Sodexo Australia Pty Ltd v Khan - [2015] NSWWCCPD 12

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sodexo Australia Pty Ltd v Khan [2015] NSWWCCPD 12
APPELLANT:	Sodexo Australia Pty Ltd
RESPONDENT:	Mohammed Khan
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-985/14
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	29 August 2014
DATE OF APPEAL DECISION:	18 February 2015
SUBJECT MATTER OF DECISION:	Second claim for permanent impairment compensation where the first claim for such compensation was “specifically sought” prior to 19 June 2012; whether amendments introduced by the Workers Compensation Legislation Amendment Act 2012 apply to such a claim; cl 15 of Pt 19H of Sch 6 to the Workers Compensation Act 1987; cl 11 of Sch 8 to the Workers Compensation Regulation 2010; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 88 ALJR 624 applied; Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 distinguished
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Moray & Agnew
Respondent:	Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 29 August 2014 is confirmed. 2. No order as to costs.

INTRODUCTION

The issue in this appeal is whether a worker who specifically sought, and was paid, permanent impairment compensation before 19 June 2012 is entitled to make a second claim for such compensation after that date because of a deterioration in his condition.
The resolution of the appeal involves the interpretation of the amendments to the Workers Compensation Act 1987 (the 1987 Act) introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), the transitional provisions introduced by the 2012 amending Act, and amendments made to the Workers Compensation Regulation 2010 (the 2010 Regulation) by the Workers Compensation Amendment (Miscellaneous) Regulation 2012 (the amending Regulation).
The issue is identical to the issue considered and determined by me in Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34 (Caulfield) and by the President, Keating DCJ, in Cram Fluid Power Pty Ltd v Green [2014] NSWWCCPD 84 (Green). For the reasons explained in those decisions, and the additional reasons explained below, the worker is entitled to claim permanent impairment compensation for the deterioration in his condition and the Arbitrator’s determination to that effect is confirmed.

BACKGROUND

The respondent worker, Mohammed Khan, injured his back while working as a kitchen hand at the appellant employer’s restaurant on 13 August 1997. Liability was accepted and compensation payments made.
Pursuant to orders made by the former Compensation Court of New South Wales on 26 June 2002, Mr Khan received lump sum compensation under s 66 of the 1987 Act in respect of a 12.5 per cent permanent impairment of his back and two per cent permanent loss of efficient use of each leg at or above the knee, plus compensation for pain and suffering under s 67. The parties have accepted, though there is no direct evidence of it, that that settlement was preceded by a claim for permanent impairment compensation for the back and each leg at or above the knee.
On 4 December 2013, Mr Khan made a further claim for lump sum compensation pursuant to ss 66 and 67 as a result of the injury on 13 August 1997. The claim was for a 20 per cent permanent impairment of the back and 10 permanent loss of efficient use of each leg at or above the knee. That claim, and a claim for the re-instatement of weekly compensation, came before the Commission, in a teleconference, on 3 June 2014. The claim for weekly compensation was resolved by consent and the parties made written submissions on the claim for permanent impairment compensation.
In a reserved decision delivered on 29 August 2014, the Arbitrator found, applying Caulfield, that Mr Khan was entitled to make a further claim for permanent impairment compensation after 19 June 2012, the date on which the 2012 amending Act took effect.
Consistent with this finding, the Commission issued a Certificate of Determination on 29 August 2014 in the following terms:
“The Commission determines:
1.     The applicant sustained injury arising out of or in the course of his employment on 13 August 1997.
2.     The applicant is entitled to bring a further claim for lump sum compensation pursuant to section 66 and section 67 of the Workers Compensation Act 1987.
The Commission orders:
3. I remit this matter to the Registrar for referral to an Approved Medical Specialist pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of the injuries sustained on 13 August 1997 as follows:
(a)     permanent impairment of the back;
(b)loss of use of the right leg at or above the knee including any loss below the knee, and
(c)loss of use of the left leg at or above the knee including any loss below the knee.
4.     The documents to be reviewed by the Approved Medical Specialist are:
(a)     Application to Resolve a Dispute and attached documents, and
(b)     Reply with attached documents.
5.     No order as to costs.”
The appellant has challenged the Arbitrator’s determination.

