Technical and Further Education Commission t/as TAFE NSW v Whitton
[2019] NSWWCCPD 27
•17 June 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| STATUS: Appeal to the Court of Appeal allowed – Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 | ||
| CITATION: | Technical and Further Education Commission t/as TAFE NSW v Whitton [2019] NSWWCCPD 27 | |
| APPELLANT: | TAFE NSW | |
| RESPONDENT: | Dianne Whitton | |
| INTERVENER: | State Insurance Regulatory Authority | |
| INSURER: | Allianz - TMF | |
| FILE NUMBER: | A1-4503/18 | |
| SENIOR ARBITRATOR: | Ms J Bamber | |
| DATE OF ARBITRATOR’S DECISION: | 7 January 2019 | |
| DATE OF APPEAL DECISION: | 17 June 2019 | |
| SUBJECT MATTER OF DECISION: | Construction of s 39 of the Workers Compensation Act 1987; RSM Building Services Pty Ltd v Hochbaum [2019] NSWWCCPD 15 | |
| PRESIDENTIAL MEMBER: | President Judge Phillips | |
| PRESIDENTIAL HEARING: | 22 May 2019 | |
| REPRESENTATION: | Appellant: | Dr J Lucy, of counsel, instructed by Moray & Agnew Lawyers |
| Respondent: | Ms E Grotte, of counsel, instructed by Foye Legal | |
| Intervener: | Ms J Davidson, of counsel, instructed by the Crown Solicitor | |
| ORDERS MADE ON APPEAL: | 1. The employer in the proceedings below (4503/18) and on appeal (A1-4503/18) is amended to substitute “Secretary, Department of Education” with the correct employer “Technical and Further Education Commission t/as TAFE NSW”. 2. The Senior Arbitrator’s Certificate of Determination dated 7 January 2019 is revoked and an Award for the respondent employer is substituted in its place. | |
INTRODUCTION
This appeal concerns the application and interpretation of s 39 of the Workers Compensation Act 1987 (the 1987 Act). Section 39 of the 1987 Act provides that a worker’s entitlement to payments of weekly compensation is only available for an aggregate period of 260 weeks, unless the worker’s degree of permanent impairment resulting from injury is more than 20%.
The issue for determination on appeal is whether a worker is entitled to weekly payments of compensation, after the expiry of an aggregate period of 260 weeks and before the worker has been assessed by an Approved Medical Specialist with a degree of permanent impairment that results from injury that is greater than 20%.
For the reasons discussed below, the award made by the Senior Arbitrator is revoked and an award for the respondent employer is substituted in its place.
FACTS
The facts in this matter are not in contest. However, given the operation of s 39 of the 1987 Act, the chronology of events is important and in particular two dates, 25 December 2017 and 18 June 2018 (see [13] and [14] below for a description of these events). Section 39(2) of the 1987 Act permits a continuation of weekly compensation payments after 260 weeks in certain circumstances. When weekly payments are restored is in dispute, hence the importance of the chronology.
In 1990, Dianne Whitton commenced work as a cashier for St George Kogarah TAFE. In 1995, she transferred to Wollongong TAFE. During this time, she worked for the TAFE Commission, the appellant employer.
On 2 November 1999, Ms Whitton sustained an injury to her right wrist when she reached out to pick up several bags of coins in the course of her employment.
On 10 July 2000, Ms Whitton underwent arthroscopic surgery on her right wrist at the hand of Dr Scougall, hand and wrist surgeon.
Following surgery and a period of leave from work, Ms Whitton returned to work on suitable duties. She found the duties provided by the employer were not suitable and she ceased work around 2001/2002.
Ms Whitton was paid weekly compensation payments from the period she ceased work in 2001/2002.
On 4 November 2013, Allianz Australia Insurance Limited as agent for the NSW Self Insurance Corporation (Allianz), the appellant’s insurer, issued Ms Whitton a letter. The letter states “[f]ollowing an assessment of your work capacity, a decision has been made that you currently have no capacity for work”. It is accepted that this letter constitutes a work capacity decision.
On 10 August 2017, Dr Scott Harbison, orthopaedic surgeon qualified by the appellant assessed Ms Whitton. Dr Harbison assessed Ms Whitton as having 13% whole person impairment in respect of the injury to her right wrist.
On 16 August 2017, Allianz advised Ms Whitton that her weekly payments of compensation would cease on 25 December 2017 pursuant to s 39 of the 1987 Act, because the degree of whole person impairment resulting from her injury did not exceed 20%.
On 25 December 2017, Ms Whitton ceased receiving weekly compensation as the 260 week period had expired.
On 18 June 2018, Dr Mastroianni, Approved Medical Specialist issued a binding Medical Assessment Certificate (MAC) assessing Ms Whitton’s whole person impairment at 32% in respect of her right wrist.
On 19 July 2018, Ms Whitton’s solicitor wrote to Allianz requesting that it reinstate Ms Whitton’s weekly payments of compensation. She sought weekly compensation for the period 26 December 2017 to 11 October 2018, relying on WorkCover NSW – certificates of capacity for that period.
On 14 August 2018, Allianz responded to the letter of 19 July 2019 advising that weekly payments had been reinstated. However, it advised that it would only pay weekly payments from 18 June 2018, the date of the MAC.
On 30 August 2018, Ms Whitton filed an Application to Resolve a Dispute (the Application), seeking weekly payments of compensation for the period 25 December 2017 to 18 June 2018 (the disputed period).
On 20 September 2018, the appellant filed a reply to the Application.
On 3 October 2018, the matter was listed for telephone conference before Senior Arbitrator Bamber. The Senior Arbitrator issued a direction for the filing of written submissions. Following receipt of the written submissions, the Senior Arbitrator determined the proceedings on the papers.
On 7 January 2019, the Senior Arbitrator issued a Certificate of Determination in matter 4503/18 finding that s 39(1) of the 1987 Act does not apply to Ms Whitton and she is entitled to weekly payments of compensation for the disputed period. The Certificate of Determination is in the following terms:
“The Commission determines:
1. In accordance with the Medical Assessment Certificate of Approved Medial Specialist Dr Mastroianni the applicant is assessed as having 32% whole person impairment as a result of injury on 2 November 1999 arising out of or in the course of employment with the respondent.
2. Pursuant to section 39(2) of the Workers Compensation Act 1987, section 39(1) does not apply to the applicant.
3. In accordance with the Work Capacity Decision dated 4 November 2013, the respondent is to pay the applicant weekly compensation from 26 December 2017 to 18 June 2018 at the applicable rate for a worker with no current work capacity.
A brief statement is attached setting out the Commission’s reasons for the determination.”
The employer appealed the Senior Arbitrator’s determination.
Pursuant to its right to intervene contained in s 106 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the State Insurance Regulatory Authority (the Authority) intervened in the appeal proceedings.
ORAL HEARING
Given the nature of the issues in dispute, I set the matter down for hearing on 22 May 2019. I also issued the following direction to the parties:
“The parties are directed to provide oral submissions at the hearing on the relevance, if any, of the decisions in:
(a) RSM Building Services Pty Ltd v Hochbaum [2019] NSWWCCPD 15 [Hochbaum], in relation to the construction of s 39 of the Workers Compensation Act 1987 (the 1987 Act);
(b) Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 [Shi], in relation to the question of whether s 39 of the 1987 Act contains a temporal element, and
(c) Elliott v Minister administering Fisheries Management Act1994 [2018] NSWCA 123; 357 ALR 175 [Elliot], in relation to the principle of legality’s application to statutory rights and Senior Arbitrator Bamber’s decision in Whitton v Secretary, Department of Education [2019] NSWWCC 27 (in particular, at [59]).
A preliminary matter arose at the beginning of the hearing on 22 May 2019 regarding the proper identification of the appellant employer. The matter below was conducted with “Secretary, Department of Education” as the named employer. At the appeal hearing, counsel for the appellant made an application to amend the identity of the employer from Secretary, Department of Education to Technical and Further Education Commission t/as TAFE NSW, being the statutory body representing the Crown pursuant to the Technical and Further Education Commission Act 1990. The parties were directed to confer and agreement was communicated to the Commission in the following terms by the appellant’s solicitors:
“We refer to the hearing of the appeal on 22 May 2019 and the issue raised by the Appellant regarding the correct naming of the Appellant.
The parties have agreed the correct name of the Appellant is ‘Technical and Further Education Commission t/as TAFE NSW’
The parties request the Commission grant leave to amend the pleadings the subject of this Appeal and in respect of the orders below made by Arbitrator Bamber by substituting ‘Technical and Further Education Commission t/as TAFE NSW’ for ‘Secretary, Department of Education’.
Please note we have copied the other parties into this email.”
Ms Whitton’s solicitors confirmed their consent to the above in their reply email:
“On behalf of Ms Whitton, I confirm consent to the proposal set out in Mr Gardner’s email.”
The application which has been made by the appellant employer, which is also consented to by Ms Whitton, extends to the proceedings below before Senior Arbitrator Bamber. They are the proceedings in matter number 4503/18.
Section 350(3) of the 1998 Act empowers the Commission to alter or amend any decision previously made or given by the Commission, which includes an Arbitrator.[1] In matter number 4503/18 Senior Arbitrator Bamber made orders against the appellant employer, which orders are now subject to challenge.
[1] Section 368(1)(d) of the 1998 Act.
The power under s 350(3) bestows a wide discretion.[2] Whilst the consent of the parties is relevant, such a discretion must be exercised independently and for a proper purpose. It is certainly a proper purpose and in the interests of justice that parties against whom binding orders are made are in fact the correct parties, or in this case, the true employer of the worker, Ms Whitton. It is important that the correct party be named and respond to these proceedings so as to enable the successful party to have the protection of the decision against their opponent thus obviating the risk of further litigation against the correctly identified entity. Whilst it is regrettable that this oversight or mistakenly named party was not identified sooner, I make the orders substituting the correctly named respondent, Technical and Further Education Commission t/as TAFE NSW, in proceedings 4503/18 pursuant to my power contained in s 350(3) of the 1998 Act. In making this order, to the extent necessary, I dispense with compliance with the rules.[3]
[2] Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482, [58] per Roche ADP.
