Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes - [2015] NSWWCCPD 35

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35
APPELLANT:	Trustees of the Roman Catholic Church for the Diocese of Parramatta
RESPONDENT:	Trudi Barnes
INSURER:	Catholic Church Insurance Ltd
FILE NUMBER:	A1-7982/13
ARBITRATOR:	Ms J Snell
DATE OF ARBITRATOR’S DECISION:	10 March 2015
DATE OF APPEAL DECISION:	15 June 2015
SUBJECT MATTER OF DECISION:	Claim for lump sum compensation for permanent impairment; multiple injurious incidents/injuries affecting the lower back; terms of remittal to Registrar for referral to Approved Medical Specialist for assessment of whole person impairment; meaning of “injury” in s 4 of the Workers Compensation Act 1987; whether “an injury” in s 66(1) of the Workers Compensation Act 1987 is restricted to a single injury or can include multiple injuries; sections 5 and 8 of the Interpretation Act 1987; application of principles in Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354; non-compliance with Practice Direction No 6; when point not argued at arbitration may be raised on appeal; difference between apportioning liability and making an initial determination of liability
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Astridge & Murray
Respondent:	Law Partners
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted. 2. For the reasons given in this decision, the Arbitrator’s determination of 10 March 2015 is confirmed.

INTRODUCTION

This appeal concerns the meaning of the phrase “an injury” in s 66(1) of the Workers Compensation Act 1987 (the 1987 Act). Specifically, it concerns whether that phrase is restricted to a single injury, as urged by the appellant, or whether it can include more than one injury, as urged by the worker and found by the Arbitrator. For the reasons explained below, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

BACKGROUND

The respondent worker, Trudi Barnes, worked for the appellant employer as a teacher’s aide. She injured her lower back in the course of her employment with the appellant on three separate occasions. First, when she twisted her back at work on 24 February 2006. Second, when a ram butted her in the coccyx, causing her to land heavily on her buttocks on 13 March 2008. Last, on 21 July 2011, when she tripped over a partition in a classroom and fell backwards onto the ground jarring her back. The respondent’s insurer has accepted liability for each incident.
As a result of the injuries to her lower back, Ms Barnes underwent extensive surgery to her lumbar spine on 12 April 2012.
In a letter dated 20 February 2013, Ms Barnes’s solicitors claimed $49,087.50 compensation on her behalf for permanent impairment under s 66 of the 1987 Act. The claim was supported by a report from Dr Assem, dated 30 October 2012, in which he assessed Ms Barnes to have a 26 per cent whole person impairment as a result of the three incidents described above.
In addition to assessing Ms Barnes to have a 26 per cent whole person impairment, Dr Assem said that he “apportioned the injuries as follows”:
“One-fifth (1/5) due to injury on 4/2/2006 [sic]                  = 5%
One-fifth (1/5) due to injury in 2008   = 5%
Three-fifth (3/5) due to the injury on 21/7/2011                  = 16%”
In a later report, Dr Assem said:
“[Ms Barnes] has sustained several injuries to her lower back as described causing severe low back pain with radiculopathy. The symptoms were similar on each occasion and consistent with the pathology at the L4/5 level.”
Because of changes introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), a worker who receives “an injury that results in a degree of permanent impairment greater than 10% is entitled to receive” compensation for that impairment (s 66(1) of the 1987 Act). It is agreed that the current claim, having been made after 19 June 2012, is governed by the amended provision. (Prior to the amendments, it was only necessary for a worker to establish that the injury had caused a one per cent whole person impairment before being entitled to lump sum compensation under s 66.)
The appellant’s counsel, Mr Saul, argued at the arbitration that the effect of the 2012 amending Act is that “each claim for an injury must exceed the threshold of 10 per cent WPI” (T10.13). That is, where there are multiple injuries, before a worker can recover permanent impairment compensation, each injury must result in a permanent impairment of greater than 10 per cent. He contended that as Dr Assem assessed Ms Barnes’s permanent impairment from her first and second injuries to be five per cent each, she could not meet the threshold in respect of those injuries and they could not be referred to an Approved Medical Specialist (AMS) for assessment. He conceded that the third injury could be referred.
In summary, counsel for Ms Barnes, Mr Stanton, submitted that:
(a)     as the matter only involves a claim for lump sum compensation under s 66, and as the occurrence of the three events was not disputed, the matter (of assessment of any whole person impairment) should be referred to an AMS (Greater Taree Council v Moore [2010] NSWWCCPD 49);
(b)     the Commission could not determine anything until the matter had been referred to an AMS;
(c)     there was only one s 66 claim ($49,087.50, for a 26 per cent whole person impairment) and not three separate claims, albeit it involved three injurious events;
(d)     it was premature to deal with possible issues such as whether the pathology resulting from different injurious events was the same, or whether a particular injurious event had brought about any particular degree of impairment, because such matters were contingent on what an AMS might say, and
(e)     it was also premature to effectively dismiss any claims for the first or second injuries (it not being conceded that they were separate injuries) as an AMS might take a different view as to apportionment.
The Arbitrator identified (at [45]) the issue as turning on the meaning of “an injury” in s 66(1). She correctly noted that, in the Application to Resolve a Dispute, “only one assessment [was] sought for permanent impairment for [the] lumbar spine and scarring for a claimed 26 per cent [impairment], with three dates of injury listed” ([20]), and that Ms Barnes had “not sought separate assessments of impairment”.
The Arbitrator said (at [48]) that Dr Assem attributed the 26 per cent whole person impairment to the combined effects of all the separate incidents and that he did not actually assess the impairment separately for each event. She said that he then “apportion[ed]” the 26 per cent impairment between the three incidents. She found that “‘apportionment’ is not the same as impairment” ([48]).
Referring to s 66(1), the Arbitrator said that if “injury” means pathology, Ms Barnes “arguably” had “one” pathology, “that is to her lumbar spine” and this interpretation would mean she has made a claim for “an injury” to her lumbar spine resulting in impairment of greater than 10 per cent.
The Arbitrator accepted Mr Stanton’s submission that Ms Barnes had “really only made a claim for one impairment and that it related to three incidents does not detract from the fact that she has one impairment” ([49]). As there was only one employer (and, presumably, only one insurer), apportionment was not sought.
Consistent with these findings, the Arbitrator remitted the matter to the Registrar for referral to an AMS to “assess the permanent impairment in relation to injury to the lumbar spine from 24 February 2006, 13 March 2008, and 21 July 2011” ([51]). The Commission issued a Certificate of Determination in these terms on 10 March 2015.
The employer seeks leave to appeal the Arbitrator’s determination and order.

