Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski

Section 60 of the 1987 Act 11Subsections 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." 12Section 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. 13This 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 14Mr 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." 15Mr 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. 16Orally, 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) 17In 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]. 18The 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. 19That 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. 20If 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. 21If 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. 22The 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. 23The 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. 24In 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." 25Here, 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. 26That 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. 27Mr 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. 28Ordinarily, 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." 29But 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". 30As 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. 31The 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. 32The 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). 33Mr 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). 34That 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. 35First, 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. 36Secondly, 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. 37It 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 38In 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. 39TOBIAS AJA: I agree with the orders proposed by Leeming JA for the reasons he has expressed.

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