Shah v Victorian WorkCover Authority
[2021] VSCA 137
•18 May 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0115
| MUHAMMAD SHAH | Applicant |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Respondent |
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| JUDGES: | BEACH, KAYE and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 May 2021 |
| DATE OF JUDGMENT: | 18 May 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 137 |
| JUDGMENT APPEALED FROM: | Shah v VWA (Unreported, County Court of Victoria, Judge Lauritsen, 20 November 2020) |
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ACCIDENT COMPENSATION – Workplace injury – Applicant suffered injuries to cervical and lumbar spine allegedly resulting from heavy lifting and two incidents in the course of employment – Respondent rejected applicant’s compensation claim for non-economic loss for cervical spine injury and accepted claim for lumbar spine injury under s 98C of the Accident Compensation Act 1985 – Applicant subsequently made serious injury claim under s 134AB of the Accident Compensation Act for both injuries – Whether judge erred in holding that successful claim under s 98C is a prerequisite for serious injury claim under s 134AB of the Accident Compensation Act – Whether s 134AB(4A) applies where worker seeks to include an injury the subject of a previously rejected claim in a serious injury application under s 134AB(16)(b) – Appeal allowed – Cervical spine injury able to be included in serious injury application – Accident Compensation Act 1985 ss 98C, 104B, 134AB.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J A Ribbands | -- |
| For the Respondent | Mr S A O’Meara QC with Mr R Kumar | Wisewould Mahony |
BEACH JA
KAYE JA
OSBORN JA:
The applicant issued an application in the County Court, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’), seeking leave to commence proceedings for damages in respect of injuries that he had sustained to his cervical spine and lumbar spine in the course of his employment with Tasty Trucks Pty Ltd (‘Tasty Trucks’). The respondent raised a preliminary issue whether the applicant, in that application, was entitled to rely in part on the injury to his cervical spine. The issue arose because the respondent had rejected the applicant’s claim for compensation under s 98C of the Act, in respect of that injury, and the applicant had not challenged the rejection of that aspect of his claim.
The judge, who heard the preliminary issue, upheld the submission on behalf of the respondent that, in the application under s 134AB of the Act, the applicant could not include or rely on an injury to the cervical spine.[1]
[1]Shah v VWA (Unreported, County Court of Victoria, Judge Lauritsen, 20 November 2020) (‘Ruling’).
The applicant seeks leave to appeal that ruling on two grounds, namely:
(i)The Learned Judge at first instance has erred in determining that upon a proper construction of sections 98C, 104B and 134AB of the Accident Compensation Act, the rejection of the claim for compensation in respect of the Applicant’s injury to his cervical spine required a successful appeal from that decision as a pre-requisite to the applicant commencing a claim for serious injury under s 134AB that included a claim in respect of the cervical spine injury.
(ii)The Learned Judge at first instance applied the incorrect test for the summary dismissal of the applicant’s claim in respect of injury to the cervical spine.
Circumstances
The applicant was employed by Tasty Trucks as a van loader between August 2010 and late 2012. His work involved him loading vans full of food, drinks and similar products. In his affidavit in support of the application under s 134AB of the Act, he stated that the work was very heavy and repetitive, and almost all of his work had involved physical exertion.
On 16 June 2017, the applicant made a claim for impairment benefits pursuant to s 98C of the Act, citing injury to his cervical spine and lumbar spine. In that claim, he stated that he had sustained those injuries in the course of his employment with Tasty Trucks. He further stated that, in particular, he sustained a cervical spine injury on 23 September 2011 and a lumbar spine injury on 14 December 2011.
On 21 June 2017, EML, the claims manager of Tasty Trucks and an authorised agent for the respondent, wrote to the applicant to acknowledge receipt of an impairment benefits claim in respect of the injury to the cervical spine sustained on 23 September 2011. That claim was allocated a specific claim number. On the same date, EML wrote a second letter to the applicant acknowledging receipt of an impairment benefits claim in respect of the injury to the lumbar spine, and that claim was allocated a separate claim number.
On 6 July 2017, EML wrote to the applicant rejecting the claim in respect of injury to the cervical spine. Liability was rejected on the ground that the applicant had not sustained an injury within the meaning of the Act, or alternatively, on the ground that the applicant’s employment was not a significant contributing factor to that injury.