LEAVE TO APPEAL

There is no right of appeal under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) against an interlocutory order except with the leave of the Commission (s 352(3A)). Leave to appeal is required in the present matter. That is because, as the Arbitrator’s determination has not finally determined the parties’ rights, but merely remitted the matter to the Registrar for referral to an AMS, the Arbitrator’s order is interlocutory (Licul v Corney [1976] HCA 6; 180 CLR 213 at 225).
The Commission is not to grant leave unless it is of the opinion that “determining the appeal is necessary or desirable for the proper and effective determination of the dispute” (s 352(3A)).
Mr Saul has submitted that it is desirable for the proper and effective determination of the dispute that leave be granted because the appeal directly affects the task the AMS is to perform, being whether or not the AMS is directed to assess permanent impairment for the injuries occurring in 2006 and 2008 or whether those injuries should not be part of the AMS’s referral. While I have real reservations about the merit of that submission, noting that there is a strong argument that the appeal is premature, Mr Stanton has not objected to leave being granted.
In the circumstances, I grant leave to appeal.

ON THE PAPERS

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

ISSUE IN DISPUTE

The only issue identified by Mr Saul is whether the Arbitrator erred in the interpretation of the words “an injury” in s 66(1).
This broad allegation did not properly identify the ground/s of appeal. Those grounds are buried in the submissions filed in support. That did not comply with Practice Direction No 6 and was unsatisfactory and unacceptable. The grounds of appeal, as outlined in the body of the submissions, are whether the Arbitrator erred in:
(a) finding that the three injurious events resulted in only “an injury” pursuant to s 66(1);
(b) finding that “injury” in s 66(1) means “pathology”;
(c) incorrectly interpreting Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie), and
(d) accepting Mr Stanton’s submission that Ms Barnes “really only made a claim for one impairment”.
The profession is reminded, yet again, that appeals must comply with Practice Direction No 6. The Practice Direction requires that the grounds relied on in support of the appeal be briefly, but specifically, stated and that submissions in support deal with each ground.

