MARINOVIC v STOESKA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, CLARKE and SHELLER JJA 13 May 1993, 1 July 1993 [1993] NSWCA 173 WORKERS' COMPENSATION — partial incapacity — repetitive strain injury to typist's hands — symptoms get worse after commencement of 1987 Act — transitional provisions — application of correct statutory regime — trial judge holds that 1926 Act applies — on appeal by employers JUDGES — reasons — duty to state — adequacy of — application of transitional provisions of Workers Compensation Act 1987 — determination of applicable regime for determining weekly payments of compensation — whether incapacity resulted both from injury received before and after commencement of 1987 Act — judge holds 1926 Act applies WORDS and PHRASES — "results from". Held: (by the Court): (1) On the face of his reasons, the trial judge had erred in the application of an incorrect statutory criterion for the determination of the applicable legislative regime; (2) To the extent that such error was not shown, the judge erred in failing to provide adequate reasons for his decision to disclose his choice of one regime for another apparently applicable. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA) applied; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA) distinguished. Held: (1) On the face of the reasons the judge had failed to apply the correct statutory criterion and thus erred in law; (2) Alternatively, he had failed adequately to expose the reasons for his decision and this was an error of law. Workers' Compensation Act 1926, s11. Workers Compensation Act 1987, s3, s4, s281, s282, Schedule 6, Pt4, CL1, CLA(1), and CL4(3). Kirby P, Clarke and Sheller JJA Before the Court is an appeal from the Compensation Court of New South Wales constituted by Thompson CCJ. The issue is whether that court erred in law in failing to address itself to the applicable statutory question before it and/or in failing to provide reasons, as required by law, for the award which it entered. A claim of repetitive strain injury Mrs Nancy Stoeska (the worker) was employed by Drs Branimir and Olga Marinovic (the employers) as a secretary/receptionist/typist. She commenced this work in 1980. In 1985 she developed pain in her wrists and hands. The pain became worse in 1986 and caused her to reduce her weekly hours of work with the employers from 39 hours to 21. In February 1987 the worker took maternity leave. When she returned to work in December 1987 she remained on the reduced hours of 21 hours per week. As found by Thompson CCJ: 2 UNREPORTED JUDGMENTS "She was doing the same duties as before. She discussed the condition of her ar ms with both doctors and worked on 21 hours per week until August 1988. She said her symptoms got worse. In August 1988 Dr Olga Marinovic said she was unfit and put her off work. The applicant ceased work on 24 August 1988 and has not worked since then." The worker made a claim for compensation alleging partial incapacity of indefinite duration. It was this claim which came for determination before Thompson CCJ. H is Honour accepted an opinion of Dr Olga Marinovic. Although she was one of the employers of the worker and is one of the appellants, she treated the worker at various times, as did her husband. In her report of 6 November 1990 she said: "Mrs Nancy Stoeska has suffered repetitive strain injury to her hands from 22.5.1987. She has received the treatment of analgesic tablets, cream and electroaccu message (sic) for the wrists. It is not known whether she will recover. It is not known how long will she suffer with those pains as they have shown the attendancy (sic) to spread to the right arm and right pectoralis muscle. The prognosis is not good and she will never be able to carry out the same job as in the past, also she will need constant medical treatment for a very long time." The employers' (ie the insurer's) medical witnesses were of the opinion, as his Honour described, that "there is nothing wrong with her and that she is fit to return to work". Thompson CCJ resolved this contest of medical opinion in favour of the worker. However, it is the way in which he did so which has occasioned this appeal. He said: "On the whole of the evidence I accept the applicant [worker] and I accept Dr Olga Marinovic, who is not only a doctor to whom the applicant complained, but is also her employer. Dr Olga Marinovic says the applicant is suffering repetitive strain injury to her hands and I am satisfied she has been suffering from that condition since at least 22nd May 1987. That being so, the matter comes under the old Act." Consequent upon this determination, Thompson CCJ awarded the worker compensation in accordance with the terms of the Workers' Compensation Act 1926 (the 1926 Act). The employers contend that the worker's entitlements fell to be determined