The applicant disputed that decision. A conciliation conference was held on 18 September 2017, but the matter was not resolved. A certificate was issued by the conciliation officer certifying that the matter remained unresolved.
On 12 October 2017, EML wrote a letter to the applicant accepting liability for the lumbar spine injury, and noting that his whole person spine impairment had been determined at 5%, which converted to a 10% impairment benefit rating.
The applicant challenged the assessment by EML of the lumbar spine impairment. The matter was referred to a medical panel on 18 October 2017. After the medical panel reviewed the claim, EML wrote to the applicant on 19 January 2018 and confirmed that his whole person spine impairment had been determined at 5%, which converted to a 10% impairment benefit rating. On 24 January 2018, the applicant signed a worker’s response form, accepting that calculation of his entitlement.
On 30 August 2018, the applicant made an application pursuant to s 134AB(4) of the Act. The Form A application specified injury to the lumbar spine and injury to the cervical spine. The application was accompanied by a substantial number of medical reports, radiological reports and reports of nerve conduction studies. It also was accompanied by an affidavit sworn by the applicant and a proposed statement of claim.
In the statement of claim it was alleged that, throughout his employment with Tasty Trucks, the applicant would perform manual work that ‘placed significant strain on his back and neck’. It was further alleged that the applicant had suffered injury, loss and damage, by reason of his performance of that work between August 2010 and December 2012, including on 23 September 2011 when the applicant was throwing away rubbish, and on 14 December 2011, when the applicant was lifting a heavy milk crate. The injury was particularised as injury to the lumbar spine and injury to the cervical spine, and consequential psychological/psychiatric injuries.
On 29 January 2019, the solicitors for the respondent wrote a letter to the applicant’s former solicitors advising that the respondent was not satisfied that the applicant had suffered a serious injury within the meaning of s 134AB of the Act, and that therefore the respondent would not issue a certificate under s 134AB(16)(a) of the Act.
Summary of proceeding
The applicant commenced the present proceeding by originating motion on 25 February 2019 seeking leave, under s 134AB(16)(b) of the Act, to commence common law proceedings for damages in respect of his injuries. As mentioned, the respondent subsequently raised a preliminary issue that the applicant was not entitled to include, in that application, a claim in respect of the cervical spine injury. On 22 October 2020, a judge of the County Court directed that the issue, whether the applicant was entitled, in the hearing of the serious injury application, to rely on his injury to the cervical spine, be heard as a preliminary issue in the proceeding.
The issues — relevant statutory provisions
The issue raised by the respondent, and by this application, concerned the combined effect of ss 98C, 104B and 134AB(3), (4) and (4A) of the Act. Before summarising the conclusions by the primary judge, it is convenient first to set out those provisions.
Section 98C and s 104B are concerned with claims for compensation for non-economic loss. Section 98C(1) provides:
98C Compensation for non-economic loss
(1)A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with section 91, entitled to compensation for non-economic loss calculated in accordance with this section.
Section 104B provides for the assessment and determination of a claim for compensation under s 98C. Specifically, s 104B(2) provides that the respondent or self-insurer must within 120 days of receiving a claim by the worker for compensation under s 98C: accept or reject liability for each injury included in the claim (sub-para (a)); obtain an assessment or assessments as to the degree of permanent impairment (if any) of the worker resulting from the injury or injuries ‘in respect of which liability is accepted’ (sub-para (b)); taking into account that assessment or those assessments, ‘determine the degree of permanent impairment (if any)’ of the worker for each of the purposes of s 98C, s 134AB, and sub-div 1 of div 3A of the Act (sub-para (c)); and calculate any entitlement to compensation under s 98C or s 98E (sub-para (e)). Section 104B(2)(f)(i) requires that the respondent or self-insurer must, within 120 days of receiving a claim by the worker for a relevant assessment, advise the worker whether it accepts or rejects liability ‘for each injury included in the claim’.
Section 104B(6) provides that the worker must, within 60 days of being advised under sub-s (2) in respect of the claim made by the worker, advise the Authority or self-insurer in writing whether the worker accepts or disputes the decision as to liability ‘in respect of each of the injuries claimed’. Section 104B(3) provides that if the respondent or self-insurer rejects liability in relation to the injuries included in the claim, and the worker disputes the decision as to liability, the worker must not commence proceedings in relation to the claim unless the worker first refers the dispute for conciliation by a Conciliation Officer in accordance with the relevant provisions of the Act. Section 104B(9) provides that where the worker disputes the determination of impairment in respect of the injuries claimed, in respect of which liability has been accepted or established, the respondent (or self-insurer) must within 14 days of being so advised by the worker refer the medical questions to a Medical Panel for its opinion under s 67 of the Act.