SUBMISSIONS

Mr Saul submitted that the Arbitrator erred in finding (at [48]) that:
“It follows, as explained in Jaffarie, that there is a long line of authority for the word ‘injury’ to mean ‘pathology’. Ms Barnes alleges she has sustained ‘injury’ (or ‘pathology’) to her lumbar spine arising from three incidents in the course of her employment with the [appellant]. … If ‘injury’ means ‘pathology’ Ms Barnes arguably has ‘one’ pathology; that is to her lumbar spine. This interpretation would mean she has made a claim for ‘an injury’ to her lumbar spine resulting in impairment of greater than 10 per cent.”
Mr Saul contended that the Arbitrator erred in finding that “injury” in s 66(1) means “pathology”, and erred by incorrectly interpreting Jaffarie as supporting this proposition. He said that Jaffarie held that “injury” in s 4 (of the 1987 Act) includes both the injurious event and the pathology arising from an event. He said that the same meaning must be given to “an injury” in s 66(1).
He contended that Jaffarie is not authority for the proposition that there is only one injury to be found in the context of three separate injurious events, simply because there is the same pathology or insult to the same body part, and the Arbitrator erred in finding (at [48]) that three separate injuries to the lumbar spine resulted in only “an injury”.
In the present claim, there were three separate injurious events and it is not disputed that each of those injurious events resulted in some form of pathology to the lumbar spine. Thus, there have been three separate injuries that satisfy s 4 and s 66(1), and the Arbitrator erred in finding that there was only one injury or “an injury”.
Mr Saul submitted that the Arbitrator erred in accepting Mr Stanton’s submission that Ms Barnes “really only made a claim for one impairment and [the fact] that it related to three incidents does not detract from the fact that she has one impairment” ([49]). This was contrary to the plain words of s 66(1) that “[a] worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive … compensation for that permanent impairment”.
He contended that Dr Assem assessed the degree of permanent impairment that results from each of the three separate injuries and the fact that they total 26 per cent does not overcome the s 66(1) threshold requirement for each injury.
Mr Saul argued that the referral of each of the three injuries to an AMS for assessment is “entirely inconsistent with [the Arbitrator’s] earlier finding of ‘an injury’ which further highlights the [A]rbitrator’s error”. He contended that the injuries in 2006 and 2008 were “separate injuries – regardless of what pathology is said to have been caused in the two incidents”.
He said that the Arbitrator’s finding would give rise to significant difficulties in cases involving multiple injuries with different employers. If different employers had employed the worker at the time of each of the three injuries, there would be a significant issue as to which employer should be liable for the “one injury” arising from the three separate “injurious events”.
Ms Barnes’s own claim for lump sum compensation specifically claimed the three separate dates of injury and the whole person impairment resulting from each, which was inconsistent with her submission that there was only one injury and one impairment.
Last, Mr Saul submitted that since the Arbitrator found that the three injurious events resulted in only “an injury” pursuant to s 66(1), which finding is challenged, it is not necessary to engage in any argument concerning aggregation of impairments to satisfy the s 66(1) threshold. Such aggregation, in any event, is contrary to Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59 at [106]–[112] (Sukkar). This part of Sukkar was not affected by the Court of Appeal’s decision in the same case (Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459).
In conclusion, Mr Saul said that the appeal should be allowed and the Arbitrator’s decision revoked “as neither the injury on 24.02.06 (5% WPI) nor the injury on 13.03.08 (5% WPI) satisfies the s 66(1) threshold of ‘greater than 10%’”. Thus, the claims for each of those injuries should not be referred to an AMS for assessment.
After setting out a summary of the relevant statutory provisions, Mr Stanton submitted that the appellant’s liability to pay a s 66 lump sum is a liability that “can result from more than one injury”.
Mr Stanton submitted that “injury” in s 66 is not confined to a single injurious event. The word incorporates the plural as well as the singular (s 8 of the Interpretation Act 1987). Sections 33, 60 and 66 of the 1987 Act all refer to matters arising from “an injury” but the authorities accept that if a series of injuries all contribute to an ultimate incapacity, the liability to pay weekly compensation flows from the last injury from which the incapacity resulted (Morris v George [1977] 2 NSWLR 552; National & General Insurance Co Ltd South British Insurance Co Ltd (1982) 149 CLR 327; Insurers’ Guarantee Fund v GIO General Ltd (1994) 33 NSWLR 247).
