Woolworths Ltd v Stafford
[2015] NSWWCCPD 36
•24 June 2015
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Woolworths Ltd v Stafford [2015] NSWWCCPD 36 | ||
| APPELLANT: | Woolworths Ltd | ||
| RESPONDENT: | Steven Victor Stafford | ||
| INSURER: | Self-insured | ||
| FILE NUMBER: | A1-6733/14 | ||
| ARBITRATOR: | Mr W Dalley | ||
| DATE OF ARBITRATOR’S DECISIONS: | 25 March 2015 and 8 April 2015 | ||
| DATE OF APPEAL HEARING: | 18 June 2015 | ||
| DATE OF APPEAL DECISION: | 24 June 2015 | ||
| SUBJECT MATTER OF DECISION: | Claim for permanent impairment compensation; meaning of “claim” in s 66(1A) of the Workers Compensation Act 1987; whether a “claim” for permanent impairment compensation can be amended | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | Oral | ||
| REPRESENTATION: | Appellant: | Mr A Parker, instructed by TurksLegal | |
| Respondent: | Mr G Horan, instructed by Turner Freeman Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. Leave to appeal is granted. 2. For the reasons in this decision, the Arbitrator’s determinations of 25 March 2015 and 8 April 2015 are confirmed. | ||
INTRODUCTION
This appeal concerns changes to the recovery of permanent impairment compensation (also referred to as lump sum compensation) introduced by the Workers Compensation Legislation AmendmentAct 2012 (the 2012 amending Act).
Prior to the amendments introduced by the 2012 amending Act, workers were entitled to recover, in addition to any other compensation under the Workers Compensation Act 1987 (the 1987 Act), compensation for permanent impairment that resulted from an injury (s 66(1)). To recover such compensation, the relevant whole person impairment had to be at least one per cent. If the impairment was 10 per cent or more, the worker was also entitled to receive compensation for pain and suffering under s 67. If, after recovering permanent impairment compensation, a worker’s condition deteriorated as a result of the injury, he or she was entitled to recover additional permanent impairment or lump sum compensation (Lourdes House Hospital v Wheeler (1996) 13 NSWCR 495).
Section 66, as amended by the 2012 amending Act, now provides that a “worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment” as provided in that section. A note to s 66(1) states that “[n]o permanent impairment compensation is payable for a degree of permanent impairment of 10% or less”. In addition, due to the repeal of s 67, no compensation is now recoverable for pain and suffering. The amendments also added s 66(1A), which states that “[o]nly one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury”. The parties agree that the amendments apply in the present case.
The present appeal concerns the meaning of the word “claim” in s 66(1A). The main issue is whether, as the employer contends, “claim” in s 66(1A) means “a demand” for payment of permanent impairment compensation, or, as the worker contends, and the Arbitrator found, it means a claim for compensation which is capable of payment in accordance with the 1987 Act. A second issue concerns whether, as the Arbitrator found, a claim for permanent impairment compensation can be amended.
For the reasons explained below, the appellant’s contentions cannot be accepted and the Arbitrator’s findings, on both issues, are confirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On 14 June 2010, the respondent worker, Steven Stafford, suffered a serious head injury in the course of his employment with the appellant employer, Woolworths Ltd. The injury caused a left temporal extradural haemorrhage, which required surgery. Mr Stafford submitted a claim form on 29 June 2010. The appellant, which is a self-insurer, accepted liability and paid compensation.
On 13 November 2013, Dr Michael Davies, neurosurgeon, assessed Mr Stafford to have a seven per cent whole person impairment as a result of the 14 June 2010 injury.
On 7 April 2014, based on Dr Davies’ assessment, Mr Stafford’s solicitors wrote to the appellant claiming permanent impairment compensation of $9,625 under s 66. The letter attached a copy of Dr Davies’ report.
Assuming that an Approved Medical Specialist (AMS) came to the same (or a similar) assessment of whole person impairment, then, based on the Court of Appeal’s decision in Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 (Goudappel No 1), Mr Stafford was, at the time of the claim on 7 April 2014, entitled to recover permanent impairment compensation for his loss, even though it was below the 10 per cent threshold in the amended s 66(1). That followed from the fact that he had previously made a claim for compensation in respect of the injury, albeit not for permanent impairment compensation.
However, on 16 May 2014, the High Court overturned Goudappel No 1 (ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 308 ALR 213 (Goudappel No 2)). As a result, as Mr Stafford had not specifically sought permanent impairment compensation prior to 19 June 2012, he can only recover such compensation if his whole person impairment as a result of his injury is greater than 10 per cent (s 66(1)).
In a s 74 notice dated 19 May 2014, the appellant disputed liability on the ground that, under the amended s 66(1), no permanent impairment compensation is payable for a degree of permanent impairment of 10 per cent or less. Whether the author of the notice was aware of the High Court’s decision and its implications for the claim, is not known but is of no consequence.
No steps were taken to advance the claim particularised in the letter of 7 April 2014.
Meanwhile, on 14 April 2014, Mr Stafford underwent a neuropsychological assessment at the hands of Pallavi Pillay and Jason Cusak, psychologists at the Illawarra Brain Injury Service, who reported their findings on 27 May 2014. The assessment showed Mr Stafford to have, as a result of his injury, some memory problems and also some slowness of mental processing.
After reviewing the neuropsychological assessment report, Dr Davies reported on 19 September 2014 that it would be appropriate to “modify” his previous “assessment of impairment regarding cognitive function”. Using the WorkCover Guides, in association with the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed, and based on the information in the neuropsychological assessment report, Dr Davies assessed Mr Stafford to have a 12 per cent whole person impairment. If an AMS assessed Mr Stafford to have a whole person impairment of 11 per cent or higher, Mr Stafford would be entitled to permanent impairment compensation.