PRELIMINARY MATTERS

Before dealing with the appeal, the Commission must determine whether it meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

Interlocutory

It is conceded that, as the Arbitrator made no formal orders finally determining the parties’ rights, but has merely remitted the claim to the Registrar for referral to an Approved Medical Specialist (AMS), the orders made are interlocutory (Licul v Corney [1976] HCA 6; 180 CLR 213 at 443–4) and that the appellant requires leave to appeal (s 352(3A)). The Commission is “not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute” (s 352(3A)).
If the appeal succeeds, Mr Khan will have no entitlement to have his claim assessed by an AMS. It follows that it is desirable, “for the proper and effective determination of the dispute”, that leave to appeal be granted. I grant leave to appeal. However, as the issue raised on appeal has twice been determined by the Commission, I do so with some reluctance.

Monetary threshold

As the Arbitrator has made no order for the payment of lump sum compensation, whether the monetary thresholds in s 352(3) are satisfied depends on the amount of compensation particularised by Mr Khan in his claim (Grimson v Integral Energy [2003] NSWWCCPD 29 at [30]). As the parties agree that the compensation claimed for the deterioration in Mr Khan’s condition is in excess of $5,000, the thresholds in s 352(3) are satisfied. (I note that the second limb of the threshold (that at least 20 per cent of the amount awarded be “at issue” on appeal) does not apply where the Commission has made no award for the payment of compensation: Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5.)

ON THE PAPERS

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

THE LEGISLATION

As a result of the amendments introduced by Sch 2 of the 2012 amending Act, s 66(1) and (1A) were amended to read:
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note : No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”
Prior to the amendments, excluding claims for hearing loss, there was no threshold for the recovery of lump sum compensation for permanent impairment. The effect of the amendments is that no permanent impairment compensation is payable for a permanent impairment unless the injury has resulted in a degree of permanent impairment greater than 10 per cent. In addition, only one claim can be made under the 1987 Act for permanent impairment compensation in respect of permanent impairment that results from an injury.
The 2012 amending Act also introduced extensive transitional provisions. Clause 3 of Pt 19H of Sch 6 of the 1987 Act provides:
“3      Application of amendments generally
(1)     Except as provided by this Part or the regulations, an amendment made by the 2012 amending Act extends to:
(a)an injury received before the commencement of the amendment, and
(b)a claim for compensation made before the commencement of the amendment, and
(c)proceedings pending in the Commission or a court immediately before the commencement of the amendment.
(2)     An amendment made by the 2012 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.”
Clause 15 of Pt 19H of Sch 6 to the 1987 Act provides:
“15 Lump sum compensation
An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.”
As a result of amendments introduced in the amending Regulation, cl 11 of Sch 8 to the 2010 Regulation provides:
“(1) The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.
(2) Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).”

SUBMISSIONS

Counsel for the appellant, Mr Stephen Flett, submitted that the amendments introduced by the 2012 amending Act should be given a construction that will promote the purpose and object underlying the Act (s 33 of the Interpretation Act 1987).
Mr Flett argued that the amendments introduced by the 2012 amending Act have made the concept of “claim” central to construction of the availability of relief under s 66 of the 1987 Act, as amended. And, where a claim is made on or after 19 June 2012, a worker may make only one claim for permanent impairment compensation in respect of the permanent impairment that results from an injury, subject to the exception in the decision in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 88 ALJR 624 (Goudappel).

