] SAET 38 at [33].
An appeal to the Full Bench was allowed. In joint reasons Deputy Presidents Hannon and Farrell held that the effect of s 7(6) was to create a “composite injury” which was “deemed to comprise more than one part”. The composite injury thereby created was a “new injury” within the meaning of clause 29 of the Transitional Provisions because it was attributable to a trauma that occurred on or after the designated day. They said:[4]
Section 7(6) of the RTW Act cannot be taken to be limited in its operation only to circumstances where the original work injury and the later injury attributable to surgery both occurred on or after 1 July 2015. In a case such as this, where the two injuries straddle the designated day, cl 29(3)(a) has the effect that the reference to the “original work injury” in s 7(6) must include an original work injury which occurred under the repealed Act. Accordingly it must be accepted that the injury attributable to surgery on 31 August 2015 will be taken to constitute part of the original work injury of 4 December 2014. To that extent cl 29(3)(a) gives retrospective effect to the undisputed intention of s 7(6) of the RTW Act to remove the option previously available to a worker of claiming that surgery following an original injury constituted a new injury with a new range of entitlement periods with respect to weekly payments.
However we do not agree that the fact that the injury attributable to surgery will be taken to constitute part of the original work injury under s 7(6) changes the nature of the deemed “new injury” to that of an “existing injury” for that or any other purpose. An existing injury is defined in cl 29(1)(a) of the transitional provisions to be an injury that is attributable to a trauma that occurred before the designated day. By the operation of s 7(6) and cl 29(3)(a) of the transitional provisions, the original work injury is deemed to comprise of more than one part. Part of it is the injury attributable to the trauma that occurred before the designated day, and part of it is the injury attributable to the trauma that occurred after the designated day. As such, the original work injury cannot be taken to fall within the definition of an existing injury. Rather, for the purposes of the transitional provisions, it remains the case that the composite injury is to be taken to be a “new injury” within the ambit of cl 29(1)(b).
[4] [2017] SAET 8 at [39]-[40].
Deputy President Calligeros agreed that the appeal should be allowed. He said:[5]
Ms Watkins’ injury comes within cl 29(2) of part 10 of Schedule 9 because it is partially attributable to trauma which occurred both before and after 1 July 2015. Her injury is therefore a new injury within the meaning of Part 10 of Schedule 9. In my view, the learned Deputy President at first instance erred in having regard to cl 37 because the restrictions imposed on the receipt of weekly payments by cl 37 only apply to weekly payments made in relation to an existing injury. Clause 29(3) provides that a reference to a work injury under the RTW Act includes a reference to a compensable injury under the repealed Act.
Section 7(6) of the RTW Act provides that surgery conducted after 1 July 2015 in relation to “the original work injury” is taken to constitute part of that injury. Under cl 29(2), Ms Watkins’ compensable injury of 4 December 2014 under the repealed Act becomes a work injury under the RTW Act following the repeal of the repealed Act because of the operation of cl 29(3). Clause 30, which preserves s 30 and s 30A of the repealed Act in relation to the test used to determine the compensability of pre 1 July 2015 injuries, does not apply to this matter as cl 30 only applies to existing injuries. Clauses 29(2) and 29(3) operate so that Ms Watkins original injury of 4 December 2014 and the surgery injury of 15 August 2015 are treated as one injury, a new injury, which is dealt with by reference to the RTW Act. Under s 39(3) of the RTW Act, Ms Watkins’ entitlement to weekly payments ends 104 weeks after 4 December 2014, the date on which she was first incapacitated for work.
[5] [2017] SAET 8 at [52]-[53].
Appellant’s submissions
The appellant contends that the Full Bench erred in its construction and application of the relevant provisions. It submits that if any injury resulted from the surgery it was, by virtue of s 7(6) of the RTW Act, to be taken to constitute part of the original injury, which was an “existing injury” for the purpose of clause 37 of the Transitional Provisions. This is because, by reason of the operation of s 7(6), clause 29(1)(a) attributed any injury resulting from surgery to the trauma that occurred before the designated day. Accordingly, clause 37(6) excluded any further entitlement to weekly payments.
Respondent’s submissions
The respondent submits that pursuant to clause 29(2) of the Transitional Provisions her injury is partially attributable to trauma that occurred before the designated day and partially attributable to trauma that occurred after the designated day. As a result, it is a new injury for the purposes of the Transitional Provisions. As it is a new injury, the provisions of clause 37(6) do not apply as that provision is confined in its application to an existing injury. The application of s 7(6) does not provide that any injury caused by the surgery is an existing injury. Section 7(6) does not refer to existing injury. It is a deeming provision which provides that an injury attributable to competent surgery is to be taken to constitute part of the original work injury. Neither does it provide that a surgical injury is attributable only to the original work injury trauma. Its operation goes no further than to reverse the effect of the decision in Lovatt.