On 26 September 2014, Mr Stafford’s solicitors wrote to the appellant in the following terms:
“We refer to our letter dated 7 April 2014 and to your response of 19 May 2014.
Our client amends his claim to claim $17,050.00 in respect of 12% whole person impairment. In support of this claim we enclose copies of the following:
1. Neuropsychological assessment report of Illawarra Brain Injury Service dated 27 May 2014
2. Supplementary report of Dr Michael Davies dated 19 September 2014.
Kindly make a determination in respect of this claim.”
The appellant’s insurer responded on 26 November 2014, declining the claim on the ground that Mr Stafford had made a claim on 7 April 2014 for $9,625 in respect of a seven per cent whole person impairment and “the provisions of s 66(1A) prohibit the further claim for lump sum compensation dated 26 September 2014”.
On 12 December 2014, an Application to Resolve a Dispute was filed in the Commission. In that document, Mr Stafford claimed permanent impairment compensation of $17,050 in respect of the 12 per cent whole person impairment assessed by Dr Davies in his report of 19 September 2014. In a Reply dated 15 January 2015, the appellant disputed liability on the grounds set out in the letter of 26 November 2014.
The issue before the Arbitrator was whether the delivery of the letter of 7 April 2014, with its enclosure (Dr Davies’ report of 13 November 2013), constituted “a claim for the purposes of section 66(1A) of the 1987 Act” ([11]). The Arbitrator determined that:
(a) the word “claim” in s 66(1A) imports more than “a mere demand for payment but rather is to be read as referring to a claim made in accordance with the 1987 and the 1998 Acts” ([34]);
(b) a demand for compensation in respect of whole person impairment of 10 per cent or less cannot be a claim within s 66 and it followed that a demand for a lump sum payment in respect of whole person impairment of 10 per cent or less could not be a claim within s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) ([36]);
(c) a “claim for compensation” in the statutory definition of “claim” means a claim for compensation which is capable of payment in accordance with the 1987 Act ([37]), and
(d) the compensation initially sought was “not available under [the Workers Compensation Acts]” ([47]).
If this interpretation was wrong, and the letter of 7 April 2014 constituted a claim for the purposes of s 66(1A), the Arbitrator found, in the alternative, that the earlier claim was unresolved and there was no provision in the legislation that prevented Mr Stafford from amending the claim to render it capable of providing a basis upon which the appellant would be justified in making a payment under s 66. Accordingly, he concluded that Mr Stafford had made only one claim for the purposes of s 66(1A) and the appellant’s defence failed.
Consistent with the Arbitrator’s decision, the Commission issued a Certificate of Determination on 25 March 2015 in the following terms:
“1.The Commission finds that the applicant has made only one claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987.
2.The claim pursuant to section 66 of the Workers Compensation Act 1987 which is the subject of the Application Resolution of the Dispute in these proceedings is not barred by section 66(1A) of the Workers Compensation Act 1987.
3.The claim is stood over to a telephone conference to be held at 10.30 a.m on 7 April 2015 (or such other time and date as the Registrar may appoint) to settle a timetable for the further progress of the claim.”
After the teleconference on 7 April 2015, the Commission issued a Certificate of Determination on 8 April 2015 in the following terms:
“1.Subject to an Application for Leave to Appeal pursuant to section 352 of the Workplace Injury Management and Workers Compensation Act 1998 in respect of the decision of 20 March 2015, the claim pursuant to section 66 of the Workers Compensation Act 1987 is remitted to the Registrar for referral to an Approved Medical Specialist to determine whole person impairment, if any, in respect of injury to the head and brain on 14 June 2010.
2. The material to be supplied to the Approved Medical Specialist should include:
a) Application to Resolve a Dispute and attached documents, and
b) Reply and attached documents.”
On 15 April 2015, the appellant filed an appeal against the Arbitrator’s determination of 25 March 2015. The appeal also seeks leave to challenge the Certificate of Determination of 8 April 2015.
LEAVE TO APPEAL
There is no right of appeal under s 352 of the 1998 Act against an interlocutory order by an Arbitrator, except with the leave of the Commission (s 352(3A)). Leave to appeal is required in the present matter because, as the determination has not finally determined the parties’ rights, the Arbitrator’s order is interlocutory (Licul v Corney [1976] HCA 6; 180 CLR 213 at 225).
Counsel for the appellant, Mr Andrew Parker, has submitted that the appeal involves a potential ambiguity about the meaning of the word “claim” in s 66 and the interaction of ss 66(1) and 66(1A). As these matters are likely to arise in other cases, clarity at the appellate level is therefore in the interests of justice.
That is not the test for granting leave to appeal against an Arbitrator’s decision. 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)).
If leave to appeal is refused, and assuming that the AMS makes a similar assessment of whole person impairment to that made by Dr Davies (that is, an assessment above the s 66 threshold) and an award is entered in Mr Stafford’s favour for the appropriate permanent impairment compensation, the appellant will then be entitled to appeal without leave. However, if the appeal is successful on the grounds argued by the appellant, there will be no basis for referring the matter to an AMS and the further delay and costs associated with that referral will be saved.
I am therefore satisfied that it is desirable for the proper and effective determination of the dispute that leave to appeal be granted. I grant leave to appeal.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that the letter of 7 April 2014 did not constitute a claim under s 66, as it was not capable of payment, and
(b) finding that the letter of 7 April 2014 constituted an “unresolved” claim, such that it was capable of amendment.
