Ozcan v Macarthur Disability Services Ltd

Judgment

1. MACFARLAN JA: On 14 November 2011 Ms Nuray Ozcan, the applicant, had a work accident in which she suffered injuries which included, so far as is presently relevant, injuries to her lumbar spine, thoracic spine and right shoulder. On 3 May and 26 September 2012 she suffered further injuries to her lumbar spine and thoracic spine at the same workplace. Following Ms Ozcan's claim against her employer, the respondent, for permanent impairment compensation (see s 66 of the Workers Compensation Act 1987 (NSW) (the "1987 Act")), the parties reached agreement as to the injuries she suffered. As a result, a referral was made to an approved medical specialist ("AMS") to determine in accordance with s 322 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the "1998 Act") the degree of any permanent impairment suffered by Ms Ozcan as a result of her injuries.
2. The AMS issued a certificate on 7 June 2019 finding that, as a consequence of the three incidents, Ms Ozcan had suffered a 3% whole person impairment ("WPI") resulting from the injury to her right shoulder, 5% from that to her thoracic spine and 7% from that to her lumbar spine. The AMS found that the right shoulder injury was not contributed to by the two subsequent incidents but that the two spinal injuries suffered on the first date contributed to the spinal injuries suffered on the two subsequent dates. As a result, he apportioned the WPI resulting from the spinal injuries (totalling 12% WPI) at 4% to each of the three incidents.
3. The AMS totalled these percentages and assessed a combined WPI of 15%. The parties subsequently accepted that the AMS's certificate was not binding as to the way in which the percentages found could or should be aggregated (compare s 326 of the 1998 Act identifying the respects in which an AMS certificate is binding).
4. Following a decision of an arbitrator, Mr J Wynyard, the matter came on appeal to Deputy President Wood of the Workers Compensation Commission. The Deputy President found that Ms Ozcan had suffered a WPI of 12% in respect of the lumbar and thoracic spine injuries and, separately, 3% in respect of the right shoulder injury. On this basis Ms Ozcan was not entitled to permanent impairment compensation in respect of her shoulder injury as, under s 66(1) of the 1987 Act, compensation is only payable if the WPI resulting from an injury exceeds 10%. The Deputy President reached her conclusion because she found that Ms Ozcan was "not entitled to aggregate the whole person impairment of the right upper extremity [shoulder] with the losses of the thoracic spine and lumbar spine attributable to the injurious events on 3 May 2012 and 26 September 2012" (at [153]).
5. Ms Ozcan seeks leave to appeal to this Court against that decision, contending that it involved a misconstruction of s 322(2) and (3) of the 1998 Act, with the result that Ms Ozcan was aggrieved by a decision of a Presidential member of the Commission "in point of law" (see s 353(1) of the 1998 Act). Ms Ozcan accepts that leave to appeal is required because the amount in issue is less than $20,000 (the monetary effect of a finding that the appropriate WPI is 15% rather than 12% being less than that sum) (see s 353(4)(c) of the 1998 Act). She however contends that the proposed appeal involves an issue of principle which should clearly be determined in her favour and points to the beneficial impact that a finding of 15% WPI would have on her ability to claim common law damages (see s 151H of the 1987 Act which specifies a WPI threshold of 15%).
6. For the reasons given below, Ms Ozcan should be granted leave to appeal and her appeal should be allowed. The parties accepted that if the Court was of that view, it should also order that the respondent pay compensation based on a 15% WPI finding as that order would be a necessary consequence of finding that the Deputy President's conclusion that the WPIs for all Ms Ozcan's injuries could not be aggregated was erroneous.

