Strooisma v Coastwide Fabrication and Erection Pty Ltd - [2020] NSWWCCPD 65

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Strooisma v Coastwide Fabrication and Erection Pty Ltd [2020] NSWWCCPD 65
APPELLANT:	Craig Strooisma
RESPONDENT:	Coastwide Fabrication and Erection Pty Ltd
INSURER:	AAI Ltd trading as GIO – Agent for Workers Compensation Nominal Insurer
FILE NUMBER:	A1-6412/18
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	16 May 2018
DATE OF APPEAL DECISION:	10 November 2020
SUBJECT MATTER OF DECISION:	Clause 28C of Schedule 8 of the Workers Compensation Regulation 2016
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms E Grotte, counsel
Firths, The Compensation Lawyers
Respondent:
Ms B Tronson and Ms C Roberts, counsel
Hall and Wilcox, Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s decision dated 16 May 2018 (sic, 2019) is confirmed.

INTRODUCTION AND BACKGROUND

Craig Strooisma (the appellant) was employed as a rigger by Coastwide Fabrication and Erection Pty Ltd (the respondent) when he suffered injury to his lower back while lifting on 23 September 2003. He was totally incapacitated for approximately six months and was then involved in a return to work program, which was unsuccessful. He has not worked since ceasing employment with the respondent in about 2006.[1] On 12 June 2013, the respondent’s insurer made a work capacity decision in which it stated “you currently have no work capacity”.[2] The respondent paid appropriate weekly compensation to the appellant for periods whilst he was off work prior to 26 December 2017.
[1] Application to Resolve a Dispute (ARD), p 35.
[2] Letter QBE to appellant 12/6/13, Application to Admit Late Documents 14/2/19, pp 1–2.
On the commencement of the Workers Compensation Legislation Amendment Act 2012 (the 2012 Amending Act) the appellant fell within the definition of an ‘existing recipient of weekly payments’: cl 1, Div 1, Pt 19H of Sch 6 to the Workers Compensation Act 1987 (the 1987 Act). In general terms, s 39(1) of the 1987 Act, as amended by the 2012 Amending Act, limits weekly payments of compensation to an aggregate period of 260 weeks. Clause 13 of Div 2 of Sch 6 provides that the application of s 39 is to have no regard to periods of compensation paid prior to commencement of the 2012 Amending Act. The respondent’s insurer calculated (and this is not challenged) that the appellant’s entitlement to weekly payments expired as at 25 December 2017 and gave notice of this on 12 September 2017.[3] Payments of weekly compensation ceased consistent with that notice. The insurer accepted at the time that the appellant had no current work capacity.[4]
[3] ARD, pp 23–24.
[4] Respondent’s submissions on appeal, [7].
The appellant underwent surgery involving interbody fusion at L5/S1 at the hands of Dr Mobbs, a neurosurgeon, on 6 August 2018 (the date may be 6 July 2018, the discrepancy is not material).[5] The appellant was examined by Dr Davis, an Approved Medical Specialist (AMS) whose Medical Assessment Certificate (MAC) dated 12 October 2018 provides:
“Whether the degree of permanent impairment of the injured worker is fully ascertainable in accordance with section 319(g) of the Act.
As a result of reviewing all the medical reports and the findings on physical examination, Mr Strooisma has not attained a position of maximum medical improvement and therefore the degree of permanent [impairment] cannot be fully assessable in accordance with section 319(g) of the 1998 Act at this stage.”[6]
[5] ARD, pp 22 and 26.
[6] ARD, pp 25–29.
This circumstance fell within cl 28C, Pt 2A, Sch 8 of the Workers Compensation Regulation 2016 (the Regulation) (cl 28C), which contains an exception to the 260 week limitation on weekly compensation payments (the clause is reproduced at [16] below). The respondent recommenced payments of weekly compensation from 12 October 2018, the date of the MAC. It did not make weekly payments in respect of the period from 26 December 2017 to 11 October 2018. It said that the requirements of neither cl 28C or s 39(2) of the 1987 Act were satisfied during that period.[7] The current proceedings were commenced by way of an ARD registered on 7 December 2018. The appellant claimed weekly compensation during the unpaid period.
[7] Hall & Wilcox letter, 8/11/18, Reply, p 11.
The matter was listed for an arbitration hearing on 21 February 2019. Ms Grotte appeared for the appellant and Ms Tronson appeared for the respondent. On 20 February 2019, the respondent lodged an Application for Leave to Refer a Question of Law to the President. Written submissions in support of that application, and going to the issues more generally, were handed up by the respondent at the arbitration hearing. Counsel addressed and the Arbitrator reserved his decision. While the matter was reserved, the decision of the President, Phillips DCJ, was delivered in RSM Building Services Pty Ltd v Hochbaum.[8] That decision raised generally similar issues of construction, although involving s 39 of the 1987 Act rather than cl 28C.
[8] [2019] NSWWCCPD 15 (Hochbaum No. 1).
The Commission issued a Certificate of Determination dated 16 May 2018 [sic, 2019].[9] The Arbitrator declined the application to refer a question of law to the President. The Arbitrator applied the reasoning of the President in Hochbaum No. 1 and made an award for the respondent on the closed period claimed from 26 December 2017 to 11 October 2018.
