Theoret v Aces Incorporated (No 2)
[2021] NSWWCCPD 8
•25 March 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Theoret v Aces Incorporated (No 2) [2021] NSWWCCPD 8 |
| APPELLANT: | Patricia Theoret |
| RESPONDENT: | Aces Incorporated |
| INSURER: | AAI Limited t/as GIO |
| FILE NUMBER: | A1-5261/19 |
| ARBITRATOR: | Mr J Harris |
| DATE OF ARBITRATOR’S DECISION: | 6 November 2019 |
| DATE OF APPEAL DECISION: | 25 March 2020 |
| DATE OF COURT OF APPEAL DECSISION: | 2 February 2021 |
| DATE OF DECISION ON REMITTER: | 9 February 2021 |
| SUBJECT MATTER OF DECISION: | Orders on remitter from the Court of Appeal |
| PRESIDENTIAL MEMBER: | President Judge Phillips |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Carroll & O’Dea Lawyers | |
| Respondent: | |
| Hicksons Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 6 November 2019 is revoked. 2. The matter is remitted for re-determination by a different Arbitrator, in accordance with the Court of Appeal decision in Theoret v Aces Incorporated [2021] NSWCA 3 which identified the errors into which the original Arbitrator and Presidential member had fallen. |
INTRODUCTION
This matter comes before the Commission pursuant to an order for remitter made by the Court of Appeal in Theoret v Aces Incorporated.[1]
[1] [2021] NSWCA 3 (Theoret).
BACKGROUND
This claim is brought by Patricia Theoret against her employer Aces Incorporated. Ms Theoret suffered injuries at different times during the same employment with Aces Incorporated. Ms Theoret first became entitled to weekly compensation of workers compensation in 2004. This was when she first became entitled to receive weekly compensation. Ms Theoret continued to receive weekly payments until September 2017. In 2018, the insurer carried out a work capacity assessment and as a result of that assessment, Ms Theoret continued to be entitled to receive weekly payments of workers compensation.
On 3 April 2019, the insurer gave notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) advising Ms Theoret that she was assessed as having no work capacity. This notice also advised Ms Theoret of the insurer’s determination of her pre-injury average weekly earning entitlement (indexed PIAWE) under s 43(1)(d) of the Workers Compensation Act 1987 (the 1987 Act).
On 24 July 2019, Ms Theoret’s lawyers sought a review of the s 78 decision arguing that the PIAWE calculation should be indexed from the date she first received weekly compensation. This matter involved the construction of s 82A of the 1987 Act, which commenced on 1 October 2012.
The proceedings were determined initially by the Arbitrator on 6 November 2019, who concluded that the indexation of her weekly payments applied from the first review date after 1 October 2012. An appeal to a Presidential member was determined on 25 March 2020 in a decision which confirmed the decision of the Arbitrator.
Ms Theoret appealed the decision of the Presidential member to the Court of appeal.
THE DECISION OF THE COURT OF APPEAL
The Court of Appeal decision is dated 2 February 2021. McCallum JA said as follows:
“The critical question is whether, properly construed, s 82A provides for historical indexation, as contended by the appellant, or only prospective indexation (that is, indexation that commences only after the commencement of s 82A), as contended by the respondent. I have concluded that the appellant’s construction is correct, for the following reasons.
The appellant referred to the well-known principles of statutory construction stated in the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70]. She relied in particular on the principle stated at [70]:
‘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.’ (citations omitted)
The appellant submitted that, prior to the 2012 amendments, the method of calculating weekly payments ensured that ‘currency was maintained’ because a worker’s benefit was calculated by reference to probable earnings if uninjured, determined from time to time by reference to updated evidence as to what the worker would have been earning had their employment continued. Whether or not currency was ensured by that method, it certainly offered some safeguard against inflation. As already explained, the respondent’s construction of s 82A would offer no such safeguard because, in a case such as the present, it would determine future entitlements by reference to a historical wage frozen for a period without indexation.
Be that as it may, the inquiry as to which construction is to be preferred must begin with a consideration of the statutory text. The appellant identified s 82A(1) as the ‘leading provision’ (invoking the principle stated in Project Blue Sky at [70]) and submitted that s 82A(4) is subordinate to that provision, being merely mechanical or procedural. The text of s 82A(1) supports that analysis: the amount of a weekly payment ‘is to be varied on each review date after the day on which the worker became entitled to weekly payments in respect of that injury’. Subsection 82A(1) is capable of having effect on its own terms. As noted by the appellant, the number to be declared by the Authority in accordance with subs 82A(4) is determined in accordance with the expression set out in subs 82A(1). There is no element of discretion or the exercise of any judgment or choice on the part of the Authority in declaring the relevant number.”[2]
[2] Theoret, [27]–[30].
Justice Garling, agreeing with the judgment of McCallum JA, stated as follows:
“As the relevant date for s 82A is not always the date of injury, although in many cases it may well be because there is an incapacity immediately consequent upon the injury, a factual determination needs to be made of the relevant date so as to enable the correct application of the indexation calculation in s 82A.
In this appeal, the issue of the relevant date has real and significant consequences to the indexation calculation. If incapacity is established at the time immediately following the subject injury, then the first review date for the purposes of s 82A will be 1 April 2003.
If an incapacity is established by the payments of compensation made for the period commencing 24 May 2004 because they relate to the subject injury and not to the third injury, then the first review date will be 1 October 2004. Alternatively, if the relevant incapacity of the appellant is only established by reference to the payments of compensation commencing on 13 December 2013, then the first review date will be 1 April 2014.
The determination of the relevant date for the purposes of the application of s 82A will be a matter for proof when the proceedings are determined by the Workers Compensation Commission as required by the orders disposing of this appeal.”[3]
[3] Theoret, [70]–[73].
Leeming JA also noted that it was:
“necessary in order to apply the indexation required by s 82A to determine when for the purposes of that section Ms Theoret became entitled to weekly payments in respect of the injury occasioned by her assault in 2002, that being a question of fact which did not arise for determination on the approach taken by the Arbitrator and the Deputy President.”[4]
[4] Theoret, [1].
The orders of the Court of Appeal were:
“1. Allow the appeal.
2. Set aside the judgment of the court below.
3. Remit the matter to the Workers Compensation Commission to be determined according to law.
4. Respondent to pay the appellant’s costs.
ORDERS ON REMITTER
It is necessary that appropriate orders be made in compliance with the judgment and orders of the Court of Appeal, in substitution for those in the Presidential decision dated 25 March 2020 which has been set aside.
DECISION
The Certificate of Determination dated 6 November 2019 is revoked.
The matter is remitted for re-determination by a different Arbitrator, in accordance with the Court of Appeal decision in Theoret v Aces Incorporated [2021] NSWCA 3 which identified the errors into which the original Arbitrator and Presidential member had fallen.
Judge Phillips
PRESIDENT
9 February 2021
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