Zanardo v Tolevski

[2013] NSWCA 449

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449

Hearing dates:

17/09/2013

Decision date:

17 December 2013

Before:

Beazley P at [1];
Leeming JA at [2];
Tobias AJA at [39]

Decision:

(1) Leave to appeal granted.

(2) The draft notice of appeal stand as the notice of appeal in the proceedings.

(3) The appellant pay the applicable filing fee in respect of the notice of appeal within seven days, but all further requirements of the rules with respect to its filing and service be dispensed with.

(4) Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

WORKERS COMPENSATION - dispute over proposed treatment - whether referral to AMS mandatory before dispute determined - construction of Workers Compensation Act 1987, s 60(5) - no
basis for departing from ordinary grammatical meaning

Legislation Cited:

Interpretation Act 1987
Workers Compensation Act 1987
Workers Compensation Legislation Amendment Act 2010
Workplace Injury Management and Workers Compensation Act 1998

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305
Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138
Chevron USA Inc v Natural Resources Defense Council Inc 467 US 837 (1984)
Commission of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 87 ALJR 588
Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 87 ALJR 1009
Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Haroun v Rail Corporation New South Wales [2008] NSWCA 192; (2008) 7 DDCR 139
Inghams Enterprises Pty Ltd v Stanhope [2012] NSWWCCPD 32
Moon v Conmah Pty Ltd [2009] NSWWCCPD 134
MRS Environmental Services Ltd v Marsh [1997] 1 All ER 92
New South Wales Sugar Milling Co-operative v Manning (1998) 44 NSWLR 442
Rail Corporation New South Wales v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318
Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179
Spicer Axle Australia Pty Ltd v Merza [2007] NSWWCCPD 148
Telicki v Tennyson Textiles Pty Ltd (1960) 77 WN (NSW) 731
Waters Trading Company v Eade [1950] WCR 140
Widdup v Hamilton [2006] NSWWCCPD 258; (2006) 5 DDCR 85

Texts Cited:

Glass H, McHugh M and Douglas F, The Liability of Employers, 2nd ed (1979)

Category:

Principal judgment

Parties:

Zanardo & Rodriguez Sales & Services Pty Ltd (applicant)
Steve Tolevski (respondent)

Representation:

Counsel:
L King SC; H Halligan (applicant)
B Carney (respondent)
Solicitors:
Hicksons (applicant)
Shine Lawyers (respondent)

File Number(s):

2013/85509

 Decision under appeal 

Citation:

[2013] NSWWCCPD 9

Workers Compensation Commission

Date of Decision:

2013-02-28 00:00:00

Before:

Keating P

File Number(s):

WCC 4653/2012

HEADNOTE

[This Headnote is not to be read as part of the judgment]

Mr Tolevski fell while working for the applicant in 2007 and injured his left knee. His claim for workers compensation was accepted. Notwithstanding two arthroscopies, he remains unwell. Mr Tolevski requested approval for bilateral hip replacement surgery, as recommended by his orthopaedic surgeon. His request was refused on the basis that there was no causal connection between the injury to his hips and the injury suffered in 2007. An Arbitrator in the Workers Compensation Commission found that Mr Tolevski had not discharged his onus of proving that he suffered from a consequential condition in his hips as a result of the original injury to his knee. On appeal to a Presidential Member of the Commission, the Arbitrator's decision was revoked and the matter was remitted for referral to an Accredited Medical Specialist in accordance with s 60(5) of the Workers Compensation Act 1987.

The question on appeal in this Court was whether s 60(5), which permits a determination to be made resolving a dispute as to whether proposed medical treatment will be paid for by the workers compensation insurer, requires in every case the referral of the dispute for assessment under Part 7 (Medical Assessment) of Chapter 7 of the Act.

Held, granting leave but dismissing the appeal, that s 60(5), in accordance with its ordinary grammatical meaning, requires in every case the referral of the dispute for medical assessment.

Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 87 ALJR 1009, Commission of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 87 ALJR 588, Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138, Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305 applied;

Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; Rail Corporation New South Wales v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318; Haroun v Rail Corporation New South Wales [2008] NSWCA 192; (2008) 7 DDCR 139; New South Wales Sugar Milling Co-operative v Manning (1998) 44 NSWLR 442; Widdup v Hamilton [2006] NSWWCCPD 258; (2006) 5 DDCR 85; Chevron USA Inc v Natural Resources Defense Council Inc 467 US 837 (1984) referred to.

Judgment

1. BEAZLEY P: I agree with the orders proposed by Leeming JA and with his Honour's reasons.

1. LEEMING JA: This summons seeking leave to appeal, filed on 22 May 2013, is from a decision of a Presidential Member of the Workers Compensation Commission (Commission) which was said to be causing a significant impact on the conduct of disputed matters in the Commission. An appeal lies to this Court where a party is aggrieved "in point of law": Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), s 353(1). Leave is required because the decision is interlocutory: s 353(4)(a), but the application for leave was listed to be heard concurrently with the appeal. The question of law arising is whether s 60(5) of the Workers Compensation Act 1987 (1987 Act), which permits a determination to be made resolving a dispute as to whether proposed medical treatment will be paid for by the workers compensation insurer, requires in every case the referral of the dispute for assessment under Part 7 of Chapter 7 of the 1998 Act. For the reasons which follow, I agree with the conclusion of the Presidential Member that it does.

Background

1. The facts are uncontroversial. The applicant trades as "Canterbury BMW" and employed the respondent as a Car Detailer. One of his duties was washing cars on display. On 30 July 2007, Mr Tolevski fell while at work and injured his left leg and knee. His claim for workers compensation was accepted and there is no dispute that he was paid all compensation entitlements for the following four and half years. Notwithstanding two arthroscopies, he remains unwell. His solicitors, by letter dated 8 March 2012, requested approval for bilateral hip replacement surgery, as recommended by his orthopaedic surgeon, who stated:

"Mr Tolevski is a 38 year old man who presents with a very difficult problem. He has advanced osteoarthritis of both hips. From a historical perspective it seems that this was precipitated by a fall which occurred at work approximately 5 years ago. He has since had multiple treatments including two arthroscopies of his left knee. His hips have continued to deteriorate and he is barely able to walk. He has also gained a great deal of weight in this time.

Mr Tolevski requires bilateral total hip replacements."

1. By letter dated 13 March 2012, that request was refused by Cambridge Integrated Services Australia Pty Ltd, as agent for the NSW WorkCover Scheme:

"We dispute that you suffered an injury to either hip arising out of or during the course of your employment on 30 July 2007 or at all. We dispute that any arthritic condition in your hips is attributable to the injury to your left knee on 30 July 2007.

We dispute that any treatment and/or investigations required in respect to your hips is in any way connected with the injury on 30 July 2007 or to your previous employment with the employer."

1. A notice under s 74 of the 1998 Act was enclosed. That notice contained reasons elaborating the decision in the "plain language" then required by s 74(2B), in essence maintaining that there was no causal connection between the injury to Mr Tolevski's hips and the injury suffered on 30 July 2007. The reasons emphasised two matters. The first was that there was no mention of any injury to the hips in any of the documents relating to the injury, or in any of the (numerous) reports from medical practitioners between 2007 and November 2011. The second was directed to refuting any suggestion that Mr Tolevski's need for hip replacement was indirectly caused by the 2007 injury, because it had led to weight gain. The notice stated that it was not accepted that Mr Tolevski had gained any significant weight since 2007 (noting that he currently weighed 145 kilograms), and that in any event, on the basis that he said that he mobilised using two crutches, it followed that any additional weight that might have been put on since 30 July 2007 would have been borne by the crutches. The reasons included:

"● In the circumstances as you have not been weight bearing in respect to either leg we are not satisfied that there is any evidence that any injury to your left knee and the subsequent symptoms in your left knee have in any way contributed to the development of bilateral hip arthritis.

