Supreme Court New South Wales

• Medium Neutral Citation: TJ Galluzzo and SJ Galluzzo t/as Riverwood Chemworld Chemist v Dianne Little [2011] NSWSC 1581
• Hearing dates: 25 October 2011
• Decision date: 19 December 2011
• Jurisdiction: Common Law
• Before: Schmidt J

Decision

For the reasons given, notwithstanding the views which I have reached as to the proper construction of the Act and the Guides, the appeal must be upheld, the decision quashed and the matter referred back to the Medical Appeal Panel.

The usual order is that costs should follow the event. The parties may approach if they wish to be heard on costs. Otherwise they should file agreed minutes of the orders to be made

• Catchwords: APPEAL - Workers Compensation - whether Appeal Panel was in error - refusal of an oral hearing - failure to give reasons - whether there was error on the face of the record - jurisdictional error - whether the Appeal Panel - properly considered the grounds of the appeal; STATUTORY CONSTRUCTION - construction of the Workplace Injury Management and Workers Compensation Act 1998 and the WorkCover Guides for the Evaluation of Permanent Impairment - construction of s 323 of the Workplace Injury Management and Workers Compensation Act 1998 - whether s 322(4) grants a discretion to a Medical Specialist - appeal upheld
• Legislation Cited: Motor Accidents Compensation Act 1999; Workers Compensation Act 1987; Workplace Injury Management and Workers Compensation Act 1998; Interpretation Act 1987
• Cases Cited: Allianz Australia Insurance Ltd v Crazzi [2006] NSWSC 1090; 68 (2006) NSWLR 266; Ah-Dar v State Transit Authority of New South Wales [2007] NSWSC 260; (2007) 69 NSWLR 468; Bull v Attorney-General (NSW) (1913) 17 CLR 370; Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372; Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; Lukacevic v Coats Hire Operations Pty Ltd [2011] NSWCA 112; Lauda Enterprises Pty Ltd v Akkannen [2010] NSWWCCPD 91; Nash v Sunshine Porcelain Potteries Ltd (1959) 101 CLR 353; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336; Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140; Siddik v WorkCover Authority of NSW [2008] NSWCA 116; Symbion Health Ltd v Hrouda [2010] NSWSC 295; Thiering v Daly [2011] NSWSC 1345; Thompson v Goold & Co [1910] AC 409; Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260; Ward v Williams (1955) 92 CLR 496
• Category: Principal judgment
• Parties: TJ Galluzzo and SJ Galluzzo t/as Riverwood Chemworld Chemist (Plaintiff); Dianne Little (First Defendant); An Appeal Panel of the Workers' Compensation Commission constituted pursuant to section 328(1) of the Workplace Injury Management Act 1998 (Second Defendant); The Registrar of the Workers' Compensation Commission (Third Defendant)
• Representation: Counsel: Mr C Jackson (Plaintiff); Mr D Hooke SC with Mr L Morgan (First Defendant); Ms Elizabeth Welsh (WorkCover Authority of NSW); Solicitors: Leigh Virtue & Associates (Plaintiff); Beilby Poulden Costello (First Defendant)
• File Number(s): 2011/84012
• Publication restriction: None

Judgment

1 The first defendant, Ms Dianne Little, was injured at work in March 2007. She later made a workers compensation claim and was eventually assessed to have a permanent impairment to her right knee and her spine, as a result of that injury. She had also injured her right knee, but the assessment of that injury was deferred until it stabilised. The plaintiff, Ms Little's employer, challenged the assessment. The challenge was considered and dismissed by a Medical Appeal Panel on 21 January 2011. The employer now challenges the Medical Appeal Panel's decision. The appeal raises questions of the construction of the Workplace Injury Management and Workers Compensation Act 1998 ('the Act') and the WorkCover Guides for the Evaluation of Permanent Impairment ('the Guides') and whether the Medical Appeal Panel denied the employer a fair hearing.

2 The Medical Appeal Panel's decision was made after a Workers Compensation Commission Arbitrator decided that the injury to Ms Little's knees was a substantial contributing factor to her spinal condition. There was then a dispute between the parties about the degree of Ms Little's resulting impairment. That was only partially resolved by the decision made by the Approved Medical Specialist, Dr Sikander Khan. It was his decision which became the subject of the employer's appeal to the Medical Appeal Panel.

3 By summons filed in March 2011, the employer asked for a declaration that the Medical Appeal Panel's decision involved error on the face of the record and jurisdictional error and an order quashing the decision. The grounds relied on included that the Appeal Panel was in error in refusing an oral hearing; in not properly considering the grounds of the appeal, in circumstances where the Registrar was satisfied that a particular ground had been made out; in having regard to irrelevant considerations; in going beyond matters available to be considered on appeal; in considering the requirement for a deduction for pre-existing abnormality; and in failing to consider or apply applicable provisions of the Act and the Guides.

4 The orders sought were opposed by Ms Little. The hearing was adjourned to give the WorkCover Authority of New South Wales ('WorkCover') an opportunity to make submissions to the Court about the validity of cl 1.21 of the Guides. That issue arose when the employer argued that it was inconsistant with s 322 of the Act. WorkCover took up that opportunity, supporting the submissions made by Ms Little about the construction of the Act and the Guides.

The injury

5 There is no dispute about what happened to Ms Little. She fell to her knees while she was at work, with the result that both her knees were injured. She also developed symptoms in her lumbar spine, which a treating doctor considered to be an aggravation of a pre-existing asymptomatic condition.

The Medical Assessment Certificate

6 Ms Little was referred to Dr Khan for assessment under s 293 of the Act. He concluded that the injuries to her lumbar spine and her right lower extremity had reached maximum medical improvement, but that the condition in her left lower extremity had not. Dr Khan issued a Medical Assessment Certificate in September 2010 ('the Certificate') under s 325 of the Act. That section provides:

"325 Medical assessment certificate

(1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate ) as to the matters referred for assessment.

(2) A medical assessment certificate is to be in a form approved by the Registrar and is to:

(a) set out details of the matters referred for assessment, and

(b) certify as to the approved medical specialist's assessment with respect to those matters, and

(c) set out the approved medical specialist's reasons for that assessment, and

(d) set out the facts on which that assessment is based.