[3] 2011 Rules, r 1.6(2).
I now deal with the application to amend the identity of the respondent in the appeal proceedings. The “Commission” is constituted, inter alia, by a Presidential member (s 368(1) of the 1998 Act). Pursuant to r 4.2 of the Workers Compensation Commission Rules 2011 (the Rules), the Commission may, on the application of a party to any proceedings before the Commission, give the party leave to amend any document lodged by the party in the proceedings if the Commission considers the amendment to be necessary for the avoidance of injustice. Pursuant to r 4.2 of the Rules, I grant leave to amend the name of the appellant employer in the appeal proceedings as requested by the appellant and consented to by Ms Whitton. I consider this is necessary for the avoidance of injustice as it is important that the rights inter partes need to be settled between the correctly identified parties.
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 EVIDENCE
This appeal turns upon the proper construction of s 39 of the 1987 Act. The facts in this matter are uncontroversial, however, the facts and the chronology set out above are important.
It is important to highlight that on 4 November 2013 the employer’s insurer (the respondent in the matter below) sent Ms Whitton a letter which both parties have referred to in their submissions as a work capacity decision. It states that, inter alia "[f]ollowing an assessment of your work capacity, a decision has been made that you currently have no capacity for work".
THE SENIOR ARBITRATOR’S REASONS
As is the case in this appeal, there were no material facts in dispute when this matter was heard before the Senior Arbitrator. The Senior Arbitrator was only called upon to decide two matters. The first matter related to the Commission’s jurisdiction to determine the dispute. The employer submitted that ss 38 and 39 of the 1987 Act are, as a matter of statutory construction, intended to be the exclusive domain of the insurer (or the employer) and not a matter for the Commission. The second matter was determination of the proper construction of s 39 of the 1987 Act.
In respect of the matter of the Commission’s jurisdiction to hear the dispute, the Senior Arbitrator distinguished the arbitral decision in Taumalolo v Industrial Galvanizers Corporation Pty Ltd[4] and also said that she was not bound to follow this decision. The Senior Arbitrator observed that in Taumalolo there was no evidence of a work capacity decision, but in the present case there was “evidence that the insurer had made a work capacity decision on 4 November 2013”[5]. That is, that Ms Whitton had no current capacity for work. She added that if she were to accept Ms Whitton’s submissions about s 39 of the 1987 Act then the Commission had jurisdiction to make an order for the payment of weekly compensation for the period in dispute, because such an order would be consistent with the work capacity decision of the insurer, not inconsistent with it.[6]
[4] [2018] NSWWCC 243 (Taumalolo); Whitton v Technical and Further Education Commission t/as TAFE NSW [2019] NSWWCC 27 (Reasons), [24], [34].
[5] Reasons, [24].
[6] Reasons, [24]–[25], citing NSW Trustee and Guardian on behalf of Robert Birch v Olympic Aluminium Pty Ltd [2016] NSWWCCPD 54, [137] (Birch).
Section 43(3) of the 1987 Act (now repealed) provided that the Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer. The Senior Arbitrator noted that she did not consider that the Commission was “assessing” the entitlement under s 38 when considering a dispute involving s 39 of the 1987 Act. In Ms Whitton’s case, the dispute was not about the insurer’s work capacity decision of 4 November 2013. The notice issued by the insurer to Ms Whitton on 16 August 2017, that gave rise to the dispute, solely related to the insurer ceasing payments due to the operation of s 39 of the 1987 Act. The Senior Arbitrator observed that this was factually distinct from the decisions in Lee v Bunnings Group Ltd[7] and Paterson v Paterson Panel Workz Pty Limited,[8] where in both of those cases the insurer had not undertaken a work capacity decision.
[7] [2013] NSWWCCPD 54; 15 DDCR 82 (Lee).
[8] [2018] NSWWCCPD 27 (Paterson).
The Senior Arbitrator referred to the principles of statutory construction, as set out in Project Blue Sky Inc v Australian Broadcasting Authority,[9] Hesami v Hong Australia Corporation Pty Ltd,[10] Wilson v State Rail Authority of New South Wales[11] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[12] in construing s 39 of the 1987 Act.[13]
[9] [1998] HCA 28; 194 CLR 355 (Project Blue Sky).
[10] [2011] NSWWCCPD 14; 10 DDCR 142.
[11] [2010] NSWCA 198 (Wilson).
[12] [2009] HCA 41; 239 CLR 27 (Alcan).
[13] Reasons, [44]–[46].
The Senior Arbitrator referred to and adopted the reasoning of Arbitrator Sweeney in the decision in Kennewell v ISS Facility Services Australia Limited t/as Sontic Pty Ltd.[14] It is therefore convenient to provide an outline of that decision here. The matter in Kennewell concerned the application of cl 28C of Sch 8 to the 2016 Regulation. The worker’s entitlement to weekly payments ceased at the expiration of the aggregate period of 260 weeks, pursuant to s 39(1) of the 1987 Act, on 25 February 2018. It did not arise again until an AMS declined to make an assessment of permanent impairment on the basis that the degree of permanent impairment was not fully ascertainable, on 6 April 2018. It followed, that as the worker was an existing recipient of weekly payments of compensation and because the worker had not reached maximum medical improvement, pursuant to cl 28C he was entitled to an exception to the application of s 39. The insurer resumed payments of weekly compensation on and from 6 April 2018.
[14] [2018] NSWWCC 216 (Kennewell).
The issue in dispute before the Commission in Kennewell was whether the worker was entitled to weekly payments of compensation from 25 February 2018 to 5 April 2018 (the disputed period), pursuant to cl 28C. The Arbitrator applied a beneficial construction to cl 28C(a). He stated that:
“As the arguments in this case demonstrate, there may be ambiguity as to the operation of cl 28C. Once the clause applies, however, the effect is unambiguous and dramatic. Section 39 of the 1987 Act ‘does not apply’.”[15]
[15] Kennewell, [46].
The Arbitrator also held:
"Once s 39 'does not apply', there is no temporal restriction on the applicant's entitlement to compensation. It continues uninterruptedly beyond 260 weeks subject, of course, to the application of s 38 of the 1987 Act. It continues until the applicant achieves maximum medical improvement. If he then cannot establish that his permanent impairment is greater than 20%, his compensation ceases. It cannot be the case, as the respondent asserts, that s 39 applies for a period to limit the applicant's entitlement and then ceases to apply once he establishes that the clause is applicable. The section does not apply at all." [16]
[16] Kennewell, [51].
The Arbitrator in Kennewell found that once cl 28C applied, s 39 of the 1987 Act was of no effect. Applying Lee, the Arbitrator further found that he was not restricted from entering an award for weekly payments of compensation pursuant to s 38 of the 1987 Act, where the award was consistent with the work capacity decision of the insurer. It followed that he entered an award for the worker for the payment of weekly compensation for the disputed period.
The Senior Arbitrator in the present matter acknowledged that that decision primarily concerned the construction of cl 28C of Sch 8 to the Workers Compensation Regulation 2016 (the 2016 Regulation).[17] However, she observed that the finding in Kennewell that “once section 39 does not apply there is no temporal restriction on the applicant’s entitlement to compensation does seem consistent with an examination of the text of the provision.”[18] She added:
“The wording of section 39(2) is quite plain, in my view. It allows for no ambiguity. It provides that ‘[t]his 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%’. Here Ms Whitton submits she is such an injured person as her injury has resulted in permanent impairment of 32% WPI.”[19] (emphasis added)
[17] Reasons, [51].
[18] Reasons, [51], citing Kennewell, [51].
[19] Reasons, [51].
The Senior Arbitrator added that s 39 of the 1987 Act does not contain temporal embargoes like ss 59A(2), (3) and (4) of the 1987 Act, and that had the Parliament wished to limit payments to workers such as Ms Whitton from week 260 until after they had an assessment of greater than 20% WPI, the Parliament could have so provided.[20]
[20] Reasons, [52].
The Senior Arbitrator accepted Ms Whitton’s submission because “quite simply if a worker is assessed at greater than 20% WPI, section 39 does not apply.”[21]
[21] Reasons, [53].
The Senior Arbitrator referred to the employer’s submission that:
“Section 39 applies to a worker who has not been assessed as having a greater than 20% degree of permanent impairment prior to the expiry of the 260 weeks, unless and until the worker is reassessed as having greater that 20% degree of permanent impairment”. (bold in original)
The Senior Arbitrator said that this interpretation adds words into sub-section (2), as Arbitrator Sweeney found [in Kennewell] there is no temporal component in that section. The Senior Arbitrator’s preferred construction was consistent with the text of the provision.
The Senior Arbitrator reasoned that “[g]iven [s 39 of the 1987 Act] is a limiting section, taking away rights, one would expect the Parliament to use the clearest of language (such as that suggested by the respondent), if that is what Parliament had intended. Applying the principles of statutory interpretation as set out above, particularly as expressed in Alcan ‘[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention.’” [22]
[22] Reasons, [59].
The Senior Arbitrator concluded that s 39 of the 1987 Act did not apply to Ms Whitton in the period from 26 December 2017 to 18 June 2018.[23] It followed that Ms Whitton was entitled to receive weekly compensation for that period, consistent with the work capacity decision made previously by the insurer.
[23] Reasons, [60].
On 7 January 2019, the Senior Arbitrator issued a Certificate of Determination in the following terms:
“The Commission determines:
1. In accordance with the Medical Assessment Certificate of Approved Medial Specialist Dr Mastroianni the applicant is assessed as having 32% whole person impairment as a result of injury on 2 November 1999 arising out of or in the course of employment with the respondent.
2. Pursuant to section 39(2) of the Workers Compensation Act 1987, section 39(1) does not apply to the applicant.
3. In accordance with the Work Capacity Decision dated 4 November 2013, the respondent is to pay the applicant weekly compensation from 26 December 2017 to 18 June 2018 at the applicable rate for a worker with no current work capacity.
A brief statement is attached setting out the Commission’s reasons for the determination.”
The appellant challenges the Senior Arbitrator’s determination.