Principles of construction
At issue in this appeal is a question of statutory construction. The principles of statutory construction were considered in the joint reasons of French CJ and Hayne J in Certain Lloyd’s Underwriters v Cross,[6] who said:[7]
[6] [2012] HCA 56, (2012) 248 CLR 378.
[7] [2012] HCA 56 at [23]-[26], (2012) 248 CLR 378 at 388-389.
It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischiefFTN.23 it is seeking to remedy.”
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have” (emphasis added). And as the plurality went on to say in Project Blue Sky:
“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
To similar effect, the majority in Lacey v Attorney-General (Qld) said:
“Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.”
(Footnote omitted.) The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:
“Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.” (emphasis added.)
And as the plurality said in Australian Education Union v Department of Education and Children's Services:
“In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.”
[Footnotes omitted.]
The issue on appeal
At issue on this appeal is whether the provisions of s 7(6) of the RTW Act operate to provide that, for the purposes of the Transitional Provisions, the worker’s injury is an existing injury with the consequence that her claim for compensation by way of weekly payments of income maintenance is precluded by the operation of clause 37(6).
While the statutory scheme is convoluted so as to make answering that question difficult, I am satisfied that the answer is “No”.
The Transitional Provisions
In enacting the RTW Act, the Parliament established a scheme, by way of the Transitional Provisions found in Part 10 of Schedule 9 to the RTW Act, to regulate which Act was to apply to injuries in circumstances where the Workers Rehabilitation and Compensation Act 1986 was repealed and the Return to Work Act 2014 commenced operation on 1 July 2015. The purpose of the Transitional Provisions is twofold. First, it determines which Act applies and, second, it regulates entitlements to compensation subsequent to the commencement of operation of the RTW Act where a worker’s antecedent rights to compensation were determined by the repealed Act.
Clause 29 of the Transitional Provisions provides for the application of the RTW Act. However, its operation is made subject to the other provisions of Part 10 of Schedule 9 of the RTW Act. Clause 29(1) characterises an injury as an existing injury or a new injury. Whether an injury is categorised as an existing injury or a new injury depends upon whether the injury is attributable to a trauma that occurred before the designated day and is a compensable injury under the repealed Act, or whether it is attributable to a trauma that occurred on or after the designated day. Further, clause 29(2) provides that, for the purpose of categorising an injury as an existing injury or a new injury in sub-clause (1), an injury that is partially attributable to a trauma that occurred before the designated day and partially attributable to a trauma that occurred on or after the designated day is taken to be a new injury. However, whether an injury is an existing injury or a new injury, the RTW Act applies to and in relation to such injury. Consistent with that operation, clause 29(3) provides that a reference in the RTW Act to a work injury is to be taken to include a reference to a compensable injury under the repealed Act, and the RTW Act applies to a compensable injury under the repealed Act as if the RTW Act had been in operation before the compensable injury under the repealed Act occurred. Paradoxically, clause 30(1) provides that whether an existing injury is compensable will be determined pursuant to ss 30 and 30A of the repealed Act, notwithstanding that by reason of the operation of clause 29(3)(b) the RTW Act applies to a compensable injury under the repealed Act as if the RTW Act had been in operation before the injury occurred.
In recognising the dichotomy created for the purposes of the operation of the Transitional Provisions between existing injury and new injury, the Transitional Provisions only make two further references to new injury. That reflects the predominant purpose of the Transitional Provisions which is to regulate the way in which the RTW Act applies to existing injury.
Accordingly, the provisions of clause 37 are concerned with regulating the entitlements of a worker who has suffered an existing injury, being an injury that is attributable to a trauma that occurred before 1 July 2015 and that is a compensable injury under the repealed Act. Clause 42 provides for redemptions under the repealed Act. It provides that the Transitional Provisions do not affect redemptions entered into before the designated day, but that s 42 of the repealed Act will not apply to, or in relation to, a liability under the repealed Act in respect of an existing injury. Clause 43 provides that the provisions of the RTW Act providing for lump sum compensation for loss of earning capacity[8] do not apply to, or in relation to, an existing injury. Clause 44 provides that a person whose entitlement to compensation for non-economic loss was determined under the repealed Act in respect of an existing injury is not entitled to an assessment of compensation for non-economic loss under the RTW Act in relation to the same injury (or any other injury arising from the same trauma).