in accordance with the Workers Compensation Act 1987 (the 1987 Act). They complain that Thompson CCJ did not specifically, or at all, address his attention to the relevant provisions of the legislation governing the assignment of the statute according to which the worker's entitlements would be determined. Alternatively, they complain that the reasons which Thompson CCJ gave for the assignment of the case to the 1926 Act did not reach the standards required by the law as explained in such cases as Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA). On either, or both, of these grounds they asserted an error of law which would authorise this Court to set aside his Honour's award and remit the matter to the Compensation Court for determination of the worker's entitlements in accordance with law. Although, originally, there was a dispute between the parties as to the nature of the appeal to this Court, it was eventually agreed by the employers that the appeal lay only on a point of law. This was because the proceedings brought by the worker were commenced by application filed on 19 October 1988. Pursuant to the Compensation Court Act 1984, Schedule 4 Pt2 CL2, the proceedings were therefore regarded as pending before the Compensation Court at the time of the amendment of the Court Act. We are thus bound to approach the appeal in the URJ MARINOVIC v STOESKA (Kirby P, Clarke and Sheller JJA) 3 strict way described by this Court in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA) at 156. In an appeal limited to a point of law, this Court may not disturb the decision of the Compensation Court because it regards it as factually wrong or even perversely so. It is worth repeating the criteria for intervention expressed by Glass JA in Azzopardi (at 156): "A finding of fact in the [Workers' Compensation] Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate finding s of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126 at 138..." In the appeal, the employers asserted that there were errors of law of the kind contemplated by Glass JA in Azzopardi or of the kind described in Soulemezis (above) in respect of the provision of reasons. For the worker it was contended that any error that had occurred was one of fact finding immune from correction in this appeal. There is certainly no doubt that questions of causation, and specifically the determination of the cause of incapacity and whether it resulted from one injury or another, are of themselves questions of fact. See Conkey and Sons Pty Ltd v Miller (1977) 51 ALJR 583 (HC), 585; R G Leverment v Director General of Education, Court of Appeal, unreported, 28 February 1992. Under a regime limited to review of errors of law a suggested error in the determination of the cause of incapacity (or more accurately which injury, if any, it "resulted... from" is one reserved to the trial judge. It is not, as such, susceptible of review in this Court. So went the first argument for the worker. Secondly, it was argued that the reasons given, although brief, were adequate within the requirements explained in Soulmezis. Upon these arguments issue was joined. The applicable statutory provisions It is now necessary to say something about the applicable transitional provisions which governed the assignment of the worker's claim to be determined in accordance with the 1926 or 1987 Acts. Although the transitional provisions have been considered by earlier decisions of this Court, the particular question now before us has not arisen before. Cf Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 (CA). The 1987 Act came into force, relevantly, on 30 June 1987. Upon its commencement it became necessary to determine what was to happen in respect of transitional cases where entitlements had accrued under the 1926 Act prior to the commencement of the 1987 Act or where a series of injuries had occurred, some of them before and some after the commencement of the 1987 Act. The 1987 Act itself dealt briefly with this problem. By s281, each Act specified in Schedule 5 to the 1987 Act was repealed. The 1926 Act was one such Act. However, by s282 of the 1987 Act, Schedule 6 was given effect. It is in the provisions of Pt4 of Schedule 6 ("Provisions relating to weekly payments of compensation") that the formulae were provided by which to determine the assignment of a case such as the present. CLI of Pt4 of Schedule 6 provides: 4 UNREPORTED JUDGMENTS "Subject to this Schedule, Division 2 of Pt3 of this Act applies whether the injury was received before or after the commencement of that Division." Division 2 of Pt3 is that Division which provides weekly compensation payable where an injured worker is totally or partially incapacitated for work. Accordingly, subject to the Schedule, the purpose of Parliament, as evinced in the 1987 Act, is that, in respect of weekly