[9] Strooisma v Coastwide Fabrication & Erection Pty Ltd [2019] NSWWCC 173 (the reasons).
The current appeal was registered in the Commission on 13 June 2019. The State Insurance Regulatory Authority (SIRA) intervened in these proceedings pursuant to s 106 of the 1998 Act, and lodged submissions dated 30 July 2019. Meanwhile an appeal to the Court of Appeal in Hochbaum No. 1 was listed for hearing on 21 October 2019. On the application of the worker (the appellant in the current appeal) with the consent of the employer and SIRA, the Presidential appeal in the current case was stood over until the matter of Hochbaum No. 1was dealt with in the Court of Appeal.[10]
[10] Email from Ms Thomson to the Registry dated 12/8/19, email from Ms Sapienza (NSW Crown Solicitor’s Office) to the Registry, 12/8/19, email from Ms Gunasekera to the parties, 12/8/19.
The decision of the Court of Appeal in Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW,[11] which reversed that of the President, was delivered on 17 June 2020. The Arbitrator considered whether, in those circumstances, he should reconsider his earlier decision (reconsideration application). The parties made written submissions on this application, in each instance dated 5 August 2020. The Arbitrator delivered a decision dated 11 August 2020, in which he declined to reconsider his earlier decision issued on 16 May 2019. The Arbitrator referred to the decision in Hochbaum No. 2 and continued, stating:
“2. On reviewing the matter, however, it is apparent that this case concerned Clause 28C of Part 2A of Schedule 8 (Savings and Transitional Provisions) of the Workers Compensation Regulation 2016.
3. While Clause 28C employs similar language to Section 39, the structure and content of the provisions are different. It is arguable that the determination of 16 May 2018 [sic, 2019] is correct on grounds other than those expressed in my reasons for the decision.
4. In those circumstances it is not appropriate to embark upon a reconsideration of the matter.”
[11] [2020] NSWCA 113 (Hochbaum No. 2).
The appellant was examined by a further AMS, Dr Mastroianni, and a MAC was issued dated 11 September 2020. The MAC certified that the appellant’s condition had stabilised, and that he suffered 20 per cent whole person impairment as a result of the injury on 23 September 2003. His degree of permanent impairment resulting from the injury was not “more than 20%”.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”
The appellant submits that the interpretation issue is of “some complexity” and an oral hearing would be appropriate.[12] The respondent submits the appeal can be dealt with on the basis of the written material. I have the transcript of the arbitration hearing, written submissions put before the Arbitrator, the parties’ submissions on appeal, and the parties’ submissions on the reconsideration application. The decision of the Court of Appeal in Hochbaum No. 2, which assists in considering the issues raised in the current appeal, was issued on 17 June 2020, subsequent to the appellant’s submission that an oral hearing would be appropriate, which was made in a document dated 13 June 2019.
[12] Appellant’s submissions, [20].
This appeal raises a single issue regarding the construction of cl 28C. Having regard to Practice Directions Nos. 1 and 6; the documents that are before me, and the submission by the respondent 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.
SIRA advised, in an email dated 21 September 2020, that it sought to withdraw its intervention, and the parties consented to this course. SIRA also withdrew its submissions dated 30 July 2019.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE LEGISLATIVE PROVISIONS

Section 39 of the 1987 Act provides:
“39    Cessation of weekly payments after 5 years
(1)     Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.
(2)     This section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.
Note—
For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.
(3)     For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).”
Clause 28C of Part 2A of Schedule 8 of the Regulation (cl 28C) provides:
“28C 5 year limit on weekly payments
Section 39 of the 1987 Act (as substituted by the 2012 amending Act) does not apply to an injured worker if the worker’s injury has resulted in permanent impairment and—
(a) an assessment of the degree of permanent impairment for the purposes of the Workers Compensation Acts is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
(b) the insurer is satisfied that the degree of permanent impairment is likely to be more than 20% (whether or not the degree of permanent impairment has previously been assessed).”
The definition of a ‘worker with high needs’ in s 32A of the 1987 Act reads:
“worker with high needs means a worker whose injury has resulted in permanent impairment and—
(a)     the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 20%, or
(b)     an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note—
Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c)     the insurer is satisfied that the degree of permanent impairment is likely to be more than 20%,
and includes a worker with highest needs.”

