Westpac Banking Corporation v Hungerford - [2018] NSWWCCPD 50

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Westpac Banking Corporation v Hungerford [2018] NSWWCCPD 50
APPELLANT:	Westpac Banking Corporation
RESPONDENT:	Lynne Hungerford
INSURER:	Self-insured
FILE NUMBER:	A1-1925/18
ARBITRATOR:	Mr J Isaksen
DATE OF ARBITRATOR’S DECISION:	20 June 2018
DATE OF APPEAL DECISION:	15 November 2018
SUBJECT MATTER OF DECISION:	Deemed date of injury; s 16(1)(a) of the Workers Compensation Act 1987; claim for permanent impairment compensation; whether correct deemed date of injury is date of incapacity or date of claim
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	HWL Ebsworth Lawyers
Respondent:	Turner Freeman Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination of 20 June 2018 is confirmed.

INTRODUCTION

This appeal concerns the application of s 16(1)(a) of the Workers Compensation Act 1987 (the 1987 Act).
The issue on appeal is whether, in a claim for permanent impairment compensation, the injury is deemed to have happened on the date the claim for permanent impairment compensation is made, or whether the injury is deemed to have happened when the worker was first incapacitated in respect of the injury giving rise to the claim.
For the reasons that follow, the Arbitrator was correct to find that, in the circumstances of this case, the deemed date of injury is the date the claim for permanent impairment compensation was made.

BACKGROUND

In March 1988, Lynne Hungerford, the worker, commenced employment as a bank teller with Westpac Banking Corporation, the appellant.
On 11 February 2009, Ms Hungerford notified the appellant of an injury to her right thumb, hand and wrist. She claimed the injury was attributed to the nature of her employment duties as a bank teller with the appellant.
On 3 May 2010, the appellant accepted liability for the claim and paid weekly payments of compensation from that time.
On 14 July 2010, Ms Hungerford underwent surgery on her right wrist, under the hand of Dr Ian Incoll, orthopaedic surgeon. The appellant paid for the cost of the surgery.
Following surgery, Ms Hungerford was incapacitated for work from 14 July 2010 to 15 September 2010. She returned to suitable duties on 16 September 2010, until she ceased employment with the respondent in November 2011. She was certified totally unfit for work and she did not work again.
On 4 July 2017, pursuant to s 66 of the 1987 Act, Ms Hungerford claimed permanent impairment compensation of $100,650 for 44% whole person impairment of the right upper extremity (thumb, hand, wrist, elbow and shoulder) and left upper extremity (thumb, hand, wrist, elbow and shoulder).
On 4 September 2017, the appellant issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The appellant denied the claim.
On 8 September 2017, however, the appellant accepted liability for injury to the right thumb, hand and wrist. Relying on a report of Dr James Masson, dated 11 July 2017, the appellant offered $30,250 for 20% whole person impairment. However, the appellant disputed liability in relation to the right elbow, right shoulder, left hand, left wrist, left elbow and left shoulder.
On 17 April 2018, Ms Hungerford lodged an Application to Resolve a Dispute (the Application). Relying on the report of Dr Min Fee Lai, general surgeon, Ms Hungerford claimed lump sum compensation pursuant to s 66 of the 1987 Act for 44% whole person impairment. She claimed lump sum compensation in respect of injury to the right upper extremity, being the hand, thumb, wrist, elbow and shoulder, and consequential conditions in the left upper extremity, being the hand, thumb, wrist, elbow and shoulder, with a deemed date of injury being 4 July 2017.
On 14 May 2018, attached to an Application to Admit Late Documents, the appellant lodged a reply to the Application relying on the s 74 notice, amongst other things.
The matter was listed before a Commission Arbitrator for teleconference on 22 May 2018 and conciliation and arbitration hearing on 14 June 2018. The Arbitrator reserved his decision following the conciliation and arbitration proceeding.
On 20 June 2018, the Arbitrator delivered an extempore decision. He found Ms Hungerford’s injury to the right hand and wrist consisted in the aggravation of an arthritic disease condition falling within s 4(b)(ii) of the 1987 Act. The Arbitrator found that Ms Hungerford did not suffer an injury as a result of the nature of her duties as a bank teller with the appellant.
Further, the Arbitrator found that Ms Hungerford suffered a consequential condition to her left hand and wrist as a result of over compensation for her injured right hand and wrist. However, he was not satisfied that Ms Hungerford sustained consequential conditions to any other disputed body parts, being the right and left elbow and shoulder.
Also on 20 June 2018, the Arbitrator issued a Certificate of Determination in the following terms:
“The determination of the Commission in this matter is as follows:
1.     The applicant sustained an injury to her right hand and right wrist in the course of her employment with the respondent with a deemed date of injury of 4 July 2017.
2.     The applicant sustained a consequential injury to the left hand and left wrist as a result of the injury to the right hand and right wrist in the course of her employment with the respondent with a deemed date of injury of 4 July 2017.
3.     Award for the respondent in respect of the claim for injury to the right elbow, right shoulder, left elbow and left shoulder.
The Commission orders:
1.     This matter is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) as follows:
Date of injury:                 4 July 2017
Body Part:Right upper extremity (hand and wrist); left upper extremity (hand and wrist)
Method of Assessment: Whole Person Impairment
2.     The following documents are to be referred to the AMS:
(a)Application to Resolve a Dispute and attachments;
(b)Application to Admit Late Documents dated 14 May 2018 which attaches Reply with attachments.”
The appellant appeals the Arbitrator’s decision, in respect of the finding that the deemed date of injury was the date of claim for permanent impairment compensation. The appellant does not dispute the Arbitrator’s findings on injury.