GROUND OF APPEAL
The appellant’s single ground of appeal is:
“The Senior Arbitrator made an error of law in construing s 39(2) of the 1987 Act. Her error was to interpret the provision as giving a worker a retrospective entitlement to weekly payments of compensation after the expiry of the 260 weeks referred to in s 39(1) and before the worker has been assessed as having over 20% permanent impairment.”
At the hearing of the appeal on 22 May 2019, I raised with the parties the question that the appeal ground itself seemed to be limited to a consideration of s 39(2) of the 1987 Act. I drew the parties’ attention to the fact that as I read their submissions, the parties had addressed all three subsections of s 39 of the 1987 Act and that it was s 39 that fell to be construed. No issue was taken with this description of the statutory construction task to be undertaken on this appeal.[24] I therefore intend to approach the ground of appeal and the task of statutory construction in this manner.
[24] Transcript of Appeal Proceedings of 22 May 2019 (T), T 1.35–40, 2.4–10.
LEGISLATION
At the time s 39 of the 1987 Act was introduced, s 32A of the 1987 Act (as amended by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act)) provided:
“32A Definitions
seriously injured worker 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 30%, or
(b) the degree of permanent impairment has not been assessed because an approved medical specialist has declined to make an assessment until satisfied that the impairment is permanent and the degree of permanent impairment is fully ascertainable, or
(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.”
At the time s 39 of the 1987 Act was introduced, s 38(5) provided:
“38 Special requirements for continuation of weekly payments after second entitlement period (after week 130)
(5) An insurer is not to conduct a work capacity assessment of a seriously injured worker unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a seriously injured worker without conducting a work capacity assessment.” (my emphasis)
Currently, s 38(5) of the 1987 Act (as amended by the Workers Compensation Amendment Act 2015 (the 2015 amending Act) provides:
“38 Special requirements for continuation of weekly payments after second entitlement period (after week 130)
(5) An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.” (my emphasis)
Currently, s 32A of the 1987 Act (as amended by the 2015 amending Act) provides:
“32A Definitions
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.
worker with highest 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 30%, 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 30%.”
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).”
Section 65 of the 1987 Act provides:
“65 Determination of degree of permanent impairment
(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
Note. The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.”
Clause 28C of Sch 8 to the Workers Compensation Regulation 2016 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).”
SUBMISSIONS
Appellant’s submissions
The appellant submits that on the proper construction of s 39 of the 1987 Act:
(a) s 39(1) removes a worker’s entitlement to compensation after 260 weeks, and
(b) s 39(2) (read in light of s 39(3)) only operates to restore that entitlement from the point that the worker’s degree of permanent impairment, as assessed as provided by s 65, is more than 20%.
In light of the above construction, the appellant submits that if the favourable assessment occurs only after the end of the 260 weeks, as was Ms Whitton’s case, there will be a period in which the worker has no entitlement to weekly compensation, by operation of s 39(1).
The appellant submits that the reasons given by the Senior Arbitrator in adopting a construction of s 39 of the 1987 Act which authorises compensation payments to a worker, at a time when the worker had not fulfilled the criteria entitling the worker to such payments, do not provide a legitimate basis for adopting that construction. The appellant submits that this is in error for the following reasons.
Firstly, the appellant submits that the text of the legislation favours its construction. The appellant submits “it is now well-established that ‘the task of statutory construction must begin with a consideration of the text itself’.”[25] It contends that whilst the Senior Arbitrator considered that the wording of s 39(2) was “plain”, she did not explain why it was “plain” that the provision applied in such a way that present facts determined past entitlements. In the appellant’s submissions in reply it noted, “s 39 is plain to the extent that s 39(1) clearly takes away a worker’s entitlements and s 39(2) clearly restores them when the condition in that provision is fulfilled.”
[25] Appellant’s Submissions [25], citing Alcan, [47] (quoted in Reasons at [46]).
Secondly, the appellant submits that the Senior Arbitrator failed to adequately consider the words used in s 39(2) and (3) of the 1987 Act, explaining that “the expression ‘the degree of permanent impairment’ in s 39(2) has no natural or ordinary meaning, but takes its meaning from the workers compensation legislation generally”. The appellant submits that the degree of a worker’s permanent impairment is not “greater than 20%” until it has been assessed as being a percentage higher than 20% (in accordance with s 39(3) of the 1987 Act). It is not until such assessment occurs that s 39(2) applies, and thus that s 39(1) is “dis-applied.”
Thirdly, the appellant submits that the Senior Arbitrator’s construction of s 39(2) of the 1987 Act failed to take account of s 39(3). Subsection 39(3) provides that “the degree of permanent impairment that results from an injury” (an expression used in s 39(2)) “is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).”" Reading s 39(3) with s 65, the degree of permanent impairment that results from an injury is to be assessed as provided by s 65 and Pt 7 of Ch 7 of the 1998 Act (being ss 319-331).
Fourthly, the appellant asserts that the case must be that a worker does not have a degree of permanent impairment of over 20% until the worker has been assessed as such because the degree of a worker’s permanent impairment (as assessed) may be unknown or may change. The appellant provided the example of a worker assessed as having a degree of permanent impairment which is 20% or less, before that is reassessed due to a deterioration in the worker’s condition.
The appellant submits that the legislature acknowledged that a worker’s condition could deteriorate, and the worker’s degree of permanent impairment increase.[26] This makes it inherently unlikely that the legislature would intend that s 39(2) of the 1987 Act would apply at a time that a worker had not been assessed as having a greater than 20% degree of permanent impairment. The appellant provided the illustration that “it cannot be intended that a worker who had been assessed as having, say, 15% permanent impairment at the end of 260 weeks would retrospectively be entitled to weekly compensation payments if the worker's condition deteriorated and the worker obtained an assessment stating that he or she had a greater than 20% permanent impairment some years later... [t]his would give the worker an entitlement to weekly payments in a period during which the worker did not have a greater than 20% permanent impairment.”[27]
[26] Appellant’s Submissions, [30]–[32].
[27] Appellant’s Submissions, [32].
Fifthly, the appellant submits that the Senior Arbitrator’s characterisation of s 39 of the 1987 Act as “a limiting section, taking away rights” was confused, as it is only s 39(1) which removes a worker’s entitlements.[28] Section 39(2) in fact restores those entitlements to a limited class of workers, and s 39(3) provides for how that class is to be determined. At a time when the worker's degree of permanent impairment has not been calculated as exceeding 20%, the conditions set out in the subsection have not been met and it therefore does not apply.
[28] Reasons, [59].
Sixthly, the appellant submits that the Senior Arbitrator’s adoption of the position in Kennewell in respect of s 39(2) of the 1987 Act, that is, the position that once s 39 of the 1987 Act does not apply there is no temporal restriction on the worker’s entitlement to compensation, cannot be supported. The Senior Arbitrator’s view uses a temporal reference, being the word “once” and the concept of there being a time at which s 39 of the 1987 Act ceases to apply is inconsistent with the idea of there being no temporal restriction in the operation of the provision. Section 39(2) is expressed in the present tense, “does not apply”, and until a worker meets the description, s 39(2) is not enlivened. The appellant further contends that the temporal component exists by virtue of the “usual principle that a person is not entitled to a benefit conferred by statute (such as a pension or welfare payment) unless and until the person fulfils the criteria for entitlement to the benefit.”[29] The appellant submits that s 39 of the 1987 Act does not operate retrospectively, and the Senior Arbitrator has not explained why she considered that the non-application of s 39(1) should occur retrospectively and “[to] put it in the simplest possible terms, the statute means what it says, at the time that it falls to be applied.”[30]
[29] Appellant’s Submissions, [45].
[30] Appellant’s Submissions in Reply, [9].
The appellant submits that the Senior Arbitrator’s reasoning that s 39 of the 1987 Act operated without a temporal restriction because it did not contain a temporal embargo is “curious” because it contains a very clear “temporal embargo” being that a worker’s entitlement to weekly compensation ends after 260 weeks. A person is not entitled to a benefit “unless and until” the person fulfils the criteria for entitlement to the benefit.
The appellant submits that, contrary to the Senior Arbitrator’s finding, it is not necessary to add the words “unless and until”, to adopt the appellant’s construction of the provision. The appellant explains that this view was a misconceived reading of the appellant’s submissions, which was simply that “s 39 applies, according to its terms, to the facts as the[y] exist at any particular point in time. Section 39 may not be applied, on the basis of present facts (an assessment), as if those facts existed in the past. From the moment an injured worker is assessed as having more than 20% permanent impairment, the terms of the section apply and s 39(1) is disapplied. Prior to that, it is not.”[31] The appellant further submits that no “absurdity”, as submitted by the respondent, arises from this construction of s 39 of the 1987 Act. On the contrary, the appellant submits that an absurdity could arise on the respondent’s construction where “[a] worker could come to the end of the 260 weeks with an assessment of 15% permanent impairment, then three years later suddenly deteriorate. On the worker’s construction, if the worker was then assessed as having a 21% permanent impairment, the worker would be entitled to back payments for three years.” The appellant submits that this could not have been intended by the legislature, which indicates such construction should be avoided. [32]
[31] Appellant’s Submissions, [49].
[32] Appellant’s Submissions in Reply, [35], citing Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 322; Shahi v Minister for Immigration & Citizenship (2011) 246 CLR 163, French CJ, Gummow, Hayne and Bell JJ, [38]).
The appellant submits that the Senior Arbitrator failed to give appropriate consideration to the context in which s 39 of the 1987 Act was enacted, which is relevant to its construction. It further submits that s 39, understood in the broader context of the 2012 amendments, is non-beneficial given those amendments “disclose a cost-savings objective”.[33] The appellant contends that the historical context of the provision indicates that it is not to be given an expansive interpretation.
[33] Appellant’s Submission, [52], citing, ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1, 16 [29] (per French CJ, Crennan, Kiefel and Keane JJ); 25-26 [62] (per Gageler J) (Goudappel), Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 (Cram Fluid Power), [121]–[122].
The appellant refuted Ms Whitton’s submission that it is unlikely that the intention of Parliament was to create a situation where a worker with ‘highest needs’ would be denied weekly compensation for a period of time because the assessment occurred after weekly compensation ceased. The appellant submitted as follows.