Mr Flett referred to the following passage from the decision by the plurality in Goudappel, at [29], quoted in Caulfield at [36]:
“The purpose of cl 11, ... , was clear enough. It applied the new s 66 to entitlements to permanent impairment compensation which had not been the subject of a claim made before 19 June 2012 that specifically sought compensation under the old s 66.”
Mr Flett contended that there is no support in the plain words of the legislation, or in Goudappel, for the proposition that an injured worker may bring a second claim after 19 June 2012 for the same injury in respect of which the worker has brought a claim before 19 June 2012. He submitted that Caulfield was wrong and that cls 3 and 15 of Pt 19H, and cl 11 of Sch 8, must be read together. When that is done, the critical words are “such claim” in cl 15. These words make it clear that the exception provided in cl 15 extends to claims that are on foot on or after 19 June 2012 but that have not been commenced before 19 June 2012. Clause 11 narrows the exception provided by cl 15 to apply to claims that are on foot on or after 19 June 2012 but that were commenced and specifically sought compensation under ss 66 and 67 before 19 June 2012.
He contended that the statement by the plurality at [29] was made in the context of the High Court considering whether or not cl 11 of Sch 8 needed to be construed beneficially to the worker. In any event, the passage is consistent, so it was argued, with the construction of the legislation contended for by the appellant.
In supplementary submissions, Mr Flett argued that applying the findings of the High Court in Goudappel to the facts in Caulfield was “problematic” because:
(a)     in Goudappel, the worker had not made a previous claim for lump sum compensation;
(b)     the High Court was referring to a claim with the consequence that the amendments apply in the circumstances where there has not been a previous claim for compensation for permanent impairment in respect of the injury, and
(c)     it follows from (b) above that a claim for deterioration in respect of an injury for which a previous claim for compensation for permanent impairment has been made and resolved is a new claim in respect of the same injury and is caught by the amendments.
The High Court concluded that, though the legislation is beneficial, not every amendment made to it must be construed beneficially. The purpose of the amendment has to be identified. The Court found that the purpose of cl 5 of Pt 19H of Sch 6 was to allow the making of regulations that could affect acquired rights. In this context, cl 11 was “patently not beneficial” ([29]). It follows that the proper reading of the 1987 Act, subject to cl 11, may result in a construction that is not beneficial to workers and that adversely affects their acquired rights.
Mr Flett contended that the decision in Caulfield has the effect that where “a” claim specifically seeking compensation under s 66 or s 67 has been made and resolved, a further claim seeking compensation under s 66 or s 67 may be brought on or after 19 June 2012 even though the amending Act repealed s 67. That is “entirely inconsistent with the purpose of the 2012 amending Act enunciated in the second reading speech introducing the amending Act.
In further submissions, Mr Flett argued that his position is supported by Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 (Sukkar). It is convenient to first deal with Mr Flett’s submissions on Caulfield and then, under separate heading, Sukkar.