Moreover, Mr Stanton argued that the apportionment provisions in s 22 of the 1987 Act contemplate that a “permanent impairment” can result from “more than one injury”. As such, the term “an injury”, where it appears in ss 33, 60 and 66 should be regarded as including the plural form, as is permitted by s 8 of the Interpretation Act 1987. To the extent that Merchant v Shoalhaven City Council [2015] NSWWCCPD 13 (Merchant) came to a contrary position it was wrongly decided.
Relying on Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (Edmed), Mr Stanton submitted that if the pathology is the same in two or more incidents, the separate degrees of impairment can be aggregated for the purpose of meeting the relevant threshold (s 322 of the 1998 Act; Central West Group Apprentices Ltd v Barrett [2008] NSWWCCPD 137). The Arbitrator correctly applied this principle, which is not affected by the amendments introduced by the 2012 amending Act.
Last, Mr Stanton said that it was not accurate to describe the Arbitrator as having found that there was only “an injury”. That is because, when read as a whole, it is apparent that she regarded herself as dealing with three (undisputed) injurious events. As such, no error is identified.
In reply, Mr Saul submitted that:
(a) Ms Barnes’s case before the Arbitrator was that there was only one injury, not multiple injuries and he “takes issue” with Mr Stanton’s submission on appeal that “injury” in s 66(1) should be interpreted as “injuries”;
(b) Mr Stanton’s submissions concerning s 22 are not relevant to the Arbitrator’s finding of only one injury, as this section applies to impairment(s) arising from multiple injuries. Therefore, the decision of Edmed has “no application”, and
(c) Mr Stanton’s submission that the matter should be referred to an AMS, because each of the injuries has been conceded, fails to recognise that there is a threshold liability issue under s 66(1) and s 321(4) of the 1998 Act, and the Arbitrator treated it as such.
Dealing with Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354 at [20] (Serna), which the Commission drew to the appellant’s attention by letter dated 25 May 2015, Mr Saul submitted that that case is distinguishable because:
(a)     it concerned a claim for work injury damages in respect of the 15 per cent threshold required by s 151H and “involved different considerations to the present appeal”;
(b)     it was decided before the 2012 amendments were made to s 66;
(c)     it concerned the validity of a Medical Assessment Certificate (MAC) in circumstances where the AMS had not made any apportionment of the permanent impairment assessment between two dates of injury and it was held that this did not render the MAC invalid;
(d)     the facts and medical evidence in the present appeal are different. Ms Barnes’s claim for lump sum compensation relies entirely on the opinion of Dr Assem, who has “specifically and separately apportioned the degree of impairment resulting from each of the three injuries, ie 5% WPI for the injury on 4 February 2006, 5% WPI for injury in 2008, and 16% WPI for injury on 21 July 2011” (emphasis included in the submission). Unlike Serna, Dr Assem did not treat the degree of impairment as arising from “one indivisible injury” (emphasis included in the submission), but rather assessed a specific impairment resulting from and relating to each of the three injuries. Ms Barnes’s claim was made in respect of each of those three separate injuries;
(e)     in dealing with a submission from the appellant (in Serna) that the 1987 Act prevents the accumulation of the consequences of separate incidents to satisfy the 15 per cent whole person impairment threshold, Basten JA said that “[i]f this analysis is to operate, it must do so in some circumstances and not others” (emphasis included in the submission). The present appeal is one of those circumstances. There are three injurious events, each giving rise to a sudden and identifiable pathological consequence, thus satisfying the definition of a personal injury pursuant to s 4(a) of the 1987 Act and the degree of impairment resulting from each injury has been separately assessed, and
(f)      given that Dr Assem has made separate assessments for each of the three injuries and did not find an impairment arose “from one indivisible injury” (emphasis included in the submission), the Arbitrator erred by finding that there was only “one injury” arising from three separate incidents rather than three distinct injuries each of which has resulted in a separate degree of permanent impairment.