(3) If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error.

(4) An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but may not be compelled to give evidence."

7 Dr Khan assessed that maximum medical improvement of Ms Little's left lower extremity was likely to occur after a period of about six months. He assessed 4% whole person impairment ('WPI') for the right knee condition, with no material contribution from any underlying condition. 7% WPI was assessed for the lumbar spine condition, with 1/10 th , or 0.7% reflecting a pre-existing degenerative condition, with the result a 6% WPI. The combined WPI was assessed at 10%. Dr Khan issued a Certificate to that effect.

The appeal from the Certificate

8 The employer appealed the Certificate under s 327 of the Act, on the basis that the assessment had been made on incorrect criteria and contained demonstrable error. The section limited the grounds of appeal, providing:

"327 Appeal against medical assessment

(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

(2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

(3) The grounds for appeal under this section are any of the following grounds:

(a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment,

(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

(c) the assessment was made on the basis of incorrect criteria,

(d) the medical assessment certificate contains a demonstrable error.

(4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out.

(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.

(6) The Registrar may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).

Note. Section 329 also allows the Registrar to refer a medical assessment back to the approved medical specialist for reconsideration (whether or not the medical assessment could be appealed under this section).

(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.

(8) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.

Note. Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success."

9 The employer supported the appeal by brief written submissions, seeking an opportunity to present oral submissions to the Medical Appeal Panel at a hearing. The reasons given for that application were the grounds of the appeal; the nature of the appeal; and the numerous matters which it was said needed to be addressed orally. It was submitted that the Certificate went beyond issues which an Approved Medical Specialist may determine; that Dr Khan had failed to take into account relevant considerations; that he had taken into account irrelevant considerations; that there was no evidence to support the assessment or there was insufficient evidence; and that the assessment was inconsistent with the evidence. A denial of procedural fairness was also raised. The basis for these complaints was not outlined in detail in the written submissions.

10 As to the application of incorrect criteria and demonstrable error, the complaints advanced included that Dr Khan had erred in making any assessment of impairment at a time when the condition of the left knee had not reached maximum medical improvement. It was submitted that Ms Little's impairment could not be assessed until that had occurred. The assessment of the level of impairment of the right knee and the lumbar spine were also submitted each to have been wrongly carried out and to have omitted any deduction for a pre-existing abnormality. How the assessments ought to have been carried out and what the pre-existing abnormality in each case which had been overlooked was, were not explained.

11 The appeal was opposed by Ms Little. She urged in her written response, that the appeal should be decided on the basis of the parties' written material. She complained that the employer's written submissions did not provide sufficient particulars; that there was no reason why impairment in respect of the two injuries which had reached maximum medical improvement, could not be determined then and the impairment resulting from the right knee determined later, once that condition had stabilised; that it was unfair that she be prevented from receiving any workers compensation for her other injuries, until the third condition had stabilised; and that the employer had not pointed to any statutory provision or authority, which prevented the assessment of impairment of the conditions which had stabilised.

12 Ms Little also argued that the evidence in relation to any pre-existing condition of the right knee, had been properly considered by Dr Khan. He had concluded that there was no material contribution to the impairment of that knee. He had also considered the evidence going to the pre-existing condition of the lumbar spine and had concluded that there should be a one tenth reduction as a result. That finding was open, in accordance with s 323(2) of the Act.

13 The employer's only response to these submissions, was a letter noting its request for a hearing.

The Registrar's decision

14 The appeal was first considered by a delegate of the Registrar, Ms Dong, who gave a decision on 25 November 2010, concluding that on the face of the application, a ground of appeal specified in s 327(3)(d) had been made out. Section 327 provides:

"327 Appeal against medical assessment

(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

(2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

(3) The grounds for appeal under this section are any of the following grounds:

(a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment,

(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

(c) the assessment was made on the basis of incorrect criteria,

(d) the medical assessment certificate contains a demonstrable error.

(4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out.

(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.

(6) The Registrar may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).

(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.

(8) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section."

15 At that time, s 328 provided:

" 328 Procedure on appeal

(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.

(2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal.

(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment.

(4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel.

(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.

(6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel."

16 Section 328(2) has since been amended to limit the review 'to the grounds of appeal on which the appeal is made'.

17 Ms Dong concluded that the employer had made out one of the grounds of appeal, namely that all impairments must be determined together, having in mind provisions of s 322 of the Act and certain provisions of the Guides, which applied to the assessment undertaken by the Approved Medical Specialist. The reasons given were:

"5. The Appellant submits that all impairments must be determined together. The AMS has erred in determining the impairment separately by reference to the right lower extremity and the spine only where the left lower extremity has not reached maximum medical improvement ('MMI').

6. Paragraph 1.21 of the WorkCover Guides expounds the concept of "MMI":

"Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the injured worker is fully ascertainable. The permanent impairment will be fully ascertainable where the medical assessor considers that the person has attained maximum medical improvement. This is considered to occur when the worker's condition has been medically stable for the previous three months and is unlikely to change by more than 3% WPI in the ensuring 12 months with or without further medical treatment (ie further recovery or deterioration is not anticipated)."

7. "MMI" appears to have evolved from the concept of "maximal medical improvement" in AMA5, which is pertinent to the determination of permanent impairment. Under AMA5, impairment refers to impairment of a body part; once an impairment of a body part has reached maximal medical improvement it is then considered to be permanent and a permanent impairment rating may be performed. It appears from the context of the MAC that MMI is also linked to the impairment of a body part. Part 8 of the MAC includes the following questions:

"... Have all body parts stabilised/reached maximum medical improvement?

If not, please list those injuries not yet stable/at maximum medical improvement:

If stabilization/maximum medical improvement, or any or all injuries has not been reached, when, in your opinion, will this occur?"

8. In the current case the left lower extremity has not reached MMI. The AMS, therefore, deferred the assessment of the left lower extremity. The AMS found that the right lower extremity and the lumbar spine have reached MMI. He then proceeded to assess the impairment of these two body parts. His approach appears to be consistent with the AMA5. However, the opening sentence of paragraph 1.21 of the WorkCover Guides seems to reflect section 322 of the Act. It may intend to adopt a different approach to AMA5.