● That you have not been weight bearing on either leg for approximately four years given your use of two crutches on a regular basis since the original injury on 30 July 2007.

● In the circumstances we do not accept that there is any evidence to suggest a nexus between the development of bilateral hip arthritis and the injury to your left knee."

1. On 26 September 2012 the matter came before Arbitrator Wynyard for hearing. He found that Mr Tolevski had not discharged his onus of proving that he suffered from a consequential condition in his hips as a result of the original injury to his knee.

1. Mr Tolevski appealed pursuant to s 352 of the 1998 Act to a Presidential Member (Judge Keating), who referred the parties to s 60(5) of the 1987 Act, which had been inserted by the Workers Compensation Legislation Amendment Act 2010 (2010 Act), with effect from 1 February 2011, to which the Arbitrator had not been taken. He also referred to the second reading speech, which identified the mischief to which it was directed: a lack of jurisdiction to determine whether proposed, but disputed, medical treatment was covered (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 June 2010 at 24,637):

"[A] presidential decision has determined that the commission has jurisdiction to make determinations for medical or other treatment only where the expense has already been incurred. This means that in instances where there is a dispute between the scheme agent or insurer and a worker with regard to whether treatment is reasonably necessary, workers are unable to have their dispute heard at the commission unless they first pay for the treatment themselves. Many injured workers do not have the financial capacity to pay for major treatment and wait for reimbursement from the insurer. The amendment will ensure that the commission has the power to make a decision about whether treatment requested, but not yet received, is reasonably necessary, medically appropriate and in the best interests of the injured worker. This will be achieved by ensuring that an approved medical specialist gives an opinion with regard to the treatment, and the opinion of the approved medical specialist is taken into account in the decision." (emphasis added)

1. The Presidential Member also referred to Inghams Enterprises Pty Ltd v Stanhope [2012] NSWWCCPD 32 which had held that the second sentence in s 60(5) was mandatory. He agreed with the discussion and conclusions in that decision. He relied upon the ordinary and grammatical sense of the words used, confirmed by the second reading speech. He concluded (at [51]-[52]):

"Ultimately, the determination of whether treatment of Mr Tolevski's hips results from the injury to his knees, and is reasonably necessary will be a matter for the Arbitrator. Any opinion expressed by an AMS on referral under s 60(5), will be treated as evidence in the resolution of that dispute but will not be conclusive, as such an opinion is not one of the matters listed in s 326 of the 1998 Act that are conclusively presumed to be correct in proceedings before the Commission.

For these reasons, whilst there remained in issue a dispute concerning whether the proposed treatment was reasonably necessary as a result of the injury on 30 July 2007, the decision by the Arbitrator to reject Mr Tolevski's application, without referring the dispute in accordance with s 60(5) for assessment by an AMS under Pt 7 of Chp 7 of the 1998 Act, was an error."

1. The Presidential Member revoked the decision of the Arbitrator, remitted the matter to the Registrar for referral to an Approved Medical Specialist (AMS) in accordance with s 60(5), and made no order as to costs, because neither party had referred to s 60(5).

1. The single ground of appeal relied on in this Court was that there was error in "holding that it was mandatory to refer to an AMS the dispute or disputes between the parties before determining causation."

Section 60 of the 1987 Act

1. Subsections 60(1) and (5) are in these terms:

"(1) If, as a result of an injury received by a worker, it is reasonably necessary that:

(a) any medical or related treatment (other than domestic assistance) be given, or

(b) any hospital treatment be given, or

(c) any ambulance service be provided, or

(d) any workplace rehabilitation service be provided,

the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2)."

"(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute must be referred by the Registrar for assessment under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act, unless the regulations otherwise provide."