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.

PRELIMINARY MATTERS

Threshold matters

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

Interlocutory issue

Section 352(1) of the 1998 Act provides for an appeal “against a decision in respect of the dispute by the Commission constituted by an Arbitrator”. A “decision” is defined in s 352(8) of the 1998 to include “an award, interim award, order, determination, ruling and direction”.
Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The appellant submits that the Arbitrator’s decision is not interlocutory as it finally disposes of the rights of the parties.[1] While Ms Hungerford is to be referred to an Approved Medical Specialist (AMS) for assessment, the appellant submits that the Arbitrator’s decision with respect to the deemed date of injury finally determines the parties’ rights in that it mandates that the amount of compensation payable in relation to the assessment of permanent impairment compensation is based on the 2015 amendments to the 1987 Act. This point was not further developed.
[1] Citing, Licul v Corney [1976] HCA 6; 50 ALJR 439, 443-44.
In the alternative, the appellant submits that if the Arbitrator’s decision is interlocutory leave to appeal should be granted, in circumstances where an interlocutory order or finding is a step in a procedure leading to final judgment.[2]
[2] Citing, Moore v Greater Taree City Council [2009] NSWWCCPD 17 and Ozblue Constructions Pty Ltd v Lang [2009] NSWWCCPD 3.
The respondent submits that the subject matter of the decision is interlocutory. However, the respondent accepts that it may be appropriate to determine the appeal at this stage. It submits that “the issue about the date of injury only becomes relevant after the degree of permanent impairment has been as ascertained but there will not be any other issues to be determined before a Certificate of Determination is issued.”
The general principle regarding interlocutory decisions, commonly cited in Commission decisions, can be derived from Licul v Corney, where Gibbs J said:
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co v Ghosh [[1971] 2 QB 597] - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant [[1966] HCA 36; 117 CLR 423], should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”[3]
[3]Licul v Corney, 225.
The Arbitrator’s decision to refer the matter to the Registrar for referral to an AMS does not finally dispose of the rights of the parties. That is because the degree of Ms Hungerford’s permanent impairment remains unresolved.
Whether it is before or after the matter is referred to an AMS for the purposes of an assessment of Ms Hungerford’s whole person impairment, the question raised on this appeal, namely the “correct date of the deemed date of injury”, must be determined. If leave to appeal is refused, the matter would proceed to an AMS to determine the extent of any whole person impairment suffered by Ms Hungerford. At that point, the Commission would enter final orders and the appellant would be entitled to lodge a further appeal.
Having regard to the respondent’s concession that it is appropriate to determine the appeal at this stage, and in the interest of avoiding any delay, I consider that it is desirable for the proper and effective determination of the dispute that the issues for determination be resolved now. Therefore, although the Arbitrator’s determination is interlocutory, I grant leave pursuant to s 352(3A) of the 1998 Act for the appeal to proceed.