9. Subsection 322(3) of the Act provides:

"Impairments that result from more than one injury arising out the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker".

10. Subsection 322(4) provides:

"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."

11. The phrase "the degree of permanent impairment of the injured worker" appears to refer to the total degree of permanent impairment of the injured worker, counting all the "impairments that result from more than one injury arising out of the same incident", rather than the degree of permanent impairment of a body part.

12. If "the degree of impairment of the injured worker" in paragraph 1.21 refers to the total degree of permanent impairment, then it cannot be considered to be fully ascertainable unless impairment of each body part arising out of the same incident has reached MMI. The fact that the AMS has proceeded to assess the degree of permanent impairment of the right lower extremity and the lumbar spine could be an error for the purpose of section 327(3)(d)."

The Appeal Panel's decision

18 The appeal was dismissed after it was considered on the papers, without any oral hearing. The reasons given by the Appeal Panel did not deal with the matters identified in the reasons given by Ms Dong. The Appeal Panel was critical of the employer's submissions, observing:

"10. The Appellant has sought an Assessment Hearing saying that it proposes to elaborate on the claimed errors in the Medical Assessment Certificate. No explanation is given why the written submissions require further elaboration. It is not even claimed that the written submissions are incomplete. The Panel is not under an obligation to hold an Assessment Hearing (see Estate of Heinrich Christian Brockman v Brockman Metal Roofing Pty Ltd [2006] NSWSC 235, Skillen v MKT Removals Pty Ltd and Ors [2007] NSW SC 608, Smith v Liquip Services Pty Ltd and Ors [2007] NSW SC 687 and Symbion Health Ltd v Hrouda and Anor [2010] NSW SC 295 ). Having considered the evidence and the submissions the Panel is satisfied the matter can be properly determined without an Assessment Hearing.

...

28. The Panel considers that the submissions made by the Appellant are not of an acceptable standard. They contained nothing but vague unspecified assertions without reference to the evidence. The Panel is of the view that such submissions are unacceptable. The Appellant is well aware that medical appeal matters are routinely determined on the papers and that accordingly written submissions must include all matters which are relevant to the deliberations of the Panel. If there is evidence or authority to support any submission then it must be referred to in the submission. Vague assertions that are unsupported by evidence and in some instances simply wrong are not acceptable."

19 Despite these views the Appeal Panel did not call for further submissions from the employer, even in relation to the matters dealt with by Ms Dong. It merely noted those views, before turning to its role in the appeal proceedings. The result was that the Appeal Panel did not deal with the ground of appeal that the Registrar's delegate had determined had been made out, or with the provisions of cl 1.21 of the Guides, or ss 322 and 327 of the Act.

20 The Appeal Panel did refer to the Court of Appeal's decision in Siddik v WorkCover Authority of NSW [2008] NSWCA 116, observing that the appeal was prima facie confined to the grounds which the Registrar 'has let through the gate', but noted that it could also consider other grounds coming within s 327(3), if it gave the parties an opportunity to be heard. The Panel also noted its obligation to give reasons for its decision (see at [13]).

21 The Appeal Panel then noted that s 372(2) of the Act restricted the matters about which the Certificate was binding (at [14]). It indicated that it had conducted its own review of the material and had reached its own assessment of the impairments and losses suffered by Ms Little (at [15]).

22 After referring to the material which it had considered, the Panel indicated that it, too, was satisfied that Ms Little's lumbar spine and right knee had reached maximum medical improvement, but that her left knee had not (at [21]). At [24] it observed:

"The Appellant submits that because the left lower extremity had not reached maximum medical improvement was inappropriate for assessments to be made in respect of the lumbar spine and the right lower extremity. The Appellant does not refer to any part of the legislation, rules, guidelines, or authority to support this proposition. The Panel does not accept that Appellant's submissions. There is no reason why a worker cannot be paid compensation in respect of impairments that have stabilized and at a later time be paid additional compensation for other impairments which have not been stabilized. As the Respondent points out the combining tables are available to assess the total impairment when the additional impairments have stabilized. There is no reasons why an injured worker should be kept out of his entitlement to compensation for body parts that have stabilized. This is particularly so when such delay cannot be compensated with an award of interest."

23 The Appeal Panel then looked afresh at Ms Little's injuries. It agreed with the conclusions reached by the Approved Medical Specialist, about the level of impairment which she had suffered in relation to the right knee and lumbar spine injuries (at [21] and [23]). It noted that the employer disagreed with those assessments and alleged that they were in error, but observed that what the errors were alleged to be, had not been identified (at [25]). The Appeal Panel also accepted Ms Little's submission that Dr Khan had considered the evidence of the pre-existing conditions in respect of both the right knee and the lumbar spine and agreed with the conclusions reached (at [26] and [27]). It upheld the conclusions reached and dismissed the appeal.

Opportunity to be heard and failure to give reasons

The parties' cases

24 The employer complained that the Appeal Panel did not accept its request for an oral hearing, but dealt with the matters raised on the papers. It was accepted that under this statutory scheme there did not have to be any oral hearing, but it was argued, nevertheless, that given the course that the Appeal Panel pursued, it ought, at the least to have called for further submissions, in relation to the matters which the Registrar's delegate had dealt with in her reasons.

25 There is no issue that the question of whether or not there should be an oral hearing, was a matter for the Appeal Panel's discretion. Guideline 45 of the WorkCover Medical Assessment Guidelines expressly permits the Appeal Panel to deal with a case 'on the papers'. That was reiterated in the Registrar's delegate's decision.

26 The employer complains that the refusal of its request for an oral hearing was irrational and resulted in legal error (see Lukacevic v Coats Hire Operations Pty Ltd [2011] NSWCA 112 per Handley AJA at [97] and Ah-Dar v State Transit Authority of New South Wales [2007] NSWSC 260; (2007) 69 NSWLR 468 at 482 - 483).

27 It argued that the views which the Appeal Panel reached about the inadequacy of the submissions it had advanced, particularly in relation to the legislative scheme, did not relieve the Appeal Panel of the obligation to consider and determine that ground of appeal. The Appeal Panel had before it the reasons given for the Registrar's delegate's decision. In the circumstances, it could have conducted an oral hearing, or given the employer the opportunity to make further written submissions, but it could not fail to deal with the appeal which had been advanced. Under this statutory scheme, it was obliged to consider the basis upon which the Registrar's delegate had determined that a ground of appeal had been established.

