Stella Maris College v Robin-True - [2015] NSWWCCPD 57

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Stella Maris College v Robin-True [2015] NSWWCCPD 57
APPELLANT:	Stella Maris College
RESPONDENT:	Rebecca Ann Robin-True
INSURER:	Catholic Church Insurance Ltd
FILE NUMBER:	A1-244/15
ARBITRATOR:	Mr M Snell
DATE OF ARBITRATOR’S DECISION:	21 May 2015
DATE OF APPEAL DECISION:	28 September 2015
SUBJECT MATTER OF DECISION:	Second claim for permanent impairment compensation; first claim settled by way of complying agreement; whether second claim prevented by amendments introduced by the Workers Compensation Legislation Amendment Act 2012; ss 66A(3) and 66(1A) of the Workers Compensation Act 1987; Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 applied and followed
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Astridge and Murray
Respondent:	Leigh Virtue & Associates
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted. 2. The Senior Arbitrator’s determination of 21 May 2015 is revoked and, in its place, the following order made: 1. Award for the respondent.

INTRODUCTION

A worker who receives an injury that results in a degree of permanent impairment greater than 10 per cent is entitled to receive from his or her employer compensation for that permanent impairment, as provided by s 66 of the Workers Compensation Act 1987 (the 1987 Act). However, s 66(1A) provides that “[o]nly one claim can be made under [the 1987 Act] for permanent impairment in respect to the permanent impairment that results from an injury”.
Section 66A provides for claims for permanent impairment compensation to be resolved by agreement between the worker and the employer or insurer, and for the agreement to be recorded in a document called a “complying agreement” (s 66A(1)). If a worker enters into a complying agreement in relation to an injury, the permanent impairment compensation to which the worker is entitled in respect of the injury is the compensation payable in respect of the impairment agreed (s 66A(2)).
Section 66A(3) states that the Commission may award compensation additional to the compensation payable under s 66A(2) if:
“(a)   the agreed degree of permanent impairment is manifestly too low, or
(b)     the worker has been induced to enter into the agreement as a result of fraud or misrepresentation, or
(c)     since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed.”
This appeal challenges a Senior Arbitrator’s decision that, notwithstanding s 66(1A), a worker who claimed and was paid permanent impairment compensation pursuant to a complying agreement is entitled to bring a second claim for such compensation because of a deterioration in the worker’s condition.
Since the Senior Arbitrator’s decision, the Court of Appeal has authoritatively determined the issue in dispute in favour of the appellant: Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 (Cram Fluid). As a result, the appeal must succeed and the Senior Arbitrator’s decision must be, and is, revoked.