It was not unlikely that Parliament would deny workers who had not established that they had a greater than 20% permanent impairment an entitlement to compensation, given its adoption of “a legislative policy favouring cost saving”.[34] This is supported by the fact the legislature had acknowledged, at the time, that a worker's degree of permanent impairment could increase.
[34] Cram Fluid Power at [128].
Further, when s 39 of the 1987 Act was enacted, the category of worker with “highest needs” did not exist. Rather, at that time, a “seriously injured worker”, as defined in s 32A, was more favourably treated after the second entitlement period, pursuant to s 38(5) of the 1987 Act. The appellant notes that “even though this definition [of ‘seriously injured worker’ in s 32A] was introduced at the same time as s 39, the legislature did not choose to extend the beneficial treatment of workers within (b) and (c) of the definition of ‘seriously injured worker’ to those entitled to receive weekly compensation after 260 weeks. Rather, it was only those with an assessment as per (a) of that definition (albeit at a lower percentage) whose entitlements continued.”[35] The appellant submits that the Senior Arbitrator’s construction of s 39 frustrates the legislative intention to confine the benefits conferred by s 39(2) only to those workers who have (already) been assessed as having a greater than 20% permanent impairment. The appellant further submits “the concept of degree of permanent impairment is a construct, created by the statute, and depends upon an assessment having occurred.”[36]
[35] Appellant’s Submissions, [58].
[36] Appeallant’s Submissions in Reply, [15].
In the hearing before me, on 22 May 2019, the appellant employer adopted the oral and written submissions of the Authority and delivered additional submissions in respect of my Direction of 15 May 2019 addressing the relevant principles in Hochbaum, Shi and Elliott and as outlined below.[37] Counsel for the appellant expanded on the Authority’s submissions, noting the comments of Hayne and Heydon JJ that the application of legislation can be answered only by first giving close attention to the relevant provisions. The appellant submitted that reference to decided cases or other secondary material must not be permitted to distract attention from the language of the applicable statute or statutes.[38] Counsel for the appellant also distinguished the statutory context of Shi, which imposed an additional layer of decision-making (that is, the assessment of whether someone was fit and proper), which could suggest application of the provision at a different time. The statutory context here is different because it operates automatically (once there is a certificate confirming permanent impairment of over 20%), which suggests the provision must apply from that time. In respect of Elliott, counsel for the appellant submitted that the Senior Arbitrator misconstrued the principle of legality in her reasons at [59] firstly, because Parliament did use the clearest of language, and secondly because that principle doesn’t apply to workers compensation rights, which are created by statute and are inherently fragile, as demonstrated by the 2012 legislative amendments.[39]
Respondent’s submissions
[37] T 19.12–14.
[38] T 24.10-19, citing Shi [92].
[39] T 29.16-24.
Written Submissions
The respondent submits that the Senior Arbitrator did not err and her decision should be confirmed.
The respondent submits that the text of s 39 of the 1987 Act does not favour the appellant's construction and that the Senior Arbitrator correctly stated that the terms of s 39(2) are “plain and unambiguous”.[40] It submits that the Senior Arbitrator’s adoption of Arbitrator Sweeney’s reasoning in Kennewell was sound, notwithstanding that that decision was dealing with cl 28C and not s 39. The respondent supports the Senior Arbitrator’s construction of s 39, that if a worker has been assessed as having a greater than 20% permanent impairment, then the restriction of further payments set out in s 39(1) does not apply at all and the entitlement reverts to s 38 for an assessment. In Ms Whitton's case, there was a work capacity decision that stated that she had no current capacity, and so, the consequence is that her weekly payments continue uninterrupted beyond the 260 weeks at the rate paid as at the time of the cessation of her payments under s 39(1). The respondent agrees with the Senior Arbitrator’s view that "once section 39 does not apply there is no temporal restriction on the applicant's entitlement to compensation does seem consistent with an examination of the text of the provision".[41]
[40] Respondent’s Submissions, [14a], citing Reasons [51].
[41] Reasons, [51].
The respondent submits that the Senior Arbitrator clearly considered the entirety of s 39 of the 1987 Act, as it was set out in paragraph 18 of the decision. The respondent submits that “subsection 39(3) is only relevant in that it requires the degree of permanent impairment to be assessed a provided by s 65. The assessment was not an issue and was not disputed. It does not assist with the construction of the meaning of s 39(2), which the Arbitrator considered was clear in its terms.”[42]
[42] Respondent’s Submissions, [14c].
The respondent agreed with the Senior Arbitrator’s view that the interpretation favoured by the appellant required the addition of the words “unless and until” into s 39(2) of the 1987 Act to give it that meaning. It submits there was no embargo contained in the text of the provision that requires that the assessment be made prior to the expiry of 260 weeks and that the Senior Arbitrator correctly applied the principles of statutory construction in stating that such words should not be added into the text.[43] The respondent agrees with the Senior Arbitrator’s view that s 39(2) “simply means as the text says, that section 39 does not apply to a worker whose injury results in permanent impairment more than 20%”.[44]
[43] Respondent’s Submissions [14d], [14j], citing Reasons [58].
[44] Respondent’s Submissions [14d], [14j], citing Reasons [58].
In the context of the appellant’s submissions on deterioration of a worker’s condition, the respondent noted that whilst this submission was not made before the Senior Arbitrator, the appellant’s construction would create the absurdity of Ms Whitton suddenly being entitled again to weekly compensation but not so entitled the day prior or the month prior to the assessment even though she clearly would be greater than 20% at that time.
The respondent submits that the appellant, in its submission that the provision operates in the present tense such that until the requisite criteria (assessment) is met s 39(2) of the 1987 Act is not enlivened, has misunderstood the intention of s 39(2), which is “plainly to not limit a person with a degree [of] permanent impairment greater than 20% to 260 weeks of weekly compensation.”[45]
[45] Respondent’s Submissions, [14h] p 6.
The respondent submits that the Senior Arbitrator was correct in finding that the appellant’s construction of s 39 of the 1987 Act would necessitate the words “unless and until” to be read into the provision, and that as a matter of correct statutory construction this should not be done to give meaning to the text. The respondent submits that the Senior Arbitrator referred to, set out and applied the principles of statutory construction correctly in construing the meaning and intention of s 39(2). She submits the Senior Arbitrator gave primary importance to the text and structure of s 39 and paid sufficient attention to the historical context of the provision. The respondent submits that “the Senior Arbitrator paid close attention to the actual language employed by s 39(1), s 39(2) and s 39(3), which was noted to be the ‘surest guide to legislative intention’” in finding a beneficial interpretation of the provision.[46]
[46] Respondent’s Submissions [14k], citing Alcan [47].
Oral submissions
Counsel for the respondent, made further oral submissions at the hearing on 22 May 2019. The respondent made the following oral submissions, which expanded on the written submissions previously provided.
Counsel for the respondent emphasised that the Senior Arbitrator, in constructing the provision of s 39 of the 1987 Act and in particular s 39(2), correctly “focussed on the text, context and purpose and the dominant purpose of the legislation”.[47] Counsel for the respondent submits “we adopt and we’ll expand on the submissions made in Hochbaum by counsel for the injured worker"[48] and that the respondent believes that the decision in Hochbaum is plainly wrong. Counsel for the respondent noted that under legislation I have the option of reconsideration of that decision if such an application was made to me by the parties in that matter.[49]
[47] T 30.30–32.
[48] T 31.1–3.
[49] T 31.5–10.
Counsel for the respondent submits that s 39 does three things only:
“The first thing it does is it stops weekly payments of compensation after an aggregate period of 260 weeks for most of the workers who have been receiving compensation under sections 36, 37 and 38. The second thing it does is it treats workers with high needs and workers with highest needs differently and excludes them from the operation of that cessation of weekly payments and the third thing that it does is it provides a mechanism for the assessment of a worker with high needs and a worker with highest needs consistently with all other assessments under the workers compensation provisions and legislation so it requires an assessment to be done by an Approved Medical Specialist in accordance with chapter 7 of the legislation. That’s all it does.”[50]
[50] T 31. 14–27.
Counsel for the respondent further submits “if you just look at the text, context and purpose it’s clear but if there is any ambiguity then you would have to go to the beneficial construction principle and apply it favourably to the injured worker regardless of the fact that there might be a situation where an injured worker isn’t 20 per cent for a number of years and then suddenly deteriorates.”[51] She notes that such a scenario would be a rare, and the more usual case would be workers in the category of Ms Whitton. These are seriously injured workers receiving compensation who should not be denied compensation for any gap period between the cessation of 260 weeks and a further favourable assessment. This, she submits would create hardship to such workers, which is “not the intention of the legislation which is to protect and actually quarantine workers with high needs and workers with highest needs from the operation of a provision that stops entitlements.”[52]
[51] T 34.19–25.
[52] T 35.3–6.
In respect of the decision in Shi regarding the question of whether s 39 of the 1987 Act contains a temporal element, counsel for the respondent submits “the provision doesn’t contain the temporal outcome but that’s the outcome of section 39(1) not applying. That’s not a temporal component in the legislation itself”. Counsel for the respondent submits that the provision that ends entitlements at 260 weeks doesn’t apply to people who are workers with high or highest needs, whose entitlements will continue without regard to the 260 weeks.[53] She further explains that “[w]e say that section 39(2) doesn’t restore rights, it just never took them away in the first place. In other words, sorry, section 39(1) never took them away.”[54]
[53] T 42. 24-29.
[54] T 43. 32-35.