28 It was also submitted that the result of the approach adopted was that the Appeal Panel did not engage with the matters raised by the appeal. Not only was the Appeal Panel obliged to consider and determine that aspect of the appeal, it also had to give reasons for its conclusion. No reasons were given for the conclusion that there was no reason why a worker cannot be paid compensation in respect of impairments that have stabilised and at a later time be paid additional compensation for other impairments that have not stabilised. That conclusion must have rested on a particular view of the operation of the Act. What that view was, was not revealed. Thereby, the Appeal Panel failed to meet its obligations.

29 Ms Little's case was that to the extent that the employer was not heard on those matters, that was the result of its own decision not to supply the Appeal Panel with adequate written submissions and not to reply to the submissions which Ms Little had filed in response. The position was argued to be like that considered in Symbion Health Ltd v Hrouda [2010] NSWSC 295. The employer's inadequate submission could not, by default, give it a right to an oral hearing and provided no basis for the complaint now advanced on appeal to this Court.

Failure to hear

30 It seems to me that despite the unquestionable deficiency of the employer's submissions, Ms Little's arguments on this issue may not be accepted.

31 The content of the right to be heard is informed by the statutory scheme in question and the nature of the decision involved. Under the Act and the Guides there was no automatic right to an oral hearing. In this case the parties were at issue over whether one was necessary. The employer was not entitled to a hearing simply because it had demanded one, nor because it had put on inadequate submissions. As Ms Little argued, its failure to avail itself of the opportunity it had, to put on adequate written submissions as to the grounds of appeal which it wished to pursue, did not equate to a failure on the Appeal Panel's part, to give it an opportunity to be heard.

32 Even so, that cannot overcome the Appeal Panel's failure to deal adequately with the aspect of the appeal on which the Registrar's decision rested, or to give reasons for the conclusions which it reached about that ground of the appeal. The approach adopted by the employer to the submissions was certainly inappropriate, leaving it with no basis upon which to complain that it was refused an oral hearing. Despite the views reached by the Appeal Panel as to the inadequacy of the submissions made on the matters which arose for determination, it could not simply ignore the questions raised by the appeal as to the operation of the statutory scheme. In the circumstances, at the least, it ought to have given the parties the opportunity to put on further written submissions, if there was to be no oral hearing.

33 In Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244 the Court of Appeal dealt with a case where there was also a discretion to decide an appeal on the papers and where that course was taken, contrary to the approach sought by the appellant. The legislative scheme and circumstances there in question were somewhat different, but relevantly Mason P observed that even where the other side did not resist an oral hearing, that did not make such a hearing mandatory. His Honour observed, pertinently in this case:

"95 Next, the employer says that it flagged its intention to make further submissions orally at the hearing it had sought. It complains that the Presidential member did not notify the employer that she was contemplating dealing with the matter "on the papers", thereby arming the employer with the opportunity of putting in further submissions in writing.

96 However, the employer had no entitlement to or legitimate expectation of such notification. It knew that it was at least "on the cards" that the Commission might proceed on the papers. The employer sought to persuade the Commission otherwise but, on the evidence before us, it had no entitlement to presume a favourable response to the views it somewhat presumptuously expressed through its solicitors."

34 Here, it was also plainly 'on the cards' that the employer's application for an oral hearing might be refused. That was what Ms Little urged. The employer had the opportunity to advance submissions in response to those advanced against it by Ms Little, on the matters in issue, but failed to take advantage of that opportunity. It cannot complain about that lost opportunity.

35 Even so, in the circumstances, given the Appeal Panel's views as to the inadequacy of the submissions before it on a matter which it had to determine, given the Registrar's delegate's decision, it was plainly obliged to seek clarification from the parties as to their cases on that issue.

36 That was the approach taken in Symbion Health Ltd v Hrouda . There, Hall J took the view that there had been no denial of procedural fairness in circumstances where the Appeal Panel had identified the issue on which its consideration turned and had invited further submissions from the parties, to which the plaintiff had not responded. There the Appeal Panel was also not satisfied with the submission initially provided. The plaintiff did not pursue that opportunity and in those circumstances, no lack of procedural fairness was found (see at [75] - [98]). That course was not taken by the Appeal Panel in this case.

37 The result was that the issue on which the Registrar's delegate concluded that a ground for appeal had been established, which concerned the construction and operation of provisions of the Act and the Guides and a possible conflict between them, was not properly dealt with. The views expressed were not ones which the parties had specifically addressed. That being so, if the Appeal Panel determined to proceed without an oral hearing, at the least it ought to have called for submissions from them, on the views which the Registrar's delegate had expressed, before coming to a conclusion on the construction point which had arisen for its determination.

38 By failing to take that course, the parties were not given an opportunity to be heard on a matter which then fell to the Appeal Panel to decide. The result was a denial of procedural fairness, the parties not having been heard on the point.

Failure to give reasons

39 The conclusion reached by the Appeal Panel that there is 'no reason why a worker cannot be paid compensation in respect of impairments that have stabilised and at a later time be paid additional compensation for other impairments which have not been stabilised' was not explained. There was no reference made to any aspect of the statutory scheme on which that conclusion rested. The inadequacy of the submissions which the parties had addressed to the construction point, did not obviate the need for the Appeal Panel to give reasons for its conclusion on that point.

40 In Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, Handley JA observed at [8] that '[a]n appeal does not proceed to an Appeal Panel unless it appears to the Registrar that at least one of the grounds for appeal "exists", which I take to mean that the ground is, on its face, valid and apparently credible (s 327(5))'. While its consideration is not confined to such grounds, an Appeal Panel must give proper reasons for the decisions which it reaches. They need not be extensive, but a failure to give such reasons constitutes legal error on the face of the certificate which it issues (see Vegan at [31] and [121]). It may also constitute jurisdictional error (see Vegan at [130]).