DOES THE LETTER OF 7 APRIL 2014 CONSTITUTE A CLAIM UNDER SECTION 66?
Submissions
Mr Parker submitted that the Arbitrator committed a fundamental error in failing to apply the “plain and ordinary” meaning of s 66, within the context of the relevant legislation. The 1998 Act and the WorkCover Guidelines for Claiming Compensation Benefits (the Guidelines), dictate how a claim is made for lump sum compensation. The letter of 7 April 2014 (and evidence in support) satisfied the legislative requirements, so as to make a claim for lump sum compensation. This is particularly so because the claim had been made prior to the High Court’s decision in Goudappel No 2 and was capable of referral to an AMS.
Mr Parker argued that the ordinary meaning of s 66 does not require the claim to be “capable” of payment and the only way to reach that conclusion is by inserting words into the legislation. Such an insertion offends the principles of statutory interpretation, as it alters the plain meaning of the legislation and, in particular, s 66 (Mills v Meeking (1990) 169 CLR 214 at 235 (Meeking)). As the letter of 7 April 2014 constituted a claim under s 66, it was liable to be defeated by s 66(1) if, and when, the employer disputed the entitlement.
Counsel for Mr Stafford, Mr Horan, submitted that the Arbitrator’s approach involved no error. He argued that any claim for permanent impairment compensation where the whole person impairment is between one and 10 per cent is not a claim for compensation as defined in s 4 of the 1998 Act. He said that the Arbitrator’s interpretation does not involve inserting words into the legislation but is a proper method of statutory interpretation.
Mr Horan contended that s 66(1A) has a wider meaning than that argued by the appellant and that the reference in the subsection to “the permanent impairment … that results from an injury” goes to the medical dispute resolution process of determining the claim and goes against a “mere demand” being a claim. He said that the phrase “one claim” means “one determined claim”.
Mr Horan further argued that the letter of 7 April 2014 was not a claim because, by not including a “permanent impairment claim form”, as required by Pt 6.1 of the Guidelines, it did not comply with the express terms of the Guidelines. He contended that the appellant needs to establish that a claim has been properly made.
The Legislation
The term “claim” is defined in s 4 of the 1998 Act to mean “a claim for compensation or work injury damages that a person has made or is entitled to make”. It is also defined in s 70 of the 1998 Act, for the purposes of Ch 4 Pt 2 Div 2, which relates to “administration by insurers of claims for compensation or damages”, to mean “a claim for compensation under this Act or any claim for damages to which a policy of insurance applies, whether the claim was made before or after the commencement of this Division”. The term “compensation” is defined in s 4 of the 1998 Act to mean “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts”.
The procedure for making a claim for compensation is in Ch 7 of the 1998 Act and in the Guidelines. It is convenient to first look at the legislation.
Chapter 7, which is headed “New Claims Procedures”, includes, among other provisions, s 260(1) which provides that a “claim must be made in accordance with the applicable requirements of the WorkCover Guidelines”. A failure to make a claim as required by s 260 is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style (s 260(5)). Except to the extent that the Guidelines otherwise provide, an insurer can waive a requirement of the Guidelines with respect to the making of a claim on the insurer (s 260(6)).
Section 261(1) provides the time within which a claim for compensation must be made and, among other things, the circumstances in which a failure to claim within that time is not a bar to the recovery of compensation (s 261(4) and (5)). Section 264 requires an employer (not being a self-insurer) who receives a claim to forward it to the employer’s insurer within seven days of receiving it.
Part 3 of Ch 7 is headed “Dealing With Claims”. It has special provisions for the commencement of weekly payments after the initial notification of injury. Divisions 2 and 3 of Pt 3 deal with claims for weekly payments and claims for medical expenses. Division 4 of Pt 3 deals with claims for lump sum compensation (permanent impairment compensation) and work injury damages. The person on whom a claim for lump sum compensation or work injury damages has been made must, within the time required by s 281, determine the claim by either accepting liability and making a reasonable offer of settlement or disputing liability (s 281(1)).
A claim must be so determined within one month after the degree of permanent impairment first becomes fully ascertainable or within two months after the claimant has provided all “relevant particulars” about the claim to the insurer (s 281(2)). The determination of a claim cannot be delayed beyond two months after the claimant has provided to the insurer all relevant particulars about the claim, unless it has within that two month period notified the claimant that the degree of permanent impairment is not fully ascertainable (s 281(2A)).
Relevant particulars about a claim are the full details of the injury, all impairments arising from the injury, any previous injury or condition, information relevant to a determination as to whether or not the degree of permanent impairment will change, and details of all previous employment to the nature of which the injury is or may be due (s 282(1)).
If the employer requires the claimant to be examined by a medical practitioner, the claimant is not considered to have provided all relevant particulars about the claim until he or she has complied with the requirement (s 282(2)). The insurer is not entitled to delay the determination of a claim under Div 4 on the ground that any particulars about the claim are insufficient unless the insurer has requested further relevant particulars within two weeks after the claimant provided particulars (s 282(3)).
Division 5 of Pt 3 is headed “Enforcement of Claims Obligations”. A person who fails to determine a claim as and when required by Pt 3 is guilty of an offence unless the person has a reasonable excuse for the failure. If it appears to the Registrar that an insurer has failed, without reasonable excuse, to determine a claim as and when required by Pt 3, or has referred (to the Commission) a matter that the insurer knows is not a genuine dispute for the purpose of delaying, without good cause, the determination of a claim, the Registrar is to direct the insurer to pay the administration fee provided by s 284(1).