Section 134AB provides for the commencement of proceedings for damages in respect of ‘an injury’ arising out of or in the course of the nature of employment on or after 20 October 1999 but before 1 July 2014. Sub-sections (3), (4) and (4A) respectively provide:
(3)Subject to subsection (4A), a worker may not bring proceedings in accordance with this section unless —
(a)determinations of the degree of impairment of the worker have been made under section 104B and the worker has made an application under subsection (4); or
(b)subject to any directions issued under section 134AF, the worker elects to make an application under subsection (4) on the ground that the worker has a serious injury within the meaning of this section.
(4) Subject to subsection (4A), a worker may only make an application —
(a) if subsection (3)(a) applies, after the worker —
(i)has advised the Authority or self-insurer under section 104B(6B) or 104B(7B) that he or she accepts the determinations of degree of impairment; or
(ii)has received the advice of the Authority or self-insurer under section 104B(10); or
(b)if subsection (3)(b) applies —
(i)after a period of at least 18 months has elapsed since the event or circumstance giving rise to the injury occurred; or
(ii)if an application had been made under section 104B as in force before the commencement of section 5 of the Accident Compensation Legislation (Amendment) Act 2004, subject to sections 104B(21), 104B(22) and 104B(23).
(4A)If a worker has made a claim for compensation under section 98C in respect of an injury, the worker must not make an application under subsection (4) in respect of that injury unless —
(a)the degree of impairment resulting from the injury has been determined in accordance with section 104B; and
(b)the worker has accepted the determination of the degree of impairment; and
(c)the worker has accepted the entitlement to compensation.
Section 134AB(7) provides that the Authority or self-insurer must, within 120 days after receipt of an application under sub-s (4), advise the worker in writing either:
(a) that the worker is deemed to have a serious injury; or
(b) if the worker is not deemed to have a serious injury, whether or not the Authority (or self-insurer) will issue a certificate under sub-s (16)(a).
Sub-sections (15) and (16) are important to the determination of the issue in this case. They provide:
(15)If the assessment under section 104B made before an application under subsection (4) is made of the degree of impairment of the worker as a result of the injury is 30 per centum or more, the injury is deemed to be a serious injury within the meaning of this section.
(16)If the assessment under section 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless—
(a) the Authority or self-insurer—
(i)is satisfied that the injury is a serious injury; and
(ii)issues to the worker a certificate in writing consenting to the bringing of the proceedings; or
(b)a court, other than the Magistrates’ Court, on the application of the worker made within 30 days after the worker received advice under subsection (7) or, with the consent of the Authority under subsection (20), after that period, gives leave to bring the proceedings.
As we have noted, on 29 January 2019, the Authority advised the applicant, pursuant to that subsection, that he was not deemed to have a serious injury and that it would not issue a certificate under sub-s 16(a). Consequent upon receipt of that advice by the respondent in the present case, the applicant commenced the present proceeding in the County Court for leave to commence proceedings for the recovery of damages pursuant to s 134AB(16)(b).
The primary judge’s ruling
In his ruling, the primary judge discussed the interrelationship between sub-ss (3), (4) and (4A) of s 134AB of the Act.[2] The judge noted that the applicant had made a claim for compensation under s 98C in respect of two injuries, one to his cervical spine and the other to his lumbar spine.[3] The judge further noted that when the claim for the injury to the cervical spine was rejected, the applicant disputed that decision. His Honour then said:
For the rejected claim, Mr Shah disputed the decision, referred the dispute to conciliation, undertook a conciliation conference and received a certificate under s 49. If he wished to maintain his claim for compensation under s 98C for his cervical spine, Mr Shah needed to litigate the issue of liability in a court. He has not done so.
Here, Mr Shah sought compensation under s 98C for two injuries. The Authority, through its authorised agent, accepted liability for one and not the other. For the accepted injury, there was an impairment assessment, an entitlement to compensation and acceptance of that entitlement. For the rejected injury, liability remains unresolved by the only process open to Mr Shah. At present, there is certainly no determination of the degree of impairment of that injury. If Mr Shah does not challenge successfully the decision of the Authority to reject liability, then he will not be able to make an application under s 134AB, where his cervical spine is claimed as an injury linked to his employment with Tasty Trucks Pt Ltd.