DISCUSSION AND FINDINGS

Mr Saul’s submissions, which he expressed in his usual confident and direct manner, are plainly wrong and are rejected.
The fact that “injury” can, in some circumstances, also refer to an injurious event does not assist the appellant. The word “injury”, as used in the 1987 Act, can have two, possibly three meanings: the injurious event, the pathology and, possibly, injury meaning “condition” (Holdlen Pty Ltd v Walsh [2000] NSWCA 87 at [33]). The sense in which the term “injury” is used will depend on its context (Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179 at [73]). In a claim for lump sum compensation under s 66, the context is a claim for lump sum compensation for the whole person impairment that has resulted from the relevant pathology that has resulted from the particular work incident upon which the worker has sued. The authorities are clear that, in context, the relevant “injury” in s 66 is the pathology.
As was explained by Giles JA (Hodgson JA and Brownie AJA agreeing) in Wyong Shire Council v Paterson [2005] NSWCA 74 at [38], the description of how the injury was received, for example, due to a frank injury or due to repetitive activities (often, though unhelpfully, referred to as a “nature and conditions claim”) “are descriptions of mechanisms for suffering an injury”. In other words, an “incident” (an injurious event) is only a mechanism for suffering an injury and is not itself a s 4 injury. The relevant “injury” in s 4 is therefore the pathology that has arisen out of or been received in the course of the employment.
Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 held that a “personal injury” is “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”. The cause of the injury (the injurious event) is “not the important matter” (Latham CJ in Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; 61 CLR 120 at 129) in determining the compensation payable. (Obviously, however, the cause of the injury, and the circumstances in which it is received, will be important in determining if the injury was received in circumstances giving rise to an entitlement to compensation under the legislation. His Honour was saying that the important matter is the consequence of the injury, both in terms of pathology and in terms of the economic consequences.)
It follows that, on this approach, assuming (without deciding) that Ms Barnes suffered the same pathology in each incident, it would have been open to the Arbitrator to make the remittal to the Registrar in the terms she made it and she did not misinterpret Jaffarie. Jaffarie made it clear, by reference to the authorities quoted in the preceding paragraphs that, in the context of a claim for permanent impairment compensation, the relevant “injury” is the pathology, even though, in other contexts, injury may also include the injurious event.
However, in the present case, these points are largely academic. That is because Mr Stanton did not argue that the pathology was the same in each of the three incidents. Indeed, he did not address on the nature of the pathology. He expressly avoided that argument, noting that it was sensible to agitate those matters, if they have to be argued at all, “after an AMS referral has occurred” (T16.2). More importantly, the Arbitrator did not determine the case on the basis that the pathology in each incident is identical. She merely said that “[i]f ‘injury’ means pathology Ms Barnes arguably has ‘one’ pathology; that is to her lumbar spine” (emphasis added) and that this interpretation (if adopted) would mean that she has made a claim for “an injury” to her lumbar spine resulting in impairment of greater than 10 per cent.
If Ms Barnes has suffered only one pathology in the three incidents, and I note that Dr Assem seems to suggest that that is so (see [6] above), it may well be open to find that she has suffered only one injury. Under s 322(2), the impairments from “the same injury” are to be “assessed together” to assess the degree of permanent impairment of the injured worker. Mr Saul’s submission that, because of Sukkar, aggregation is now not permitted, and that Edmed is wrong, is open to doubt. However, given the way the present case was argued and determined, it is not necessary for me to decide that issue and I do not do so. I note in passing that Sukkar concerned a claim for lump sum compensation for multiple hearing loss injuries in circumstances where the worker had made, and been paid for, an earlier claim and could only succeed if the assessment for that claim could be added to the assessment for a later claim. Sukkar determined that that was not possible under the amended legislation. That may be contrasted to the present matter where Ms Barnes has made only one claim for permanent impairment compensation.
The basis for the Arbitrator’s decision is that Dr Assem attributed the 26 per cent whole person impairment to the combined effect of all the separate incidents, that he did not assess the impairment separately for each event, and that Ms Barnes did not claim separate lump sum compensation for each incident. Dr Assem then apportioned the 26 per cent impairment between the three incidents. Apportionment is not the same as impairment (this issue is discussed further at [72]–[73] below). In this context, the Arbitrator accepted Mr Stanton’s submission that Ms Barnes had really only made a claim for one impairment. The fact that the impairment related to three incidents did not detract from the fact that Ms Barnes has one impairment. That finding was open on the evidence and involved no error.
Mr Saul’s argument is that Ms Barnes suffered “an injury” on 24 February 2006 and “an injury” on 13 March 2008 and, therefore, each of those injuries must meet the 10 per cent threshold before she can make a claim for permanent impairment compensation. Even if the first part of that submission is correct, that is, that Ms Barnes suffered a discrete injury in 2006 and another in 2008, it does not follow that each of those injuries must reach the 10 per cent threshold before they can be considered in her current claim for permanent impairment compensation.
That is because Mr Saul’s argument has wrongly assumed that Ms Barnes has separately claimed permanent impairment compensation for each of the three incidents. This submission is based on the letters from Ms Barnes’s solicitor of 20 February 2013 and 3 May 2013, which are in substantially the same terms. Those letters particularised a five per cent whole person impairment in respect of each of the first two incidents and a 16 per cent whole person impairment in respect of the third.