THE ARBITRATOR’S REASONS FOR THE DECISION ISSUED ON 16 MAY 2019

The Arbitrator noted it was a case that “turns on the true construction of cl 28C of Pt 2A, Sch 8 of the [Regulation] and, indirectly, s 39 of the [1987 Act]”. He noted the respondent’s position was that “it was not obliged to pay compensation between the expiry of 260 weeks and the certification by the AMS that the [appellant] had not reached maximum medical improvement”.[13] The Arbitrator referred to a number of arbitral decisions on the point, including his own in Kennewell v ISS Facility Services Australia Ltd,[14] in which he had adopted an approach contrary to that argued for by the respondent. The Arbitrator noted the Presidential decision in Hochbaum No. 1, which was contrary to the Arbitrator’s reasoning in Kennewell.[15]
[13] Reasons, [1], [11].
[14] [2018] NSWWCC 216 (Kennewell).
[15] Reasons, [16].
The Arbitrator noted that in 2008, the appellant was paid permanent impairment compensation in respect of his lumbar spine.[16] (A list of payments attached to the ARD indicates that a payment of $6,250 was made to the appellant on 12 September 2008 in respect of “SECT 66”, with 10 per cent of this amount being deducted for “10% HIC”.[17])
[16] Reasons, [5].
[17] ARD, p 48.
The Arbitrator considered the fact that Hochbaum No. 1 dealt with the application of s 39(2) of the 1987 Act, whereas the current matter involved cl 28C:
“26. The language of cl 28C is similar to that utilised in s 39(2). Significantly, it also says that s 39(1) ‘does not apply’ if an assessment of permanent impairment ‘is pending’. Ms Tronson argued in her written submissions that the language of the clause was ‘constantly speaking in the present’. That submission conforms with the President’s reasoning in Hochbaum. It must be accepted. It follows that my reasoning in Kennewell was wrong and that decision cannot be followed.
27. Certainly, there are contextual differences between the two provisions. It is much easier, for example, to characterise cl 28C as a beneficial provision for the reasons which I gave in Kennewell. Ultimately, however, both provisions address different aspects of the same statutory purpose; to establish the circumstances in which compensation is payable beyond the period limited by s 39(1).
28. To hold that they operate differently would give rise to anomalous outcomes. A worker who had been certified as having more than 20% permanent impairment would not be entitled to compensation between the expiration of 260 weeks and the date of certification, but a worker whose impairment was not fully ascertainable would be entitled to compensation during this period. The legislature cannot have intended such a capricious result.
29. Accordingly, I hold that cl 28C on its true construction does not entitle the [appellant] to weekly compensation before the date on which the AMS certified that his impairment was not fully ascertainable and that he had not reached maximum medical improvement. As this is the only claim made by the [appellant], it follows that there must be an award for the respondent.”

GROUND OF APPEAL

The appellant states the Arbitrator made an error of law in his construction of cl 28C of Pt 2A, Sch 8 to the Regulation and as a consequence made an error in finding that Mr Strooisma was not entitled to weekly compensation after he had received weekly payments for 260 weeks and before he was assessed to have not reached maximum medical improvement.[18]
[18] Appellant’s submissions on appeal, [1].
This ground is expanded on elsewhere in the submissions. The appellant submits on why the Arbitrator’s construction of cl 28C of the Regulation was incorrect.[19] He submits on why the Arbitrator erred in following the decision in Hochbaum No. 1.[20]
[19] Appellant’s submissions on appeal, [27].
[20] Appellant’s submissions on appeal, [28].

APPELLANT’S SUBMISSIONS

The parties requested that their submissions on the reconsideration application be treated as submissions on the appeal.[21] These are the most pertinent of the submissions lodged, as they postdate (and seek to address) the decision of the Court of Appeal in Hochbaum No. 2.
[21] Email from Ms Walsh to Mr McKean 18/9/20.