FRESH EVIDENCE

Fresh evidence on appeal is governed by s 352(6) of the 1998 Act, which provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Practice Direction No 6 – Appeal Against a Decision of an Arbitrator sets out the procedure for admitting fresh evidence on appeal.
In CHEP Australia Ltd v Strickland[4] Barrett JA (Mcfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour said:
“In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”[5]
[4][2013] NSWCA 351; 12 DDCR 501 (Strickland).
[5]Strickland, [27].
The appellant seeks to introduce as fresh evidence a list of payments showing weekly compensation paid to Ms Hungerford in relation to her workplace injury.
The appellant submits that leave should be granted to admit the evidence into proceedings “to clarify and confirm the fact that [Ms Hungerford] has been in receipt of weekly payments of compensation as a result of her injury from 14 July 2010”.
The respondent has not taken issue with the introduction of the fresh evidence.
Applying CHEP Australia Ltd v Strickland, I make the following findings. As to the first limb, the appellant’s submissions do not address whether with due diligence the evidence was available to be placed before the Arbitrator. Clearly the evidence was available as the list could readily have been obtained from the insurer and filed with the Application had the appellant’s legal representatives chosen to do so. It follows that this limb fails.
As to the second limb, it is arguable that continued unavailability of the evidence would cause a substantial injustice in the case. It is clearly in the interests of justice that the issues before me proceed on the correct factual footing. The list of payments enables the matter to proceed on the correct factual footing, because it clarifies and confirms the period Ms Hungerford has been in receipt of weekly payments of compensation as a result of her injury.
The respondent’s submissions proceed, at least inferentially, on the assumption that Ms Hungerford has been incapacitated since 14 July 2010 and has been in receipt of weekly payments of compensation since that time. In the circumstances, there is no injustice to the respondent in allowing the fresh evidence to be introduced.
For the above reasons, I am of the view that the exclusion of the fresh evidence would cause substantial injustice. It follows that the second limb succeeds.
For these reasons, in the exercise of my discretion, I grant leave pursuant to s 352(6) of the 1998 Act for the fresh evidence to be admitted on the appeal.

THE ARBITRATOR’S REASONS

As I have stated, the Arbitrator found that Ms Hungerford suffered injury to the right hand and wrist which consisted in the aggravation of her arthritic disease condition and therefore fell within s 4(b)(ii) of the 1987 Act. He further found that Ms Hungerford suffered a consequential condition to her left hand and wrist as a result of over compensation for the injured right hand and right wrist. The Arbitrator found against Ms Hungerford in respect of all other disputed injuries and consequential conditions. Those findings are not challenged. However, a challenge is made to the Arbitrator’s findings with respect to the deemed date of injury, namely 4 July 2017.
The Arbitrator rejected the appellant’s submission that there should be different dates of injury for the left and right limb injuries. The Arbitrator found that as the condition of the left limb was consequential upon the injuries to the right limb, only one date of injury applies. The Arbitrator found the repetitive work undertaken by Ms Hungerford as a bank teller was the main contributing factor to the aggravation of the arthritic condition which led to the surgery and ongoing pain and disability.
The Arbitrator held:
“I therefore consider that the date of injury should be the date of claim being 4 July 2017. That is consistent with the provisions of section 16 of the 1987 Act and consistent with decisions such as Alto Ford Pty Limited v Antaw [1999] NSWCA 234 and Stone v Stannard Brothers Launch Services Pty Limited [2004] NSWCA 277. It is also consistent with section 322 of the 1998 Act that impairments that result from the same injury are to be assessed together.
So in conclusion, the determination which I make will be as follows:
(1)     [Ms Hungerford] sustained an injury to her right hand and right wrist in the course of her employment with the respondent with a deemed date of injury of 4 July 2017.
(2)     [Ms Hungerford] sustained a consequential injury to the left hand and left wrist as a result of the injury to the right hand and right wrist in the course of her employment with the respondent with a deemed date of injury of 4 July 2017.
(3)     …”[6]
[6] Transcript of Proceedings, Hungerford v Westpac Banking Corporation (WCC 1925/18, Arbitrator Isaksen, 20 June 2018, T 32.20).