BACKGROUND

On 17 August 2009, the respondent worker, Rebecca Robin-True (the worker), injured her right knee when she fell in the course of her employment with the appellant employer, Stella Maris College (the appellant).
On 30 November 2012, the worker claimed permanent impairment compensation for a 12 per cent whole person impairment as a result of her injury. The appellant accepted that claim and the parties entered into a complying agreement under s 66A, dated 17 January 2013, that provided for the payment of $17,050 in respect of the 12 per cent whole person impairment.
On 13 September 2013, the worker underwent a total right knee replacement operation. On 8 May 2014, the worker was assessed to have a whole person impairment of 32 per cent as a result of her right knee injury.
On 16 October 2014, the worker’s solicitors wrote to the appellant’s insurer claiming additional lump sum compensation under s 66A(3)(a) and (c), consistent with the further assessment of 32 per cent. The insurer’s doctor assessed the worker to have a whole person impairment in respect of her right knee of 21 per cent.
On 9 December 2014, the insurer disputed liability on the ground that the claim was a second claim for additional compensation under s 66, which could not be pursued because of s 66(1A) of the 1987 Act.
The worker commenced proceedings in the Commission seeking the additional lump sum compensation of $46,200 in respect of an additional 20 per cent whole person impairment.
The worker’s “primary submission” was that the relief sought was not in respect of a second claim for lump sum compensation under s 66 and that it did not offend s 66(1A). It was argued that the single claim relied on by the worker was the claim the subject of the complying agreement dated 17 January 2013. It was contended that the application was not a dispute about lump sum compensation within the meaning of s 289(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), but an application under s 66A(3). As a result, there was no need for a further “claim” and s 66(1A) did not apply.
In the alternative, if the relief sought was a second claim, s 66A(3) was an exception to the one claim restriction in s 66(1A) and the maxim generalia specialibus non derogant (generalities do not derogate from particular provisions) applied. If there was a conflict between the general words of s 66(1A) and the specific words of s 66(3A), the specific words should prevail.
After a comprehensive review of the legislation, the WorkCover Guidelines for Claiming Compensation Benefits, and authorities, the Senior Arbitrator determined that the current claim was a claim for a monetary benefit under the legislation and that it was consistent with the scheme of the 1987 Act and the 1998 Act that that “monetary benefit need[ed] to be the subject of a ‘claim’” ([94]). (Though the claim, as pleaded, relied on s 66A(3)(a) and (c), the Senior Arbitrator held that only sub-section (c) was “engaged in the current matter” ([110]). That finding has not been challenged.)
The Senior Arbitrator held that the letter of 16 October 2014, which specifically referred to s 66A(3)(a) and (c), and used the language of “claim”, saying “we are instructed to claim additional lump sum compensation pursuant to section 66”, effectively amounted to a “claim” and, in any event, satisfied the requirements for the making of a claim.
On the operation of s 66A(3) and s 66(1A), the Senior Arbitrator acknowledged the tension between the two sections, and that s 66(1A) was inserted into the 1987 Act by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), which also provided for, among other things, various amendments to s 66A. He noted the statement by Gageler J in Commissioner of Police v Eaton [2013] HCA 2 (Eaton) at [98] that “statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict”.
In determining the legislative intention, the Senior Arbitrator accepted that s 66(1A) was not beneficial, but said that a beneficial construction is a legitimate approach to the construction of the 1987 and 1998 Acts overall on the basis that they have a beneficial purpose, if such a construction is open (ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 88 ALJR 624 at [29]).
Considering the historical context of the amendments, the Senior Arbitrator said that the fact that the 2012 amending Act also amended s 66A, including s 66A(3), was consistent with an intention that s 66A(3) should have continued operation. It provides for the awarding of “compensation additional” to that previously payable under the earlier complying agreement.
The Senior Arbitrator quoted and relied on Gibbs J in Public Transport Commission of NSW v J. Murray-More (NSW) Pty Ltd [1975] HCA 28; 132 CLR 336 at 350, where his Honour said that where two meanings are open “it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust”. He considered that the interpretation urged by the appellant would lead to consequences that appear “irrational and unjust”.
The Senior Arbitrator said that if the legislature had intended s 66A(3) to be restricted to circumstances where the 2012 amending Act did not have application, one would have expected that to be made clear in the transitional provisions, yet those provisions do not refer to s 66A(3). Because of “relevant inconsistency” (Eaton at [45]) in the operation of s 66(1A) and s 66A(3), the Senior Arbitrator concluded that s 66A(3) should be left “intact” ([117]).
He accepted that the maxim generalia specialibus non derogant applies in this case. He noted that, in s 66A(3), the legislature gave “its attention to a separate subject, and made provision for it” (Barker v Edger [1898] AC 748 at 754) and that s 66(1A) is a “later, general enactment” (Eaton at [46], referring to observations by Lord Wilberforce in Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538). The legislature did not, in the 2012 amending Act, manifest “very clearly” (Eaton at [46]) an intention to interfere with s 66A(3).
It followed that, on the Senior Arbitrator’s construction, s 66A(3) has continued operation unrestrained by s 66(1A) and that s 66(1A) should be read as subject to s 66A(3).
As the claim was only for permanent impairment compensation, the Senior Arbitrator remitted it to the Registrar for referral to an Approved Medical Specialist (AMS). Consistent with the Senior Arbitrator’s determination, the Commission issued a Certificate of Determination on 21 May 2015:
“1.The matter is remitted to the Registrar, for referral to an Approved Medical Specialist, to assess whole person impairment (right lower extremity (knee)) resulting from injury on 17 August 2009.
2.The Approved Medical Specialist is to have access to the Miscellaneous Application and the Reply, including material attached to those documents.”
The employer has appealed.

PRELIMINARY MATTERS

Interlocutory

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act. As the Senior Arbitrator’s determination did not finally determine the parties’ rights, but merely remitted the matter to the Registrar for referral to an AMS, there is no appeal under s 352 without leave of the Commission (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.
As the issue in dispute has now been authoritatively determined by Cram Fluid in favour of the appellant, and as the resolution of the appeal in favour of the appellant will eliminate the need for a medical assessment by an AMS, it is necessary and desirable for the proper and effective determination of the dispute that leave to appeal be granted.
Leave to appeal is granted.

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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Senior Arbitrator erred in finding that:
(a) s 66(1A) was a later enactment to s 66A(3), which was a separate subject, and that the maxim generalia specialibus non derogant applied;
(b) s 66(1A) should be read subject to s 66A(3), and that there is an inconsistency between the two provisions, and
(c) compensation sought under s 66A(3)(a) and (b) requires the making of a further claim, and that the construction of the provision contended for by the appellant would lead to consequences that are “irrational and unjust”.
It is convenient to consider first Cram Fluid, the parties’ submissions in light of that decision and then to set out my findings and conclusions.