On the reconsideration application

The appellant notes that, unlike Hochbaum No. 2, the worker in the current matter had not been assessed with permanent impairment greater than 20 per cent, but was an ‘existing recipient of weekly payments’ who was certified not to have reached maximum medical improvement, bringing him within cl 28C.[22] The appellant refers to the Arbitrator’s reasons, which applied Hochbaum No. 1, and briefly summarises the reasons of Brereton JA in Hochbaum No. 2.[23] The appellant’s counsel submits that, for a worker in the appellant’s position, “s 39 does not apply by virtue of the operation of clause 28C”. It is submitted that a ‘worker with high needs’ is defined in s 32A of the 1987 Act, and the definition includes a worker whose impairment exceeds 20 per cent, and a worker “whose degree of permanent impairment has not been assessed because it is not yet full[y] ascertainable”. The appellant submits this “demonstrates that Mr Strooisma’s circumstances are to be treated as if his permanent impairment exceeded 20% thereby engaging s 39(2)”. The appellant submitted the law as found in Hochbaum No. 2 should be applied, for reasons of consistency and conformity.[24]
[22] Appellant’s reconsideration submissions, [16]–[18].
[23] Appellant’s reconsideration submissions, [20]–[22].
[24] Appellant’s reconsideration submissions, [24]–[25].
The appellant submits the Court of Appeal has interpreted s 39(2) of the 1987 Act and how it must operate. The appellant submits:
“It is now clear law that s 39 never operates to cease weekly payments after 260 weeks where an injured worker has exceeded the threshold of 20% WPI or where, by parity of reasoning, an existing recipient’s assessment of the degree [of] permanent impairment is pending and has not been made because maximum medical improvement has not been reached and is not fully ascertainable.”[25]
[25] Appellant’s reconsideration submissions, [28].

On the Application to Appeal

The appellant submits the text of cl 28C favours the appellant’s construction. During the period at issue the appellant had suffered injury resulting in permanent impairment. If the legislature intended that s 39(2) or cl 28C should operate to deny a worker in those circumstances a weekly entitlement, it ought to have used the clearest language. It did not. The appellant submits the Arbitrator failed to read these provisions in the context of the overall beneficial intention of the legislation. Clause 28C and s 39(2) are clearly beneficial provisions. The appellant submits s 39(2) of the 1987 Act provides that s 39 “does not apply” when the criterion in s 39(2) is met. Weekly payments should have continued uninterruptedly.[26]
[26] Appellant’s submissions on appeal, [27].
The appellant submits Hochbaum No. 1 involved a misconstruction of s 39 of the 1987 Act. Section 39(2) ensures a worker with high or highest needs is not subject to the 260 week limitation. The appellant submits the finding in Hochbaum No. 1 that s 39(2) contains a temporal element misconstrues the provision. To read the insertion of words into s 39(2) was not permissible. The clear intention of s 39(2) was that if there was any ambiguity, it ought to be construed beneficially in favour of the worker.[27]

RESPONDENT’S SUBMISSIONS

[27] Appellant’s submissions on appeal, [28].

On the reconsideration application

The respondent submits the Court of Appeal in Hochbaum No. 2 did not decide the interpretation of cl 28C. It rejected the proposition that there must be consistency between the interpretation of s 39(2) of the 1987 Act and cl 28C. Its interpretation of s 39(2) relied on characteristics of the provision that “can and must be distinguished” from cl 28C.[28] The respondent submits that Brereton JA set out multiple reasons (which it summarises) for concluding that s 39(2) did not have a temporal element. In essence, liability for permanent impairment dates from the injury, regardless of when the degree of permanent impairment is ascertained. There can only be a single degree of permanent impairment because of the concept of permanency. This is inconsistent with there being a temporal element in s 39(2), which asks what degree of permanent impairment (being the ultimate degree of permanent impairment) results from the injury. Once a worker is in the exempt class, s 39 does not apply, regardless of when that is ascertained. The respondent submits these reasons are consistent with those of White JA and Simpson AJA. The respondent submits the above factors do not apply to cl 28C, which has a temporal element.[29]
[28] Respondent’s reconsideration submissions, [14].
[29] Respondent’s reconsideration submissions, [16]–[19].
The respondent submits the clear words of cl 28C provide that it only applies, firstly when an assessment is pending and has not been made because an AMS declined to do so, and secondly “as maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable”. What attracts the application of cl 28C(a) is “the particular status relating to assessment” involving both of these criteria.[30] Unlike s 39(2), “the status described in cl 28C(a) is, by its nature, impermanent”. The “clause must have a temporal element”. The respondent submits this “appears also to have been accepted by White JA” in Hochbaum No. 2 at [10].[31]
[30] Respondent’s reconsideration submissions, [20]–[22].
[31] Respondent’s reconsideration application, [23]–[24].
The respondent submits that whether the status exists to satisfy cl 28C(a) depends on a variety of factors that includes the injury and whether it has healed or stabilised, ongoing treatment and the timing of any referral to an AMS. The respondent submits:
“… the reasons given in [Hochbaum No. 2] not only support, but require, a construction of cl 28C(a) that results in the disapplication of s 39 only for any period during which both of the criteria set out … above are met.”[32]
[32] Respondent’s reconsideration submissions, [25]–[27].
The respondent refers to the discussion by Brereton JA in Hochbaum No. 2 at [44] to [50], dealing with whether assessment is required for the purposes of s 39(2) of the 1987 Act. His Honour said that the words “to be assessed” in s 39(3) did not mean that formal assessment is required before s 39(2) is enlivened. The respondent contrasts this with the wording in cl 28C(a) of the Regulation and the definition of a ‘worker with high needs’ in s 32A of the 1987 Act. The definition in s 32A, of a ‘worker with high needs’, speaks of a situation where “the degree of permanent impairment has been assessed for the purposes of Div 4 as being more than 20%”. Brereton JA said this provision “distinctly requires that there has been an assessment” (or that one of the other prerequisites in the definition is satisfied). It is different to the wording of s 39(2), which does not refer to the need for assessment. The respondent refers to the wording of cl 28C(a) of the Regulation. It is described as “relevantly the same as the wording in para (b) of the definition of a ‘worker with high needs’”. The point the respondent makes is that the wording in cl 28C(a) is relevantly the same as the wording in para (b) of the definition in s 32A, which Brereton JA “expressly distinguished from the wording in s 39(2)”.[33]
[33] Respondent’s reconsideration submissions, [28]–[30].
The respondent refers to its previous submissions. It states that those dealing with the relevance of certainty and consistency, and with whether cl 28C(a) is beneficial or remedial, have little if any bearing in light of the decision in Hochbaum No. 2.