GROUND OF APPEAL

The appellant alleges that the Arbitrator erred in concluding that the deemed date of injury is taken to be the date of the claim for permanent impairment compensation (4 July 2017) rather than the date of incapacity (14 July 2010).

SUBMISSIONS

The appellant’s submissions

The appellant submits that the Arbitrator provided inadequate reasons. In particular, the Arbitrator failed to explain why s 16(1)(a)(ii) of the 1987 Act rather than s 16(1)(a)(i) applies in the circumstances of the present case.
Further, so it is submitted, the Arbitrator’s reasons fail to explain why the deemed date of injury is held to be the date of claim for permanent impairment compensation rather than the date of incapacity.
The appellant submits that the relevant deemed date of injury is 14 July 2010, being the date of incapacity following surgery to Ms Hungerford’s right wrist. The appellant submits that Ms Hungerford was incapacitated from 14 July 2010 and has received weekly benefits since that date.
On a plain reading of s 16(1) of the 1987 Act, the deemed date of injury is 14 July 2010 when the appellant underwent surgery to the right wrist.
The cases cited by the Arbitrator do not support the ultimate conclusion. The cases cited by the Arbitrator do not support the proposition that the deemed date of injury under s 16 of the 1987 Act is determined simply by reference to the type of compensation claimed.
The decision in Stone v Stannard Brothers Launch Services Pty Ltd[7] involved a claim for permanent impairment compensation where there was and could be no claim for weekly compensation. On that basis, the deemed date of injury occurred when the claim for lump sum compensation was made.
[7][2004] NSWCA 277; 1 DDCR 701 (Stone).
Alto Ford Pty Ltd v Antaw[8] involved the application of s 15 and not s 16 of the 1987 Act. Unlike Antaw, in the present case Ms Hungerford’s claim for permanent impairment compensation is not a claim for further permanent impairment compensation under s 66 of the 1987 Act. In this case there was no previous claim for permanent impairment compensation and Ms Hungerford has been continuously incapacitated since 14 July 2010.
[8][1999] NSWCA 234; 18 NSWCCR 246 (Antaw).
In White v Sylvania Lighting Australasia Pty Ltd the Commission considered and applied the decision of the Court of Appeal in Antaw. The Commission found the deemed date of injury (namely, 13 January 2010) to be the date of claim. The appellant relies on the reasoning of Deputy President Roche:
“Mr White’s aggravation injury first caused incapacity in May 2000. However, as in Antaw, his incapacity (in the sense explained in Alfonzo) has not resulted from the further losses for which he claimed additional lump sum compensation on 13 January 2010. Therefore, an application of Antaw leads to the result that Mr White’s injury, for the purposes of his claim for additional lump sum compensation, is deemed to have happened on the date he made his claim on 13 January 2010.
Antaw involved a claim for additional lump sum compensation because of a further loss, as does Mr White’s claim. Though Antaw concerned s 15 and not s 16 of the 1987 Act, that is of no consequence. The Court referred to sub-s (4) of s 15, which is in identical terms to sub-s (3) of s 16…”[10] (emphasis added by the appellant)
[10] Citing White, [82]–[83].