Part 4 of Ch 7 is headed “Compensation Dispute Determination”. It deals with a dispute in connection with a claim for compensation between a person who makes the claim and a person on whom the claim is made, or the employer on whom the claim is made and the insurer on whom the claim is made (s 287(1)). Any party can refer a dispute about a claim to the Registrar for determination by the Commission. However, if the dispute is about lump sum compensation, only the claimant can refer the dispute. Sections 289 and 289A restrict when a dispute can be referred to the Commission. Section 289(3) deals with claims for lump sum compensation. It provides:
“(3) A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a)wholly disputes liability for the claim, or
(b)made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c)fails to determine the claim as and when required by this Act.
Note : The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim.”
The degree of permanent impairment that results from an injury is to be assessed in accordance with s 65 of the 1987 Act and Pt 7 of Ch 7 of the 1998 Act. If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless an AMS has assessed the degree of permanent impairment (s 65(3)). An AMS’s assessment, certified in a (valid) Medical Assessment Certificate (MAC) is “conclusively presumed to be correct as to”, among other things, the degree of permanent impairment of the worker as a result of an injury (s 326(1)(a) of the 1998 Act).
The compensation recoverable by a worker is set out in the 1987 Act. Part 2 of the 1987 Act is headed “Compensation – Liability”. Part 3 is headed “Compensation – Benefits”. It identifies the compensation payable on death, weekly compensation payable by way of income support, compensation for medical, hospital and rehabilitation expenses, compensation for property damage, and, in Div 4 of Pt 3, compensation for non-economic loss, that is, permanent impairment compensation/lump sum compensation. Section 66 is in Div 4 of Pt 3.
The Guidelines
The relevant Guidelines governing the present matter commenced on 20 September 2013. They “set out the procedures for”, among other things, “making and handling claims for lump sum compensation”. The Guidelines are said, in the introduction, to be “founded on” the following principles (punctuation and capitalisation as per original):
“1. timeliness To satisfy legislative requirements, workers, employers, insurers and other persons acting on behalf of the worker or employer will obtain and provide information about the injury in a timely manner.
2. active decision making Insurers are required to obtain certain information to make certain assessments.
3. sound up-to-date decisions Insurers will make sound decisions on the information
available within the timeframes the law allows and they will review and update decisions as they receive new information.
4. documented reasons Insurers will record the reasons for their decisions and show that they have considered all relevant information.
5. peer review Insurers will arrange for all decisions to dispute all or part of a claim, to
terminate or reduce weekly payments or to decline provisional payments on the basis of a reasonable excuse, to be reviewed by a suitably experienced person
6. consent Worker’s consent to the collection, use and disclosure of personal and health information when they sign the claim form, WorkCover Certificate of Capacity
7. privacy The relevant privacy legislation and principles and non disclosure requirements are to apply.” (emphasis included in original)
The “aims” of the Guidelines are to:
“● ensure the prompt management of a worker’s injuries
· ensure a worker’s timely, safe and durable return to work as early as possible having regard to the nature of the injury
· give workers certainty and proper income support while their capacity for work is effected [sic] by work injuries and they are returning to employment
· facilitate timely and sound decision-making
· reduce disputes
· maintain the employment relationship between the worker and the employer
· clarify all issues in dispute and promptly resolve disputes if they do occur
· set the requirements for making a claim under the 1998 Act for compensation benefits pursuant to the 1987 Act”
Part 6 is headed “Making and Handling a Claim for Lump Sum Compensation”. It states:
“To be eligible for lump sum compensation under section 66 of the 1987 Act a worker
must have sustained an injury, as defined in section 4 of the 1998 Act that resulted in
permanent impairment greater than 10% - refer section 66 (1) of the 1987 Act. From 19 June 2012, only one claim can be made under the 1987 Act for permanent impairment compensation that results from an injury – refer section 66 (1A) of the 1987 Act – and there can be only one medical assessment of degree of permanent impairment in the Workers Compensation Commission for the purposes of a claim for permanent impairment compensation, commutation or work injury damages claim – refer section 322A of the 1998 Act.” (emphasis included in original)
Part 6.1 states that a “permanent impairment claim form” is required if a worker is initiating a claim for permanent impairment related to an injury under s 66 in respect of an injury. A previous claim for weekly compensation or medical expenses does not equate to a claim for lump sum compensation (Pt 6.1).
For injuries received from 1 January 2002, Pt 6.2.2 provides that the claim for lump sum compensation must include the following relevant particulars about the claim (punctuation and capitalisation as per original):
“• the injury received, as identified in claim for workers compensation. If
no claim for compensation has been made, it will be necessary to
separately make such a claim
• all impairments arising from the injury
• whether the condition has reached maximum medical improvement
• the amount of whole person impairment assessed in accordance with
the WorkCover Guides for the evaluation of permanent impairment
• a medical report completed in accordance with the WorkCover Guides
for the evaluation of permanent impairment by a medical specialist with
qualifications and training relevant to the body system being assessed
who has been trained in the WorkCover Guides
• If there is more than one impairment that requires assessment by
different medical specialists, one specialist must be nominated as lead
assessor and determine the final amount of whole person impairment
• if the claim is for permanent impairment of hearing, a copy of the
audiogram used by the medical specialist in preparing the report that
accompanies the claim.”
The Guidelines then, substantially following the legislation, set out the action required by an employer and insurer upon receipt of a claim, what happens if the insurer does not respond within two months of receiving the claim, what happens if the insurer accepts the claim for permanent impairment, and what happens if the insurer disputes liability for the claim. It also deals with complying agreements under s 66A.