However, the letters made it clear that Ms Barnes was making only one claim, namely, a claim for $49,087.50, being the compensation payable for a 26 per cent whole person impairment that has resulted from the three work incidents. It is open to her to make that claim and the use of the singular (“an injury”) in s 66(1) does not prevent her doing so. That is because, as Mr Stanton submitted, and for the reasons discussed below, a single loss can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]).
Moreover, Mr Stanton’s submissions, which were consistent with Dr Assem’s evidence, made it clear that Ms Barnes was claiming that, as a result of the three incidents pleaded, she has suffered one impairment and that was and is the basis of her claim. Cases are determined on the evidence and arguments presented (Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 296–297), not on the pleadings or particulars, which are only a “means to an end” (Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd [1916] HCA 81; 22 CLR 490 at 517 (applied in CMA Corporation Ltd v SNL Group Ltd [2012] NSWCA 138 at [14] and [15])). Thus, if the particulars did claim separately for each incident, and I am firmly of the view that they did not, then, having regard to the way the case was argued, that makes no difference to the result.
I therefore do not accept Mr Saul’s submission that Ms Barnes separately claimed permanent impairment compensation for each of the three incidents. Even if that were her claim, it would be strongly arguable that, as the Arbitrator said, if the pathology is the same in each incident the three impairments should be “assessed together” under s 322(2). However, because of the way Ms Barnes has pleaded and argued her claim, that issue does not directly arise and I do not base my decision on it.
Further, under the Interpretation Act 1987, unless a contrary intention appears, the reference to a word in the singular form includes a reference to the word in the plural form (see ss 5 and 8 of the Interpretation Act 1987). (In making this statement, I am not suggesting that Merchant, which dealt with a similar issue, but in a significantly different factual and statutory context, was wrongly decided.) With respect to the current claim, no contrary intention appears in the legislation. Therefore, as a matter of statutory interpretation, in the appropriate case, “injury” in s 66(1) can include “injuries” and is not confined to a single injurious incident or single injury. Having regard to Dr Assem’s evidence, the present case is an appropriate case for such an interpretation.
It is correct that Mr Stanton did not rely on the Interpretation Act before the Arbitrator. However, three points need to be noted. First, the point raises a matter of statutory interpretation and Mr Saul has not suggested that further evidence is required to meet it. Second, Mr Saul has pointed to no prejudice his client would suffer if the point were raised for the first time on appeal. Last, the appellant has had every opportunity to meet Mr Stanton’s argument. Mr Saul merely submitted that “the appellant disputes this interpretation”. I have not found that submission persuasive or helpful.
In these circumstances, it is appropriate, and in the interests of justice, to “entertain the new point” (per Emmett JA (Bergin CJ in Eq and Sackville AJA agreeing) in Violi v Commonwealth Bank of Australia [2015] NSWCA 152 at [61]). The new point supports the interpretation of “injury” in s 66(1) as including “injuries”. It follows that, in the circumstances of the present case, and as Mr Saul submitted at the arbitration, it does not matter whether “an injury” in s 66(1) means “injurious event” or “pathology”.
A more important point arises, which also supports the Arbitrator’s statement that Ms Barnes has “really only made a claim for one impairment”. Just as it is for plaintiffs, in a claim for work injury damages, to plead their claims and to establish that any claimed impairment has resulted from the pleaded injury (or injuries) (Serna at [20]), so it is for applicants to do the same in proceedings in the Commission (NSW Police Force v Gurnhill [2014] NSWWCCPD 12 at [114]).
Serna dealt with the same issue before me, but in the context of a claim for common law damages. In that case, the question was whether the worker had satisfied the 15 per cent threshold to recover work injury damages in s 151H of the 1987 Act. (Section 151H states that no damages may be awarded unless “the injury” (singular) results in a degree of permanent impairment that is at least 15 per cent. Section 151E is in similar terms. It states that the relevant Division applies to an award of damages in respect of “an injury” to a worker.)
The worker in Serna was the victim of two separate and discrete robberies in the course of her employment: one on 29 May 1999 and the other on 2 July 1999. As a result of the robberies, she developed a psychological condition. An AMS assessed the worker to have a 15 per cent whole person impairment as a result of “this injury”. The AMS did not apportion responsibility between the two robberies. The employer argued that the assessment was either invalid or demonstrated on its face that there were two injuries, neither of which, assessed separately, could have reached 15 per cent permanent impairment, since they only reached that figure in combination (Basten JA at [17]). (The employer’s second argument in Serna is substantially the same argument presented by the appellant in the present matter.)
Basten JA referred to Woolage v State of New South Wales [2001] NSWCA 256 and Leppington Pastoral Co Pty Ltd v Juweinat [2002] NSWCA 228 (Juweinat). In Juweinat, not unlike the present case, the worker had injured his back in three separate lifting incidents. The employer argued that, if there were three incidents, there were three causes of action and damages had to be assessed separately in respect of each one. In rejecting that submission, Davies AJA (Stein JA and Forster AJA agreeing) said (at [23]) that the worker “was entitled to claim as the injury for which he sought compensation the condition which resulted from the three incidents in the appellant’s employment” (emphasis added).