On the Application to Appeal

The respondent submits the reasoning in Hochbaum No. 1, and that of the Arbitrator applying it, involved “orthodox principles of statutory construction”. It submits the appellant’s submissions on appeal are based entirely on questions of policy, not statutory interpretation. The respondent submits the appellant has provided “no textual analysis” to support its submissions on cl 28C.[34] The respondent submits the Arbitrator’s interpretation gives effect to the statutory language of cl 28C, and preserves consistency between the operation of s 39(2) and cl 28C (this refers to the interpretation of the provisions in Hochbaum No. 1). It is submitted the interpretation by the Arbitrator provides certainty, regarding whether, on any given day, the clause applies or not.[35]
[34] Respondent’s submissions on appeal, [21]–[22].
[35] Respondent’s submissions on appeal, [27],[30].
The respondent submits there is no ambiguity in s 39(2) or cl 28C. To the extent to which s 39(2) or cl 28C have a beneficial operation, “that must be understood in the context of those provisions as providing limited exceptions to s 39(1), which is not a beneficial provision”. The respondent submits whether such provisions are treated as beneficial depends on their purpose. The purpose of the provisions is to limit weekly entitlements beyond 260 weeks, which does not justify a beneficial interpretation.[36]
[36] Respondent’s submissions on appeal, [34]–[35], [40].
A significant part of the respondent’s submissions go to defending the reasoning in Hochbaum No. 1 and the Arbitrator’s reliance on that decision. This is now of limited utility given the later decision in Hochbaum No. 2.