Discussion and findings
As the appeal turns on a question of statutory interpretation, it is appropriate to set out some basic principles.
The plurality explained in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (Project Blue Sky), at [78]:
“the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.” (footnote omitted)
Their Honours quoted, with apparent approval, the statement by Dixon CJ in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; 92 CLR 390 at 397 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”. Moreover, “[t]he modern approach to statutory interpretation uses ‘context’ in its widest sense, to include the existing state of the law and the mischief to which the legislation is addressed” (French CJ, Gummow, Hayne, Kiefel and Bell JJ in AB v Western Australia [2011] HCA 42 at [10]; 244 CLR 390, citing CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408).
As Leeming JA (Macfarlan and Gleeson JJA agreeing) noted in Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147 at [105], citing the above passage from Project Blue Sky and passages from Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; 88 ALJR 473 (Taylor) at [65], “it is trite that the ordinary grammatical or literal meaning of any legal text is not necessarily its legal meaning”.
Similarly, in interpreting a contract, Leeming JA (Ward JA and Emmett JA agreeing) explained in Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184 at [75], that “[t]he legal meaning [of a word] may diverge from its literal or grammatical meaning” and that “[w]ords do not have a ‘natural’ meaning that can be determined in isolation”.
When it is said that the legislative “intention” is to be ascertained, “what is involved is the ‘intention manifested’ by the legislation” (Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1 at 168–169; cited with approval by French CJ, Gummow, Hayne, Crennan and Kiefel JJ in Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [31]). “It is no part of the function of the Court to construe the statutory language in order to achieve what it perceives to be the desirable outcome or to avoid a ‘draconian’ outcome” (Australian Building & Construction Commissioner v McConnell Dowell Constructors (Aust) Pty Ltd [2012] FCAFC 93; 203 FCR 345 at [50]).
For the reasons explained below, applying the above principles in the present matter, and interpreting “claim” in its proper context, leads to only one conclusion, namely, that it was open to the Arbitrator to find that a “claim” in s 66(1A) imports more than a “mere demand for payment but rather is to be read as referring to a claim made in accordance with the 1987 and 1998 Acts”. Further, as the Arbitrator determined, a “claim for compensation” means a claim for compensation that is capable of payment in accordance with the 1987 Act. This conclusion is sufficient to dispose of the appeal. Though there is some merit in Mr Horan’s submission that “one claim” means “one determined claim”, for the purposes of the present appeal, it is not necessary to decide that issue.
The above summary of the legislation and Guidelines demonstrates that, in the context of Ch 7, a “claim” is, as was observed by Basten JA in Tan v National Australia Bank Ltd [2008] NSWCA 198 (Tan) at [43], “a means of providing certain information”. In other words, the making of a “claim” provides the trigger for the operation of the “New Claims Procedures” in Ch 7 of the 1998 Act. In that context, it is simply a demand for compensation that a person has made or is entitled to make.
Once a worker makes a demand for compensation, then, assuming that certain procedural requirements have been met, specific obligations arise and the employer and insurer must take certain steps. The primary purpose of those steps is to ensure a speedy and efficient resolution of the claim, or, if the claim cannot be resolved, the prompt referral of the dispute to the Commission for determination, or, if there are no liability issues, for assessment by an AMS. Thus, in Ch 7, a claim is merely the first procedural step in the dispute resolution process.
In Ottomen Pty Ltd ATF Labour ADM t/as Otto Design Interiors v Lee-Chee [2013] NSWWCCPD 42, I considered when, in the context of Ch 7, a worker had “made” a claim for permanent impairment compensation. I said, at [89]:
“There is no suggestion, in either the legislation or the Guidelines, that a claim has not been made if the claimant has not provided all relevant particulars. Each case will turn on its own facts and the nature of the alleged deficiency in the particulars. Given that s 281 does not define when a claim is made, I am comfortably satisfied that a claim can be ‘made’ even though some particulars may be outstanding. The purpose of ss 281 and 282 is to enable claims for permanent impairment compensation to be resolved expeditiously, fairly and without unnecessary expense. To that end, workers must provide ‘relevant particulars’ about the claim. In the present matter, Mr Lee-Chee’s solicitors provided those particulars in the letter of claim.”
This passage highlights the principal purpose of making a claim, namely, the giving of particulars to initiate the various procedures in Ch 7. If the “claim” is defective, in that, for example, insufficient particulars have been provided, the legislation provides ample opportunity for the deficiency to be corrected. However, for the purposes of Ch 7, the claim is no less a claim.
The failure to make a “claim as required” by s 260, for example, is not a bar to the recovery of compensation if the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style (s 260(5)). Similar provisions are found in s 254(4), which deals with the giving of notice of injury, and in s 261(4), which deals with the time within which the initial claim for compensation must be made. Thus, the legislation gives workers a broad and liberal protection against the potentially adverse consequences of non-compliance with the various claims provisions in Ch 7.
However, s 66 of the 1987 Act is quite different to the provisions in Ch 7 of the 1998 Act. Appearing in Pt 3 of the 1987 Act, it is a substantive provision that provides for the recovery of compensation for permanent impairment, but only if the degree of permanent impairment is greater than 10 per cent. McColl JA described the right to permanent impairment compensation as “significant statutory entitlements” (Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355 at [77] (at that time the right included the right to compensation for pain and suffering)). That observation remains applicable to the current s 66, though the benefits now require a worker to satisfy a greater than 10 per cent threshold and there is no compensation for pain and suffering. A worker should not be deprived of that entitlement unless the legislation clearly leads to that result.