compensation, the 1987 Act is to apply, and the benefits for which it provides are to be paid, whether the worker's injury was received before or after its commencement. This general rule is, however, modified by other provisions in Schedule 6. Relevantly, CL4 of Pt4 of that Schedule deals with certain cases where the "former Act", ie the 1926 Act, is to apply to determine the weekly payments to be made. Relevantly, that clause provides (with emphasis added): "4(1) A weekly payment of compensation payable under Division 2 of Pt3 of this Act in respect of any period of incapacity for work occurring after the commencement of that Division shall, if it resulted from an injury received before the commencement, be determined as follows [there follow provisions in effect continuing relevant entitlements under the 1926 Act]: (2)... (3) If a period of incapacity for work resulted both from injury received before the commencement of Division 2 of Pt3 of this Act and an injury received after that commencement, the incapacity shall, for the purposes of determining the amount of compensation payable in accordance with this clause and for the purposes of CL6, be treated as having resulted from the injury received after that commencement." The scheme of subCL4(3) is entirely consistent with the overall purpose of the transitional arrangements of the new legislation. The old Act is repealed. The new Act's provision in respect of weekly payments of compensation are normally to apply whenever the injury was received. Only if the incapacity "resulted from" an injury received before the commencement of the new Act are the old Act entitlements to continue. The particular meaning of the phrase "results from" was explained in the context of the 1926 Act in this Court's decision in Pickersgill v Freightbases Pty Ltd [1983] 3 NSWLR 117 (CA), 123. Of relevance to the present case, if the incapacity giving rise to an entitlement to weekly payments of compensation results both from an injury received before the commencement of the new Act and an injury received after that commencement, the new Act is to apply. The scheme of the transitional arrangements can therefore be seen as one generally designed to bring workers with entitlements to weekly payments of compensation into the regime of the new Act. The word "injury" is defined in the 1987 Act by s4 of that Act. According to the definition: "4. In this Act 'injury' (a) means personal injury arising out of or in the course of employment; (b) includes (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and URJ MARINOVIC v STOESKA (Kirby P, Clarke and Sheller JJA) 5 (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration..." Against the background of this legislative scheme, the employers' argument was simple. The evidence (including that of the worker herself) which was accepted Thompson CCJ permitted but one conclusion. This was that her relevant incapacity for work resulted both from an injury received before the commencement of the 1 987 Act and an injury (or injuries) received after that commencement. Accordingly, by CL4(3) of PtS to Schedule 6 of the 1987 Act, the incapacity of the worker was to be treated as having resulted from the injury received after the commencement of the 1987 Act. It was thus the 1987 Act, and it alone, that governed the worker's entitlement to compensation. Where Thompson CCJ found otherwise he erred in law. Alternatively, he failed properly to expose by his reasons the grounds upon which he determined otherwise. This was not mere perversity of fact finding immune from review. It was error of law in the manifest application of an incorrect statutory criterion or in the clear failure to express the reasons which warranted a conclusion apparently at odds with such reasons as were disclosed. Conclusion: the judge erred in law The employers' argument is correct. In the short passage which we have extracted, Thompson CCJ gives no real reasons as to why he comes to the conclusion that "t he matter comes under the old Act". The only reason advanced for that conclusion is that the worker "has been suffering from that condition (ie RSI) since at least 22 May 1987. But this finding is irrelevant to the determination of the statutory question to which Pt4 of Schedule 6 required his Honour to turn his mind. This was whether it could be said that the worker's incapacity resulted only from an injury received before the commencement of the 1987 Act provisions or resulted both from injuries received before and after the commencement. His Honour apparently thought it was enough to find that the worker's condition had been suffered "since at least 22 May 1987". This is demonstrated by his stating, after that finding: "That being so, the matter comes under the old Act." However, that finding is not sufficient to attract the old Act. It