HEADNOTE
[This headnote is not to be read as part of the judgment]
On 14 November 2011 the applicant had a work accident in which she suffered injuries to her lumbar spine, thoracic spine and right shoulder. In later work accidents on 3 May and 26 September 2012 she suffered further injuries to her lumbar spine and thoracic spine. The applicant claimed against her employer, the respondent, for permanent impairment compensation under s 66 of the Workers Compensation Act 1987 (NSW) (the "1987 Act").
The applicant was assessed by an approved medical specialist ("AMS") to determine the degree of any permanent impairment she suffered as a result of her injuries under s 322 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the "1998 Act"). The AMS found that the applicant suffered whole person impairment ("WPI") as follows: 3% 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 spinal injuries suffered on the first date contributed to the spinal injuries suffered on the two subsequent dates, but that the shoulder injury did not contribute to the later injuries.
On appeal from a decision of an arbitrator, a Deputy President of the Workers Compensation Commission held that the spinal injuries could be assessed together, resulting in a WPI of 12%. The Deputy President however found that the WPI of 3% for the shoulder injury was unable to be aggregated with the 12% WPI for the spinal injuries, because the shoulder injury was obtained in a different injurious event, did not materially contribute to the subsequent spinal injuries and was "not the same injury (pathology)". This meant that the applicant was not entitled to permanent impairment compensation in respect of her shoulder injury (compensation is only payable if the WPI resulting from an injury exceeds 10%: see s 66(1) of the 1987 Act).
The applicant sought leave to appeal to the Court of Appeal under s 353 of the 1998 Act. The principal issue on appeal was whether the Deputy President had misconstrued s 322(2) and (3) of the 1998 Act and therefore erred in finding that the applicant could not have all of her injuries assessed together (which would result in a total WPI of 15%).
The Court granted leave to appeal and allowed the appeal:
(Per Macfarlan JA, McCallum JA and Simpson AJA agreeing at [28] and [35] respectively):
The applicant'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 correct: [13]. The Deputy President was correct to add the WPI percentages referrable to the thoracic and lumbar spine injuries suffered in the two later incidents to those suffered in the first incident: [14]. That approach fell within the second category identified in Oakley and applied s 65(1) and (2) of the 1987 Act: [14]. If the later spinal injuries resulted from those suffered on the first date, 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: [16]. All the injuries therefore "resulted from" and "arose out of" the first incident: [15], [18]. In consequence, all the injuries should 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: [15], [16].
State Government Insurance Commission v Oakley (1990) 10 MVR 570, considered.
It was not necessary or appropriate to express any concluded view concerning the correctness of the decision in Edmed: [22]. Edmed was distinguishable from the present case because it did not address any argument that an injury materially contributed to later injuries and therefore that the later injuries "arose out of" or "resulted from" the first: [22], [24]. Even if correct, the approach in Edmed to s 322(2) of the 1998 Act does not have any limiting effect on s 322(3): [24].
Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; (2008) 7 DDCR 288, discussed.
(Additional observations per McCallum JA, Simpson AJA agreeing at [35], regarding the "presumption from amendment"):
The force or validity of the presumption from amendment 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: [32]. In this case, it is highly unlikely 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): [34]. This is an instance in which it is "artificial, and unpersuasive" to attribute Parliament with a consciousness of the judicial interpretation contended to have informed the relevant amendments: [34].
Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627; Electrolux Home Products Pty Ltd v The Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40, applied. Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; (2008) 7 DDCR 288, discussed.