Relevant legislation

1. The following provisions of the 1987 Act are of present relevance: Division 4 Compensation for non-economic loss 65 Determination of degree of permanent impairment (1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act. (2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division. Note - The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A. (3), (4) (Repealed) … 66 Entitlement to compensation for permanent impairment (1) 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 by this section. Permanent impairment compensation is in addition to any other compensation under this Act. Note - No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less. (1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury. (2) The amount of permanent impairment compensation is to be calculated as follows - [the amounts of permanent impairment compensation are then specified by reference to different WPI percentages].
2. The following provisions of the 1998 Act are of present relevance: 319 Definitions In this Act: approved medical specialist means a medical practitioner appointed under this Part as an approved medical specialist. medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim - (a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided), (b) the worker's fitness for employment, (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, (e) the nature and extent of loss of hearing suffered by a worker, (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable. … 322 Assessment of impairment (1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose. (2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker. (3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker. Note - Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury. (4) An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made. … 323 Deduction for previous injury or pre-existing condition or abnormality (1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. … 326 Status of medical assessments (1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned: (a) the degree of permanent impairment of the worker as a result of an injury, (b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, (c) the nature and extent of loss of hearing suffered by a worker, (d) whether impairment is permanent, (e) whether the degree of permanent impairment is fully ascertainable. (2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.

The Deputy President's decision

1. The Deputy President referred by way of preface to the following principles stated by Emmett AJA (with whom I agreed) in Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321: "[53] In common law contexts, an injury or incapacity may be attributable, in the legal sense, to more than one cause operating concurrently. [See Baker v Willoughby [1970] AC 467 at 492.] There is no difference between the legal view of causation in tort and causation in the field of workers compensation, subject to the qualification that, in a claim for workers compensation, it is unnecessary to prove that the incapacity was the natural and probable consequence of the injury. That is to say, the question of foreseeability does not arise. It is sufficient that the incapacity results from the injury by a chain of legal causation unbroken by a novus actus interveniens. [See Busby v Morris [1980] 1 NSWLR 81 at [19].] [54] Two causation tests are involved in a medical assessment of permanent impairment under Pt 7 of Ch 7 of the Management Act. The first test arises from the provisions of ss 9 and 9A of Compensation Act. That is to say, it must be shown that the injury that gave rise to the impairment in question arose out of or in the course of employment that and that the employment was a substantial contributing factor to the injury. The second test arises from the provisions of ss 319(c) and 326(1)(a) of the Management Act. That is to say, it must be shown that the permanent impairment is as a result of the injury. [55] The phrase 'the degree of permanent impairment of the person as a result of an injury' appears in both ss 319(c) and s 326(1)(a) of the Management Act. That composite phrase requires an enquiry as to the causal connection between the degree, or percentage, of assessed permanent impairment of a worker, on the one hand, and the compensable injury, on the other. That is to say, it was necessary for the AMS and the Appeal Panel to assess the degree, or percentage, of whole person impairment of the Worker that was caused by or is attributable to the First Injury. In doing so, common law principles of causation in tort are to be applied." Simpson AJA's judgment in that case was consistent with these observations.
2. The Deputy President then reached the following conclusions concerning Ms Ozcan's thoracic and lumbar spine injuries: "[132] All three injuries involved injury to the thoracic spine and lumbar spine so that the impairments attributed to each of the thoracic spine and the lumbar spine, while different pathologies, can be aggregated by operation of s 322(3) of the 1987 Act. [133] It follows that the impairments flowing from the thoracic spine (5%) and lumbar spine (7%) 'result from' (in the common law sense) the injury on 14 November 2011 and are to be assessed together, which in the statutory context is in accordance with s 322(2) of the 1998 Act. Applying the Combined Values Chart contained in the AMA Guides for Evaluation of Permanent Impairment, Fifth Edition, the total combined impairment of the lumbar and thoracic spines is 12% WPI."
3. The Deputy President however reached the following conclusions concerning the right shoulder injury: "[145] The impairment to the right upper extremity cannot be aggregated with the losses arising as a result of the second and third injuries on the basis of the common law principles discussed above. The right shoulder injury did not materially contribute to the impairments of the lumbar or thoracic spine and was not the same injury (pathology). The only basis upon which the assessment of the right upper extremity could be aggregated with the other assessments is in accordance with s 322(3) of the 1998 Act. … [150] The impairments of the lumbar spine and thoracic spine assessed by the AMS can be aggregated by application of both the common law principles and s 322(2) and liability rests with the respondent for a total 12% WPI. However, that does not extend to a permission to aggregate the right upper extremity impairment with the impairments attributable to the injuries on 3 May 2012 and 26 September 2012. This is because the injurious event involving the right shoulder was a different injurious event to those events occurring on 3 May 2012 and 26 September 2012 and the right shoulder injury did not materially contribute to those subsequent thoracic and lumbar spine injuries."
4. As I noted above, the result was that no permanent injury compensation was payable in respect of the right shoulder injury as the WPI for it of 3% was below the threshold of 10% specified in s 66 of the 1987 Act.