Discussion and findings

I do not accept Mr Flett’s submissions, which, except for his submissions on Sukkar, were essentially the same submissions that Keating DCJ rejected in Green.
I agree that the relevant transitional provisions and the 2010 Regulation (as amended) must be read together. They must also be read in light of binding authority. That is exactly what I did in Caulfield.
The starting point in any analysis of this issue is the meaning of “a claim”. When Goudappel was in the Court of Appeal, the Court held that “a claim” in cl 15 of Pt 19H includes any claim for compensation made before 19 June 2012 and that cl 11 of Sch 8 was invalid and did not apply (Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 per Basten JA (Bathurst CJ and Beazley P agreeing) at [11] and [36] (Goudappel No 1)). It followed that, as Mr Goudappel had made a claim for weekly compensation in 2010, the amendments to s 66 introduced by the 2012 amending Act did not apply to his later claim for lump sum compensation, even though he did not make that claim until 20 June 2012. (I note in passing that, consistent with Goudappel No 1, the ACT Court of Appeal (Burns, Cowdroy JJ and Nield AJ) accepted that a single “claim” can encompass all the forms of compensation available under the relevant ACT workers’ compensation legislation: Stowe Australia Pty Ltd v Kelly [2013] ACTCA 18 at [44].)
In the High Court, there was no challenge to the Court of Appeal’s finding that “a claim” in cl 15 of Pt 19H means any claim, the plurality expressly noting that Mr Goudappel’s original claim for compensation, made on 19 April 2010, could be taken as “subsuming a claim for permanent impairment compensation” ([9]). This was so even though he made a later claim, on 20 June 2012, specifically directed to such compensation. (Though it is not expressly stated in the decisions dealing with Mr Goudappel’s claim, it seems that his original claim was accepted and compensation paid. This follows from Keating DCJ’s observation that there was no dispute that Mr Goudappel sustained a compensable injury on 17 April 2010 or that he was entitled to receive weekly benefits compensation in respect of the injury (Goudappel v ADCO Constructions Pty Limited [2012] NSWWCCPD 60 at [11]). It is a reasonable inference that that entitlement existed at the time he claimed in April 2010 and that he was paid weekly compensation at or about that time.)
However, overturning the Court of Appeal, the High Court held that cl 11 of Sch 8 is valid and applies according to its terms. The High Court further held that the amendments to Div 4 of Pt 3 of the 1987 Act (which deal with compensation for non-economic loss) introduced by Sch 2 of the 2012 amending Act apply to claims for compensation pursuant to s 66 of the 1987 Act made on or after 19 June 2012, where “the worker has not made a claim specifically seeking compensation under s 66 or s 67 before 19 June 2012” (emphasis added) ([36]).
As Mr Goudappel had not made “a claim specifically seeking compensation under s 66 or s 67 before 19 June 2012”, the 2012 amendments applied to him, because of cl 11, and he had no entitlement to lump sum compensation because his claim did not meet the threshold in the new s 66.
However, as Mr Caulfield had made “a claim specifically seeking” compensation under s 66 prior to 19 June 2012, the clear effect of the High Court’s decision was that the amendments did not apply to him. This is supported by the statement by the plurality at [29], quoted above at [23], and the unchallenged finding by the Court of Appeal that “a claim” includes any claim.
The High Court added, also at [29], that to accept a beneficial purpose of the 1987 Act as a whole did not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of cl 11 was clear enough. Their Honours then made the statement previously quoted.
The meaning of the High Court’s statement at [29] is clear and, when read with the unchallenged parts of the Court of Appeal’s decision, leaves no scope for the appellant’s argument to be accepted. The High Court did not limit the exclusion from the operation of cl 11 to one set of proceedings for s 66 compensation, but expressed the exclusion as occurring when there has been a claim before 19 June 2012 under that section. The passage is not consistent with the construction urged by Mr Flett. (I note that Mr Flett’s submission that the critical words are “such claim” have omitted the indefinite article “a” (see [24] above). The correct phrase is “such a claim”.)
This conclusion is consistent with the combined effect of cl 15 of Pt 19H and cl 11 of Sch 8. That is because, as accepted by the Court of Appeal, and not challenged in the High Court, the amendments do not apply to “a claim” for compensation made before 19 June 2012. As cl 15 must be “read subject to” cl 11, the proper interpretation of the two provisions, when read together, as Mr Flett has urged, is that the permanent impairment amendments apply to a claim for compensation made on and after 19 June 2012, but not to such a claim made before that date. However, cl 11 modifies that position to make the amendments extend to a claim made before 19 June 2012 but not if, before that date, the worker made “a claim that specifically sought” compensation under s 66 or s 67.