In P & O Berkeley Challenge Pty Ltd v Alfonzo[11] the worker suffered two periods of incapacity with separate employers. She sought compensation for incapacity following the second period of incapacity. Applying Alfonzo in White, Deputy President Roche explained that the relevant deemed date of injury was not the date of the first incapacity but was the date of incapacity for which compensation was claimed or entitled to be claimed.
[11][2000] NSWCA 214; 49 NSWLR 481; 20 NSWCCR 554 (Alfonzo).
The appellant submits that in the present case Ms Hungerford has suffered an ongoing incapacity for employment from the time she underwent surgery to her right wrist on 14 July 2010 to the present. Given that her employment with the appellant ceased on 11 November 2011, the symptoms and pathology resulting in Ms Hungerford’s ongoing incapacity for employment is indistinguishable from the symptoms and pathology for which her claim for permanent impairment compensation is founded.
Further, Ms Hungerford’s claim for permanent impairment compensation is not a further claim for lump sum compensation nor a claim for additional compensation as a result of deterioration or worsening of her condition.
The appellant claims that the authorities relied on by the Arbitrator do not support the finding that the date of injury is deemed to be the date of claim for permanent impairment.
Further, it is submitted that the Arbitrator’s reference to s 322 of the 1998 Act is irrelevant to fixing the date of injury and has no bearing on the operation of s 16(1) of the 1987 Act. The appellant accepts that the assessment of impairment from the accepted injuries to the left limb and the consequential injuries to the right limb are to be assessed together in accordance with s 322.

The respondent’s submissions

The respondent submits that the Arbitrator’s determination of the deemed date of injury was correct. It submits that the appeal should be dismissed.
The respondent submits that in construing s 16(1)(a) of the 1987 Act, the question of the time of death or incapacity referred to in the section must be related to the compensation being claimed. The fact that there may have been a prior period of incapacity is irrelevant when determining the deemed date of injury.[12]
[12] Citing, Stone.
A claim for permanent impairment compensation is a claim for the loss of a thing as a result of an injury, within s 66(1) of the 1987 Act, which loss is to be treated as an injury in s 16(1), as provided for by s 16(3).[13]
[13] Citing, Alfonzo.
Further, the respondent submits that the central part of the reasoning is that the deemed date of injury depends upon the type of compensation being claimed. In this case where the claim is for permanent impairment benefits, the deemed date of injury will be the date of claim. Different deemed dates of injury may be fixed to determine the relevant date for incapacity and permanent impairment claims.
The approach for which the respondent contends was recently applied in SAS Trustee Corporation v O’Keefe.[14] In that case the Court of Appeal followed the line of authority referred to above, concluding that where the claim relates to a claim for lump sum compensation, any earlier claim for weekly compensation is irrelevant for the purposes of establishing the deemed date of injury. In a permanent impairment claim, the injury is deemed to have happened when the lump sum claim is made.
[14] Citing, [2011] NSWCA 326 (O’Keefe).
The approach identified above was applied by the Commission in Saad Bros Motor Pty Ltd v Simon.[15]
[15][2014] NSWWCCPD 22 (Simon).

LEGISLATION

Section 16 of the 1987 Act provides:
“16    Aggravation etc of diseases—employer liable, date of injury etc (cf former ss 7 (4A), (5), 16 (1A))
(1)     If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a)the injury shall, for the purposes of this Act, be deemed to have happened:
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
(2)     Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case:

where:
C is the contribution to be calculated for the particular employer concerned.
T is the amount of compensation to which the employer is required to contribute.
A is the total period of employment of the worker with the employer during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.
B is the total period of employment of the worker with all employers during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.
(3)     In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.
(4)     This section does not apply to an injury to which section 17 applies.”