Mr Shah submits he lodged a form entitled ‘Worker’s claim for impairment benefits form’. The form requires the listing of all injuries or conditions, which he did. He lodged a single form constituting a single claim encompassing two injuries. He disputes the propriety of the Authority splitting the injuries into separate claims and dealing with them separately. Consequently, he submits there was a single determination of the degree of impairment of one of his injuries and that is sufficient for the purposes of s 134AB.
This submission ignores the language of s 98C, which speaks of ‘an injury’, not injuries. Under s 98C, his claim is for compensation for an injury. He may claim compensation for more than one injury, but each must be assessed individually. I do not accept his submission.[4]
[2]Ibid [12]–[16].
[3]Ibid [20].
[4]Ibid [25]–[28].
The judge then concluded:
The language of s 134AB is clear. I cannot read down its language. The sub-section reinforces the effect of s 134AB(3)(a) and s 134AB(4)(a): if a claim is made for an injury under s 98C then, to begin, there must be a determination of the degree of impairment. Without such a determination, Mr Shah cannot join the injury to his cervical spine in his serious injury application.[5]
[5]Ibid [32].
Submissions
In support of the first proposed ground of appeal, counsel for the applicant submitted that the judge erred in determining that, upon a proper construction of ss 98C, 104B and 134AB of the Act, as a consequence of the rejection of the claim by the applicant for compensation in respect of the injury to his cervical spine, the applicant was required to successfully appeal from that decision as a prerequisite to the commencement by him of an application under s 134AB that included a claim in respect of the cervical spine injury.
In support of that submission, counsel noted that in Transport Accident Commission v Zepic,[6] it was held that the cervical spine and the lumbar spine are two parts of the one bodily function, namely, the spine. Further, in Lu v Mediterranean Shoes Pty Ltd,[7] the Court held that an injury to the lumbar spine and an injury to the cervical spine, both being the consequence of repetitive strain to the spine, are capable of being aggregated for the purposes of determination of an application for leave under s 134AB(16)(b). Counsel contended that, in the present case, it would be a question of fact, on the determination of the application under sub-s (16)(b), as to whether or not the injury to the lumbar spine and the injury to the cervical spine may each be characterised as part of the repetitive strain injury that the applicant sustained by reason of the nature of the work that he performed in the course of his employment with Tasty Trucks.
[6][2013] VSCA 232 (‘Zepic’).
[7](2000) 1 VR 411; [2000] VSCA 65.
In that respect, counsel noted that ss 104B(5A) and (5AA) require that a worker must include, in a claim for compensation under s 98C, all injuries that arise out of the same event or circumstance. In his application in the present case, the applicant claimed that the injuries to his cervical spine and to his lumbar spine arose out of the same event. Accordingly, it was submitted, there was no warrant for the respondent to divide that single application into two separate applications for two discrete injuries. Counsel contended that it was open to the judge, on the hearing of the application under sub-s (16)(b), to conclude that the cervical spine element of the claim arose out of the same repetitive work which was the cause of the strain to the lumbar spine, and, in accordance with Zepic, to treat the two injuries as affecting one bodily function. Counsel submitted that it was a matter for the Court, and not the respondent, to determine whether the injuries to the cervical spine and the lumbar spine arose out of the same event or circumstance.
In support of ground 2, it was submitted that the question whether the applicant’s injuries arose out of the one event or circumstance depends upon the evidence to be adduced at the hearing of the serious injury application. Accordingly, it was submitted, the judge erred in accepting the determination by the respondent that the original claim for compensation under s 98C should be treated as two distinct and separate claims. In effect, the judge proceeded on an assumption that the respondent was correct to treat the application under s 98C as involving two separate injuries.
In response to ground 1, counsel for the respondent noted that the applicant had made a claim under s 98C of the Act, which included a claim in respect of a cervical spine injury, and that there had been no determination of the degree of impairment resulting from that injury. Accordingly, it was submitted, the effect of s 134AB(4A) of the Act is that the applicant was precluded from making a claim for serious injury in respect of the cervical spine injury.