41 It follows that this aspect of the appeal must also be upheld.

Re-assessment

42 The plaintiff also complained that the Appeal Panel had determined to assess the matter for itself. In Siddik it was observed at [98]:

"Further, while the express limitations on opening the gate to an appeal are suggestive of an appeal limited to the grounds identified by the appellant, there is much to be said for the view that when used in the context of the review of an MAC by a panel including two specialists, that they should be entitled to determine "the true and correct view": Chelmer (at [30]). The purpose of setting up a panel with experts is to enable it to resolve questions within its expertise: Kalil v Bray [1977] 1 NSWLR 256 (at 262) per Street CJ (Moffitt P and Glass JA agreeing)."

43 In such a case, however, requirements of procedural fairness arise. At [101] - [104] it was observed:

"[101] In my view it is inappropriate to resolve the issues by applying prescriptive labels to the nature of the s 328 review. I am, however, of the view that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gate, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. This is not a backdoor resurrection of the appellant's abandoned third ground of appeal, simply a recognition of the proposition that determinations, which affect the "rights, interests and legitimate expectations" of the parties, attract requirements of procedural fairness: Kiowa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584) per Mason J. This includes giving a party an opportunity to deal with material which can be characterised as credible, relevant and significant and adverse to the interests of that person: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [14]-[18]) per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. The proposition that the Court may conclude the Appeal Panel could act of its own initiative on the basis that it accord the parties natural justice was raised in the course of argument, and not resisted by Mr Marsh.

[102] It has already been held that the Appeal Panel is subject to an implied statutory obligation to give reasons arising from the statutory context and the nature of the functions imposed on it: see Vegan per Handley JA (at [26]-[31]); per Basten JA (at [117]). It might also be recalled that the Second Reading Speech clearly stated the legislature's intention that the appeal process be conducted in a procedurally fair manner, the inclusion of the Arbitrator being intended, in part, to ensure that outcome.

[103] The conclusion that the Appeal Panel can consider grounds of appeal not the subject of s 327(3) leave as long as it accord procedural fairness, is consistent with the objectives of the Workplace Injury Act I earlier identified of providing injured workers and their dependants with payment for permanent impairment (s 3(c)), delivering the objectives efficiently and effectively (s 3(f)) and providing a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts: s 367(1)(a); see Chelmer (at [23]-[24]); Riverina Wines (at [86]). It is also consistent with Kirby P's observations in the Watson line of authority about the undesirability of confining a review in the workers compensation context to a creature resembling an appeal in the judicial context.

[104] In my view, therefore, while it was open to the Appeal Panel to depart from the grounds of appeal the respondent had identified, it could only do so if it notified the parties and gave them an opportunity to be heard. It did not do so and, therefore misconceived its role, the nature of its jurisdiction and its duty: Coal and Allied Operations (at [31]) per Gleeson CJ, Gaudron and Hayne JJ. The appeal to the Appeal Panel must be reheard."

44 In this case, it was complained that the Appeal Panel departed from the grounds of appeal, but did not give the plaintiff an opportunity to be heard. On Ms Little's approach, given the matters raised by way of the notice of appeal and the supporting submissions, all aspects of the assessment were attacked with the result that the Appeal Panel had no option but itself to assess the matter afresh, even though the submissions were unhelpfully unclear as to what precisely was complained of.

45 It seems to me that there is considerable force in this submission. The authorities have warned of the risks which flow from the course adopted. Despite the submissions advanced against it, the plaintiff provided no further explanation of its complaint. In this respect, it does not appear to me that the Appeal Panel's approach erred. This was an all grounds attack and in the circumstances it was entitled and perhaps obliged, itself, to consider the assessment undertaken.

46 This aspect of the appeal was also not established.

Award of interest

47 The employer also complained that it was denied an opportunity to be heard in relation to the Appeal Panel's conclusion that any delay in assessing the level of impairment would not be compensated by an award of interest. It was not in contention that this was not a matter on which either party addressed the Appeal Panel. Again, however, given the plaintiff's approach it seems to me that this complaint is not made good.

The construction of the Act and the Guides

The scheme of the legislation

48 This legislative scheme is concerned to provide no fault compensation for injured workers. In construing the Act, s 3 must be born in mind. It provides:

" 3 System objectives

The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives:

(a) to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury,

(b) to provide:

· prompt treatment of injuries, and

· effective and proactive management of injuries, and

· necessary medical and vocational rehabilitation following injuries,

in order to assist injured workers and to promote their return to work as soon as possible,

(c) to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,

(d) to be fair, affordable, and financially viable,

(e) to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work,

(f) to deliver the above objectives efficiently and effectively."

49 Construction of the Act must also be approached in the context of provisions made in the Workers Compensation Act 1987 ('the 1987 Act'); the two Acts having to be 'construed with, and as if it formed part of' the other (see s 2A of the 1987 Act).

Statutory construction

50 In considering the parties' competing cases, it is necessary to bear in mind the provisions of the Interpretation Act 1987, which provides:

"33 Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object."

51 The Act is remedial legislation which must be interpreted liberally, as discussed in Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384:

"In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially (per Lord Loreburn L.C. in Bist v. London and South Western Railway Co. (1907) A.C., 209, at p. 211.). This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow."

52 It is also apt to bear in mind the discussion in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, where it was observed:

"[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute [See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ]. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole"[ Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, "in the context of the legislation read as a whole".]. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed [ Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J].

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals [ Ross v The Queen (1979) 141 CLR 432 at 440, per Gibbs J]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions [See Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574, per Gummow J]. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other"[ Institute of Patent Agents v Lockwood [1894] AC 347 at 360, per Lord Herschell LC.]. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision [ The Commonwealth v Baume (1905) 2 CLR 405 at 414, per Griffith CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13, per Mason CJ]. In The Commonwealth v Baume [(1905) 2 CLR 405 at 414] Griffith CJ cited R v Berchet [(1688) 1 Show KB 106 [89 ER 480]] to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent"."

The circumstances in which the construction point arose

53 It is necessary to bear in mind that the statutory construction point arose because Ms Little suffered more than one injury, as the result of the incident in which she was injured. There is no question that permanent impairment of one knee and her spine resulted. There is also no issue that those impairments were ascertainable when Dr Khan conducted his assessment, but that flowing from the injury to her other knee was not. The question is thus, whether in those circumstances, the Act permitted any assessment of Ms Little's permanent impairment to be made at that time, or whether an assessment had to wait until the permanent impairment resulting from all three injuries had stabilised.