The merits of the proposed appeal

1. Ms Ozcan's argument that she was entitled to have the 3% WPI in respect of her right shoulder injury assessed together with the 12% total WPI found in respect of her spinal injuries was simple, and in my view correct. It was to the following effect.
2. First, Ms Ozcan submitted that the Deputy President was correct to add the WPI percentages referable to the thoracic and lumbar spine injuries suffered in the second and third incidents to those suffered in the first incident because those subsequent injuries were materially contributed to by the spinal injuries suffered in the first incident. As the Deputy President held (at [129]-[130]), this causal connection placed the injuries in the second category described in State Government Insurance Commission v Oakley (1990) 10 MVR 570 at 573. That second category was identified in Oakley as one "where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, [with the result that] the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence" (at 573). This approach is simply an application of s 65(1) of the 1987 Act that describes the degree of permanent impairment for which compensation is payable as that which "results" from the injury in question and s 65(2) which requires injuries "arising out of the same incident … to be treated as one injury …".
3. Secondly Ms Ozcan argued that, in these circumstances, it was clear that both the right shoulder injury and the thoracic and lumbar spinal injuries "resulted from" and "arose out of" the first incident: the first spinal injuries and the shoulder injury admittedly did so and the effect of the first step in Ms Ozcan's argument (see [14] above) was that the spinal injuries suffered in the second and third incidents also did so. In consequence, they should all have been "treated as one injury" and "assessed together", as directed by s 65(2) of the 1987 Act and s 322(3) of the 1998 Act, leading to a 15% WPI finding.
4. The Deputy President reached a different conclusion because she found that the right shoulder injury "did not materially contribute to the impairments of the lumbar or thoracic spine and was not the same injury (pathology)" (see [145] and [150] quoted in [11] above). This was not however, with respect, the issue that needed to be addressed. The relevant question was whether the later spinal injuries resulted from those suffered on the first date. If they did, s 322(3) of the 1998 Act required them to be assessed with the impairment arising out of the right shoulder injury because the injuries all arose out of the same incident, that is, that of 14 November 2011.
5. It is no answer to this reasoning that the injuries suffered in the first incident only materially contributed to, and were not the sole cause of, the injuries suffered in the second and third incidents. If the incidents had occurred in the employment of different employers, more than one employer might have been liable to pay workers compensation (see Accident Compensation Commission v CE Heath Underwriting & Insurance (Aust) Pty Ltd (1994) 68 ALJR 525 at 526-7; [1994] HCA 68).
6. The respondent contended that Ms Ozcan's argument would, if accepted, result "in the aggregation of impairments that, in truth, are unconnected to one another". The impairments are however connected because the first incident injuries materially contributed to them. They therefore "arose out of" and "resulted from" that incident. The likelihood of the consequences of multiple accidents needing to be assessed together is considerable in light of the law's adoption of a "material contribution" rather than a "sole cause" test.
7. On appeal, the respondent relied heavily on the decision of Roche DP in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; (2008) 7 DDCR 288, a case in which a worker suffered injuries to his right wrist on two separate occasions. Roche DP found that for the WPI in respect of each injury to be assessed together the injuries would need to be correctly characterised as "the same injury" within the meaning of s 322(2) of the 1998 Act. He held that they were not in that case because of three differences between the injuries, including, by way of example, that in the first incident the worker "fractured his scaphoid and radius, but only his scaphoid in the second incident" (at [35]). The Deputy President took this approach because he considered that the expression "the same injury" in s 322(2) meant, effectively, the same type of injury (or, as he described it, the "same pathology").