1. Section 60(1) is an indemnity provision, imposing an obligation on the employer to pay the cost of the treatment or service or related travel expenses: New South Wales Sugar Milling Co-operative v Manning (1998) 44 NSWLR 442. Subsections (2), (2A), (2B), (2C), (3) and (4) qualify and amplify the statutory indemnity in subsection (1). Subsection (5) is of a different character. The reason for its first sentence, which expands the authority of the Commission to decide disputes about prospective treatment, was that it had been held in Widdup v Hamilton [2006] NSWWCCPD 258; (2006) 5 DDCR 85 that there was no power to determine a dispute about paying for treatment which had not been undertaken. Save as reproduced in the second reading speech above, there was no mention of the second sentence in the Bill's passage through either chamber (this clause of the Bill was uncontroversial). Nor was it mentioned in the explanatory note.

1. This Court should proceed on the basis that the Minister was correct to express the view that legislation was needed to overturn the limiting effect of Widdup. Some muted criticism was expressed of the reasoning in Widdup in oral argument (it was said not fully to have regard to the "old jurisprudence" under the 1926 Act concerning declaratory relief, although as Street CJ said, with the agreement of Maxwell and Dwyer JJ, in Waters Trading Company v Eade [1950] WCR 140 at 141 and 142, the procedure was a "possibly unfortunate" and "unnecessary" importation from a differently worded English Act, statements which were endorsed by Owen, Brereton and Walsh JJ in Telicki v Tennyson Textiles Pty Ltd (1960) 77 WN (NSW) 731). In any event, this Court was not invited to overturn Widdup. True it is that sometimes an amendment turns out to be unnecessary because the decision it is intended to overturn is wrong (cf MRS Environmental Services Ltd v Marsh [1997] 1 All ER 92 at 103). However, in light of the circumstances in which subsection (5) came to be inserted, and the lack of formal challenge to Widdup in this Court, it is appropriate to proceed on the basis that absent subsection (5), the Commission would lack authority to determine the dispute as to future treatment proposed by Mr Tolevski.

Applicant's submissions

1. Mr King SC's written submissions for the applicant emphasised the time-lag that might result from assessment under Part 7 of Chapter 7 being mandatory. They pointed to the fact that within that time-frame, there might be a change in the proposed treatment or its cost, as well as the potential for difficulties in the formulation of the questions and answers. They said:

"The real problem is delay, and it is surprising that the legislature would have intended to delay the processing of claims in a scheme which was championed as offering speedy resolution of claims, especially when ... the opinion of an AMS on referral under the subsection is just another piece of evidence, not conclusive, and the critical question of causation, upon which the right to any particular medical treatment at any particular cost depends, remains the province of the Commission."

1. Mr King also referred in writing to a body of decisions which, so he said, showed that questions of causation were a matter for the Commission, which extended not merely to what he labelled "primary causation" (whether a primary injury arose out of or in connection with the course of employment) but also to "secondary causation" (where a primary injury operated in some way to produce a medical condition or complaint elsewhere in the worker's body). He gave as examples Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 (where a Deputy President was satisfied that Mr Moon's left shoulder symptoms had resulted from his right shoulder injury (at [48])) and Spicer Axle Australia Pty Ltd v Merza [2007] NSWWCCPD 148 (where the same Deputy President said that whether a pathology had been caused by the injurious event was "a liability issue over which the Commission has exclusive jurisdiction", and that "[o]nce all liability issues are determined, the question of what, if any, loss or impairment has resulted from the injury as found by the Commission is then to be determined by an AMS" (at [45]-[46])). He relied, in supplementary written submissions, on what had been written by Harold Glass, Michael McHugh and Francis Douglas in The Liability of Employers, 2nd ed (1979) at 201-202, to the effect that although medical evidence regularly could express a view as to whether a worker's condition was consistent with an injury, that was distinct from evidence establishing the requisite causal connection between condition and injury.