[8] Part 4 Division 6 of the RTW Act.
Finally, clause 49 provides that Part 5 of the RTW Act, which preserves rights to damages at common law for a work injury, does not apply to, or in relation to, an existing injury or the death of a worker resulting from an existing injury. (Section 54(1) of the repealed Act continues to apply in respect of such an injury or death.)
As I have noted, the scheme of the RTW Act, including, in particular, the Transitional Provisions, first directs attention to whether the RTW Act applies to a particular injury. That issue is resolved by the factual finding of whether the worker has an injury that is:
(i)attributable to a trauma that occurred before the designated day and that is a compensable injury under the repealed Act;
(ii)attributable to a trauma that occurred on or after the designated day; or
(iii)partially attributable to a trauma that occurred before the designated day and partially attributable to a trauma that occurred on or after the designated day.
If, as a matter of fact, the worker suffers an injury in one of these categories then, subject to the other provisions of Part 10 of Schedule 9, the RTW Act applies to and in relation to that injury. However, with one exception, the remaining provisions of Part 10 of Schedule 9 only apply to existing injury. Existing injury is confined to injury in category (i), i.e. an injury that is attributable to a trauma that occurred before the designated day and that is a compensable injury under the repealed Act. The remaining two categories of injury in categories (ii) and (iii) define new injury. In the dichotomy established by clause 29 of the Transitional Provisions, if as a matter of fact an injury is a new injury, the rights, duties and obligations attaching to a new injury are determined by the provisions of the substantive Act rather than the Transitional Provisions, apart from the one exception concerning rights of set off under ss 32A(8) and 50H of the repealed Act, which may be exercised in relation to a right to compensation under the RTW Act, including in relation to a right to compensation in respect of a new injury.[9]
[9] Clauses 36 and 48 of Part 10 to Schedule 9.
For the disposition of this appeal, it is relevant to consider the operation of clause 37 for two reasons. First, because it regulates weekly payments which is the nature of the claim the subject of the appeal and, second, because it is clause 37(6) upon which the appellant’s argument on appeal relies. In that context, it is necessary to commence with the scheme of the repealed Act relevant to the payment of compensation by way of weekly payments of income maintenance. Section 35(8) of the repealed Act enshrined a statutory scheme of three entitlement periods for the receipt of weekly payments of income maintenance. In effect this limited the period of entitlement and the quantum of weekly payments. Section 39 of the RTW Act reduces the number of periods in respect of which a worker could receive weekly payments of income maintenance from three under the repealed Act to two under the RTW Act. Clause 37 regulates the transition of workers from the three entitlement periods under the repealed Act to the two designated periods under the RTW Act. The text of clause 37(1) adopts the language of s 35(8) of the repealed Act. This is unsurprising as clause 37 forms part of the Transitional Provisions which are intended to regulate the transition of weekly payments from one Act to the other. That transition is regulated by the scheme enshrined in clause 37 which provides that, as at 1 July 2015, workers who were in their first entitlement period under s 35(8) of the repealed Act are treated as being within the first designated period under s 39(1)(a)(i) or (ii) of the RTW Act, and workers who were in their second or third entitlement period under the repealed Act as at 1 July 2015 are treated as being within the second designated period under s 39(1)(b)(i) or (ii) of the RTW Act. Clause 37 means workers who, prior to 1 July 2015 were “still entitled to receive a weekly payment in an entitlement period, in respect of any incapacity for work in respect of that injury” are “entitled to weekly payments in respect of that incapacity” in accordance with the principles prescribed in clause 37(2). Clause 37(2)(a) prescribes what the entitlement to weekly payments is for each of category A, B and C workers where any incapacity for work occurs within the first transitional period. Clause 37(2)(b) prescribes what the entitlement to weekly payments is where any incapacity for work occurs within the second transitional period. The provisions of clause 37 apply to workers in each of categories A, B and C who claim weekly payments “in respect of an existing injury”. The entitlement to weekly payments under clause 37 is an entitlement “in respect of an existing injury”.
Accordingly, the provisions of clause 37(6) do not apply to a new injury. Clause 37, like the remaining provisions of Part 10 to Schedule 9, except clauses 36 and 48, are concerned with regulating the rights, duties and obligations attaching to an existing injury. That limitation is underlined by the text of clause 37(6) with its reference to a person who falls within the operative conditions of the sub-clause not being entitled to weekly payments “under this clause (or under the repealed Act)”. The terms of clause 37(1), (2) and (3) expressly relate to “an existing injury”.