8. The alternative view is that that sub-section is referring to the very same injury suffered in a particular incident and not to the same type of injury suffered in more than one incident. Upon that basis, the sub-section is referring to the possibility that an injury sustained in a particular incident may give rise to more than one type of impairment. For example, a broken arm may impair the worker's ability both to write and to play sport. Section 322(2) directs that those impairments are to be assessed together and not separately.
9. The respondent asserted that Edmed has been followed on many occasions in the Workers Compensation Commission (although had not relevantly been the subject of any decision of this Court: compare Galluzzo v Little [2013] NSWCA 116 at [41] in relation to [26] only of Edmed) and submitted that the legislature had effectively adopted, or at least acquiesced in, Edmed's interpretation of s 322(2) by not taking any one of a number of opportunities that had risen since Edmed to amend s 322(2).
10. It is not however necessary, or indeed appropriate, to express any concluded view concerning the correctness of the decision in Edmed. Ms Ozcan did not assert that it was incorrect but, for good reason, submitted that it was not, even if correct, determinative of the presently proposed appeal. Edmed is distinguishable from the present case at least for the reason that Roche DP did not address any argument, presumably because none was put to him, that the first wrist injury with which that case was concerned materially contributed to the second. There thus did not arise in that case any suggestion that the second injury "arose out of" or "resulted from" the first. The decision did not therefore contradict what I consider to be the correct conclusion in the present case that, because the first spinal injuries contributed to the later ones, the impairments "resulting from" the later injuries, as with those "resulting from" the first, "arose out of" the incident in which the first were suffered, thereby attracting s 65(2) of the 1987 Act and s 322(3) of the 1998 Act.
11. In oral argument, Mr Herzfeld SC, who appeared with Ms Hammond for the respondent, accepted that if s 322(3) were read in isolation from s 322(2), the former would bear the meaning I have ascribed to it (see [22] above). He submitted however that s 322(2), as Edmed interpreted it, required s 322(3) to be read down so as to exclude that approach.
12. I do not accept this submission as, even if Edmed is correct, it does not have any limiting effect on s 322(3). There is no reason not to give effect to s 322(3) of the 1998 Act and s 65(2) of the 1987 Act according to their terms. Mr Herzfeld's submission was based on his proposition that the result in Edmed would have been different if Ms Ozcan's construction of s 322(3) is correct. I do not accept this to be so. It would only have been different if there had been a finding of material contribution by the first wrist injury to the second. It is thus not a different view about the construction of s 322(3) that would have made the decision in Edmed different but a different factual conclusion.
13. Section 65(2) of the 1987 Act is to the same effect as s 322(3) of the 1998 Act - under the former, injuries arising out of the same incident are to be treated as one injury and under the latter, impairments resulting from more than one injury arising out of the same incident are to be assessed together. The respondent submitted that s 65(2) was a deeming provision because it required multiple injuries arising out of the same incident to be "treated" as one injury. It referred in support to authorities such as Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 95 ALJR 117 at [51] indicating that a deeming provision should be treated with some caution to ensure that it is not "taken to have a legal operation beyond that required to achieve the object of its enactment". Such caution is not however significant in the present case as the meaning and effect of s 65(2) are clear and wholly consistent with s 322(3) of the 1998 Act which is not, in form, a deeming provision. There is no basis in either enactment for giving s 65(2) anything other than its ordinary and natural meaning. On that basis it indicates the correctness of Ms Ozcan's argument.