CONSIDERATION

This appeal is misconceived. Contrary to the appellant’s submissions, the authorities relied on by the Arbitrator support the finding that the deemed date of injury, in the circumstances of this case, is determined by reference to the type of compensation claimed.
The Arbitrator found that the injury to the right hand and right wrist consisted in an aggravation of a disease injury under s 4(b)(ii) of the 1987 Act, caused by the repetitive work undertaken by Ms Hungerford as a bank teller. That finding is not challenged. In such cases, s 16 of the 1987 Act applies to determine when such an injury is deemed to have happened.
The application of s 16 of the 1987 Act has been the subject of numerous decisions in this Commission including Visy Board Pty Ltd v Ali,[16] White and Simon. Those cases trace the line of authority commencing with GIO Workers Compensation (NSW) Ltd v GIO General Ltd.[17]
[16][2007] NSWWCCPD 22.
[17](1995) 12 NSWCCR 187.
In O’Keefe, Handley AJA, McColl JA agreeing, set out a useful summary of the relevant principles. His Honour said:
“95. The Court has decided that incapacity in s 16(1)(a)(i) means incapacity for which weekly compensation is or can be claimed: GIO Workers Compensation (NSW) Ltd v GIO General Ltd (GIO) (1995) 12 NSWCCR 187, 196 per Sheller JA; P&O Berkeley Challenge Pty Ltd v Alfonzo (Berkeley) (2000) 49 NSWLR 481, 487 per Priestley JA; and Stone v Stannard Bros Launch Services Pty Ltd [2004] NSWCA 277, 1 DDCR 701 (Stone) at [5] per Handley JA, and [37] per Hodgson JA.
96.   These cases also decided that s 16(1)(a)(i) only applies to a claim for weekly compensation, and that the section fixes different dates of injury for different purposes. In GIO at 196 Sheller JA, who gave the principal judgment said, of the comparable provision in s 15(1)(a)(i), that the reference to incapacity was ‘a reference to the incapacity for which compensation is claimed’. He added (p 196) that whether there was an incapacity or death claim ‘In neither case does it matter that there were earlier periods of incapacity resulting from the injury.’
97.   In Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246 Sheller JA, who gave the principal judgment, held [13] that the trial Judge had not erred in law in finding [12] that the deemed date of injury for the incapacity claim was in January 1992 while the deemed date of injury for the s 66 claim was in July 1996.
98.   In Berkeley [2000] 49 NSWLR 481 at [28]-[30], Priestley JA, who gave the principal judgment, held that s 16(1) refers to incapacity creating an entitlement to weekly compensation. He added [32] that s 16(3) ‘appears reasonably plainly to serve the function of fixing dates for injuries entitling a worker to compensation ... under s 66 and s 67.’
99.   In Stone (2004) 1 DDCR 701 Handley JA referred to these cases and said [10]:
‘Even if s 16(1)(a)(i) was capable of operating in this case to fix a date for the worker's incapacity injury, we should nevertheless follow [Antaw] where this Court specifically held that s 16(1) could fix different dates for incapacity and impairment injuries and, in the latter case the relevant date was the date of the claim.’
100.   In the same case Hodgson JA, with whom Mason P agreed, referred [34] to the submission of counsel for the worker that the injury for the purposes of ss 66 and 67 occurred when the claim was made and said [36], [38]:
‘In my opinion the decision in GIO shows that one must relate the question of the time of death or incapacity under s 16(1)(a)(i) to what is being claimed. Where, as in GIO itself, what is being considered is not a worker's claim based on incapacity, but a dependant's claim based on death, the fact that there was incapacity prior to the worker's death is irrelevant. The relevant time for the purposes of s 16(1)(a)(i) is the time of death ... In the present case, the claim ... is ... for a loss ... within s 66(1), which ... is itself to be treated as an injury within s 16(1), as provided by s 16(3). Each such loss or injury was ... included in the amended claim on 10 June 2003; and thus could not have caused incapacity prior to 20 June 1987: in my opinion, this plainly follows from Antaw .’”
The circumstances of this case are similar to those in O’Keefe, namely, as the fresh evidence establishes, Ms Hungerford was in receipt of weekly benefits paid voluntarily by the insurer. Ms Hungerford made a subsequent claim for lump sum compensation. As Handley AJA’s remarks make clear, s 16(1)(a)(i) of the 1987 Act only applies to a claim for weekly compensation and the authorities establish that if the claim is for lump sum compensation any earlier claim for weekly compensation is irrelevant. A permanent impairment injury is deemed to have happened when the lump sum compensation claim is made.[18] The appellant’s submissions to the contrary are incorrect.
