Decision
20 It is clear that an agreement by a worker cannot of itself exclude the worker from entitlement to compensation; and so the question is whether s 51(3) of the 1987 Act had the effect of removing the employer's liability for the compensation claimed by the worker in July 2006.
21 In this case, the worker has, within s 51(3)(b), agreed "that payment of a lump sum should remove any liability to make a payment under Division … 4 in respect of the injuries"; so that the payment of the lump sum did remove "any liability to which the agreement of the worker relates".
22 That gives rise to the following questions:
(1) What was "the injury" in respect of which the worker agreed that liability would be removed?
(2) Was this the injury in respect of which compensation is now sought?
(3) Is the compensation now sought in respect of a "liability to make a payment under Division …4"?
23 As regards the first question, the worker agreed that liability would be removed in respect of:
(a) "skin cancer, severe facial disfigurement and severe bodily disfigurement", and also
(b) "all or any injuries received by the [worker] during the course of [his] employment with the [employer] and injuries arising out of the nature and conditions of that employment, during the period in which the [worker] was employed by the [employer]."
24 As regards (a), there is no doubt that "skin cancer" was capable of being an injury within par (b)(i) of the definition in s 4 of the 1987 Act, and that the amendment provided by the Short Minutes of Order was intended to and did have the effect of identifying this as such an injury. The reference to severe facial disfigurement and severe bodily disfigurement was plainly intended to reflect the wording of s 65(2)(b), and thus to identify a "loss" within the meaning of s 65 of the 1987 Act, as it then stood.
25 As regards (b), no doubt the worker's skin cancer condition was an injury arising out of the nature and conditions of his employment with the employer; but there is a question as to whether it arose during the period in which the worker was employed by the employer. In my opinion, the better view is that the injury did relevantly arise during the period of employment, and thus falls within these words as well.
26 Thus, in my opinion, subject to the second question, the commutation application and the orders made pursuant thereto were effective to remove liability in respect of the injury so identified under Division 4.
27 Mr McManamey submits that because, under s 15, the date of the worker's skin cancer injury is deemed to be 12 July 2006, this injury could not be an injury in respect of which liability was released in 2000: it had not arisen in 2000, so it could not be any of the injuries referred to in the commutation application and orders made pursuant thereto as being an injury existing in 2000.
28 The case which comes closest to giving support to that submission is Alto Fords Pty Ltd v Antaw [1999] NSWCA 234, (1999) 18 NSWCCR 246. In that case, the respondent had been injured in 1976 while employed by the appellant, when a metallic particle struck his left eye; and in 1978 he settled a claim under s 16 of the Workers Compensation Act 1926 in respect of a ten per cent loss of sight in the left eye (this settlement not involving a commutation under s 51). Subsequently he was employed by other employers, and in 1996 he ceased full-time work. Pursuant to a claim made on 29 July 1996, he was awarded weekly compensation from 1993, and a lump sum payment under s 66 of the 1987 Act in respect of a further forty per cent loss of sight of the left eye and for pain and suffering under s 67 of that Act.
29 The primary judge found that incapacity from the injury occurred in 1992 when the respondent was no longer able to carry out pre-injury employment; but that in respect of the claim for a lump sum payment under s 66 and s 67, the deemed date of injury was the date when the claim was made. The Court of Appeal upheld those findings.
30 However, the Court of Appeal noted (at [13]-[15]) s 15(3) and s 15(4) of the 1987 Act as having the effect that the additional loss of vision would itself be an injury within s 15; and the court accordingly held that the additional forty per cent loss of sight measured in 1996 was an injury which had not caused the incapacity which had occurred in 1992, and thus was deemed to have occurred when the claim was made in 1996.
31 I would comment that some of this additional forty per cent loss must presumably have occurred by 1992; but since not all of it had occurred by 1992, and since under s 15(3) and s 15(4) this total additional loss could be treated as a separate injury, it must be correct to say that the injury consisting of the total forty per cent additional loss could not have caused the 1992 incapacity.
32 On that analysis, Antaw does not support a proposition that s 15(1)(b) can in effect create an injury, simply by deeming an injury to have occurred on a particular date.
33 It could be contended that, if and insofar as permanent impairment from the worker's skin cancer has increased since 2000, this increase is a permanent impairment and thus an injury within s 15(4); and that this injury is deemed to have occurred on 12 July 2006. However, even if that is correct, in my opinion this additional injury would still fall within the category of injury by way of skin cancer, liability in respect of which was released in 2000.
34 Turning to the third question, it is true that "loss" within the earlier version of ss 65-67 is different from "permanent impairment" within the current version. However, in my opinion, so long as Division 3 and Division 4 of Part 3 of the Act cover the same general types of compensation, removal of liability under Division 4 as it existed in 2000 is effective to remove liability under Division 4 as it is following the 2001 amendments. In my opinion, it could not have been the intention of the Legislature, in changing Division 4, to deprive agreements having effect under s 51 of their efficacy in relation to removal of liability under Division 4.