As a worker may now only make “one claim” for permanent impairment compensation in respect of the permanent impairment that results from an injury, it follows that the making of that “one claim” will be much more significant for a worker than in the past, when a worker was not restricted to the recovery of only one amount of lump sum compensation. For the first time, the legislature has introduced into workers’ compensation law the common law concept that damages are awarded once-and-for-all (Assessment of Damages for Personal Injury and Death, Harold Luntz, 4th ed, 2002, Butterworths at para 1.2.1). Therefore, contrary to Mr Parker’s submissions, the term “claim” should not be narrowly construed to mean any “demand”.
If, by the making of one claim for permanent impairment compensation, a worker is to be prevented from making any further claim for such compensation, the word “claim” should be interpreted to mean, at the least, a valid claim. On this approach, consistent with the Arbitrator’s conclusion, Mr Stafford’s demand on 7 April 2014 was not a valid claim because it was not capable of payment in accordance with the 1987 Act. As a result, it does not qualify as “one claim” for the purposes of s 66(1A). There are a number of reasons for adopting this interpretation.
First, the letter of 7 April 2014 claimed compensation for a seven per cent whole person impairment. Such a claim is not permitted under s 66(1). It does not matter that, as at 7 April 2014, applying Goudappel No 1, the claim could have been accepted and paid by the appellant, or assessed by an AMS and determined in favour of Mr Stafford. The High Court’s decision in Goudappel No 2 determined the law as it was from the date the amendments introduced by the 2012 amending Act took effect. It effectively determined that, in the circumstances of this case, a claim for seven per cent permanent impairment was not a claim that gave rise to an entitlement to permanent impairment compensation, it being under the greater than 10 per cent threshold. Therefore, Mr Stafford’s claim on 7 April 2014 was not a valid claim and cannot be his “one claim” for permanent impairment compensation under s 66(1A).
Any other result would lead to the situation where a worker who makes any demand for permanent impairment compensation, no matter how defective, is permanently prevented from recovering such compensation. There is no justification, either in the text or in the context of the legislation, for such an illogical and arbitrary result. A construction that “appears irrational and unjust” is to be avoided where the statutory text does not require that construction (French CJ, Kiefel, Bell and Keane JJ in Uelese v Minister for Immigration and Border Protection [2015] HCA 15 at [45]). Moreover, where two meanings are open, it is “proper to adopt that meaning that will avoid consequences that appear irrational and unjust” (Gibbs J in Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd [1975] HCA 28; 6 ALR 271 at 282).
Second, as accepted by the plurality in Goudappel No 2, the 1987 Act’s “remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker” (at [29], footnote omitted). Moreover, it is accepted that beneficial and remedial legislation is to be given a “fair, large and liberal” interpretation (IW v City of Perth [1997] HCA 30; 191 CLR 1 at 12 per Brennan CJ and McHugh J, 39 per Gummow J; quoted and applied in AB v Western Australia [2011] HCA 42 at [24]; 244 CLR 390).
I accept that, as the plurality further explained in Goudappel No 2, not every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. Their Honours added that “[t]he purpose of the provision must be identified”. Though the amendments to s 66 have reduced the permanent impairment compensation payable, by introducing a greater than 10 per cent threshold and repealing s 67, the 1987 Act remains beneficial legislation and s 66 continues to have a beneficial purpose, namely, the payment of permanent impairment compensation.
It follows that where two constructions are possible, that which is favourable to the worker should be preferred (per Fullagar J in Wilson v Wilson’s Tile Works Pty Ltd [1960] HCA 63; 104 CLR 328 at 335). In the present case, a beneficial interpretation merely interprets “claim” as one valid claim capable of payment in accordance with the legislation. That is perfectly consistent with the intention of the legislation. As will be further explained below, when dealing with the amendment issue, Mr Stafford has only made one claim.
Third, the definitions of “claim” and “compensation” strongly favour the conclusion I have reached. That is because a “claim” for permanent impairment compensation is, by definition, a claim for a “monetary benefit under” the legislation. A monetary benefit under the legislation is compensation that is paid or payable. If the claim cannot succeed, because it is under the s 66(1) threshold, it cannot be a “claim” for a monetary benefit under the Act. That is because, in respect of that claim, no compensation is payable.
Different considerations would apply if a worker made a claim for permanent impairment compensation based on an 11 per cent whole person impairment, but an AMS assessed the impairment at 10 per cent and issued a valid MAC to that effect. In that situation, the claim would fail and there would be an award for the employer. That is because a valid MAC is conclusively presumed to be correct as to the degree of permanent impairment of the worker as a result of an injury (s 326(1)(a)). Section 66(1A) does not say “one claim that results in the payment of permanent impairment compensation” and it is not open to interpret it in that way.
The claimant described in the preceding paragraph will have made “one claim” for permanent impairment compensation and could not bring a second claim. That is because the claim for 11 per cent permanent impairment was a valid claim that, if an AMS had made the same or higher assessment of whole person impairment, would have resulted in the recovery of permanent impairment compensation, assuming there were no liability issues preventing the recovery of compensation. This is consistent with s 322A, which states:
(a) only one assessment may be made (by an AMS) of the degree of permanent impairment of an injured worker (s 322A(1)), and
(b) the MAC given in connection with that assessment “is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned” (s 322A(2)).
Fourth, the submission that “claim” in s 66 means any “demand for permanent impairment compensation”, seeks to take the meaning of “claim” in Ch 7, a Chapter that deals with “New Claims Procedures”, and impose that meaning on “claim” where it is used in a compensation benefit provision, namely, s 66. In other words, it takes the meaning of “claim” out of context.