54 It was not suggested that the stabilisation of the third injury could lead to the possibility that Ms Little's overall permanent impairment would be less than that which had resulted from the two injuries which had already stabilised. The only issue was whether, and by how much, the degree of her permanent impairment might be worsened by the third injury.

55 In order to put the competing constructions into a practical context, the parties also addressed their submissions to practical examples. That is a necessary consideration, the consequences of the competing constructions urged, being a matter to which attention must be paid, when legislation is being construed and there being a need to avoid consequences that seem irrational and unjust (see Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336 at 350).

56 It was common ground that in a case where there was an accident resulting in a head injury, as well as various orthopaedic injuries, it is possible that the orthopaedic injuries, even if very serious, would stabilise well before the head injury. On the plaintiff's approach, in such a case the injured worker's degree of permanent impairment could not be ascertained, until the head injury had stabilised, no matter how severe the impairment resulting from the orthopaedic injuries were; or how long it might take for the head injury to stabilise.

57 It was accepted that this approach could cause real hardship, but it was argued that this was one of the accommodations which had been made in this legislative scheme, between important competing concerns. One such concern was that there is no statutory provision which entitles an employer to seek a reassessment, even if a worker assessed to have been permanently impaired later recovers some or all of their health.

The statutory scheme

58 It is s 322 of the Act which arises for consideration. Only once its meaning has been ascertained can consideration may be given to the requirements of the Guides and whether there is any inconsistency between it and cl 1.21 of the Guides.

59 In construing s 322, the provisions of s 67 of the 1987 Act , which deals with compensation, must also be born in mind. It provides:

"67 Compensation for pain and suffering

(1) A worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive from the worker's employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000. Pain and suffering compensation is in addition to any other compensation under this Act.

Note. Section 65A provides that pain and suffering compensation for permanent impairment arising from psychological injury is not payable unless the injury is a primary psychological injury (as defined in that section) and the degree of permanent impairment arising from the injury is 15% or more.

(1A) (Repealed)

(2) Because there is a distinction between injury and impairment resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from impairment), the pain and suffering for which compensation is payable does not include pain and suffering that results from the injury but not from the impairment.

(3) The maximum amount of compensation under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the permanent impairment.

(3A) (Repealed)

(4) The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by the Commission.

(4A) (Repealed)

(5) Compensation under this section is not payable after the death of the worker concerned.

(6) If an amount mentioned in this section at any time after the commencement of this Act:

(a) is adjusted by the operation of Division 6, or

(b) is adjusted by an amendment of this section,

the compensation payable under this section is to be calculated by reference to the amount in force at the date of injury.

(7) In this section:

pain and suffering means:

(a) actual pain, or

(b) distress or anxiety,

suffered or likely to be suffered by the injured worker, whether resulting from the permanent impairment concerned or from any necessary treatment."

60 Liability for such compensation is imposed on a worker's employer (see ss 9 and 9AA of the 1987 Act). Section 65 of the 1987 Act deals with circumstances where more than one injury is suffered in the one incident. It provides:

"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) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.

(4) (Repealed)"

61 The Act requires injured workers to give notice of their injuries to their employer (see ss 61 and 254). The Act also regulates how claims for damages and compensation may be made (see s 66). Such claims must be forwarded to the employer's insurer (see s 69 and s 264), upon whom various statutory obligations then fall. Section 263(1) requires that '[a]ll claims for permanent impairment compensation or pain and suffering compensation in respect of an injury must, as far as practicable, be made at the same time'. The Act also regulates how disputes which may arise in relation to such claims, are to be dealt with.

62 In the case of a medical dispute, the worker must be referred for assessment. Section 322 of the Act provides:

"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 WorkCover 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."

63 It is the proper construction of this section, on which the questions lying between the parties turn. The employer's case is that s 322(4) did not permit Dr Khan or the Appeal Panel to defer assessment of one of Ms Little's injuries, but to assess the other two. They all had to be assessed together. The Guides in question are made under s 331 of the Act, which provides:

" 331 Guidelines

Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the WorkCover Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments."

The Guides

64 Relevantly, cl 1.18 - cl 1.21 of the Guides provide:

" Multiple impairments

1.18 Impairments arising from the same injury are to be assessed together (section 322(2) of the 1998 Act). 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 (section 322(3) of the 1998 Act), with the exception of impairments arising from psychological and psychiatric injuries.

1.19 Impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident (section 65A(4)(a) of the 1987 Act). A worker is entitled to receive compensation for impairment resulting from only one of these injuries, whichever results in the greater amount of compensation being payable, and is not entitled to receive compensation for an impairment resulting from the other injury.

1.20 The Combined Values Chart (pp 604-606, AMA5) is used to derive a %WPI that arises from multiple impairments. An explanation of its use is found on pp 9-10 of AMA5. When combining more than two impairments, the assessor should commence with the highest impairment and combine with the next highest and so on.

Permanent impairment - maximum medical improvement

1.21 Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the injured worker is fully ascertainable. The permanent impairment will be fully ascertainable where the medical assessor considers that the person has attained maximum medical improvement. This is considered to occur when the worker's condition has been medically stable for the previous three months and is unlikely to change by more than 3%WPI in the ensuing 12 months with or without further medical treatment (ie further recovery or deterioration is not anticipated)."

65 On the employer's case, the provisions in cl 1.21 that 'permanent impairment will be fully ascertainable where the medical assessor considers that the person has attained maximum medical improvement', and that 'assessments are only to be conducted when the medical assessor considers that the defence of permanent impairment is fully ascertainable' were not adhered to by Dr Khan or the Appeal Panel.

66 It was not in issue that the Guides are delegated legislation (see the discussion in Allianz Australia Insurance Ltd v Crazzzi [2006] NSWSC 1090; (2006) NSWLR 266 at [17] in relation to guidelines issued under the Motor Accidents Compensation Act 1999). In the event of inconsistency between the Act and the Guides, the Act prevails, although as a matter of construction care should be taken to construe the Act in a way that promotes operation of the statutory scheme and if possible, giving efficacy to the Guides (see Thiering v Daly [2011] NSWSC 1345 at [50]).