Section 7(6)
Having analysed the Transitional Provisions, I turn to consider s 7(6) of the RTW Act.
Section 7(6) is a deeming provision. It creates a statutory fiction. In construing a provision of this kind, it is important to consider the purpose for which the statutory fiction is introduced.[10] Deeming provisions are required by their nature to be construed strictly and only for the purpose for which resort is had to them.[11]
[10] Mueller v Dalgety & Co Ltd (1909) 9 CLR 693 per Griffiths CJ at 696; In re Coal Economising Gas Company (1875) 1 ChD 182 at 189.
[11] Re Levy; ex parte Walton (1881) 17 ChD 746, per James LJ at 756; Commissioner of Taxation v Comber (1986) 10 FCR 88 per Fisher J at 96.
The purpose of s 7(6) is not to determine whether the RTW Act applies to an injury but, rather, to provide, in the narrow and specific circumstances it addresses, that a particular injury is taken to constitute part of an earlier injury for the purposes of determining rights and obligations in relation to the payment of compensation for that injury.
There is no scope for s 7(6) of the substantive Act to determine the application of the Transitional Provisions to an injury. Section 7(6) is not found in the Transitional Provisions. The Transitional Provisions operate antecedently to the substantive Act. This must be so because the Transitional Provisions determine the application of the RTW Act. So much is emphasised by the chapeau to clause 29(1) of the Transitional Provisions which provide that the application of the RTW Act to an injury is to be determined “subject to the other provisions of this Part”, namely, Part 10 to Schedule 9. Section 7(6) is not found in Part 10 to Schedule 9. It is a provision of the substantive Act. It only operates once the question of whether the substantive Act applies has been decided. Whether the substantive Act applies, is the antecedent question to be determined by reference to the Transitional Provisions in Part 10 to Schedule 9. This conclusion is supported by the text of s 7(6) which does not refer to “existing injury” but to the “original work injury”. Nor does it refer to “trauma”. It is not concerned with “trauma”. If it was intended that s 7(6) was to operate in respect of the Transitional Provisions, I would have expected it to use the language of clause 29.
For these reasons, I reject the appellant’s submission that s 7(6) excludes any room for the operation of clause 29(1)(b) or clause 29(2) as it is not open to attribute a surgical injury to a trauma that occurred on or after the designated day because s 7(6) operates to constitute that injury as part of the original work injury. The appellant’s submission is strained and circular. The intrusion of s 7(6) into the application of the Transitional Provisions is unnecessary and would only serve to complicate the operation of the Transitional Provisions. The application of s 7(6) in the manner for which the appellant contends is inconsistent with reading the Act as a whole and creates disharmony between the operation of the Transitional Provisions and the substantive Act.
Consideration
In this case, as a matter of fact, the relevant injury, being the surgical injury, was a new injury, either because it was an injury attributable to a trauma that occurred on or after the designated day, or was an injury partially attributable to a trauma that occurred before the designated day and partially attributable to a trauma that occurred on or after the designated day. Accordingly, it fell within the terms of clause 29(1)(b) or clause 29(2). Because the injury is a new injury, two immediate consequences follow. First, the RTW Act applies to it. Second, clause 37(6) does not apply to it.
As the RTW Act applies to it, s 7(6) applies, but the application of s 7(6) to the surgical injury, while operating in its terms, only means that the injury resulting from the surgery is taken to constitute part of the original work injury. That original work injury occurred on 4 December 2014, i.e. before the designated day. That fact is not an impediment to the application of the RTW Act which commenced operation on the designated day because, pursuant to clause 29(3)(b), the RTW Act applies to a compensable injury under the repealed Act as if the RTW Act had been in operation before the compensable injury under the repealed Act occurred.
As clause 37(6) does not apply to the respondent’s surgical injury, her entitlement to weekly payments is to be determined pursuant to s 39(3) of the RTW Act. This means she is eligible to receive weekly payments of up to 104 weeks from 4 December 2014, being the date when her incapacity first occurred as a result of the work injury of the same date. Accordingly, the respondent is entitled to weekly payments of income maintenance for the period 31 August 2015 until 21 September 2015.
Conclusion
I would dismiss the appeal.
NICHOLSON J: I would dismiss the appeal for the reasons given by Stanley J. I also agree with the additional observations of the Chief Justice.
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