Counsel for Ms Whitton developed a submission that s 39(1) had no application at all to a worker with high needs or a worker with the highest needs.[55] She submits that s 39(2) “renders nugatory the cutting off of the weekly payments” in respect of this category or workers.[56] Counsel for the respondent refers to the s 32A definition of such workers, who she submits are “set apart from the majority of the provisions in the legislation”.[57] She submits that these workers are quarantined from the application of s39(1) at all points in time.[58] A worker within the category of high or highest needs is treated differently in the legislation to a worker who does not fall within that definition, for example, in respect of the receipt of additional medical and treatment benefits and not being subjected to a work capacity assessment. Counsel for the respondent submits that this differential treatment “is the intention of s 39”, and that “that’s not a statutory privilege, that’s a statutory right and a statutory entitlement.”[59] Counsel for the respondent submits that the purpose of the legislation is primarily about getting injured workers back to work, not cost-cutting, as submitted by the appellant. [60] She further submits that the interpretation of s 39 of the 1987 Act urged by the appellant and the Authority requires additional words “unless or until” to be read into the provision.[61]
[55] T 36.25–30, 37.12–24, 39.8–15, 39.24–29, 42.30–33, 48.12–23, 53.10–33, 54.1–5.
[56] T.37. 10-11.
[57] T 35.15–18.
[58] T 53.15–24.
[59] T 36.16, 21–22.
[60] T 37.25–30.
[61] T 37. 1-7.
Submissions on behalf of the Authority
The Authority intervenes in this appeal pursuant to its right in s 106 of the 1998 Act. Section 106 confers on the Authority all the rights of a party in the proceedings. The Authority’s submissions in this matter largely reflect its submissions made in Hochbaum. For ease of reference and to the extent that those submissions were expanded on in its written and oral submissions in the current matter, they are outlined below.
The Authority submits that reading s 39(3) with s 39(2), “s 39(2) restores the entitlement to weekly payments providing that the worker’s degree of permanent impairment has been assessed in accordance with s 65 at more than 20%.” It submits that if there has been no such assessment and during the period there is no such assessment in existence, there is no entitlement to weekly compensation. However, if there is such an assessment the worker’s entitlement to weekly compensation will be restored from the “date of the favourable assessment, but not in relation to the period between 260 weeks and the favourable assessment.”
The Authority contends that the text of s 39(2) is in the present tense: “[t]his section does not apply …”. The Authority submits:
“It adopts a term, ‘the degree of permanent impairment resulting from the injury’ that is given meaning (for the purpose of s 39) by s 39(3). Section 39(2) thus assumes the existence of an assessment in accordance with s 65 in order to determine whether or not the degree of permanent impairment is over 20%. Section 39(2) should be read together with s 39(3), because the term ‘the degree of permanent impairment resulting from the injury’ is, in effect, defined for the purposes of s 39(2) by s 39(3).”[62]
[62] Authority’s Submissions, [9].
The Authority also contends that the function of s 39(3) of the 1987 Act is to “identify some element of an operative provision and thus define its scope of operation.”[63] The relevant operative provision is s 39(2) and s 39(3) provides the meaning of “the degree of permanent impairment resulting from the injury” for the purpose of s 39. Therefore, the Authority submits, it is “appropriate to apply s 39(3) by substituting the ‘definiens with the definiendum’, in other words, to read s 39(3) into s 39(2).”[64] The effect of this is to direct attention to whether there is an assessment as provided by s 65 of the 1987 Act, of the degree of permanent impairment that is greater than 20%. Only if there is such an assessment will s 39(2) be “triggered to restore entitlements to weekly payments of compensation and s 39(1) will not apply.” The Authority adds that “[t]he fact of such an assessment having come into existence triggers the operation of s 39(2).”[65]
[63] Authority’s Submissions, [10], citing, Hastings Co-operative Ltd v Port Macquarie Hastings Council (2009) 171 LGERA 152, [16] (per Basten JA (Allsop P agreeing)) (Hastings).
[64] Authority’s Submissions, [10], citing, Kelly v R [2004] HCA 12; 218 CLR 216, 253 (per McHugh J) (Kelly); San v Rumble (No 2) [2007] NSWCA 259, [43] (per Campbell JA, Ipp JA and Beazley JA agreeing) (San); Hastings, [16] (per Basten JA, Allsop P agreeing); Sydney Local Health Network v QY and QZ (2011) 83 NSWLR 321, [49] (QY and QZ).
[65] Authority’s Submissions, [11].
The Authority accepts that the language of s 39 of the 1987 Act does not contain equivalent language to s 59A(2)–(4) of the 1987 Act, which the Senior Arbitrator characterised as imposing “temporal embargoes”. However, the Authority submits, the question for the purposes of construction of s 39 is “does the text of that section, read in context, mean that the ‘critical statutory question is whether a criterion was or was not met at a particular date.’”[66] If so, the Authority submits, the section should be regarded as having a temporal component. The Authority submits:
“The use of the present tense in s 39(1) (‘… a worker has no entitlement …’) and 39(2) (‘This section does not apply … the degree of permanent impairment resulting from the injury is …’) supplies a ‘temporal component’ to the operation of s 39. The operation (or otherwise) of the section turns on the existence of an assessment of the kind referred to in s 39(2), read with s 39(3). That conclusion is reinforced by the contextual considerations …”[67]
[66] Authority’s Submissions, [12], citing, Shi v Migration Agents Registration Authority (2008) 235 CLR 286, [101] (per Hayne and Heydon JJ)) (Shi).
[67] Authority’s Submissions, [12].
The Authority submits that its construction of s 39 does not “read words into” s 39(2), but simply provides that s 39(1) either operates or does not, depending on whether the degree of permanent impairment has been assessed in accordance with s 65 as being greater than 20%. It contends that it is not necessary, as the Senior Arbitrator suggested in respect of the appellant’s construction of s 39(2), to read the words “unless or until” (or any other words) into s 39(2) in order to conclude that the section does not alter the operation of s 39(1) prior to the point in time at which an assessment of the kind referred to in s 39(2) comes into existence.
The Authority argues that the entitlement to compensation in question is a statutory right, and does not attract the operation of the principle of legality in so far as it concerns the abrogation of fundamental common law rights and freedoms.[68] Notwithstanding this submission, the Authority further notes that if the Commission is of the view that clear language is needed to “take away” a right to weekly compensation after 260 weeks, such clear language is supplied by the words “despite any other provision of this Division, a worker has no entitlement…’ in s 39(1).[69]
[68] Authority’s Submissions, [14], citing, Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309, [19] (per Gleeson CJ) (Electrolux).
[69] Authority’s Submissions, [15].
The Authority submits that the text of s 39(2) of the 1987 Act does not support an operation of the section that is retrospective, that is, that alters rights and obligations in effect prior to the coming into existence of an assessment of a degree of permanent impairment resulting from the injury of greater than 20%.[70] However, there is available a construction of s 39 which would give it only a future action on past events. That construction is consistent with the text of s 39 and should be preferred. It also submits that if s 39(2) is construed in the manner advocated by the respondent it arguably would have a prior effect on past events, because it would change a worker’s entitlement to compensation with effect prior to the time at which the worker was assessed in accordance with s 65 as having a degree of permanent impairment greater than 20%. The Authority submits that such a construction would treat an injured worker as if he or she had a right to weekly payments of compensation after 260 weeks, during a period before an assessment in accordance with s 65 of a degree of permanent impairment greater than 20% existed (that is, before s 39(2) was triggered). The Authority argues that s 39 of the 1987 Act should not be construed to have that effect without clear language rebutting the presumption against retrospectivity.
[70] Authority’s Submission, [16], citing, Fisher v Hebburn Ltd (1960) 105 CLR 188, 194; Robertson v City of Nunawading [1973] VR 819, 824; Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27, 31; Goudappel, [26].
The Authority contends that the context of s 39 reinforces its submission that s 39(2) does not operate to restore an entitlement to weekly payments of compensation in respect of a period prior to the coming into existence of an assessment of the degree of permanent impairment of the requisite kind. This, the Authority submits, is reinforced because of the statutory recognition within the 1987 and 1998 Acts of the potential for a worker’s degree of permanent impairment as assessed to vary over time, such as due to a deterioration in the worker’s condition. The Authority further submits that reading s 39(2) with s 39(3), the entitlement to weekly payments of compensation after 260 weeks under s 39(2) flows from the degree of permanent impairment as assessed under s 65, rather than from the fact of the injury or some other feature.
The Authority also refers to the provisions of the legislative scheme as introduced when s 39 of the 1987 Act was enacted in 2012 to provide another contextual indicator in support of its approach to the construction of s 39. It submits that at the time s 39 was introduced, s 38 did not refer to a “worker with highest needs” but it referred to a “seriously injured worker”. The legislature in enacting s 39, at the same time as the definition of “seriously injured worker”, could have continued the entitlement to payments of weekly compensation after 260 weeks under s 39 to those falling within categories under the definition of a “seriously injured worker”. That is, a worker who has the degree of permanent impairment assessed to be more than 30% or the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%. Further, those workers who were not existing recipients of weekly payments of compensation before the 2012 amendments and therefore not entitled to the application of cl 28C of Sch 8 to the 2016 Regulation were subject to the operation of s 39 of the 1987 Act and their ongoing entitlement to weekly compensation depended on the existence of an assessment, in accordance with s 65, of the requisite degree of permanent impairment. The general position (excluding those covered by cl 28C of Sch 8 to the 2016 Regulation) after the time of the 2012 amendments was that persons whose degree of permanent impairment was not fully ascertainable were not entitled to weekly payments after 260 weeks.
The Authority contends that this aspect of the historical context of s 39 indicates the emphasis placed by the legislature following the 2012 amendments on the existence of an assessment in accordance with s 65 as a prerequisite to the availability of weekly payments of compensation after 260 weeks.
In the hearing before me, on 22 May 2019, the Authority confirmed its submissions in writing and addressed the matters posed in my Direction of 15 May 2019 as follows. The Authority confirmed its position is consistent with what was decided in Hochbaum in relation to the construction of s 39 of the 1987 Act. In particular, counsel for the Authority submitted that appropriate emphasis was placed on the use of the present tense in s 39 and to the question of whether s 39(2) supplies a temporal component to the provision.[71] The Authority noted that the appropriate way of looking at the structure of the statutory scheme in relation to the introduction of s 39 in the 2012 amendments was through Parliament’s overall intention to bring an end to compensation payments after an aggregate period of 260 weeks, with the exception of a subset of workers who achieve a greater than 20 percent permanent impairment assessment as defined.[72] The Authority noted and accepted my reference to the High Court’s position in Goudappel where it was accepted that there is an overall beneficial purpose to the Act, but that did not mean that every provision has to have a beneficial purpose or be construed beneficially.[73] The Authority noted that the question of construction that arose in Hochbaum was identical to the current case and that there was no reason to depart from that reasoning.[74]
[71] T 3.25–34.