It followed that, applying the text of the legislation, having regard to its context and history, as Mr Caulfield “specifically sought” compensation under s 66 before 19 June 2012, the amendments made by Sch 2 to the 2012 amending Act did not apply to him and he was entitled to have his claim determined without regard to the restrictions in the new s 66. In other words, he was not caught by the new threshold and not restricted to making only one claim for permanent impairment compensation. Thus, though it was Mr Caulfield’s second claim for permanent impairment compensation, he was entitled to make the claim. Though the combined value of his claims was over 10 per cent, as the amendments did not apply to him, it would not have mattered if they were not.
As the Arbitrator held, the same reasoning applies in Mr Khan’s case and nothing Mr Flett has put has persuaded me that Caulfield is wrong. Indeed, if anything, his arguments have confirmed my view. As explained in Green (at [75]), Mr Flett’s submissions involve reading words into the legislation that are not there. Neither cl 15 nor cl 11 refer to claims that are “on foot”. The task of statutory interpretation is one of construction of the words the legislature has enacted (Taylor v The Owners-Strata Plan No 11564 [2014] HCA 9 at [39]). There is no justification for adding the words urged by Mr Flett.
The submission that s 67 has been repealed and that the result in Caulfield is inconsistent with the purpose of the 2012 amending Act enunciated in the second reading speech is unpersuasive. The process of construction begins with the construction of the ordinary and grammatical meaning of the words in question, having regard to their context and legislative purpose (Bathurst CJ (Beazley and Basten JJA agreeing) in Rail Corporation New South Wales v Brown [2012] NSWCA 296 at [39] (Brown), citing Australian Education Union v Department of Education and Children's Services [2012] HCA 3 at [26] (Australian Education Union); Roadshow Films Pty Limited v iiNet Ltd [2012] HCA 16 at [22]; Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [41], [45]–[48] (Alcan)).
Bathurst CJ added (at [40] in Brown) that although the legislative purpose in enacting the provision and the mischief to be remedied are factors which are to be taken into account in construing the provision in question (CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408; Interpretation Act 1987 ss 33, 34) “it is not for a court to construe its own idea of a desirable policy, impute that to the legislature and then characterise it as a statutory purpose” (Australian Education Union at [26]; Alcan at [46]).
Historical considerations and extrinsic materials cannot be relied upon to displace the clear meaning of the text (Meagher JA (McColl and Campbell JJA agreeing) at [10] in Griffiths v The Trustees of the Parliamentary Contributory Superannuation Fund [2012] NSWCA 231). Given the history of the litigation in Mr Goudappel’s claim, the clear statements by the plurality in the High Court, and given the ordinary and grammatical meaning of the words in question, the only reasonable conclusion is that, in the circumstances of the present case, the amendments made by Sch 2 to the 2012 amending Act do not apply to Mr Khan. It follows that the repeal of s 67 by the 2012 amending Act is not a relevant consideration.
Last, I do not accept that applying the High Court’s findings in Goudappel to the facts in Caulfield, or the facts in the present case, is “problematic”. The application of Goudappel follows directly from the High Court’s answer to the question posed. Clause 11 does not talk about “new claims”. It talks about the amendments not applying to “a claim that specifically sought compensation under section 66 or 67 of the 1987 Act”. As Mr Khan specifically sought such compensation before 19 June 2012, his current claim is not caught by the amendments.