suggests tha t his Honour had in mind, and applied, an incorrect statutory test because the transitional provisions of the 1987 Act are, as we have demonstrated, addressed to quite a different question. Nowhere does his Honour appear to have considered t hat question. The application of an incorrect statutory criterion to the facts as found will disclose an error of law entitling the intervention of this Court. Alternatively, to the extent that it might be suggested that his Honour merely omitted to state explicitly a finding that the worker's incapacity resulted only from an injury received prior to the commencement of the 1987 Act, his Honour erred in law in failing to state how he arrived at that conclusion. That conclusion appears to contradict the narrative of the worker's complaints, set out above. Specifically, it appears to conflict with his Honour's acceptance of the worker's evidence that her symptoms "got worse" after she returned to work in December 1987 and until she ceased on 24 August 1988, well after the commencement of the new Act. The receipt of fresh trauma or the aggravation of the underlying condition already suffered by the worker would, within the terms of the 1987 Act, clearly constitute fresh "injuries" within the meaning of that Act. Thus, on the face of his Honour's reasons, his conclusions would seem to require the application of CL4(3) of Pt4 of Schedule 6. To the extent that his Honour reached the opposite conclusion it was necessary for him to state why. It is true that a 6 UNREPORTED JUDGMENTS judge does not have to explain each and every step on the way to his ultimate conclusion. But as Mahoney JA explained in Soulemezis (at 270): "\.. The decision of a particular submission may be an essential part of the judge's reasoning to his final conclusion. This may be so because it is necessarily so, ie, because he cannot come to his final conclusion without deciding it; or because the reasoning which in fact it follows makes it so.... " This was not an omission to reveal the reasons for a matter peripheral or incidental to the decision in hand. It was a failure to expose the reasons for a crucial matter in contest, namely which of two statutory regimes would determine the worker's entitlement to weekly benefits of compensation. The transcript of the proceedings before Thompson CCJ clearly shows that this matter was in contest and was acknowledged as so by counsel then appearing for the parties. In such circumstances, to fail to disclose the reasons that led to the conclusion that the matter came under the old Act would constitute an error of law. It would otherwise prevent the employers from exercising their appeal right, provided by the Court Act as it then stood, to secure the scrutiny of this Court in errors of law made by the Compensation Court. Orders We would therefore conclude that, on the face of his reasons, Thompson CCJ sufficiently disclosed that he applied an incorrect test in determining the applicable statutory regime for the determination of the worker's weekly payments of compensation. To the extent that there is any doubt about the matter, such doubt arises from a failure on his Honour's part to provide reasons as required by law. Upon either basis, an error of law has been demonstrated which requires correction. The following orders are made: 1. Appeal allowed; 2. Set aside the order of the Compensation Court of New South Wales dated 20 March 1991 in favour of the respondent (worker); 3. In lieu thereof, order that the proceedings be returned to the Compensation Court to be determined conformably with the decision of this Court; 4. Reserve to the Compensation Court, in determining the matter so returned, the provision for the costs of the proceedings in that Court on 4 October 1990, 8 February 1991 and 20 March 1991; and 5. Order the respondent (worker) to pay the appellants' (employers') costs of the appeal but to have, in respect thereof, a certificate under the Suitors' Fund Act 1951. 1. Appeal allowed; 2. Set aside the order of the Compensation Court of New South Wales dated 20 March 1991 in favour of the respondent (worker); 3. In lieu thereof, order that the proceedings be returned to the Compensation Court to be determined conformably with the decision of this Court; 4. Reserve to the Compensation Court, in determining the matter so returned, the provision for the costs of the proceedings in that Court on 4 October 1990, 8 February 1991 and 20 March 1991; and 5. Order the respondent (worker) to pay the appellants' (employers') costs of the appeal but to have, in respect thereof, a certificate under the Suitors' Fund Act 1951. Counsel for the Appellant: C Hoeben URJ MARINOVIC v STOESKA (Kirby P, Clarke and Sheller JJA) Instructed by: Dunhill Madden Butler Counsel for the Respondent: M Snell Instructed by: Higgins Dyson and Webley