[72] T 5.16–23.
[73] T 5.34–6.3.
[74] T 7.10–12.
In respect of the question of the principle of legality raised in my Direction of 15 May 2019, the Authority further submitted:
“as there is no statutory amendment here that has destroyed or diminished rights or interests falling within the statement or falling within the canonical statement of fundamental common law rights and, your Honour, to the extent that reference has been made to the principle of legality, that is, by the Senior Arbitrator in the present case, … the entitlement to compensation here is a statutory right and doesn’t - and insofar as the principle of legality is concerned with the aggregation of fundamental common law rights and freedoms it doesn’t detract the operation of the principle.”[75]
[75] T 11.4–16.
The Authority referred to Basten J’s comments in Elliott[76] on the recognition of potentially some room for a different operation of the clear statement of principle in the statutory context, albeit in a muted capacity. The Authority contends that “there’s not an analogy that could be drawn between the rights that are the subject of the compensation scheme and any fundamental common law rights. This regime is a purely statutory creation, … the worker compensation scheme, it’s not drawing on or providing statutory form to some pre-existing form of common law right.”[77]
[76] Elliott [39].
[77] T 14.19–25.
PRINCIPLES ON APPEAL
In this matter, the appellant advances a single ground of appeal which alleges that the Senior Arbitrator made an error of law in construing s 39(2) of the 1987 Act. The principles pertaining to appeals can be found in s 352(5) of the 1998 Act. This provision provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
DISCUSSION
At the commencement of the hearing, counsel for Ms Whitton submitted:
“We adopt and we’ll expand on the submissions made in Hochbaum by counsel for the injured worker in that matter and I note that you’ve extensively referred to them in the decision [in Hochbaum].”[78]
[78] T 31.1–4.
Outlined below is a summary of my decision in Hochbaum. To the extent that the submissions made by the worker’s counsel in Hochbaum are relied upon by Ms Whitton in this case, there has been no submission made in this matter which would cause me to alter, modify or change the views expressed by me in Hochbaum. I reject those submissions relied upon by the Ms Whitton for the reasons expressed in Hochbaum.
Th present matter involves factors which are very similar, if not identical, to those covered in the recent Presidential decision of Hochbaum.[79] Indeed, the present matter and the matter of Hochbaum were both decided by the same Senior Arbitrator on the same date (7 January 2019). The matters are identical in the following manner:
[79] [2019] NSWWCCPD 15 (Hochbaum), 18 April 2019.
(a) Both involve a worker who had received weekly compensation benefits for an aggregate period of 260 weeks post the 2012 amendments.
(b) Towards the end of this 260 week period, both workers received notification from the requisite insurer of a medical assessment by a doctor of the insurer’s choice. The insurer’s medical assessment in both cases was less than the threshold referred to in s 39(2) of the 1987 Act.
(c) As a consequence, both workers’ entitlements to weekly payments ceased at the end of the aggregate 260 week period pursuant to s 39(1).
(d) Both workers commenced proceedings in the Commission and subsequently obtained a MAC certifying a degree of permanent impairment greater than 20% at a point after the conclusion of the aggregate 260 week period.
(e) Both workers sought payment of weekly compensation for the disputed period between the end of the aggregate 260 week period and the date of receiving the MAC of greater than 20% permanent impairment.
(f) Both disputes concern the application and construction of s 39 of the 1987 Act.
(g) Both workers succeeded in their application for weekly payments for the disputed period at first instance, before the Senior Arbitrator.
(h) Both employers appealed the Senior Arbitrator’s decision.
(i) In both cases counsel for the worker accepted that the relevant assessment of the degree of permanent impairment was that contained in the MAC. In the present matter, the MAC issued by the Approved Medical Specialist Dr Mastroianni of 18 June 2018, provided an assessment of 32% whole person impairment.
Given that Hochbaum was decided on 18 April 2019, by Direction dated 15 May 2019, I directed the parties to provide oral submissions, inter alia, on Hochbaum.
In Hochbaum, much attention was paid to the phrase in s 39(2) of the 1987 Act which says “[t]his section does not apply”. This phrase was relied upon by the Senior Arbitrator in that matter virtually to the exclusion of the remainder of the sub-section and rest of s 39 in terms of the construction of the entire provision. I found that this approach was in error and not in accordance with the modern approach to statutory construction.[80]
[80] Project Blue Sky, Alcan.
In Hochbaum, I found that the effect of s 39(1) of the 1987 Act is to make clear that a worker has no statutory entitlement to weekly payments of compensation after an aggregate period of 260 weeks. Section 39(2) restores that statutory entitlement in circumstances where the degree of permanent impairment resulting from the injury is more than 20%. Section 39(3) defines “permanent impairment”, for the purposes of s 39(2), as an assessment provided by s 65 of the 1987 Act. Section 39(2), read with s 39(3), supplies the relevant temporal component to the operation of s 39.
In Hochbaum I also held that the proper construction of s 39(2) of the 1987 Act, read in context, is to restore a worker’s entitlement to weekly compensation, at the point in time an Approved Medical Specialist assesses the degree of permanent impairment resulting from injury to be more than 20%. A worker’s entitlement to weekly compensation beyond the aggregate period of 260 weeks remains dependent on satisfying the preconditions for payment of weekly compensation pursuant to s 38 of the 1987 Act. I further found that there was no warrant for the construction urged by Ms Whitton in Hochbaum that once the bar in s 39(1) was lifted that it had been lifted for all purposes as if the provision were nugatory.
In the Whitton decision, the Senior Arbitrator dealt with two questions. Firstly, the Senior Arbitrator dealt with the Commission’s jurisdiction.[81] Secondly, the Senior Arbitrator dealt with the application of s 39 of the 1987 Act.[82] Turning now to the grounds of appeal. I will deal with the construction of s 39 first, as I consider that the decision that I will reach in relation to that matter will directly affect the question of the Commission’s jurisdiction, albeit for reasons different to those decided below.
[81] Reasons, [22]–[35].
[82] Reasons, [36]–[60].
Section 39
The Senior Arbitrator correctly identified the principle of statutory construction that confronted her in this matter. She discussed these principles as disclosed in the leading cases.[83] In accordance with the approach taken in Hochbaum, it is worth examining the process of reasoning undertaken by the Senior Arbitrator and whether or not the extracted passages from Project Blue Sky and Alcan were appropriately applied to the task of statutory construction in this matter.
[83] Reasons, [44], [45], [46].
The Senior Arbitrator extracted the following provision from Project Blue Sky and the High Court’s well known statement of principle:[84]
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
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.”[85] (citations omitted, emphasis added).
[84] Reasons, [44].
[85] Project Blue Sky, [69]–[71] (per McHugh, Gummow, Kirby and Hayne JJ).
The Senior Arbitrator also set out, in terms, the following extract from Alcan:[86]
“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.’[87]
[86] Reasons, [46].
[87] Alcan, [47].
In this matter, it is clear that the Senior Arbitrator was called upon to construe s 39(2) of the 1987 Act, which necessarily involved construing the surrounding provisions in s 39 (see also [44] above).[88] Indeed, the Senior Arbitrator extracted s 39 of the 1987 Act in full in her reasons.[89] Ms Whitton’s submissions allege that the Senior Arbitrator considered all three subsections of s 39.[90]
[88] Alcan, [47]; Project Blue Sky, [69]-[71].
[89] Reasons, [18].
[90] Respondent’s submissions 29 March 2019, [14(c), (e) and (k)].
At the hearing of this matter on 22 May 2019, I invited all counsel to direct me to where the Senior Arbitrator dealt with, in terms, the construction of s 39(3) in her overall consideration of s 39 of the 1987 Act. Counsel for the intervener and the appellant stated that the Senior Arbitrator did not attempt to construe s 39(3) in terms anywhere in the decision. Counsel for Ms Whitton said as follows:
“… if she didn’t say it explicitly she said it implicitly that subsection (3) is a mechanism but when you asked that question I had a look at the decision, I couldn’t find it but that doesn’t mean it’s not there but we say that it doesn’t matter because it’s a mechanism, it’s not imported in - and it wasn’t run in that way before her.”[91]
This submission is incorrect. When this matter was conducted before the Senior Arbitrator, the respondent below (the appellant in these proceedings) filed detailed written submissions. The written submissions are dated 14 November 2018 and in paragraphs [42]–[44] and [49] the approach to the construction of s 39 of the 1987 Act, including how s 39(3) operates, was clearly raised and was therefore a live issue before the Senior Arbitrator. The applicant worker filed submissions in reply before the Senior Arbitrator dated 19 November 2018 and did not specifically respond to these sections of the respondent employer’s submissions.
[91] T 47.20–26.
In the event that the Senior Arbitrator failed to consider s 39(3) in her approach to construing s 39(2), counsel for the respondent said “[w]ell, we don’t say that that’s an error because she didn’t need to consider it in that way.”[92] Counsel added “[w]ell, we say it’s not an error because it doesn’t actually impact on the operation of 39(2). So it can’t be an error because it’s not an important feature.”[93]
[92] T 48.7–8.
[93] T 49.1–4.
An examination of the Senior Arbitrator’s reasons reveals that there has been no attempt to construe the words of s 39(3) or how that subsection interrelates with the rest of the provision, and, in particular, s 39(2). Apart from the extract of s 39 of the 1987 Act in Reasons at [18], s 39(3) is not mentioned at all. Nor can it be said that the Senior Arbitrator “implicitly” considered s 39(3). This is notwithstanding the fact that the appellant in their written submissions of 14 November 2018 filed with the Senior Arbitrator clearly raised the role of s 39(3) in the task of construing the section as a whole. This was a matter which should have been considered and dealt with in terms. The simple failure to mention s 39(3) would not be fatal if the provision had otherwise been dealt with. That is, if the process of assessment of the degree of permanent impairment as provided for by s 65 had been considered. However, s 65 is not dealt with in terms by the Senior Arbitrator nor is its relationship with s 39(2).