Sukkar

The Court of Appeal’s decision

In this case, the worker made a claim in 1996 for permanent impairment compensation under s 66 in respect of noise induced hearing loss. That claim was settled on 29 August 1996 for the appropriate compensation for a 12.9 per cent binaural hearing loss. It was accepted that the deemed date of injury was on or shortly before 29 August 1996.
On 19 June 2012, having continued to work for the same employer in employment to the nature of which the injury (of hearing loss) was due (s 17(1)(a)(i)), Mr Sukkar claimed $12,375 in respect of an additional nine per cent whole person impairment arising from a further loss of hearing. This claim was based on a report from Dr Stylis, an ear, nose and throat specialist, who assessed Mr Sukkar as suffering from 31.6 per cent hearing loss, after allowance for non-occupational impairment and an adjustment for age. This equated to a whole person impairment of 16 per cent. After adjusting for the prior claim of 12.9 per cent, the remaining loss of 18.7 per cent equated to nine per cent whole person impairment. The deemed date of injury in respect of the second claim was 19 June 2012 (s 17(1)(a)(i) of the 1987 Act).
The insurer rejected the claim on the ground that it did not meet the 10 per cent threshold in s 66, as amended by the 2012 amending Act. At the arbitration, Mr Sukkar amended the claim to claim for 16 per cent impairment resulting from the injuries on or shortly before 29 August 1996 and on 19 June 2012, together with pain and suffering under s 67. The question of whether Mr Sukkar was entitled to aggregate the impairments due to the same pathology to satisfy the s 66(1) threshold or whether the claim was two separate claims, with different dates of injury, was referred to the Commission’s President as a novel and complex question of law.
The questions referred were:
“1. Do the amendments to the Div 4 Pt 3 of the Workers Compensation Act 1987 (the 1987 Act) introduced by Sch 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for permanent impairment compensation for hearing loss (to which s 17 of the 1987 Act has application) made on or after 19 June 2012 when a worker has made a previous claim for permanent impairment compensation for hearing loss prior to 19 June 2012?
2. If yes, whether in claims for compensation pursuant to s 66 of the 1987 Act, including hearing loss claims (to which s 17 of the 1987 Act has application), involving the same pathology of injury arising from multiple injurious events of injury, the multiple injuries can be aggregated for the purpose of determining whether or not the worker's claim exceeds the s 66(1) threshold?”
The President held that the injury was deemed to have happened on 19 June 2012 and the law applicable to calculating the quantum of Mr Sukkar’s entitlement to lump sum compensation for his further loss of hearing was the law introduced by the 2012 amending Act. Thus, there was no reason to depart from the prima facie position in cl 15 of Pt 19H, that is, the amendments applied to Mr Sukkar’s claim for further hearing loss because it was made on 19 June 2012. The President answered “Yes” to the first question and “No, in circumstances where a worker has made a prior claim for compensation pursuant to s 66 of the 1987 Act” to the second. Mr Sukkar appealed.
McColl JA held (at [75]) that s 17 operates to deem a further loss of hearing to be an “injury” for the purposes of the recovery of further permanent impairment compensation for hearing loss. It was because Mr Sukkar’s “further [hearing] loss” was treated as an “injury”, separate to the “injury” the subject of the 1996 claim, that he was, subject to the amended s 66, entitled to make “a claim” for “permanent impairment compensation”. He made that claim on 19 June 2012. That was the deemed date of injury. Accordingly, because of the combined operation of s 17 and cl 15 of Pt 19H, the amended s 66 applied.
Dealing with Mr Sukkar’s “aggregation argument”, which was that the 1996 injury and the 2012 injury could be combined to meet the new s 66 threshold, McColl JA held (at [86]) that the injury deemed to have occurred on 19 June 2012 was a different “injury” from the “injury” the subject of the previous claim which was deemed to have occurred on or shortly before 29 August 1996. Thus, the two injuries were not the “same injury” for the purposes of s 322(2) of the 1998 Act and the two impairments could not be aggregated.
Significantly, for the purposes of the matter before me, McColl JA did not understand the respondents to submit that Mr Sukkar’s claim failed because it was a second claim contrary to s 66(1A). The claim failed because it did not meet the “greater than 10% threshold”.
Subject to amending the answer to the second question of law referred to the President, McColl JA granted leave to appeal but dismissed the appeal.
Basten JA took a different approach. His Honour acknowledged (at [106]) that the 1996 claim fell within the exception in cl 11. However, that did not assist Mr Sukkar because, not only had that claim been disposed of, it could not give rise to an entitlement to compensation for loss of hearing after August 1996. It followed that the 2012 amending Act “applied to the only extant claim, namely that made on 19 June 2012”. Presumably, though this was not expressly stated by his Honour, this was because the 2012 claim was for a separate “injury”, namely, a further loss of hearing.
For reasons that do not need to be considered, Basten JA said (at [108]) that the argument that the whole person impairment in 2012 was 16 per cent (effectively, the aggregation argument) was fatally flawed.
Basten JA gave (at [122]) the following answers to the questions posed:
“[1] A claim for lump sum compensation for permanent impairment made on or after 19 June 2012 is a claim to which the 2012 Amending Act applies by virtue of the transitional provision in cl 15, Pt 19H, Sch 6 to the 1987 Act. If there is an unresolved claim, specifically for lump sum compensation for permanent impairment, made before 19 June 2012, the 2012 Amending Act will not apply to it.
[2] The scope of the injury involving hearing loss should be determined by applying s 17 of the Workers Compensation Act. A second claim with respect to ‘an injury’, being the loss of hearing which had arisen before, and was the subject of, a prior claim, whether made before or after 19 June 2012, is prevented by s 66(1A). Section 66(1A) would not preclude a claim for a further loss of hearing, post-dating the prior claim, being a further injury. The question is not capable of further answer.”
Beech-Jones J took yet another approach. His Honour said (at [123]) that the first question turned on the word “claim” in cl 15 of Pt 19H and cl 11 of Sch 8. He said that Mr Sukkar’s contention, namely, that those provisions confer “some form of immunity from the amendments that came into force on 19 June 2012 if he just happened to have previously made a claim for workers compensation prior to then”, was “misconceived”. The reference to “claim” in those provisions was “clearly directed to the claim under consideration which in this case was the claim made on 19 June 2012”. With respect to the second question, it was his Honour’s view that the “only substantial matter raised by the applicant for this Court concerns the meaning of the phrase ‘this Act’ in s 66(1A)” ([124]).
After referring to submissions made on behalf of Mr Sukkar, his Honour said that “it was not correct to state that s 66(1A) is not engaged in respect of a claim made on or after 19 June 2012 if there had previously been a claim made before 19 June 2012” ([132]). When s 66(1A) is applied to a claim made on or after 19 June 2012 it restricts a worker to making one claim “under this Act”. The phrase “this Act” refers to the entirety of the 1987 Act of which the amendments introduced by the 2012 amending Act forms part.