Having regard to the text and structure of s 66, the purpose of the amendments to the permanent impairment provisions is tolerably clear: it is to reduce the number and cost of claims for permanent impairment compensation. It does that in three ways: first, by imposing a greater than 10 per cent whole person impairment threshold that must be exceeded before such compensation can be recovered, second, by restricting to one the number of claims for permanent impairment compensation that may be made by a worker, and, third, by abolishing any entitlement to compensation for pain and suffering.
The purpose of the amendments to s 66, as manifested by the legislation, is achieved if workers are restricted to making one valid claim for permanent impairment compensation that is capable of payment in accordance with the legislation. Mr Stafford’s demand on 7 April 2014 was not such a claim and it is untenable to argue that, by making the demand in that letter, he has made his “one claim” under s 66(1A) and that he therefore has no entitlement to permanent impairment compensation.
The interpretation I favour applies the words of the legislation (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47]; 239 CLR 27) in a way that best gives effect to “the purpose and language of those provisions while maintaining the unity of all the statutory provisions” (Project Blue Sky at [70]). It is not a matter of adding words to the legislation, but a matter of the construction of the words the legislature has enacted (Taylor per French CJ, Crennan and Bell JJ at [39]) so as to best give effect to the intention of Parliament. Such an approach does not offend anything said by Dawson J in Meeking.
Fifth, Mr Parker’s submission that the “plain meaning” of “claim” is “a demand” ignores the fact that the “whole notion of words having a natural meaning is not a very helpful one. Because the meaning of words is so sensitive to syntax and context, the natural meaning of words in one sentence may be quite unnatural in another” (per Lord Hoffman in Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391, quoted with approval by Leeming JA (Macfarlan JA agreeing) in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [55]). As explained by Leeming JA in the authorities cited earlier in this decision (see [55]–[56] above), it is trite that the ordinary grammatical or literal meaning of any legal text is not necessarily its legal meaning. Moreover, as his Honour further explained, words do not have a natural meaning that can be determined in isolation.
In the present case, we are not merely dealing with “claim” in a different sentence, and therefore a different context, we are dealing with it in a different provision, where it performs a completely different function to that which it performs in Ch 7 of the 1998 Act. This distinction is valid even though the 1987 Act and the 1998 Act are to be read together (s 2A of the 1987 Act and s 60 of the 1998 Act; Griffiths v Wakelin Plumbing Pty Ltd (1996) 16 NSWCCR 675). In the context in which “one claim” appears in s 66(1A), it is not open to interpret “claim” to mean any “demand”, however defective that demand may have been.
Sixth, I do not accept Mr Horan’s submission that the letter of 7 April 2014 was not a valid claim because, in breach of Pt 6.1 of the Guidelines, it did not include a permanent impairment claim form. As explained by Basten JA in Tan, s 260 “clearly envisages that a claim may not be made as required by the Guidelines and may yet constitute a ‘claim’” ([38]). However, that does not advance the appellant’s position in the present case. As explained earlier in this decision, a claim that is invalid, because it purported to claim something that was not “a monetary benefit under” the 1987 Act, as it did not meet the greater than 10 per cent threshold in s 66(1), cannot be a “claim” under s 66(1A).
As touched on earlier in this decision (see [62]–[63] above), several provisions in Ch 7 reduce the potential adverse consequence for a worker if the worker has failed to strictly comply with the claims procedures. Those provisions are designed to ensure that, because of ignorance, mistake or other reasonable cause, or, in some cases, because of a minor defect in form or style, workers are not barred from recovering compensation. This is consistent with the Commission’s statutory obligation to determine matters on their substantial merits (s 354(3)). These provisions are an integral part of beneficial legislation designed to ensure that workers’ claims do not fall at the first hurdle because of, among other things, a “minor defect in form or style” (s 260(5)). They are intended to protect workers, in the appropriate case, from injustices that might result from a failure to claim in time or a failure to use the correct form.
In the present case, however, the appellant seeks to turn s 260(5), and the other provisions to similar effect in Ch 7, on their head and use them against workers by saying that any demand, however defective, is a “claim” for permanent impairment compensation that satisfies the “one claim” provision in s 66(1A). That is a fundamentally flawed approach and cannot be accepted. Given the history of the legislation, and noting that, notwithstanding the amendments to s 66, it remains beneficial, it cannot be seriously contended that the legislature intended an invalid claim, such as that made in the present case, to be a worker’s “one claim” for the purposes of s 66(1A), such that he or she is then permanently deprived of the right to pursue a claim for permanent impairment compensation.
I do not accept Mr Parker’s submission that, because the appellant did not, in either of its s 74 notices, raise Mr Stafford’s failure to complete a permanent impairment claim form, it had waived that requirement, as permitted under s 260(6). On the available evidence, and having particular regard to the content of the s 74 notices, which make no reference to the Guidelines, it is more likely than not that the appellant did not consider the question of waiver.
Mr Parker’s submission on the waiver point amounts to this: the appellant waived the requirements in the Guidelines and, by doing so, if its argument as to the meaning of “claim” is accepted, Mr Stafford has made one claim and is prevented from obtaining any permanent impairment compensation. Such a position treats the Guidelines as setting requirements that can be waived by the insurer to advance its position. That is not how the waiver provision works. It is designed to allow an insurer to waive a requirement that a worker has not met, thus allowing the claim to proceed and be determined on its merits. Again, the appellant’s position seeks to turn the relevant provisions upside down so it can take advantage of the worker’s default. That approach is plainly wrong.
It follows from the above analysis that the Arbitrator’s conclusion involves no error and is confirmed.
DID THE LETTER OF 7 APRIL 2014 CONSTITUTE AN UNRESOLVED CLAIM?