The employer in Serna challenged the approach in Juweinat on grounds virtually identical to those argued by Mr Saul in the present matter. It argued that, under the 1987 Act, an injury was to be identified by reference to a particular incident and that an employee could not “accumulate the consequences of separate incidents so as to satisfy the [15 per cent threshold], below which a claim [for common law damages] must fail” (Basten JA at [21]). His Honour acknowledged that, if that analysis was to operate, it must do so in some circumstances but not others. His Honour observed (at [22]) that there would “undoubtedly be injuries, falling within the definition of ‘injury’ in s 4 of the Workers Compensation Act [1987], which do not arise from a specific incident or event”, but may result from exposure to work conditions over time. (There was no suggestion that the workers’ conditions in Serna or Juweinat resulted from exposure to work conditions over time.)
His Honour added (at [24]) that the threshold requirement that had to be satisfied before a claim for damages could be made was “identified by reference to a degree of permanent impairment of the injured worker”. The impairment results “from an injury”. After setting out s 151H, his Honour said (at [27]) that “impairment” was “also a state or condition that may result from more than one injury or may itself contain multiple forms”. After setting out ss 322 and 323, and noting that “impairment” was not defined in either the 1987 Act or the 1998 Act, his Honour said (at [29]):
“This statutory scheme is consistent with both an injury and an impairment having multiple causes and an injury being the result of a course of conduct. Where, either under the general law or pursuant to the statute, it is necessary to apportion liability or responsibility for a particular injury, that will be done, in the absence of contrary statutory prescription, according to general law principles: see, eg, Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 at [35] (Handley JA). There is no principle of general law or statutory provision which would suggest that a certificate identifying an injury resulting from more than one event or incident was, for that reason, invalid. The certificate might be subject to appeal or review because the reasons given by the assessor demonstrate legal error or, possibly, factual error. However, no such claim is supportable in the present circumstances.”
His Honour concluded that the appellant had not made out a basis for rejecting the AMS’s certificate.
The principles discussed in Serna and Juweinat are applicable in the present matter. Those principles establish that, consistent with the authorities relied on by Mr Stanton (see [37] above), a single impairment or condition can result from more than one injury. In the present matter, the Registrar will ask the AMS to make an assessment that will be in similar terms to that produced in Serna, and found to involve no error.
It would be completely illogical and unacceptable for there to be one approach to the assessment of whole person impairment for the threshold for work injury damages in s 151H, which states that no damages may be awarded unless “the injury” results in a degree of permanent impairment that is at least 15 per cent, and a different approach to the threshold for permanent impairment in s 66(1), which refers to a worker who receives “an injury” that results in a degree of permanent impairment greater than 10 per cent being entitled to receive compensation for that permanent impairment.
I do not accept that Serna (or Juweinat) can be validly distinguished from the present case. It makes no difference that those cases concerned claims for common law damages. The issue was and is the same as the issue before the Arbitrator, namely, the correct approach to the assessment of a single whole person impairment in circumstances where the worker has experienced more than one injurious event, or, to use Mr Saul’s language, received three separate injuries. The threshold requirement to be satisfied before permanent impairment compensation can be awarded is, as explained by Basten JA in Serna, “identified by reference to a degree of permanent impairment of the injured worker”. Moreover, as the authorities make plain, impairment is a state or condition that “may result from more than one injury”.
It is true that the failure of the AMS in Serna to apportion the permanent impairment assessment between the two dates did not invalidate the MAC. However, in the present case, the appellant’s argument is identical to that presented by the employer in Serna (and in Juweinat), namely, that an injury was to be identified by reference to a particular incident and that an employee could not “accumulate the consequences of separate incidents so as to satisfy the [15 per cent threshold], below which a claim must fail”. That argument was unanimously rejected in Serna and Juweinat. I also reject it in the present case. As Basten JA explained, the “statutory scheme is consistent with both an injury and an impairment having multiple causes”. Mr Stanton’s submissions are consistent with this statement of principle and are clearly correct.
I do not accept Mr Saul’s submission that the facts and medical evidence in the present case are relevantly different from Serna or Juweinat. In each of those matters, the worker experienced more than one injurious event and, on Mr Saul’s approach, suffered more than one “injury”: in Serna it was the psychological consequences of two separate and discrete armed robberies; in Juweinat it was three separate and discrete lifting incidents that caused injury to the worker’s back. In each case, the whole person impairment that resulted from the multiple incidents or injuries was claimed and assessed as one impairment. Ms Barnes has claimed lump sum compensation for one impairment and she seeks to have that impairment assessed by an AMS. She is entitled to have that done.
Mr Saul’s submission that Dr Assem assessed the degree of permanent impairment that results from each of the three separate incidents, and assessed the impairment from the first two to each be under 10 per cent, is not an accurate summary of the evidence. Dr Assem assessed Ms Barnes’s impairment that resulted from the three incidents or injuries to be 26 per cent. He then “apportioned the injuries”. In other words, he apportioned responsibility for the single impairment between the three incidents. As there is only one employer and, I assume, only one insurer, it was not necessary or appropriate for him to apportion liability for the impairment and his opinion on apportionment is not relevant to the issue before the Commission.
As the Arbitrator stated, apportioning liability for a single impairment is not the same as determining the degree of impairment that has resulted from each event or incident, though the results may appear similar. Apportionment attributes liability for the found loss or liability to one or more employers according to the contribution each employer has made to that loss or liability. That only occurs after an initial determination on liability.

