Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 Hearing dates: 15 February 2021 Date of orders: 12 April 2021 Decision date: 12 April 2021 Before: Macfarlan JA at [1]; McCallum JA at [28]; Simpson AJA at [35] Decision: (1) Grant leave to appeal. (2) Direct that within 14 days Ms Ozcan file and serve a notice of appeal in the form provided to the Court. (3) Set aside the orders made by Deputy President Wood in her determination of 21 April 2020. (4) In lieu thereof, order that the respondent pay compensation to Ms Ozcan pursuant to s 66 of the Workers Compensation Act on the basis that she suffered a 15% whole person impairment as a result of injuries incurred on 14 November 2011. (5) Order the respondent to pay Ms Ozcan's costs of her application for leave to appeal and appeal. Catchwords: WORKERS COMPENSATION – compensation for non-economic loss – determining degree of permanent impairment – worker suffered injuries to shoulder and spine in an incident and suffered further injuries to spine in later incidents – whether WPI resulting from injuries should be aggregated – injuries from first incident materially contributed to injuries in later incidents – all injuries "resulted from" and "arose out of" first incident WORKERS COMPENSATION – proceedings before Commission – appeal against decision of presidential member in point of law – whether presidential member erred in construing s 322(2) and (3) of Workplace Injury Management and Workers Compensation Act 1998 – error of law established and issue in question potentially a matter of some significance – leave to appeal granted STATUTORY INTERPRETATION – presumption from amendment – whether absence of amendment indicates considered choice of legislature to adopt a certain interpretation – artificial and unpersuasive to attribute to Parliament a consciousness of the judicial interpretation contended to have informed the relevant amendments Legislation Cited: Workers Compensation Act 1987 (NSW), ss 65, 66, 151H Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 322, 323, 326(1), 353 Cases Cited: Accident Compensation Commission v CE Heath Underwriting & Insurance (Aust) Pty Ltd (1994) 68 ALJR 525; [1994] HCA 68 Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; (2008) 7 DDCR 288 Electrolux Home Products Pty Ltd v The Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40 Galluzzo v Little [2013] NSWCA 116 Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 Minister Administering Environmental Planning and Assessment Act 1979 v Carson (1994) 35 NSWLR 342 Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 95 ALJR 117 Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 State Government Insurance Commission v Oakley (1990) 10 MVR 570 Texts Cited: Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2020, Thomson Reuters) Category: Principal judgment Parties: Nuray Ozcan (Applicant) Macarthur Disability Services Ltd (Respondent) Representation: Counsel: B G McManamey (Applicant) P Herzfeld SC / A Hammond (Respondent)