Submissions
Mr Parker contended that as Mr Stafford had already made a claim on 7 April 2014, he could not make a further claim under s 66 (s 66(1A)) and the Arbitrator’s finding that the letter was capable of amendment was erroneous because there is no provision that allows an amendment. The legislation does not define “unresolved claims”, “amended claims”, or prescribe the way in which it would operate. Again, the Arbitrator inserted words into the legislation, which is inconsistent with the express wording of s 66.
Mr Horan submitted that there is no need for express words in the section to enable a claim to be amended; it happens as a matter of course.
Discussion and findings
Mr Parker’s submissions under this ground are dependent on an acceptance of his submission that the letter of 7 April 2014 was Mr Stafford’s “one claim” and it could not be amended because to do so would effectively be allowing a second claim. As I have rejected the premise underlying that submission, it is not strictly necessary to determine this issue. However, as the parties have addressed on it, and as it involves important matters of procedure, I will deal with it.
The suggestion that a claim for permanent impairment compensation, whether valid or invalid, cannot be amended prior to its resolution or determination is clearly wrong and is rejected.
It is true that neither the legislation nor the Workers Compensation Commission Rules 2011 (the Rules) deal with the amendment of the initial letter of “claim” for permanent impairment compensation or a permanent impairment claim form. That is hardly surprising. As explained earlier in this decision, when a claim is at that informal stage, the purpose of making a “claim” is merely to start the claims procedures in Ch 7. It is not a formal pleading. To suggest that, prior to the resolution or determination of the claim, by making a demand for permanent impairment compensation for a certain level of permanent impairment, the worker is permanently locked into that claim, and cannot amend it, is untenable and contrary to all principles of justice.
Once an Application to Resolve a Dispute is filed with the Commission, Pt 4 r 4.2 of the Rules provide that the Commission may, on the application of a party, 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” (Pt 4 r 4.2(1)). Such an amendment may be made at any stage of the proceedings and on such terms as the Commission thinks fit (Pt 4 r 4.2(3)). Where the Commission grants leave to amend a document, it may give directions as to the conduct of the proceedings consequent on the amendment.
As an applicant is permitted, with leave, to amend the formal Application to Resolve a Dispute, “for the avoidance of injustice”, so too must a claimant be permitted to amend a letter of claim, or a permanent impairment claim form, prior to the resolution or determination of the claim and prior to commencement of proceedings in the Commission. The contrary suggestion is unsupported by any authority or reasoning. It is clearly preferable that a letter of claim for permanent impairment compensation, or a permanent impairment claim form, should not be served until the worker’s condition is stable and has reached maximum medical improvement. If that is done, as it should be, the issue of amending the claim will rarely arise.
However, there will be rare cases, such as the present, where there is a change in impairment between the date of the initial claim and the date of resolution or determination of that claim. In such cases, it is appropriate that the claim be amended to reflect the correct position. That is especially so where workers are now restricted to only “one claim” for permanent impairment compensation and where formal proceedings have not commenced in the Commission. It is clearly in the interests of justice that, subject to any prejudice to the appellant, and none has been suggested in the present case, particulars of the worker’s claim properly reflect the claim that is being pursued.
The letter of 26 September 2014 was not a second claim. It merely amended the first claim. Except as otherwise provided by an order or rules of court, and Pt 4 r 4.2 is silent on this issue, amendments to pleadings take effect from the date of the original document which it amends rather than from the date when the amendment is made (Baldry v Jackson [1976] 2 NSWLR 415 at 419 per Samuels JA, citing Warner v Sampson [1959] 1 QB 297 and Sneade v Wotherton Barytes and Lead Mining Co Ltd [1904] 1 KB 295).
In the absence of any special provision in the legislation or Rules, there is no reason why the above principle should not apply to a document prepared prior to the commencement of proceedings. (It should be noted that the rules of court in most jurisdictions in Australia allow a party to amend his or her pleadings once without leave: Halsbury’s Laws of Australia, Butterworths, [325-2930].) Thus, the amendment effected by the letter of 26 September 2014 took effect from the date of the first claim on 7 April 2014.
It follows that if, contrary to the Arbitrator’s finding, the letter of 7 April 2014 was Mr Stafford’s “one claim” under s 66(1A), it was open to him to amend that claim prior to it being resolved or determined and the Arbitrator did not err on that issue. In other words, an amendment of a claim is not a second claim.
CONCLUSION
For the reasons explained above, the appellant’s argument that, for the purposes of s 66(1A), the letter of 7 April 2014 constituted Mr Stafford’s “one claim” cannot be accepted and the Arbitrator’s decision involves no error. Read in its proper context, “one claim” in s 66(1A) means one valid claim. Further, letters of demand for permanent impairment compensation, or permanent impairment claim forms, which are preliminary documents prepared prior to the commencement of proceedings in the Commission, may be amended prior to the resolution of the claim, if it is in the interests of justice to do so. Such an amendment does not amount to a second claim, but merely means that the one claim is amended to accord with the evidence. The amendment dates from the date of the original claim.
The result is that Mr Stafford’s claim can be remitted to an AMS for assessment, as per the Arbitrator’s orders in the Certificate of Determination of 8 April 2015. If the AMS issues a valid MAC it will be conclusively presumed to be correct as to, among other things, the degree of permanent impairment of Mr Stafford as a result of his injury and the Commission will make appropriate orders.
DECISION
Leave to appeal is granted. For the reasons in this decision, the Arbitrator’s determinations of 25 March 2015 and 8 April 2015 are confirmed.
Bill Roche
Deputy President
24 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
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