1. Orally, Mr King said that "unnecessary delay and expense are factors to be taken seriously", in circumstances where questions of causation, at least ordinarily, would be decided by the Commission, not by an AMS. He accepted, properly, that the ordinary meaning of the statute was as stated by the Presidential Member, but contended for a construction which did not make AMS referral mandatory where, as here, the only issue was factual causation. One way in which he put this was to characterise the dispute in the present case as being one with respect to causation, as opposed to a dispute concerning the compensation payable. As he put it, there was nothing to indicate that there would be any dispute as to the appropriateness of the bilateral hip replacement, or its cost, once it had been determined whether the threshold question of causation had been satisfied, that being a question for the Commission, not an AMS.

Construction of s 60(5)

1. In light of the statutory text, it was understandable that the applicant's submissions focussed on context and purpose. But the starting point must be the text. Two recent reiterations of this axiomatic proposition in the High Court and this Court are Commission of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 87 ALJR 588 at [47] and Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305 at [46].

1. The short reason why, in my opinion, the appeal should be dismissed may be stated immediately. I proceed on the basis that s 60(5) expands the jurisdiction of the Commission to extend to disputes about prospective treatment. It accords with the ordinary grammatical meaning, and was common ground, that "Any such dispute" in the second sentence of subsection (5) was a reference to the class of disputes identified in its first sentence, namely, the new class of disputes concerning proposed treatment, which otherwise were outside the Commission's jurisdiction.

1. That results in a substantial difficulty for the applicant's argument. Only if the dispute falls within subsection (5) can Mr Tolevski obtain, up-front, the certainty of knowing whether the disputed cost of his proposed bilateral hip replacement will be met by his former employer's insurer. But the proposition that there are some disputes (such as those confined to causation) to which the second sentence of subsection (5) does not apply, leads to one of two unattractive consequences. Either those disputes do not fall within the first sentence of subsection (5), or else "Any such dispute" means something less than the entire class of disputes falling within the first sentence of the subsection.

1. If the first alternative is correct, then subsection (5) does not apply in those cases at all, which means (on the basis on which the parties and the Legislature proceeded) that the Commission cannot determine the dispute about future treatment. This is to say nothing more than that one element of the new power to resolve disputes concerning prospective treatment is that there must first be a medical assessment under Part 7 of Chapter 7.

1. If the second alternative is correct, then the applicant's submissions seek to read an implied limitation into the prima facie unqualified language of the second sentence in s 60(5), confining it to circumstances where there was truly a question of what the appropriate prospective medical treatment was or its cost, such that it did not apply here, where the question was essentially one of causation. Mr King acknowledged the difficulties on a conventional approach attending any such exercise: cf Rail Corporation New South Wales v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318 at [46]-[47]. He was, with respect, right to do so: there is no textual basis for "any such dispute" to be read down to include a subset of those disputes in the first sentence of subsection (5), and there is nothing to suggest that that reading down is necessary in order to achieve the purpose of the 2010 Act, and it is not possible to "state with certainty" the words which should have been used.

1. The ordinary literal meaning of "Any such dispute" is that it means every such dispute, and not merely disputes confined to particular issues (such as causation). The grammatical meaning of s 60(5) is unambiguous. I am doubtful that this is a case where recourse to extrinsic materials pursuant to s 34 of the Interpretation Act 1987 is available (see Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179 at [21]), but in any event they do not assist the applicant.

1. The command in s 33 of the Interpretation Act to promote the purpose or object underlying the Act is not dependent upon there being ambiguity, but it likewise does not assist. One does not construe an Act imposing taxation so as, in every case, to advance the purpose of raising revenue. As Gleeson CJ said in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [6], commonly there will be a question as to how far the legislation goes in pursuit of that purpose. This appeal is an example.