Beech-Jones J concluded, at [133]–[136]:
“[133] This approach is not inconsistent with the transitional provisions noted above and nor does it give s 66(1A) a retrospective operation. To the contrary it only involves s 66(1A) ‘tak[ing] account of antecedent facts and circumstances as a basis for what it prescribes for the future, and ... no more than that’ (Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819 at 824). On and from 19 June 2012 s 66(1A) mandates that there shall only be one claim for permanent impairment compensation in respect of the permanent impairment that results from an injury. In doing so it may operate on facts antecedent to it coming into force including the existence of an earlier claim but it does no more than that.
[134] It follows that the entire premise of the applicant’s attempts to invoke the aggregation provisions was misconceived. His application was and is doomed to fail.
[135] All that remains is the problematic nature of question 2. It follows from what I have stated that I consider that this case was an unsuitable vehicle to explore the interrelationship between s 17 of the Workers Compensation Act and s 322 of the Workplace Injury Management and Workers Compensation Act. Nevertheless I agree with the answer proposed by Basten JA which I do not understand to foreclose consideration of that issue. Further, it is clear that s 66(1A) operates with respect to a prior claim whether made before or after 19 June 2012.
[136] I agree with the orders proposed by Basten JA.”

Submissions

Mr Flett has submitted that Sukkar is authority for the propositions that he has advanced in the present matter. He relied, in particular, on the second sentence in the answer by Basten JA to the first question posed in that matter and on the decision of Beech-Jones J. He contended that Sukkar is authority for his submission that the amendments should not be construed beneficially to the worker.
Mr Flett argued that the reasoning of Basten JA is authority for the proposition that there is “a critical difference between a claim for compensation for permanent impairment made before 19 June 2012 that has been resolved and a claim for compensation for permanent impairment made before 19 June 2012 that remains on foot after that date”. Mr Flett said that:
“Beech-Jones J’s comments that Section 66(1A) are to the effect that the section is engaged in respect of a claim made on or after 19 June 2012 if there has previously been a claim made before 19 June 2012 by reason of ‘this Act’ referring to the entirety of the 1987 Act, including amendments introduced in June 2012.”
Though their Honours were considering the operation of s 17, the passages relied on by the appellant, so it was contended, are of general application. Further, the comments by Beech-Jones J should be considered ratio as they were in respect of a question the Court of Appeal was required to determine.
Counsel for Mr Khan, Mr Andrew Parker, submitted that Sukkar is not binding in the current case and, further, that it is not persuasive when dealing with claims, other than those concerning hearing loss. He highlighted the fact that s 17 creates a “new” injury for deterioration claims for hearing loss. If there is a “new” injury, and a claim made pursuant to s 66, there must be a “new” claim. This is how the Court of Appeal approached the disposition of Sukkar.
Mr Parker submitted that the comments in relation to “claim” were not made at large; they were made in relation to the issues before the Court, namely, a deterioration of hearing loss under s 17, which created a “new” injury and hence a “new” claim. Moreover, Mr Parker contended that Sukkar is not persuasive when dealing with claims, other than those concerning hearing loss, noting that there is no equivalent provision of s 17(1) when dealing with physical injuries.
Given that Sukkar did not overrule Caulfield, or hear argument as to how the particular provisions operated with claims, other than those concerning hearing loss, Mr Parker submitted that the proper approach was for the Commission to apply Caulfield and Green.