The employer's interpretation may not be accepted

67 The answer to the controversy was said by the employer to be clear. There can only ever be one assessment made of a worker's permanent impairment in respect of all injuries resulting from the one incident. That is an assessment which must be undertaken at the one time, in respect of all injuries suffered. On the employer's approach, it is relevant that a dispute as to whether an injured worker's degree of permanent injury is fully ascertainable, is itself a matter which could be referred to an Approved Medical Specialist for determination in accordance with s 319.

68 The construction urged by the employer was not one supported by WorkCover. For reasons which I will explain, I am satisfied that it is a construction of the Act which may not be accepted. It is certainly not one which appears to give effect to the beneficial purpose of this legislation (see Lauda Enterprises Pty Ltd v Akkannen [2010] NSWWCCPD 91; Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260 at 269 and Nash v Sunshine Porcelain Potteries Ltd (1959) 101 CLR 353 at 361).

69 The term 'permanent impairment' is not defined. It is a term which must take its ordinary meaning. In s 319 of the Act the term 'medical dispute' is defined to include '(c) the degree of permanent impairment of the worker as a result of an injury'. It also includes:

"(f) whether impairment is permanent,

(g) whether the degree of permanent impairment of the injured worker is fully ascertainable."

70 The word 'injury', is defined in s 4:

"injury:

(a) means a personal injury arising out of or in the course of employment, and

(b) includes:

(i) a disease contracted by a worker in the course of employment, where the employment was a contributing factor to the disease, or

(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, but

(c) does not include (except in the case of a worker employed in or about a mine):

(i) a dust disease, or

(ii) the aggravation, acceleration, exacerbation or deterioration of a dust disease."

71 Section 322 requires that the assessment of a worker's degree of permanent impairment be made in accordance with the Guides (s 322(1)). It empowers a medical specialist to decline to make such an assessment, until satisfied that the impairment is permanent (s 322(4)). If an assessment is undertaken, then all impairments that result from the one injury must be assessed together (s 322(2)), as well as all impairments that result from more than one injury, arising out of the same incident (s 322(3)). There is an exception provided in s 65A of the 1987 Act, which provides relevantly:

"(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply:

(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),

(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),

(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.

Note. If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury."

72 On its face, s 322 of the Act expressly contemplates that the 'same injury' may result in more than one impairment and provides that all such impairments 'are to be assessed together to assess the degree of permanent impairment of the injured worker' (s 322(2)). As was submitted for Ms Little, in construing the section, account must be taken of the fact that while the section requires that all impairments be assessed together, what the section does not require, is that all such impairments be assessed at the same time. That omission is an important consideration, particularly once the operation of the Combined Values Chart, whereby the degree of permanent impairment resulting from an injury is assessed, is appreciated. That Chart is provided by the American Medical Association's Guides to the Evaluation of Permanent Impairment (5 th Ed), which is largely adopted by the Guides (see the Forward to the Guides).

73 On the employer's approach, despite the absence of such a requirement, a two-staged assessment of the kind here undertaken, was not permitted by the Act. The absence of a temporal requirement that the assessment of all impairments be undertaken not only together, but also at the same time, was argued by the employer not to be essential to the construction question.

74 That, it seems to me, may not be accepted. Had the legislature intended that all impairments not only be assessed together, but also at the same time, it could easily have said so expressly. The implication for which the employer contended, is not required, in order to give the section meaning. On the contrary, reading such a limitation into s 322 accords neither with the statutory scheme, nor with its objects.

75 As discussed in Thompson v Goold & Co [1910] AC 409 at 420 '[i]t is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do'. There is no such necessity in this case. To the contrary, the requirements discussed in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 by McHugh JA for reading words into a statutory provision are not present here. They were:

"First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect."

76 In this case, the effect of reading in the requirement that the assessment of the permanent impairment resulting from all injuries suffered by the injured worker be undertaken at the same time, potentially causes a very lengthy delay in a seriously injured worker receiving the compensation for which the Act provides. That is a consequence which appears entirely contrary to the purpose of this statutory scheme, as explained in s 3. That the Parliament would have overcome this claimed omission in the way for which the employer contended, if its attention had been drawn to the matter, may not be accepted with certainty. To the contrary, it would seem to be quite a surprising result.

77 The employer's case was that the statutory scheme was directed to avoiding piecemeal assessment and was designed to ensure that WPI was undertaken when all relevant impairments were available to be considered at the one time. Clause 1.21 of the Guides was consistent with s 322, so understood. Together they prohibited an assessment of permanent impairment being undertaken, in any case where an injury was not stable or permanent, that is, where 'maximum medical improvement' of all injuries suffered, had not been achieved.

78 Ms Little's case, supported by WorkCover, that this approach to the construction of s 322 was wrong, must in my view be accepted. The construction for which they urged does result in all impairments suffered being assessed together, but it does not require that compensation for permanent impairment be delayed, until all injuries suffered have stabilised. While that means that there may later be further assessment, it cannot be properly described as 'piecemeal'. Rather, it is a sequential assessment, in accordance with the Combined Values Chart, which was designed to permit repeated assessments to be made.

79 This also accords with the discretion provided in s 322(4). It gives a medical specialist a discretion not 'to make an assessment of the degree of permanent impairment', until the 'the degree of permanent impairment is fully ascertainable', but that is a matter for the medical specialist to determine, in the particular circumstances arising for consideration.

80 The employer's case was that this was one of those situations where an apparent discretion must be read as imposing an obligation. That does not accord with the provision made in s 9(1) of the Interpretation Act 1987, which provides that 'the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion'. Nor does it sit comfortably with the balance of s 322, particularly when the consequences of a Medical Specialist not having the discretion apparently granted are considered, namely potentially long delay in a permanently injured worker receiving compensation.

81 Permissive words such as those here used, prima facie grant a discretion (see Ward v Williams (1955) 92 CLR 496 at 505). In a case where a given power is to be exercised in circumstances where there may be competing factors to be taken into account, in determining how the power should be exercised, it is to be construed as being intended to be discretionary (see Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140 at 152). It seems to me that this is such a case.