1. In the years prior to 2011, an injured worker, in light of Widdup, could not readily obtain a binding decision in advance as to whether future treatment would be taken by the employer's insurer to be reasonably necessary; he or she therefore was at risk. The amendment introducing s 60(5) ameliorated that situation, but it did so in qualified terms. About that there is no dispute; the only question arising on this application for leave is whether the qualification bears its ordinary grammatical meaning, or some less absolute construction. Considerations of the overriding object of improving the speed at which medical treatment is obtained do not address the question; they are at too high a level of generality. Nor is the principle that where two constructions of the Act are available, that which favours the worker should be preferred: cf New South Wales Sugar Milling Co-operative Ltd v Manning at 447 and 450. A unanimous High Court in Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 87 ALJR 1009 at [40] reproduced and applied what Gleeson CJ had said in Carr at [5]-[6]:

"That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. ...

...Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling."

1. Here, no differently from Manning, the text is controlling. There is no sound basis for departing from its ordinary grammatical meaning. It is far from irrational for the new power to determine disputes about payment for the (necessarily uncertain) expenses for future medical treatment to be qualified by there having been an assessment by an AMS.

1. That conclusion is supported by the regulation-making power, which was inserted in subsection (5) and permits its mandatory operation to be displaced. The Court was told that that power had not been exercised. However, if the applicant is right and there are problems of delay and cost caused by disputes confined to causation being required to be referred for assessment under Part 7 of Chapter 7, then that problem may be cured on very short notice by the making of a regulation. Further, the fact that the regulation-making power has been enacted is a corroborating indication that the second sentence of subsection (5) otherwise operates invariably.

1. Mr King criticised reliance on the decision in Stanhope where it had been said (at [58]) that a dispute concerning liability for the expenses associated with proposed treatment fell within the defined term "medical dispute". There is some force in his criticism, although it may be noted that "medical dispute" as defined includes a dispute involving a question about, inter alia, "the treatment proposed or provided" (see paragraph (a) of the definition in s 319 of the 1998 Act, my emphasis). But the presently important consideration is that subsection 60(5) operates in a different way.

1. Ordinarily, s 321 of the 1998 Act confers a discretion to refer a "medical dispute" for assessment under Chapter 7 of Part 7. The significance of such a referral is that it is delimited by what constitutes a "medical dispute", and when the referral is completed and is certified, the certificate has a status given by s 326: it is conclusively presumed to be correct in respect of the matters listed in s 326(1), for example, "the degree of permanent impairment of the worker as a result of an injury" and "whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality", while it is merely evidence (that is to say, non-conclusive evidence) of any other matter: s 326(2). That accords with what Handley AJA, with the agreement of McColl JA and McDougall J, said in Haroun v Rail Corporation New South Wales [2008] NSWCA 192; (2008) 7 DDCR 139 at [16] of the statutory scheme:

"The scheme for the settlement of compensation disputes established by the 1998 Act read with the ... 1987 Act is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel."

1. But subsection s 60(5) operates differently from and independently of s 321. It is not discretionary, but mandatory, and it is not a referral of a "medical dispute" but of the new class of dispute, not otherwise within the jurisdiction of the Commission, namely, "a dispute about compensation payable under [s 60] concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service".

1. As indicated above, Mr King suggested that in the present case, it was better to characterise the dispute as being as to causation, as opposed to a dispute as to the proposed bilateral hip replacement; he emphasised that there was nothing to indicate that the parties were in dispute as to the treatment, but merely whether it was causally connected to the injury in the workplace. That submission, although persuasively put, is not well-founded, for two reasons.

1. The first is that it is no answer to a statutory command to refer a class of disputes to assessment to say that the particular dispute is better described by different language. The only safe approach is to ask whether the particular dispute answers the statutory description. In the present case, there is undoubtedly a "dispute concerning any proposed treatment [the bilateral hip replacement] and the compensation that will be payable under this section in respect of [that treatment] [the insurer says, none; the worker says, its entire cost]". True it is that the reasons for a dispute as to prospective treatment might arise in a number of ways. The dispute might arise because of controversy as to the nature of the proposed treatment (ie something less intrusive than bilateral hip replacement is warranted) or its cost (it can be done more cheaply than proposed) or because, as here, it is said not to be causally connected with the injury. But the statutory language does not discriminate as to the various reasons for the dispute; it merely asks whether there is a dispute which "concerns" "any" proposed treatment.