Discussion and findings

I do not accept that Sukkar supports the appellant’s position in the present case.
First, as Mr Parker submitted, Sukkar addressed two specific questions about the application of the amendments introduced by the 2012 amending Act to a claim for permanent impairment compensation for a further loss of hearing. As McColl JA made clear, such a claim was in respect of an “injury” deemed to have happened on 19 June 2012 and, as the claim in respect of that injury was made on or after 19 June 2012, the amendments applied to it. In this context, the comments by Basten JA and Beech-Jones J, to the extent that they purported to deal with claims generally, were obiter.
Second, though McColl JA made a passing reference to Goudappel, noting (at [6]) that the High Court held that cl 11 was valid, no member of the Court referred to the plurality’s comments in that case about cl 11 at [29]. Nor did their Honours refer to the Court of Appeal’s decision in Goudappel No 1 and the meaning of “a claim” accepted in that decision. If there is thought to be a conflict between the obiter comments by Beech-Jones J in Sukkar and the plurality’s judgment in Goudappel, the High Court’s decision is binding on the Commission and must be followed. I note, however, that if Sukkar is restricted to its ratio, there is no conflict.
Third, to the extent that Mr Flett relies on Basten JA’s reference to “an unresolved claim” in the second sentence of the answer to the first question in Sukkar, it does not follow that that statement applies to the present matter. When dealing with a similar question in Goudappel No 1, namely whether the exception in cl 15 applies only to “extant claims”, Basten JA observed “had it been intended to require an extant claim for lump sum compensation as at the specified date, cl 15 could have so stated, but it did not” (Goudappel No 1 at [11]). As previously noted, neither this statement, nor his Honour’s other observations about “a claim”, were challenged in the High Court.
Similarly, had it been intended to restrict the exclusion in cl 11 to extant claims only, as Mr Flett has urged, the legislature could easily have done so, but it did not. Regrettably, it seems that counsel did not take the Court to this part of Goudappel No 1.
Fourth, it appears that the Court was not referred to Caulfield, which was decided on 11 June 2014 (Sukkar having been argued on 20 June 2014 and decided on 22 December 2014) or, more importantly, any part of its reasoning. That is understandable, given the significantly different issues thrown up by the hearing loss provisions with which Sukkar dealt.
Last, Beech-Jones J’s observation that Mr Sukkar’s submission that cls 15 and 11 confer some form of immunity from the 2012 amending Act if he “just happened to have previously made a claim for workers compensation prior to then” was “misconceived” is inconsistent with the decision in Goudappel No 1 where it was held (and not challenged in the High Court) that “a claim” in cl 15 of Pt 19H includes any claim for compensation made before 19 June 2012 and with the plurality’s statement at [29] referred to above at [23].
In these circumstances, I am unable to accept that Sukkar overrules Caulfield or Green, or that it leads to a different outcome to that reached by the Arbitrator in the present case.

CONCLUSION

The Arbitrator’s determination that Mr Khan is entitled to claim permanent impairment compensation was correct and is confirmed.

DECISION

The Arbitrator’s determination of 29 August 2014 is confirmed.

COSTS

No order as to costs.

Bill Roche
Deputy President

18 February 2015

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

ASSOCIATE