I do not accept the submission made by Ms Whitton that s 39(3) of the 1987 Act:
“does no more than tell you that you have to do an assessment in accordance with the provisions of the legislation, that’s all it says, it doesn’t do anything more than that. It simply requires consistency across the entire regime so that when you’re looking at work injury damages it’s 15 per cent that’s been assessed in the same way or it’s - and that’s about having confidence in the system, that’s all it is.”[94]
[94] T 52.22–29.
This submission reflects Ms Whitton’s argument in her written submissions of 29 March 2019 in which she submits:
“Subsection 39(3) is only relevant in that it requires the degree of permanent impairment to be assessed [as] provided by s 65. The assessment was not an issue and was not disputed. It does not assist with the construction of the meaning of s 39(2), which the Arbitrator considered was clear in its terms. There is no error.”[95]
[95] Respondent’s submissions dated 29 March 2019, [14(c)].
As I found in Hochbaum, s 39(3) provides for more than a mere method of assessment. It provides the method of assessment and a detailed definition as to how the operative provision s 39(2) is to operate.[96]
[96] Hochbaum, [141].
The approach urged upon me by counsel for Ms Whitton pays insufficient or no regard to the section of Project Blue Sky (extracted above at [112]).
Whilst I will return to the text of s 39 of the 1987 Act in detail later in this decision, it is clear that s 39(3) is of more importance than has been submitted by Ms Whitton. Section 39(2) refers to an “injured worker whose injury results in permanent impairment …” Subsection (3) then provides the detailed definition as to how “the degree of permanent impairment that results from an injury is to be assessed”. It is not any degree of permanent impairment but the particular method as provided for by s 65. The phrase “permanent impairment” referred to in s 39(2) and defined in s 39(3) is, as was submitted by counsel for the appellant employer, not ordinary English language.[97] It refers to the particular scheme for assessing permanent impairment for the 1987 and 1998 Acts. For this reason, careful attention to the text of s 39(3) and how it relates with s 39(2) is necessary to discern the meaning of the entire section. It certainly cannot be set at nought as the Senior Arbitrator did and as Ms Whitton urges me so to do.
[97] T 20.33.
The 2015 amending Act introduced a series of amendments providing additional benefits to certain types of workers. It introduced new terminology for seriously injured workers. A seriously injured worker who had more than 30% whole person impairment was defined as a worker with highest needs.[117] A worker with more than 20% whole person impairment was defined as a worker with high needs.
[117] 2015 amending Act; 1987 Act, s 32A.
Relevantly, a worker who was defined as a “seriously injured worker” before the introduction of the 2015 amending Act, is a “transitional worker” and, is taken to be a worker with “highest needs” until the degree of permanent impairment is assessed in respect of the worker’s injury.[118] Ms Whitton was not a transitional worker, within the meaning of cl 6 of Pt 19I of Sch 6, as it is accepted that she did not attain the status of a worker with highest needs until the MAC was issued on 18 June 2018. I therefore find it was not until 18 June 2019 that Ms Whitton attained this status. For completeness, there is no evidence before me that Ms Whitton had attained this status at any time prior.
[118] 1987 Act, cl 6 of 19I of Sch 6 to the 1987 Act.
As can be seen from this legislative history, at the time of the 2012 amendments, the then existing category within the 1987 Act was that of a seriously injured worker. As was submitted by counsel for the appellant clearly at the time of the 2012 amendments, the legislature specifically chose not to use that existing designation as determinative for the purposes of s 39 of the 1987 Act.[119] Rather it designated a degree of permanent impairment 10% less than that attaching to a seriously injured worker and the descriptor is in terms of the percentage permanent impairment and not anything else. Further, the legislature in introducing the new terminology of worker with high needs and a worker with highest needs in 2015 chose not to amend s 39 to specify a worker in these categories as a precondition to lifting the bar in s 39(1).
[119] T 63.15–25.
The 2015 amending Act introduced a series of amendments providing additional benefits to workers of high and highest needs, including s 38(3A), s 38(5), s 38A and s 59A. These provisions do not assist Ms Whitton, as they do not provide an exemption to the operation of s 39(1). No submission has been advanced to the contrary.
It is also clear that nowhere in s 39, or indeed elsewhere in the 1987 Act, does the acquisition of the status of a worker with highest needs, as submitted by counsel for Ms Whitton, provide that the worker is quarantined from the effect of s 39(1) at all points in time as asserted. There is simply no justification in the text of s 39 or indeed any other provisions (and I have not been taken to any other provision of the 1987 Act) which would suggest that this is the result of a properly conducted textual analysis. There is no warrant to construe s 39 of the 1987 Act in the way which has this effect and indeed Ms Whitton has not attempted, by close textual analysis of s 39, to substantiate the submission.
This has been the overall approach taken by Ms Whitton in this matter, to concentrate upon contextual support for their submissions rather than performing the close textual analysis of s 39 which the authorities call upon to be undertaken.
I find that Ms Whitton did not attain the status of a worker with highest needs until the MAC was issued on 18 June 2019. I therefore do not accept the respondent’s worker’s argument that because Ms Whitton attained the status of a worker with highest needs she is quarantined from the application of s 39(1) at all points in time.[120]
[120] T 53.15–24.
The Commission’s jurisdiction
In proceedings before the Senior Arbitrator the employer submitted that the Commission does not have jurisdiction to determine the dispute. It submitted that ss 38 and 39 of the 1987 Act are, as a matter of statutory construction, intended to be the exclusive domain of the insurer (or the employer) and not a matter for the Commission. While this issue has not been raised on appeal, it is an important point and I make the following observations.
The Senior Arbitrator discussed the Commission’s jurisdiction to enter an award under s 38 of the 1987 Act. Applying the Presidential decision in Birch v Olympic Aluminium Pty Ltd[121] the Senior Arbitrator held, as Ms Whitton’s work capacity had been assessed by the insurer as set out in the work capacity decision dated 4 November 2013, the Commission may make an order consistent with the work capacity decision.[122] The Senior Arbitrator did not consider the Commission was “deprived of jurisdiction to determine the dispute just because the period claimed is after she has received 260 weeks of compensation.”[123] It followed that by making a determination consistent with the existing work capacity decision, the Senior Arbitrator found that the Commission was not making an “assessment” under s 38.[124]
[121] [2016] NSWWCCPD 54 (Birch).
[122] Reasons, [30]–[31].
[123] Reasons, [34].
[124] Reasons, [35].
In determining the question of jurisdiction, the Senior Arbitrator stated that she was not restricted by the application of the repealed s 43(3) of the 1998 Act from making a decision that was consistent with the work capacity decision.[125] While s 43(3) was repealed at the time of the Senior Arbitrator’s decision, nothing turns on this point. That is because, in any event, the qualification on the Commission’s jurisdiction pursuant to s 43(3) no longer existed. The application of s 43(3) is a moot point and no issue has been taken with its application, in the present matter. Having said that, given the preferred construction of s 39 of the 1987 Act, the Senior Arbitrator had no jurisdiction to enter an award under s 38 during the disputed period.
[125] Lee; Birch.
For the reasons discussed above, the operation of s 39 of the 1987 Act turns on the existence of an assessment of the kind referred to in s 39(2) when read with s 39(3). That is s 39(2), read with s 39(3), provides that the bar in s 39(1) is lifted when the degree of permanent impairment that results from injury is assessed as provided by s 65 for the purpose of Div 4 to be greater than 20%. In other words, s 39(2) operates to deem the date from which weekly payments may recommence subject of course to satisfying the requisite elements of s 38. It does not provide that weekly payments of compensation may continue from the date that they ceased (the expiry of the aggregate 260 week period), because of the application of s 39(1).
In the absence of a MAC assessment of greater than 20%, in the circumstances of this case, there is no jurisdiction available to enter an award for weekly payments of compensation beyond the aggregate period of 260 weeks. As I said in Hochbaum, the Senior Arbitrator did not have jurisdiction to enter an award which had the effect of restoring an entitlement to weekly payments of compensation before the relevant criterion was met.[126]
[126] Hochbaum, [125].
160. I accept that an insurer has a role to play in the application of s 38. However, I do not accept Ms Whitton’s submission that ss 38 and 39 are in the “exclusive domain” of an insurer. For the reasons discussed above, an insurer has no role to play in the application of s 39 of the 1987 Act and preconditions to lift the bar under s 39(1). Indeed, the section makes no reference to an “insurer”. An entitlement under s 38 is enlivened once the worker’s work capacity has been “assessed by the insurer” and the worker has otherwise satisfied that provision. In this regard I note that, it is not disputed that Ms Whitton’s had been assessed by the insurer as having no current work capacity, as set out in the work capacity decision of 4 November 2013.
In the circumstances of the present matter, subject to satisfying the relevant preconditions set out above, the Commission’s exclusive jurisdiction to determine disputes under s 105 of the 1998 Act to enter an award for weekly payments of compensation under s 38 is not impeded. To the extent Ms Whitton is suggesting the primacy of s 38, over s 39 of the 1987 Act, I do not accept the respondent’s submissions for the reasons discussed in Hochbaum.[127] In any event, the submission made by Ms Whitton regarding s 38 does not speak to or in any way answer the proper construction of s 39.
[127] Hochbaum, [160]-[162].
Is s 39(2) of the 1987 Act a beneficial provision?
Counsel for Ms Whitton asserted that the workers compensation legislation is both remedial and beneficial in nature. Set out below are statements from counsel for Ms Whitton regarding the character of s 39(2):
“Section 39(2) is obviously beneficial to workers who are assessed as having a greater than 20% permanent impairment. It must therefore be interpreted to operate beneficially if it is open to do so, and it is, as found by the Senior Arbitrator. There is no error.”[128]
[128] Respondent’s submissions 29 March 2019, p 6, [14(k)].
And in oral submissions:
“section 39(2) is clearly remedial, it’s intended to address the mischief which is created by 39(1) which is that the mischief in respect of workers with high needs and workers with highest needs and so you, therefore, would have to interpret section 39(2) in a beneficial way that’s favourable to the injured work[er] and, in fact, find that the provisions of section 39(1) don’t apply at all…”[129]
[129] T 34.7–14.