82 Giving a discretion to a Medical Specialist accords with the scheme of the Act. If the injuries which have stabilised are such that there is no question that permanent impairment has resulted, there may well be no good reason for any delay in assessment. Stabilisation of other injuries is only likely to lead to the conclusion that the degree of permanent impairment is worse than earlier assessed. If there is any question about that, or if the stabilisation of the other injury is considered to be imminent, there may be good reason for exercising the discretion granted.

83 There may be other matters which a Medical Specialist will have to weigh, in determining whether or not to exercise the discretion granted in s 322(4) . It is also noteworthy that there is also a discretion given to a court or the Commission in such a case, to adjourn the proceedings until the assessment is made. There was no issue between the parties that this was truly a discretion. That, too, in my view, supports the conclusion that there is a discretion also granted to the Medical Specialist. It would be curious if in relation to the same injured worker, the Medical Specialist was obliged to delay assessment, but a Court could proceed in its determination.

84 If an assessment is undertaken and later, it becomes apparent that there is also permanent impairment flowing from the other injury, once it has reached maximum improvement, then the total degree of impairment that has resulted from all injuries suffered may be assessed. At that point the assessment is undertaken together with the other injuries which had earlier stabilised. That new assessment is one which the Combined Values Chart expressly provides for. That Chart was designed to allow a calculation which finally results in one percentage WPI, no matter how many impairments are involved in the assessment process, when those calculations are undertaken, or how often.

85 The Combined Values Chart is designed to accommodate situations such as those where differing injuries arising from the one incident have to be dealt with by different specialists, that affecting the time at which any assessment of permanent impairment may be undertaken. In such a case, while permanent impairment might be quickly ascertainable in respect of one injury resulting from the one incident, catastrophic injury being an obvious example, whether other injuries which had resulted from that incident were also permanent, might take a long time to determine.

86 Provision is also made for such situations in cl 1.8 of the Guides. It provides for a 'lead assessor' to be appointed in the case of a complex injury, where different medical assessors are required to assess different body systems. This lead assessor is:

"... nominated to coordinate and calculate the final %WPI resulting from the individual assessments. In the case of a dispute, the 'lead assessor' should be agreed between the parties or nominated by the Workers Compensation Commission.

87 Calculation of a 'final %WPI', implicitly recognises that beforehand, calculations would have been undertaken by different medical assessors, at differing times, of the percentage impairment resulting from the differing injuries they had to deal with. Such a calculation requires repeated application of the Combined Values Chart, as the impairments resulting from assessment of differing injuries are assessed.

88 The competing contentions must also be considered in the light of the express provision that psychiatric injury must be assessed separately from physical injury and that the Guides also expressly provides for a claimant to apply for re-evaluation, in the event that there is a deterioration in a condition which has already been assessed. Such a reassessment is also undertaken by application of the Combined Values Chart.

89 It is in this respect that the absence of any temporal requirement imposed by either s 322(3) or the Guides, as to the calculation of WPI resulting from different injuries sustained in the one incident, is particularly noteworthy.

90 In my view, s 322 permits assessment of a worker who has been permanently impaired as the result of injury resulting from an incident, even though not all of the injuries suffered are then capable of being assessed. Once any other injury is stabilised, the resulting impairment must then be 'assessed together' with any other impairment resulting from injures which earlier stabilised. That is done by repeated application of the Combined Values Charts. Thereby, the effect of any particular injury is assessed in combination with all other assessments undertaken already, as the section requires.

91 As was argued by Ms Little, the aim of the requirement that all injuries and impairments be assessed together, is to ensure that an award in accordance with the Combined Values Chart may be calculated, rather than separately compensating for particular injuries and impairments. This reflects that permanent impairment across multiple body parts can have a cumulative and partly concurrent effect, on total impairment. The total result is thus usually less than the sum of individual impairments. Such an assessment does not, however, require that all impairments be assessed at the same time.

92 The result will be a total WPI in relation to a notional impairment of 100%. It is also important to appreciate that by pursuit of that repeated exercise, no different outcome in terms of final assessment of the total impairment flowing from all the injures suffered will result. The answer will be the same if the calculation is undertaken all at the one time, or in stages. There will, however, be a significant difference for an injured worker, in terms of the time at which compensation is paid, by not waiting for single assessment to be conducted at a time when all injuries have stabilised, no matter how long that might take.

93 As to the Guides, it was common ground that if cl 1.21 is inconsistent with s 322, it is invalid. WorkCover clearly did not intend cl 1.21 to have the effect contended for by the employer. It urged that Ms Little's case be accepted.

94 Ms Little's case was that the construction urged sought to deny her the right to timely payment of her entitlements under the statutory scheme, having unarguably suffered injuries which have led to her permanent impairment. The result of the construction urged was to potentially indefinitely defer lump sum compensation in circumstances more difficult than hers. Such a construction ran counter to the statutory scheme. There was, it was argued, a clear intention that compensation be paid once entitlement became ascertainable. The fact that there was no interest component available to an injured worker kept out of payment while other injuries stabilised, supported that construction. Neither the Guides nor the section required that a temporal requirement be implied.

95 Those submissions must be accepted. In my view the Guides may be read consistently with s 322, when given the beneficial interpretation it was clearly intended to have. Any particular injury may only be assessed when it is stable, as cl 1.21 provides. That does not mean that no assessment of any injury may be undertaken, until all injuries have stabilised. There is a discretion given in s 322(4) to defer assessment of an impairment which has stabilised, but the section does not require such deferment when other injuries have not reached maximum improvement. That is a matter for a medical specialist to determine.

96 That means that Dr Khan did not act inconsistently with the s 322, or with cl 1.21 of the Guides in adopting the course he pursued. He did not assess the impairment flowing from the injury to the right knee, because it had not stabilised. That was what cl 1.21 of the Guides required. He determined not to exercise the discretion to defer assessment of Ms Little's other injuries, pending the stabilisation of that knee injury. That was a matter for him to determine under s 322(4).

Orders

97 For the reasons given, notwithstanding the views which I have reached as to the proper construction of the Act and the Guides, the appeal must be upheld, the decision quashed and the matter referred back to the Medical Appeal Panel.

98 The usual order is that costs should follow the event. The parties may approach if they wish to be heard on costs. Otherwise they should file agreed minutes of the orders to be made.

**********

I

Decision last updated: 19 December 2011