Counsel for the respondent contended that there were three flaws in the submission made on behalf of the applicant under ground 1. First, even if the applicant’s claim under s 98C had been processed as a single claim by EML, it would not have made any difference, because liability for the cervical spine injury would have been rejected, and liability for the lumbar spine injury would have been accepted. Secondly, it was submitted, in any event, the approach taken by EML was correct. In view of the material that accompanied the claim form, the injury to the cervical spine and the injury to the lumbar spine could not have been characterised as having arisen ‘from the same event or circumstances’ for the purposes of s 104B(5A). In that material, the applicant specified that the injury to the cervical spine had occurred ‘in particular on 23 September 2011’ and that the injury to the lumbar spine had occurred ‘in particular on 14 December 2011’. Thirdly, counsel submitted, even if the approach taken by EML was incorrect, the judge could not have remedied the problem at the time of the hearing of the serious injury application. Rather, that matter was required to be addressed by the applicant at a point anterior to the serious injury application.
In response to ground 2, counsel submitted that the contentions made on behalf of the applicant misapprehend the nature of the ruling made by the primary judge. In essence, the judge concluded that the applicant was precluded from relying on the injury to the cervical spine in support of his application under s 134AB(16)(b), because that injury had been the subject of a claim under s 98C of the Act and there had been no determination of the resulting degree of impairment in respect of the injury. Counsel submitted that that ruling did not depend on any question of fact as to whether the alleged cervical spine and lumbar spine injuries in fact arose from the same event or circumstance.
In the course of oral argument, the Court raised with senior counsel for the respondent the question whether s 134AB(4A) applies in a case such as this, in which the respondent has rejected a claim made by an injured worker in respect of an injury which the worker seeks to include in a serious injury application under sub-s (16)(b).
In response, senior counsel for the respondent submitted that s 134AB(4A) must be construed in the context of the relevant provisions of s 104B. In particular, he submitted that in a case in which a worker has claimed compensation in respect of a particular injury under s 98C, s 104B provides the sole pathway for the determination of whether the worker has sustained that injury, and, if so, the degree of impairment incurred in respect of that injury. Counsel accepted that if a worker has not first made an application under s 98C, the worker would be entitled to elect, under s 134AB(3)(b), to make a serious injury application under the provisions of s 134AB. However, it was submitted, the significance of sub-s (4A) is that if a worker has made a claim under s 98C, the worker has, in effect, chosen the ‘pathway’ relevant to the worker’s rights under s 134AB. In those circumstances, sub-s (4A) operates to preclude the worker making a serious injury application, unless the worker has received and accepted a determination of the degree of impairment resulting from the particular injury.
Discussion and analysis
The issue in the present case is whether the judge was correct in concluding that s 134AB(4A) of the Act has the effect that, as the applicant had made a claim for compensation in respect of the injury to his cervical spine, which had been rejected, he was precluded from including that injury in his application for leave to commence proceedings for damages under s 134AB(16)(b), because there has not been a determination of the degree of impairment in respect of the injury to the cervical spine under s 104B.
The resolution of that question is not entirely clear cut. It depends on a consideration of the quite complex provisions contained in ss 98C, 104B and 134AB. A number of those provisions have been amended on more than one occasion, with the consequence that further provisions have been grafted into the particular sections at different times. As a result, the provisions are quite complicated and unwieldy. They do not easily fit together as a coherent and consistent scheme of legislation in respect of the rights of an injured worker to seek compensation and claim damages. It is for that reason that the task of construing and applying the provisions in question, and in particular in this case, s 134AB(4A), is far from straightforward.
Nevertheless, the questions before us fall to be resolved in accordance with well accepted principles of statutory construction. As the High Court has said, it is necessary to have regard to the text, context and purpose of the relevant provision.[8] Applying those principles, for the reasons that follow, we have reached the following conclusions:
(c) Subject to s 134AB(4A), the applicant is otherwise entitled, under sub-ss (3)(b) and (4)(b) to include the injury to his cervical spine in the serious injury application under s 134AB(16)(b).
(d) Subsection (4A) does not preclude the applicant from including the cervical spine injury in the application. Construed in the context of ss 98C and 104B, it is evident that sub-s (4A) does not apply to the present case. Rather, it applies to a case in which the Authority (or self-insurer) has accepted liability for the particular injury that was included in the claim, and has either made a ‘determination’ of the degree of impairment in respect of that injury, or such a determination is outstanding.