[18] The 1987 Act, ss 16(1)(a)(ii); 16(3).
The authorities establish that there may be more than one deemed date of injury.[19] In this case, applying s 16(1)(a)(i) of the 1987 Act, the deemed date of injury for the purposes of the claim for weekly compensation would be 14 July 2010. However, as the only relevant claim before the Arbitrator was the claim for permanent impairment compensation, s 16(1)(a)(ii) fixes the deemed date of injury to be the date of the claim for permanent impairment compensation. It follows that the Arbitrator’s findings were correct.
[19]Antaw.
It is immaterial that the symptoms and pathology resulting in Ms Hungerford’s claim for continuing incapacity are indistinguishable from the symptoms and pathology on which the claim for permanent impairment compensation is founded. That is because, as I have said, the authorities clearly establish that if the only relevant claim to be determined is a claim for permanent impairment lump sum compensation any earlier compensation in respect of incapacity is simply irrelevant.
The relevance of the appellant’s submission that the claim for permanent impairment was not a “further” claim for lump sum compensation for deterioration of her condition is not immediately apparent. The submission was not further developed. In any event, the fact that it was not a further claim does not advance the appellant’s position on appeal for the reasons given above.
I accept that the Arbitrator’s reference to s 322 of the 1998 Act is not relevant to the determination of the deemed date of injury. Having regard to the Arbitrator’s reasons as a whole, I do not consider that his reasons indicated otherwise. The Arbitrator’s comments merely reflect the self-evident proposition that impairments that result from the same injury are to be assessed together. In other words, where the impairments consist in an accepted injury and a consequential condition arising from the accepted injury the impairments resulting are to be assessed together.
In so far as the complaint with respect to the Arbitrator’s reasons is concerned, the obligation to give reasons must be considered in the statutory context. The statutory duty to provide reasons in the Commission is governed by s 294 of the 1998 Act and r 15.6 of the Workers Compensation Commission Rules 2011 (2011 Rules). Section 294(2) of the 1998 Act provides “a brief statement is to be attached to the certificate [of determination] setting out the Commission’s reasons for the determination”. Rule 15.6 of the 2011 Rules provides:
“15.6 Certificates of determination
(1) A statement of the Commission's reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the Commission's findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission's understanding of the applicable law, and
(c)the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission's view of the case made by each of them.”
In NSW Police Force v Newby,[20] I considered the nature of the Arbitrator’s duty to give reasons. I said:
“To succeed in having the Arbitrator’s decision set aside on this ground, the Police Force must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247).”[21]
[20][2009] NSWWCCPD 75 (Newby).
[21]Newby, [149].
The Arbitrator found that there was only one injury, namely the accepted injuries to the right limb and the consequential injuries as found to the left limb. The Arbitrator identified that the injury to right hand and right wrist was in the nature of an aggravation of a disease and therefore fell under s 4(b)(ii) of the 1987 Act. Applying s 16(1)(a)(ii) of the 1987 Act, the Arbitrator further found that the date of injury, for the purposes of the claim for permanent impairment, was 4 July 2017. His reasons make it clear that he made that finding applying binding authority, arising from the decisions in Antaw and Stone.
The Arbitrator’s reasons correctly acknowledged that more than one date of injury may be found when applying s 16 of the 1987 Act. By referring to Antaw and Stone it is sufficiently clear that the Arbitrator was applying binding authority, ignoring as irrelevant the prior incapacity. His reasons, read as a whole, confirm that, as the compensation in issue was only the claim for permanent impairment compensation, the relevant date for the deeming of the date of injury was the date of claim for permanent impairment compensation.
For these reasons, I am satisfied that the Arbitrator discharged the statutory obligation to provide a “brief statement” setting out reasons for his decision.

DECISION

The Arbitrator’s Certificate of Determination of 19 June 2018 is confirmed.

Judge Keating
President
15 November 2018

[9][2011] NSWWCCPD 7 (White).