CONSIDERATION

The provision in s 39 of the 1987 Act, that exempts certain workers from the disentitling effect of s 39(1), is that in s 39(2), which applies where “an injured worker whose injury results in permanent impairment resulting from the injury is more than 20%”. The worker in Hochbaum fell within s 39(2), which the employer accepted; at issue was the worker’s entitlement to weekly benefits from 26 December 2017 (when weekly payments ceased due to the expiration of 260 weeks) to 16 July 2018, when Mr Hochbaum was assessed by an AMS as having permanent impairment exceeding 20 per cent.
Section 39(2) does not apply to the appellant, whose relevant permanent impairment is not more than 20 per cent. The appellant is an ‘existing recipient of weekly payments’ and therefore is potentially subject to the application of Pt 2A of Sch 8 of the Regulation (see [16] above). The respondent accepts the appellant came within cl 28C(a) of the Regulation as at 12 October 2018, when an AMS declined to make an assessment of permanent impairment for reasons consistent with those described in cl 28C(a). At issue in the appellant’s case is the entitlement to weekly benefits from 26 December 2017 to 12 October 2018, when his payments resumed.
In a frequently quoted passage from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue the plurality said:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[37]
[37] [2009] HCA 41; 239 CLR 27; 260 ALR 1, [47].
In Master Education Services Pty Limited v Ketchell the High Court said:
“It may be useful to read together regulations and the Act with which they were made, in order to identify the nature of a legislative scheme which they comprise. That is not a warrant for the use of the Code to construe, and expand, the terms of s 51AD, in particular by reference to the nature of the language of cl 11(1). Regulations are to be construed according to ordinary principles of construction. That requires that they be placed in their statutory context. In the case of regulations that includes the legislation under which they are enacted and with which they are required to be consistent.”[38] (excluding footnotes)
[38] [2008] HCA 38; 236 CLR 101 (Ketchell), [19].
In ADCO Constructions Pty Ltd v Goudappel the plurality, dealing with the construction of what is now cl 10 of the Regulation, said:
“The appropriate enquiry in the construction of delegated legislation is directed to the text, context and purpose of the regulation, the discernment of relevant constructional choices, if they exist, and the determination of the construction that, according to established rules of interpretation, best serves the statutory purpose.”[39]
[39] [2014] HCA 18; 254 CLR 1 (Goudappel), [28].
In the same case the plurality said:
“It can be accepted, as was put by counsel for Mr Goudappel, that the [1987 Act’s] remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the [1987 Act] as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified.”[40]
[40] Goudappel, [29].
The appellant, in its reconsideration submissions, summarises part of the reasons of Brereton JA, dealing with the construction of s 39. The appellant refers to cl 28C and to the definition of a worker with high needs in s 32A of the 1987 Act. The appellant submits “[t]his demonstrates that [the appellant’s] circumstances are to be treated as if his permanent impairment exceeded 20% thereby engaging s 39(2)”. The appellant submits that “[f]or reasons of consistency and conformity, the Arbitrator ought to reconsider his decision and apply the law as set out by the Court of Appeal”.[41]
[41] Appellant’s reconsideration submissions, [23]–[25].
The appellant satisfies the requirements of cl 28C(a) of the Regulation; neither s 39 nor cl 28C indicate that the consequence of this is that he is to be treated as if his permanent impairment exceeded 20 per cent, “thereby engaging s 39(2)”. On the plain words of the section the appellant never satisfied the requirements of s 39(2). The question rather is what are the consequences of the appellant’s satisfaction of the requirements of cl 28C(a)?
In Hochbaum No. 2 Brereton JA said:
“There is no temporal element in s 39(2). Ultimately, there can be only one degree of permanent impairment resulting from an injury, even though it may not be immediately ascertainable. Permanent impairment, once ascertained, dates from the injury. Section 39(2) poses the simple question, what degree of permanent impairment results from the injury; if that degree is greater than 20%, the worker is in the exempt class, and s 39 never applies to him or her.”[42] (emphasis in the original)
[42] Hochbaum No. 2, (per Brereton JA), [72].
Satisfaction of cl 28C(a) requires that a worker’s injury has resulted in permanent impairment and that:
“an assessment of the degree of permanent impairment for the purposes of the Workers Compensation Acts is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable”.
On the clear language of the provision, satisfaction of the various criteria set out in the clause is necessary for cl 28C(a) to apply.[43] It is not disputed that these criteria were satisfied from when the MAC of Dr Davis was issued on 12 October 2018 (the doctor’s examination was conducted on 4 October 2018). In Hochbaum No. 2 the Court of Appeal dealt with the disapplication of s 39(1) in circumstances where s 39(2) was satisfied:
“60. … The so-called ‘bar’ in s 39(1) simply does not apply to a worker who is in the exempt class. It may not be possible to say immediately whether or not a worker is in the exempt class. However, if he or she is in that class – regardless of when that is ascertained – s 39 does not apply to him or her.
61. This does not involve reading into s 39(2) any additional words, such as ‘at all’, as the President of the Commission thought. The words ‘This section does not apply’ are absolute in their terms, and do not admit of some residual partial application.”[44]
[43] Respondent’s submissions on reconsideration, [21].
[44] Hochbaum No. 2, (per Brereton JA), [60]–[61].
The above is consistent with the clear words of the text. Section 39 “does not apply” when s 39(2) is engaged. Similar words are used in cl 28C in relation to the consequences of cl 28C(a) being satisfied:
“Section 39 of the 1987 Act (as substituted by the 2012 Amending Act) does not apply to an injured worker if the worker’s injury has resulted in permanent impairment and [cl 28C(a) is satisfied]”.
The appellant submits cl 28C is “clearly beneficial” and should be read in that context.[45] In Hochbaum No. 2 Brereton JA dealt with an argument that s 39 should be construed on the basis it was beneficial. His Honour said:
“I have also found it unnecessary and unhelpful to endeavour to characterise s 39(2) as beneficial or remedial (as the appellants urged), or exceptional (as the President of the Commission found and the respondents submitted): in the context of a provision which has, as the Second Reading Speech reveals, multiple objects, such characterisation is not possible, and does not assist.”[46]
[45] Appellant’s submissions on appeal, [27].
[46] Hochbaum No. 2, [68].
Section 39 was introduced into the 1987 Act by the 2012 Amending Act. The consequence was that a significant body of workers, who had been entitled to ongoing payments at the time the weekly payments amendments in the 2012 Amending Act commenced, ceased to be so entitled, at the expiration of 260 weeks of relevant weekly payments following that commencement.
Part 2A of Sch 8 (of which cl 28C forms part) was introduced into the Regulation by the Workers Compensation Amendment (Transitional Arrangements for Weekly Payments) Regulation 2016 (the 2016 Regulation) and commenced from 16 December 2016. The effects of Pt 2A are beneficial. Subclauses 28C(a) and (b) exempt certain workers from application of the 260 week limit on weekly payments. Clause 28D permits certain workers who have already undergone medical assessment to have a further assessment of the degree of permanent impairment for the purposes of Pt 3 of the 1987 Act (which provides for benefits). Part 2A provides for the amendment of certain provisions of the 1987 Act, “to the extent necessary to give effect to this Part”.
It is apparent from its subject matter that Pt 2A is of a beneficial nature. This is also consistent with the Explanatory Note to the 2016 Regulation. It is appropriate that cl 28C be construed on the basis it has a beneficial purpose.
The Court of Appeal in Hochbaum No. 2 declined to construe s 39 by reference to cl 28C.[47] This was essentially on the basis that a transitional provision in the Regulation did not “provide a sound basis for interpreting the principal provisions of the Act”.[48] Similar concerns are not raised when a provision of the primary Act is used to assist in the interpretation of cl 28C (see the passage of Ketchell quoted at [39] above). Clause 28C and s 39 interact in the scheme of the legislation, as was discussed by White JA in Hochbaum No. 2:
“Where the degree of permanent impairment resulting from the injury has not been ascertained after 260 weeks by an assessment under Pt 7 of Ch 7 of the 1998 Act it does not follow that the worker is to be taken as not then having had a 20 per cent or greater degree of permanent impairment resulting from the injury. If the insurer and the worker are agreed that the worker has suffered that degree of permanent impairment resulting from the injury, then there is no need for an assessment. If they are not agreed, then there will be a medical dispute that can be determined under Pt 7 of Ch 7 of the 1998 Act. If the degree of permanent impairment cannot then be ascertained, then s 39 does not provide for the continuation of payment of weekly benefits, although cl 28 of the Workers Compensation Regulation 2016 does. If the worker’s degree of permanent impairment is later assessed to be more than 20 per cent then it will have been ascertained that the worker was always entitled to the confirmation of weekly benefits. Even if the worker did not suffer a degree of impairment of 20 per cent or more at the expiry of the 260-week period in s 39(1) such a later assessment will have determined that the degree of permanent impairment resulting from the injury was more than 20 per cent.”[49]
[47] Hochbaum No. 2, per White JA, [4]–[5], per Brereton JA, [68].
[48] Hochbaum No. 2, [68]. See Mine Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137; 154 LGERA 60, [41].
[49] Hochbaum No. 2, [10].
It is appropriate in my view, and consistent with the passages from Ketchell and Goudappel quoted at [39] and [40] respectively above, that when construing cl 28C regard be had to s 39 and the statutory context in which cl 28C occurs.
The fundamental argument raised by the respondent is that s 39 was construed, in Hochbaum No. 2, on the basis that the section did not have a temporal element. There was a single permanent impairment resulting from the worker’s injury: “[l]iability for permanent impairment dates from the injury, regardless of when it is ascertained”.[50] After quoting from Borovac in support of this proposition, Brereton JA said the “date on which an impairment threshold is crossed is not a relevant consideration in any question arising under s 39”.
[50] Hochbaum No. 2, [52], applying Borovac v Corporate Ventures Pty Ltd t/as Bowsers Ashphalt (1995) 12 NSWCCR 84 (Borovac), 95.
The respondent contrasts this with cl 28C(a). The respondent’s submissions on the point are summarised at [28] to [31] above. The respondent refers to the criteria that require satisfaction to engage cl 28C(a) and submits: “It is only when both of these criteria are met, and only during the period they both apply, that the worker is of the relevant ‘exempt class’.”[51]
[51] Respondent’s reconsideration submissions, [22].
From the point in time when the MAC of Dr Davis was issued, the criteria to engage cl 28C(a) were satisfied. The difference between the parties’ positions is whether the relief from the disentitling provisions of s 39(1), afforded by cl 28C(a), extends to the period from 26 December 2017 (when the appellant’s weekly payments ceased due to the application of s 39(1)) to 12 October 2018 (when the MAC was issued).
The primary rationale of the reasoning in Hochbaum No. 2 is that the criterion for the engagement of s 39(2) is present from the date of injury. There is never a time thereafter when that requirement is not satisfied, providing there is ultimately permanent impairment that is greater than 20 per cent.
I accept the respondent’s submission that, unlike s 39(2), there is a temporal element in the satisfaction of the criteria for the application of cl 28C(a). Satisfaction of cl 28C(a) requires the occurrence of certain events. It is necessary that an assessment of the degree of permanent impairment “is pending”. An AMS must have declined to make an assessment of permanent impairment “on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable”. The respondent refers to the “inherent impermanence of the status described by cl 28C(a)”.[52]
[52] Respondent’s reconsideration submissions, [24].