[8]Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39]; [2012] HCA 55 (French CJ, Hayne, Crennan, Bell and Gageler JJ). See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46–7 [47]; [2009] HCA 41 (Hayne, Heydon, Crennan and Kiefel JJ), SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 368 [14]; [2017] HCA 34 (Kiefel CJ, Nettle and Gordon JJ).
By its express terms s 134AB(3) provides that — subject to sub-s (4A) — a worker is not entitled to bring proceedings for damages in respect of an injury unless one of the two conditions contained in sub-paras (a) and (b) have been fulfilled. The first condition — contained in sub-para (a) — requires that there has been a determination of the degree of impairment and the worker has made an application under sub-s (4). In the present case, that condition does not apply, as there has not been a determination of the degree of impairment of the applicant’s cervical spine injury. The second alternative condition — in sub-para (b) — does apply by its express terms. It permits the applicant to bring proceedings in accordance with s 134AB, if the applicant has elected (as he has done) to make an application under sub-s (4) on the ground that he has a serious injury within the meaning of s 134AB. By its express terms, the condition prescribed by sub-para (b) does not require the applicant to have first received a determination of the degree of impairment in respect of his cervical spine injury.
Accordingly, and subject to sub-s (4A), s 134AB(3)(b) permitted the applicant to include the injury to his cervical spine in the application that he has made under s 134AB(16)(b) for leave to commence proceedings for damages in respect of the injury to the cervical spine.
The reason for the inclusion of sub-para (b) in s 134AB(3) is apparent from the structure of the provisions contained in s 134AB relating to the right of an injured worker to commence proceedings for damages. The combined effect of ss 134AB(4), (7), (15) and (16) is that an injured worker may only commence proceedings for damages in respect of an injury arising out of, or in the course of, or due to the nature of, the worker’s employment, if one of the following three circumstances apply, namely:
(e) It has been determined in an assessment under s 104B of the Act that the degree of impairment in respect of that injury is 30% or more; or
(f) The respondent (or self-insurer) is satisfied that the injury is a serious injury and issues a certificate to that effect under sub-s (16)(a) consenting to the bringing of the proceedings in respect of that injury; or
(g) A court on the application of the injured worker gives leave to bring those proceedings in respect of the injury under sub-s (16)(b), on the basis that the court is satisfied on the balance of probabilities that the injury is a serious injury.
Two points are clear. First, if a determination is made, under s 104B, that the degree of impairment arising out of the injury is 30% or more, the worker is deemed to have suffered a serious injury, and thus to have successfully navigated one of the gateways to instituting proceedings for damages under s 134AB. However, and secondly, such an assessment and determination is not the sole and exclusive gateway to the commencement of such proceedings. As discussed, an injured worker may be entitled to commence proceedings for damages under s 134AB if the respondent (or self-insurer) is satisfied that the injury is a serious injury and issues a certificate to that effect, or if a court is satisfied, on the balance of probabilities, that the injury is a serious injury. In either such case, the question whether the injury is a serious injury is not determined by reference to, or dependent on, any assessment of the degree of impairment under s 104B. It is for that reason that an injured worker is entitled, under s 134AB(3)(b), to make an application under sub-s (4) on the ground that the worker has a serious injury, without first obtaining a determination of the degree of impairment in respect of that injury.
The question, then, is whether, nevertheless, where a worker has made a claim for compensation in respect of a particular injury under s 98C, and liability for that claim has been rejected, the worker is entitled under s 134AB(3)(b), to make an application under sub-s (4) on the ground that the worker has a serious injury.
As we have earlier set out, a claim by an injured worker for compensation for non-economic loss in respect of an injury under s 98C is assessed and determined in accordance with the provisions of s 104B. Those provisions, in effect, provide for two steps to be undertaken in respect of an application under s 98C. First, the respondent (or self-insurer) must accept or reject liability for each injury that is included in the claim under s 98C, and notify the worker of that decision. If liability is rejected, the worker is entitled to contest the decision in court, but in order to do so must first refer the dispute for conciliation under s 104B(3). The second step in the process is only relevant if the respondent (or self-insurer) has accepted liability in respect of an injury that is the subject of a s 98C claim (or if a court varies a decision by the respondent or self-insurer to have rejected liability in respect of that injury). In such a case, the respondent (or self-insurer) is required to assess the degree of permanent injury (if any) of the worker resulting from the claimed injury or injuries in respect of which liability has been accepted, and, on the basis of that assessment or those assessments, determine the degree of permanent impairment (if any) of the worker and calculate any entitlement of the worker to compensation. In such a case, where the worker disputes the determination of impairment, the respondent (or self-insurer) is obliged to refer the relevant medical questions to a medical panel for its opinion under s 67 of the Act.