1. The second reason is, as was put to Mr King in argument in this Court by the President, that one could imagine a case where the dispute extended not merely to whether the condition was causally connected with the injury, but also as to the appropriateness of the proposed treatment. Mr King, in my view correctly, conceded that such a dispute could be referred for assessment under s 60(5), if it were decided to determine all aspects of the dispute at once. That example demonstrates that disputes, one of whose elements is causation, are not antithetical to being referred pursuant to s 60(5).

1. Mr King emphasised, as a contextual matter, the novelty and inappropriateness of requiring a medical assessment of a factual question of liability. Very properly, he accepted that the practices of those involved in administering the regime could not control its legal meaning; there is no room in the Australian legal system for deference to the construction of legislation given by executive agencies: Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [43]; cf Chevron USA Inc v Natural Resources Defense Council Inc 467 US 837 (1984). Even if that was not so, the fact that a construction of the statute alters the familiar processes in the Commission carries very little weight where, as here, a new head of jurisdiction is being conferred, which operates in a very different way - by means of mandatory referral of something which is not (or at least need not be) a "medical dispute" as defined in s 319. The previous practice of discretionary referral under s 321 says nothing as to the proper construction of s 60(5).

1. That suffices to resolve the question of construction. The argument at the hearing ranged more widely, so that it is convenient to add the following reasons.

1. First, it is not clear to me that questions of causation are foreign to "medical disputes" in any event, or that there is utility in appealing to a dichotomy between liability disputes and medical disputes. A "medical dispute" is a dispute or a question about any of the matters listed in s 319, including "the degree of permanent impairment of the worker as a result of an injury" and "whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion" (paragraphs (c) and (d), emphasis added). It is not necessary to decide the point for present purposes, but that language of causal connection which is squarely within both the definition of "medical dispute" and the conclusive effect of s 326 suggests that it may be best to avoid speaking in generalities to the effect that "issues of liability" are matters for the Commission and "medical issues" are for an AMS. Still less is it helpful to refer to "primary causation" and "secondary causation". Commonsense suggests that there is not a bright line delineating causation from medical evidence. Issues of causation often involve disputed medical opinions. Thus, in the present case the decision of the Arbitrator was based upon his evaluation of the medical evidence which had been tendered by the parties (and where, as the recommendation of Mr Tolevski's orthopaedic surgeon reveals, he did not shrink from expressing an opinion as to causation). That tends to emphasise that there is nothing antithetical in the Commission making determinations of this nature informed, in addition, by the opinion of an AMS.

1. Secondly, in the particular facts of this case, it is far from clear whether the dispute was indeed properly characterised narrowly as one purely of whether an existing condition was causally connected with a workplace injury. For example, the first ground of appeal from the decision of the Arbitrator was that "The Arbitrator erred in failing to find that Mr Tolevski suffered bilateral hip injuries on 3 July 2007, such a finding being against the weight of the evidence." That tends to suggest that the dispute was broader than was characterised by the parties in this Court.

1. It follows that the Presidential Member was right to set aside the Arbitrator's decision. He referred to what the High Court said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 at [4] as to the starting point being the ordinary and grammatical sense of the statutory words having regard to their context and legislative purpose. He was correct to proceed on that basis.

Orders

1. In light of the evidence as to the significant impact of the decision, I would propose the following orders:

(1)   Leave to appeal granted.

(2)   The draft notice of appeal stand as the notice of appeal in the proceedings.

(3)   The appellant pay the applicable filing fee in respect of the notice of appeal within seven days, but all further requirements of the rules with respect to its filing and service be dispensed with.

(4)   Appeal dismissed with costs.

1. TOBIAS AJA: I agree with the orders proposed by Leeming JA for the reasons he has expressed.

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Decision last updated: 18 December 2013