Conclusions

1. For the reasons I have given above, the Deputy President erred "in point of law". Whilst the question of whether another injury or an impairment "results from" an injury is a question of fact (see Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463-4), the present case involved a misapplication of s 322(3) of the 1998 Act and a failure to address the issue raised by the sub-section. As the issue in question is potentially a matter of some significance, leave should be granted and the appeal allowed.
2. I propose the following orders: 1. Grant leave to appeal. 2. Direct that within 14 days Ms Ozcan file and serve a notice of appeal in the form provided to the Court. 3. Set aside the orders made by Deputy President Wood in her determination of 21 April 2020. 4. In lieu thereof, order that the respondent pay compensation to Ms Ozcan pursuant to s 66 of the Workers Compensation Act on the basis that she suffered a 15% whole person impairment as a result of injuries incurred on 14 November 2011. 5. Order the respondent to pay Ms Ozcan's costs of her application for leave to appeal and appeal.
3. McCALLUM JA: I agree with Macfarlan JA. I would make one additional observation, which concerns the "presumption from amendment". The presumption was stated in the following terms by Kirby P in Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 at 640: "There is a presumption, useful in statutory interpretation, that where a provision of legislation has been passed upon by authoritative decisions of the courts and is later re-enacted, Parliament can be taken, in the absence of a clear intention to the contrary, to know and accept the interpretations given in the legislation."
4. The respondent relied on the presumption to support the submission that the aggregation of different incidents and "pathologies" (a term that does not appear in the legislation) such as the aggregation of the impairment from a shoulder injury in 2010 with the impairment from spinal injuries in 2012 is not contemplated or permitted by the statutory scheme. The submission invoked the presumption on the basis that the statutory construction applied by Deputy President Roche in Edmed and decisions of the Workers Compensation Commission that have followed that decision may be taken to have been adopted, or at least acquiesced in, by the legislature by virtue of the fact that it has not taken "any one of a number of opportunities" to amend s 322(2) since the publication of that decision.
5. Upon analysis, the argument entailed an additional step invoking a different principle of statutory interpretation. The decision in Edmed assumed s 322(2) has some application in cases involving injury suffered in more than one incident. On that assumption, the reasoning attempted to reconcile s 322(2) with s 322(3). Macfarlan JA has noted an alternative view of s 322(2) based on a different construction of the word "injury" in that section; but his Honour has also noted that it is neither necessary nor appropriate in the present case to express any concluded view concerning the correctness of the decision in Edmed. I respectfully agree.
6. Macfarlan JA has concluded, and again I agree, that because the spinal injuries suffered in the first incident contributed to the later spinal injuries, the impairments "resulting from" the later injuries, as with those "resulting from" the first, "arose out of" the incident in which the first were suffered, thereby attracting s 65(2) of the 1987 Act and s 322(3) of the 1998 Act. The decision in Edmed was not concerned with the same issue. As Macfarlan JA has explained, the respondent's submission was rather that Edmed states an authoritative construction of s 322(2) which requires s 322(3) to be read down so as to exclude the analysis applied by Macfarlan JA.
7. The presumption from amendment can have no application in such a case. I am not here addressing the question raised in argument as to whether the presumption can arise in the case of a line of authority established by a specialist tribunal as opposed to a superior court (as to which see Minister Administering Environmental Planning and Assessment Act 1979 v Carson (1994) 35 NSWLR 342 at 362-63 (Young AJA) and the discussion in Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [8.60]). What is clear is that the force or validity of the presumption in any case rests on the confidence with which it can be concluded that the legislature knew of the decision and the relevant interpretation at the time the statute was amended, so that the absence of amendment may be seen to indicate a considered choice indicating adoption of that interpretation.
8. In Electrolux Home Products Pty Ltd v The Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40, the High Court had little difficulty concluding that the Federal Parliament, when amending industrial relations legislation, had adopted a judicially settled meaning of an expression used previously in that legislation: at [8] (Gleeson CJ); [81] (McHugh J); [161]-[162] (Gummow, Hayne and Heydon JJ). However, the judicially settled meaning in that case came from a decision of the High Court published two years before the amendment. McHugh J expressed the view at [80] that it would be "astonishing if the Department, its officers and those advising on the drafting of the Act would have been unaware of [the earlier High Court decision]".
9. The respondent's submission in the present case invited the Court to conclude that parliamentary counsel, in drafting various amendments to the workers compensation legislation, acted on instructions given after the decision in Edmed had not only been scrutinised for what it says about s 322(2) but also interpreted as having a necessary implication for the proper construction of s 322(3). That seems highly unlikely. In my view, it is an instance of what Gleeson CJ in Electrolux at [8] described as a circumstance in which it is "artificial, and unpersuasive" to attribute Parliament with a consciousness of the judicial interpretation contended to have informed the relevant amendments.
10. SIMPSON AJA: I agree with Macfarlan JA. I also agree with the additional observations of McCallum JA.

---

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 April 2021