From the foregoing, it is clear that the question of the ‘determination’ of impairment resulting from an injury only arises if the respondent (or self-insurer) has accepted liability for a particular injury. Where liability is accepted, then the respondent (or self-insurer) must make a determination as to the degree of impairment in respect of the injury.
In the present case, the respondent rejected liability in respect of the claim for non-pecuniary loss for the cervical spine injury. Subject to sub-s (4A), sub-ss (3)(b) and (4)(b) of s 134AB would therefore apply to the present case, and entitle the applicant to include the cervical spine injury in the serious injury application, because no determination of the degree of impairment in respect of that injury has been made under s 104B.
It is in that context that s 134AB(4A) must be understood. By its terms, it applies to a case in which the worker has made a claim for compensation in respect of an injury under s 98C, and the ‘degree of impairment resulting from the injury’ either has been determined or is to be determined under s 104B. In such a case, sub-s (4A) provides that the worker is precluded from making an application (for serious injury) under sub-s (4), unless the determination has been made, the worker has accepted the determination of the degree of impairment and has accepted the entitlement to compensation. Where any of those matters remain to be completed, the worker is precluded from making an application under sub-s (4).
In other words, by its terms, sub-s (4A) applies to a case in which there is either an outstanding or completed determination of the degree of impairment in respect of an injury for which liability has been accepted by the Authority (or self-insurer). The purpose of the sub-section is quite clear. Until such a determination has been completed, it would be premature for an application to be commenced under s 134AB(4). Such an application would only be necessary if the degree of impairment assessed under s 104B is less than 30% (see sub-s (16)).
That construction of s 134AB(4A) is consistent with the evident intention of that provision, which was included in the Act by the Transport Accident and Accident Compensation Legislation Amendment Act 2010. As the primary judge has noted, the Explanatory Memorandum to the Act stated that the amendment:
Amends section 134AB to confirm that a worker must not concurrently make or have a claim for compensation under section 98C and a serious injury application under section 134AB(4) at the same time. A worker who has made a claim for compensation under section 98C may only make a serious injury application under section 134AB(4) at such time as the worker’s section 98C claim has been finalised. This is in accordance with the way in which the provision has previously been implemented.
By its terms, s 134AB(4A) does not, and could not, require that, in order that a worker be entitled to make an application under sub-s (4), the worker must first make an application for compensation for non-economic loss under s 98C. If sub-s (4A) were construed to require that such an application be made, s 134AB(3)(b) would be rendered otiose.
In the present case, the decision of the primary judge, and the submissions made on behalf of the respondent, is that sub-s (4A) applies, because the applicant made a claim for compensation for non-economic loss in respect of the injury to his cervical spine (under s 98C) which was rejected. The short answer to that proposition is that s 134AB(4A) is not expressed in those terms. If it was intended that that sub-section should cover the present set of circumstances, it would have included, as an additional requirement, that the respondent (or self-insurer) has accepted liability for the injury that is the subject of the application under s 98C. It is clear, from the absence of such a condition in sub-s (4A), that the legislature did not intend that sub-s (4A) should cover the circumstances of a case such as this. The decision of the primary judge, in effect, amounted to a re-writing of sub-s (4A) which was not warranted or required in the circumstances.
In effect, counsel for the respondent submitted that s 134AB(4A), when construed in the context of s 104B, has the effect that if a worker has made an application for compensation in respect of an injury under s 98C, the provisions of s 104B are the sole ‘pathway’ by which the worker might access a right to claim damages, in respect of that injury, under s 134AB. We do not accept that submission. For the reasons that we have discussed, the clear purpose of sub-s (4A) is to ensure that where a determination of the degree of impairment in respect of an injury has been made or is to be made, that process must be complete, in order that a worker be able to make an application under sub-s (4) in respect of the injury. Sub-section (4A), by its terms does not, either expressly or by implication, provide that where a worker has made a claim for compensation in respect of an injury under s 98C, the worker may only make an application under sub-s (4) if the respondent has accepted liability for that injury, or if a court has determined that the respondent should be liable in respect of that injury, for the purposes of s 98C.