And further:
“So that is to say we [say] primarily that the wording is clear and that you don’t, in fact, need to go beyond it. If you just look at the text, context and purpose it’s clear but if there is any ambiguity then you would have to go to the beneficial construction principle and apply it favourably to the injured worker regardless of the fact that there might be a situation where an injured worker isn’t 20 per cent for a number of years and then suddenly deteriorates.”[130]
[130] T 34.17–25.
And further again:
“So I think then I have to just deal with the beneficial construction issue but we say that you only get to beneficial construction if you find that there is an ambiguity in the provision and we say you don’t need to get there but if you do that you would interpret the operation of that entire provision beneficially and I say entire provision but I obviously don’t mean 39(1)…”[131]
[131] T 53.24–30.
And further again:
“We say that if there is any ambiguity about the meaning of that provision you would have to give a beneficial construction favourable to the injured worker which would be that 39(1) doesn’t apply at any point in time and the reason for that is because that’s - and I did say at the beginning 39(2) is a remedial provision, there’s no question about that and it is designed to address the mischief that could be created by 39(1) which is that a worker with high needs or highest needs also would have their weekly compensation cut off after 260 weeks and clearly the legislation does not want that - the Parliament did not want that to happen.”[132]
[132] T 54.4–15.
I dealt with the issue of beneficial interpretation with respect to s 39(2) of the 1987 Act in Hochbaum at reasons [148]–[159]. There has been nothing submitted by Ms Whitton in this matter which would lead me to alter, review or revoke the views expressed about whether s 39(2) is beneficial as described in Hochbaum. I adopt and confirm those reasons in this matter.
To the extent Ms Whitton submits that s 39 of the 1987 Act is remedial in nature, I will deal with this here. The High Court in Goudappel accepted that whilst the workers compensation legislation was remedial in character, this did not mean that every provision within the legislation held a beneficial had that character. The High Court 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.”[133] (footnotes omitted, emphasis added)
[133] Goudappel, [29].
In Hochbaum, I found that if the text of the provision had a clear meaning, a beneficial purpose or interpretation could not lead to a different result from that provided by the proper construction of the text.[134] In Hochbaum I found that the overall Parliamentary intention was to bring an end to compensation payments after an aggregate period of 260 weeks. I found that s 39(2) was an exception to the s 39(1) bar which was provided to a subset of workers who achieved a greater than 20% permanent impairment assessment. Section 39(2) is truly an excepting provision, not remedial as submitted by Ms Whitton . It therefore does not warrant a beneficial interpretation. However even if s 39(2) is beneficial, as asserted by counsel for Ms Whitton, that cannot lead to a construction of the provision which is contrary to the textual considerations.[135]
[134] Hochbaum, [153].
[135] Bull v Attorney-General (NSW) [1913] HCA 60; 17 CLR 370, 384.
I have found that s 39 of the 1987 Act speaks in the present tense and the application of the beneficial interpretation urged by Ms Whitton would produce a result which is contrary to this construction, which would provide for the payment of compensation to the workers during the period prior to the attainment of the requisite assessment.
PRINCIPLE OF LEGALITY
The Senior Arbitrator has described s 39 in the following manner:
“Given it is a limiting section, taking away rights, one would expect the Parliament to use the clearest of language (such as that suggested by the respondent), if that is what Parliament had intended.”[136]
[136] Reasons, [59].
In this paragraph of the Senior Arbitrator’s Statement of Reasons, the principle of legality is relied upon by the Senior Arbitrator as contextual support for her construction of the text of s 39 of the 1987 Act.
The principle of legality governs the relationship between the three arms of government, the legislature, the executive and the judiciary. It is the presumption that Parliament does not intend to affect fundamental common law rights, freedoms or principles except by clear and unambiguous language. In other words, common law rights will not be taken by a court (or tribunal) to have been displaced by statute unless Parliament’s intention to do so is ‘expressed with irresistible clearness.’[137] The principle is an aspect of the rule of law.
[137] Electrolux, [21].
In this section of the Reasons, the Senior Arbitrator equates statutory rights under the workers compensation legislation with fundamental common law rights. This is made clear by her reference to the fact that “one would expect the Parliament to use the clearest of language … if that is what Parliament had intended.” The Senior Arbitrator has applied this reasoning to support her construction of s 39 of the 1987 Act.
The question arises as to whether or not the principle of legality can properly be relied upon by the Senior Arbitrator to support the construction given to s 39 of the 1987 Act.
This question has been examined by the New South Wales Court of Appeal in Elliott v Minister administering Fisheries Management Act 1994.[138] Elliott dealt with the question of quota limits which had been placed upon commercial share management fisheries. The introduction of the quota share scheme was facilitated by amendments to the Fisheries Management Act 1994 (NSW) as well as the promulgation of a number of statutory instruments. The applicant Mr Elliott was a person affected by these amendments and commenced proceedings challenging various decisions and acts associated with the quota share scheme. Among a number of Mr Elliott’s claims in this matter was an allegation that the trial judge erred in applying the principle of statutory interpretation known as the “principle of legality”. In broad terms, Mr Elliott alleged the principle of legality involved a presumption that Parliament will not legislate to interfere with fundamental rights and freedoms without expressing a clear intention to do so. Mr Elliott further alleged that his statutory rights under the fishing legislation were such fundamental rights which could only be abrogated by the Parliament in the clearest terms.
[138] [2018] NSWCA 123, 8 June 2018 (Elliott).
The Court of Appeal did not accept this proposition. In the leading decision, his Honour Basten J commenced with the settled statement of principle to the following effect:
“The general requirement that effect must be given to the text of the statute, read in context and having regard to its apparent purpose remains the principal focus of statutory construction.”[139]
[139] Elliott, [35].
His Honour then discussed whether or not the principle of legality, which applies to common law rights, operates as a constraint depriving the holder of a statutory right of the benefit of that right. His Honour found that the principle of legality had limited application to statutory rights without discounting it completely. His Honour quoted the following remarks of Justice Gageler of the High Court in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd:[140]
“Outside its application to established categories of protected common law rights and immunities, that principle must be approached with caution. The principle should not be extended to create a common law penumbra around constitutionally imposed structural limitations on legislative power.”
[140] [2015] HCA 7; 255 CLR 352, [67].
His Honour then went on to find as follows:
“To the extent that the principle applies with respect to the statutory scheme for conferring rights to participate in a fishery, there is no doubt that its application must be muted. That is not only to avoid imposing a constraint on legislative power, but also because the nature of the right, being one conferred by statute, is inherently liable to alteration by statute.”[141] (emphasis added)
[141] Elliott, [39].
In the context of the present case, the rights under consideration are the rights entitling an injured worker to weekly payments of compensation. The rights to weekly payments of compensation are conferred by statute. The entitlement to such rights is subject to satisfaction of certain preconditions as set out in the legislation. These are statutory rights which are inherently liable to alteration by the legislature. It is not a vested common law right.
Applying the Court of Appeal decision in Elliott, the application of the principle of legality to the statutory scheme for conferring rights to weekly payments of compensation “must be muted”.[142] As Basten J said, this is particularly in view of the fact that the right to weekly payments of compensation is inherently liable to alteration by statute. Indeed, the provisions under consideration have been the subject of significant legislative alteration.
[142] Elliott, [39].
The workers compensation legislation has a history of alteration and amendment. The amendments which took place in 2012, of which s 39 is one, have been discussed in a number of cases. For relevant purposes, in Cram Fluid Power Pty Ltd v Green,[143] Gleeson JA said the following regarding the 2012 amendments:
“It should be accepted that the 2012 amendments disclose a cost-savings objective. Part of the reforms to the existing scheme under the 1987 and 1998 Acts was to disentitle workers from making more than one claim for lump sum compensation. The Court must give effect to this legislative intention, notwithstanding the detrimental impact on injured workers.”[144] (emphasis added)
[143] [2015] NSWCA 250; 13 DDCR 281 (Cram Fluid).
[144] Cram Fluid, [122].
This passage from Cram Fluid and its reasons describing the cost saving objective and a detrimental impact on injured workers of the 2012 amendments serves to underscore the remarks of Basten J regarding statutory rights being inherently liable to alteration. Given the manner of the alterations to the workers compensation legislation, it is difficult to consider that they sit within the limited category of fundamental rights discussed by Basten J in Elliott as attracting the operation of the principle of legality.
The principle of legality does not override the usual exercise of statutory construction by reference to text, context and purpose. For the reasons set out above, there is no uncertainty in the meaning of s 39 of the 1987 Act that is not capable of being resolved by an examination of the legislative text and purpose. It follows, that even if the principle of legality were to apply in a “muted” way it would have no effect given the construction of s 39 as found.
Having regard to the above, the Senior Arbitrator’s reliance on this principle in her Reasons[145] is perhaps not apt contextual support for her construction of s 39 of the 1987 Act. The Arbitrator erred to the extent that she held the worker’s rights to weekly payments of compensation were fundamental common law rights and freedoms protected by the principle of legality. She also erred to the extent she sought to impose the principle of legality to find that clear language was required in s 39 to take away the right to weekly payments of compensation after an aggregate period of 260 weeks. In any event, s 39(1) clearly removes the entitlement to compensation after 260 weeks, subject to the s 39(2) exception. In light of this construction, the principle of legality cannot be relied upon to produce a different conclusion to the plain terms of the provision.
[145] Reasons, [59].
DECISION
For the reasons outlined above, the award in favour of Ms Whitton cannot stand. The Senior Arbitrator’s decision is attended upon by relevant error and will therefore be set aside.
ORDERS
The employer in the proceedings below (4503/18) and on appeal (A1-4503/18) is amended to substitute “Secretary, Department of Education” with the correct employer “Technical and Further Education Commission t/as TAFE NSW”.
The Senior Arbitrator’s Certificate of Determination dated 7 January 2019 is revoked and an Award for the respondent employer is substituted in its place.
Judge Phillips
PRESIDENT
17 June 2019
2
25
0