Applying the words of cl 28C(a), its requirements are met when an AMS has declined to make an assessment for the reasons in the subclause. A worker cannot satisfy the requirements of the subclause until the assessment of his or her permanent impairment “is pending”. The criteria are quite different to s 39(2), which simply requires a degree of impairment resulting from injury of “more than 20%”. In the current matter, the requirements of the subclause were not met until the issue of the MAC of Dr Davis dated 12 October 2018. That is the date from which the respondent recommenced payments of weekly compensation to the appellant.
The alternative construction, if there is no temporal element in cl 28C(a), is that once the requirements of the clause are satisfied, s 39 does not apply and it follows that the 260 week bar never had, and never would have, application. Such a construction would have the effect that weekly compensation was recoverable during the closed period claimed in these proceedings, notwithstanding that the requirements of cl 28C(a) were not satisfied until 12 October 2018. This alternative construction should be rejected for reasons that follow.
The plain words of cl 28C do not suggest that it prevents the application of s 39(1) at a point in time before the requirements of the subclause are satisfied. The subclause speaks in the present tense, “is pending”. For the appellant’s claim from 26 December 2017 to 11 October 2018 to succeed, it is necessary that cl 28C(a) apply in respect of that period, notwithstanding that the assessment of permanent impairment was not pending during the period, nor had an AMS at that time declined to make an assessment for the reasons set out in cl 28C(a). The plain words governing engagement of the clause do not support the alternative construction. This view is not inconsistent with the approach taken in Hochbaum No. 2. In that case the requirements of s 39(2) were satisfied at all relevant times from the date of injury, as liability for permanent impairment (which was ultimately determined to be greater than 20 per cent) dated from the injury date.
If the alternative construction was that intended by the Legislature, it could have been achieved without the presence of the words “is pending and” in cl 28C(a). In Project Blue Sky Inc v Australian Broadcasting Authority, the plurality stated:
“Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”[53] (footnotes removed)
[53] [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841, [71].
The alternative construction does not give meaning to the requirement in the subclause that an assessment “is pending”.
The construction which I prefer is more consistent with the role of cl 28C(a) in the statutory scheme, as described by White JA in Hochbaum at [10] (see [52] above). His Honour’s description envisages that cl 28 applies, when “the degree of permanent impairment cannot then [following 260 weeks] be ascertained, then s 39 does not then provide for the continuation of weekly benefits, although cl 28 of the Workers Compensation Regulation 2016 does”. (emphasis added)
The appellant has now undergone assessment of permanent impairment, and a MAC dated 11 September 2020 certified that his condition had stabilised and his whole person impairment was 20 per cent, it was not “more than 20%” (see [9] above). The alternative construction is that s 39 does not apply to the appellant at a time outside the period when the appellant’s assessment was pending, because he had satisfied the various requirements of the clause at one point in time. If this were accepted, cl 28C(a) could have the ongoing effect that s 39 did not apply and the entitlement to weekly payments continued, notwithstanding that the appellant’s impairment has now been found to be stable and his permanent impairment to be not more than 20 per cent. Such a result could not, in my view, have been intended by the Legislature. It is a construction that is avoided if the words of the subclause are given their plain meaning, described at [58] to [59] above.[54]
[54] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297 (per Mason and Wilson JJ), [23]–[26].

CONCLUSION

It follows that the appellant’s ground of appeal fails.

DECISION

The Arbitrator’s decision dated 16 May 2018 (sic, 2019) is confirmed.

Michael Snell

DEPUTY PRESIDENT

10 November 2020