As explained by Clarke JA (Priestley JA and Hunter AJA agreeing) in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCR 716 (Baltica), apportionment involves a two-stage process. An Arbitrator’s initial task is to determine the liability of an employer or employers to pay compensation to the worker. If a worker discharges his or her onus in a case where there are a number of work incidents or injuries, and apportionment is sought, the Arbitrator is then to apply the s 22 test, which will be satisfied if the incapacity (or, I would add, impairment) has resulted partly from one injury and partly from another or other injuries. (It should be noted that Baltica was decided before the current regime for the assessment of whole person impairment was introduced in 2002. Now, before compensation for permanent impairment compensation can be awarded (or apportioned), it is necessary that the degree of whole person impairment that has resulted from the injury be assessed by an AMS.)
The submission that, unlike the AMS in Serna, Dr Assem did not treat the degree of impairment as arising from “one indivisible injury” does not assist the appellant and, in any event, is not accurate. Dr Assem assessed a single impairment, which resulted from the three incidents pleaded. That was consistent with the fact that, contrary to Mr Saul’s submission, Ms Barnes did not claim compensation separately for each incident. She claimed $49,087.50 in respect of her 26 per cent whole person impairment. The AMS in Serna was not asked to apportion between the two incidents. However, that did not mean that he found that the impairment in that case was “one indivisible injury”. He did not address that issue. Dr Assem was asked to apportion the one impairment, but there was no need for him to do so. The fact that he offered an opinion on apportionment is of no consequence.
It may well be that, in some instances, the legislation prevents the accumulation of the consequences of separate incidents to satisfy a particular threshold (see, for example, Merchant, where it was held that the whole person impairments caused by multiple unrelated incidents to different body parts, involving different pathology, could not be aggregated to meet the “seriously injured worker” threshold of 30 per cent in s 32A of the 1987 Act). However, given the similarities between the issue in Serna and Juweinat, on the one hand, and the issue in the present claim, on the other, and given the clear statements of principle in Serna and Juweinat, only one conclusion is open: Ms Barnes is entitled to claim permanent impairment compensation in the manner she has, and is entitled to have that claim remitted to the Registrar for referral to an AMS for assessment.
Nothing in the amendments introduced by the 2012 amending Act undermines the clear statements of principle in Serna and Juweinat. The amendments merely restrict workers to making only one claim for permanent impairment compensation in respect of the permanent impairment that results from an injury (s 66(1A)) and eliminate any entitlement to compensation for pain and suffering. Ms Barnes has only made “one claim”. That is a claim for compensation for the permanent impairment that has resulted from the three incidents pleaded.
Provided a worker has made only one claim for permanent impairment compensation, then, contrary to Mr Saul’s submissions, no difficulty would arise if he or she has worked for different employers at the time of each incident. That is because, as explained above, one impairment can result from multiple events, and those events can occur with different employers. If that occurs, s 22 will apply according to its terms to apportion liability for the loss or liability between the different employers. That is because, assuming the evidence supports it, the multiple events will have contributed to the single impairment for which the worker seeks compensation.
The submission that the referral of the three injuries to an AMS is “entirely inconsistent with [the Arbitrator’s] earlier finding of ‘an injury’” is not correct. The remittal requires the AMS “to assess the permanent impairment in relation to the lumbar spine from 24 February 2006, 13 March 2008, and 21 July 2011”. The AMS is being asked to provide an assessment, as Dr Assem did, of the (single) permanent impairment that has resulted from the three pleaded incidents. That is consistent with the Arbitrator’s reasons and involves no error.

CONCLUSION

For the reasons explained in this decision, the Arbitrator’s determination involves no error and the appeal is unsuccessful. Ms Barnes has made only “one claim”, namely, a claim for permanent impairment compensation of $49,087.50 in respect of a 26 per cent whole person impairment, which impairment has resulted from the three events identified. That is so even if each event is regarded as a separate s 4 injury. Such a claim is open and is consistent with legislation and authorities. Different considerations would apply if Ms Barnes had separately claimed permanent impairment compensation for her either her 2006 injury or her 2008 injury. That is not the situation in the present case.

DECISION

For the reasons given in this decision, leave to appeal is granted and the Arbitrator’s determination of 10 March 2015 is confirmed.

Bill Roche
Deputy President

15 June 2015

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

ASSOCIATE