For those reasons, we have concluded that, properly construed, s 134AB(4A) does not apply to the facts of the present case, in which the applicant made a claim in respect of an injury (to his cervical spine) which was rejected, and in respect of which there has been and will be no determination of any resultant impairment. Accordingly, and contrary to the conclusion of the primary judge, s 134AB(4A) did not preclude the applicant from including the injury to the cervical spine in the serious injury application in the present case.
Our conclusion, to that effect, is reinforced by the consideration that if s 134AB(4A) were construed to exclude, from any serious injury application, the applicant’s claim in respect of the injury to his cervical spine, that result would be liable to produce particularly anomalous and unfair consequences both in the present case and in other similar cases.
In the present case, if the applicant were precluded by sub-s (4A) from including, in his application for leave under sub-s (16)(b), the injury to the cervical spine, the respondent would not be prevented, on the hearing of that application in respect of the injury to the applicant’s lumbar spine, from putting to the applicant in cross-examination, and from submitting, that the injury to the cervical spine, and not the injury to the lumbar spine, has been and is a significant or the predominant cause of any disability suffered by him. Further, if, on the hearing of the application under sub-s (16)(b), the Court granted the applicant leave to issue proceedings for damages in respect of the injury to his lumbar spine, the respondent, in any such proceeding, would not be precluded from advancing the same proposition, namely, that a significant or the predominant cause of any disability suffered by the applicant is the injury to the neck, and not the lower back. Plainly, such an outcome would be unfair and quite anomalous.
Apart from the present case, we apprehend that the same anomalous consequences would occur in a number of other similar cases. Section 104B(5A) of the Act requires that a worker include ‘all injuries arising out of the same event or circumstance’ in a claim for compensation under s 98C. Sub-section (5AA) provides that a worker can only make one claim for compensation under s 98C ‘in respect of injuries arising out of the same event or circumstance’. If the construction of s 134AB(4A), contended for by the respondent, is correct, if a worker in the same event suffered two related but different injuries, in respect of one of which liability was accepted and in respect of the other of which liability was rejected in a claim under s 98C, it would follow that on any application by the worker for leave under s 134AB(16)(b), it would be open to the respondent to contend that the injury for which liability had been rejected, and not the injury for which liability had been accepted, was the significant or predominant cause of the worker’s disability.
Such an anomalous outcome is far from hypothetical. It is the experience of the courts that injuries relating to two different segments of the spinal column — for example the lumbar segment and the thoracic segment — while, in a sense separate injuries, nevertheless are not uncommonly interrelated. In a case in which liability has only been accepted for one segment, but not the other, under s 98C, the outcome of any application for leave under s 134AB(16)(b) would be artificial and, in most cases, quite unjust.
Ordinarily such a consideration would be of significant weight in construing the provisions of a statute. As we have observed, the provisions of the Act, with which this case is concerned, are quite complex and unwieldy. In those circumstances, it might be considered that any anomalous outcome of a particular case, or group of cases, could not alter the plain meaning of the terms of the legislation in question. However, as we have discussed, the provisions of the Act that are under consideration, and in particular s 134AB(4A), are far from clear and unequivocal. In those circumstances, the consideration that the construction of that provision by the judge, and contended for by the respondent, would be prone to producing anomalous and artificial consequences, is relevant as reinforcing the conclusion which we have reached about the correct construction of s 134AB(4A) of the Act.
Conclusions
For the foregoing reasons, we are persuaded that the judge erred in determining that, upon the correct construction of s 134AB(4A) of the Act, the applicant is precluded from including the injury to his cervical spine in his application, under s 134AB(16)(b), for leave to bring proceedings for damages in respect of the injuries that he claims to have suffered in the course of, or arising out of, his employment with Tasty Trucks. Accordingly, the application for leave to appeal will be granted, and the appeal allowed.
For the purpose of completeness, we should add that, in view of the conclusions we have reached, it has not been necessary for us to express any conclusions about the primary submissions relied on by counsel for the applicant, and the submissions made by counsel for the respondent in response to them. In that respect, we should note that, consistently with our obligation to ensure that the relevant provisions of the Act were properly construed before being applied to the facts of this case, we have determined this appeal on a basis that was not argued before the primary judge by the applicant (who represented himself at first instance).
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