CRAM FLUID

In Cram Fluid, Mr Green injured his back on 24 May 2005. On 14 December 2010, he claimed permanent impairment compensation in respect of a whole person impairment of seven per cent due to the injury to his back (the first claim). The parties settled the claim and Mr Green entered a complying agreement under s 66A on 22 December 2010 that provided for the payment of permanent impairment compensation of $8,750, the appropriate compensation for a whole person impairment of seven per cent.
Mr Green’s condition deteriorated and he underwent spinal surgery in September 2012. On 29 October 2013, he made a claim for permanent impairment compensation of $23,750 for a permanent impairment of 22 per cent (with credit for the $8,750 already paid under the first claim), plus compensation for pain and suffering (the second claim). The insurer disputed liability, asserting that s 66(1A) had the effect that a worker could make only one claim for permanent impairment compensation in respect of permanent impairment that results from an injury. The Commission held that s 66(1A) did not apply to Mr Green’s second claim. The employer appealed.
The appeal raised two issues: first, whether s 66(1A) applied to Mr Green’s second claim and, second, the effect of the “one claim” limitation in s 66(1A). Gleeson JA delivered the leading judgment with which Beazley ACJ agreed. In a separate judgment, Emmett JA also agreed. Gleeson JA held (at [91]) that once it was accepted, as it had to be, that the second claim, although arising out of the same injury, was a different claim to the first claim, the effect of the transitional provisions was that Mr Green’s second claim was subject to the operation of the amending provision, including the one claim provision in s 66(1A).
Mr Green had contended that, notwithstanding the one claim limitation in s 66(1A), he could pursue his second claim because, having previously entered into a complying agreement in 2010 in resolution of his first claim, s 66A(3) permits him to make a further claim for permanent impairment compensation based on his deterioration since the complying agreement in December 2010. (He did not argue that his second claim was not a “claim” or that, because of the operation of s 66A(3), he did not have to make a “claim” for compensation additional to the compensation paid under the complying agreement.)
Gleeson JA acknowledged (at [105]) that the “one claim” limitation in s 66(1A) may be seen to conflict with the assumption underlying the Commission’s power to award additional lump sum compensation under s 66A(3). His Honour noted that there is a general presumption against surplusage in statutes (Taheri v Vitek [2014] NSWCA 209; 87 NSWLR 403 at [121]) and that reconciling conflicting provisions will often require the Court to determine which is the leading provision and which is the subordinate provision (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [70]; 194 CLR 355 (Project Blue Sky)).
His Honour concluded that, giving effect to the purpose and language of the 2012 amendments, while maintaining the integrity of the statutory scheme, required “that the one claim limitation in the new s 66(1A) be taken to be the leading provision and the Commission’s power under s 66A(3) must give way to it” ([108]). That was because the Commission’s power to award additional compensation under s 66A(3) is not independent of a worker’s entitlement to receive compensation under s 66.
His Honour added (at [109]) that it should be accepted that, following the introduction of s 66(1A), s 66A(3) only has a limited operation with respect to claims for lump sum compensation additional to that payable under a complying agreement, where the further claim is made before 19 June 2012, the relevant date for the commencement of the lump sum compensation amendments introduced by the 2012 amending Act. It followed that s 66A(3) did not assist Mr Green because his further claim for lump sum compensation, based on his deterioration since the 2010 complying agreement, was not made before 19 June 2012 ([110]).
In light of this decision, the Commission directed the parties in the present appeal to provide further submissions.

SUBMISSIONS

Counsel for the appellant, Ms Wood, submitted that Cram Fluid establishes that the Senior Arbitrator’s decision is erroneous. That is because the worker’s present claim is a second claim under s 66 and, it having been made after 19 June 2012, it is caught by s 66(1A).
The worker’s solicitor, Mr Macken, submitted that Gleeson JA’s observations about s 66A(3) do not bind a Presidential member. That is because the Court of Appeal determined the appeal independently of s 66A(3) and Gleeson JA’s observations (about s 66A(3)) “can be regarded as obiter”.
Mr Macken said that the Court of Appeal was not called upon to consider the principle of statutory interpretation that an Act and a subsequent amending Act by the same parliament are to be regarded as one connected and combined statement of the will of parliament (a point made by the Senior Arbitrator at [99], citing Sweeney v Fitzharding (1906) 4 CLR 716 at 735 per Isaacs J, approved of in Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 463, 479).
Nor, so it was contended, was the Court of Appeal taken to the fact that parliament, at the time s 66(1A) was introduced, amended s 66A but did not remove the provision in sub-section (3) of that section, which states that:
“The Commission may award compensation additional to the compensation payable under sub-section (2) if it is established that:
…
(c) since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed.”
Mr Macken submitted that if, as the Senior Arbitrator pointed out, it is possible for both provisions to operate together, there is no requirement to determine a leading provision and a subordinate provision. Project Blue Sky (at [70]) makes it clear that determining a leading provision and a subordinate provision is not the method to be applied universally in determining any apparent conflict. Rather, it is a method that may be required. It is not required in the present case.
Mr Macken contended that, given the close attention paid by the legislature, when amending the 1987 Act, to the provisions of s 66A(3), the legislative intention to preserve the right which the worker seeks to exercise is “manifest”.
He further submitted that reading s 66A(3) in the manner contended for by the appellant would create an anomaly in that a claimant whose impairment was determined by an AMS will have a right of appeal in circumstances of a deterioration (see s 327(3)(a)), but a claimant whose impairment is determined by agreement recorded in a complying agreement would not. Therefore, so it was contended, the interpretation that is more consistent with the legislative intention is that adopted by the Senior Arbitrator.
In the alternative, Mr Macken argued that the legislative intention to limit claims under s 66, while preserving the Commission’s power to award further compensation if a worker’s condition deteriorates subsequent to a s 66A agreement, is given effect by regarding an application for further compensation under s 66A(3) not as a fresh claim, but as an application for variation of the original claim, in the manner contemplated by s 66A(3). In other words, the relief sought under s 66A(3) did not and does not require any further “claim” but allows for relief “in respect of the claim originally made”.

FINDINGS AND CONCLUSIONS

Mr Macken’s submissions cannot be accepted.
I do not accept that Gleeson JA’s observations on the operation of s 66A(3), in the light of the amendment to s 66, are obiter dicta. The parties in Cram Fluid made detailed submissions on the operation of s 66A(3) and the effect of s 66(1A) on it. Though the appeal could have been disposed of on a narrower basis, namely the interpretation of the relevant transitional provisions, Gleeson JA dealt with the merit of Mr Green’s alternative argument. That was an essential part of the decision, though not the only part, and it clearly binds the Commission.
If I am wrong, and Gleeson JA’s observations on s 66A(3) are only obiter dicta, the comments are considered dicta given after hearing argument on the issue. While a mere passing remark on a matter that the parties have not argued is one thing, a considered judgment on a point fully argued is another (Brunner v Greenslade [1971] Ch 993 at 1002–3). As observed by Heydon J in the article Limits to the Power of Ultimate Appellate Courts (2006) 122 LQR 399 at 415 footnote 114, “[a] statement of this kind has judicial weight nearer to that of a ratio decidendi than an obiter dictum”.
Moreover, “seriously considered dicta” by an appellate court, which is not “plainly wrong”, should be accepted by a lower court (or tribunal) (Macfarlan JA (Leeming JA and Bergin CJ in Eq agreeing) in Kendirjin v Lepore [2015] NSWCA 132 at [33]).
It follows that, however logical and persuasive the Senior Arbitrator’s reasoning may be, and I believe that it is both, it cannot stand in light of Cram Fluid. That is so regardless of the fact that the Senior Arbitrator considered several matters that the parties (apparently) did not submit on in the Court of Appeal.
The issue before me is indistinguishable from the issue determined by Cram Fluid and, absent a successful appeal to the High Court, the Commission is bound to apply the law stated in that decision. That leads to only one conclusion: the appeal must succeed and, having already made one claim for permanent impairment compensation, the worker is not entitled to make a second.
I do not accept Mr Macken’s alternative argument, namely that the current claim is not a fresh claim but is an application for a variation of the original claim and therefore does not require a further “claim”. As explained by the Senior Arbitrator, the worker’s current claim was and is a claim for a monetary benefit under the legislation. Such a claim for compensation must be, and was, the subject of a “claim” for that benefit.
The Senior Arbitrator’s finding on this point is consistent with Gleeson JA’s observation (at [108]) that the Commission’s power to award additional compensation under s 66A(3)(c) is not independent of a worker’s entitlement to receive compensation under s 66, which requires that a “claim” be made, and with Emmett JA’s observation (at [11]) that Mr Green’s first claim was a “totally separate and discrete claim” from his second claim.
I express no view on Ms Wood’s submission that a “claim” is not necessary if an applicant is relying on subsection (a) or (b) of s 66A.

DECISION

Leave to appeal is granted.
The Senior Arbitrator’s determination of 21 May 2015 is revoked and, in its place, the following order made:
1. Award for the respondent.

Bill Roche
Deputy President

28 September 2015

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

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