STATE RAIL AUTHORITY OF NEW SOUTH WALES v CHALKER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, SHELLER and POWELL JJA 7 April 1995, 20 June 1995 [1995] NSWCA 447 WORKERS COMPENSATION — boilermaker's deafness — s131 certificate of a medical panel Compensation Court Rules State Rail Authority of New South Wales appeals from a decision of his Honour Judge Maguire QC in the Compensation Court on the hearing of an application by the respondent for a claim for lump sum compensation under s66 of the Workers Compensation Act 1987 (WCA). In evidence were two conflicting reports; an otorhinolaryngologist's report and a certificate of a medical panel purporting to be issued under s131. The appellant challenged his Honour's finding that the certificate of the medical panel was not conclusive under s131(5) as no rules had been made by the Compensation Court pursuant to s131(8) when the dispute was referred to the medical panel; Bartlett v Elcom Collieries Pty Ltd (unreported) 17 May 1994 followed. At the hearing of the appeal the appellant's counsel agreed that if the certificate was inclusive evidence of the respondent's loss the amount of the award should be varied to $2,190.50 in respect of an additional binaural hearing loss of 2.6 percent. Held: (1) S131(5) operated to make the certificate conclusive evidence of the respondent's condition. (2) (per Handley and Sheller JJA) On the basis of the appellant's counsel's concession the amount of the award should be varied to $2,190.50 in respect of the additional binaural hearing loss. (per Powell JA) As the respondent had left the employ of the appellant in June 1991, the relevant injury is deemed to have occurred at the date of the termination of the employment; s17(1)(a) and the statutory amount by reference to which the relevant award was to be calculated was that in force at the termination of the employment; Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318. The award should be varied to $ 1,656.20. ORDERS 1. Appeal allowed; 2. Set aside O.1 of the award; 3. Substitute for O.1 the following: "The respondent pay the applicant, as lump sum compensation under s66, $2,190.50 in respect of an additional binaural hearing loss of 2.6 per cent". 4. The respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors Fund Act. Handley JA I agree with Sheller JA. Sheller JA : State Rail Authority of New South Wales appeals from a decision of his Honour Judge Maguire QC in the Compensation Court on the hearing of an application by the respondent, Maple John Chalker, for determination of a claim for boilermaker's deafness. The claim was for lump sum compensation under s66 of the Workers Compensation Act 1987 (WCA). In 1979 the applicant had made a claim and received compensation for the same disability. In evidence before Judge Maguire were a report from Dr Robert Vance, an otorhinolaryngologist, dated 11 October 1993 and a certificate of a medical panel dated 23 September 1994 purporting to be issued under s131 of the WCA. Dr 2 UNREPORTED JUDGMENTS Vance detected a percentage loss of hearing on the right of 10.6 per cent and on the left of 11.3 per cent without allowing for presbycusis. The medical panel detected a loss in the right ear of 2 per cent and the left ear of 8 per cent without deduction in respect of presbycusis. Judge Maguire found that on the basis of Dr Vance's report the award might be as high as $5,490. An award based on the panel's report would have been considerably less. Judge Maguire awarded the respondent $4,000 in respect of a 6.2 per cent further hearing loss. S72(1) of the WCA provides that if the loss for which a worker claims compensation under s66 is a loss, or a further loss, of hearing due to boilermaker's deafness and the extent of the loss, or further loss, is disputed, the worker must apply under s131 for reference of the matter to a medical panel. S131 (2) empowers the Registrar of the Compensation Court, on the application of the worker, to refer the medical dispute to a medical panel. That is apparently what happened in the present case. $131 (4)provides: 1] "The... medical panel to whom a medical dispute is so referred shall, in accordance with the rules of the Compensation Court, give a certificate as to: 2] (a) the worker's condition; or 3] (b) the worker's fitness for employment (specifying, where necessary, the kind of employment for which the worker is fit)." 4] The context suggests rules concerned with the manner and form in which the certificate should be given. S131(5) provides: 5] "Any such certificate of a medical panel shall be conclusive evidence as to the matters certified, except in relation to the following: 6] (a) the fitness of the worker for employment; 7) (b) the question of whether any of [a number of specified losses or impairments] exist and, if so, the nature and extent of the loss or impairment....." $131(8) provides: 8] "The rules of the Compensation Court may make provision for or with respect to: 9] (a) applications and certificates under this section...." 10] Before the amendment of s131 in 1991, the discretion in $131(2) to refer a medical dispute to a medical panel lay with the WorkCover Authority constituted under the WorkCover Administration Act 1989. $131(4), in its then form, required the panel to whom a medical dispute was referred to certify in accordance with regulations made under the Act; s131(8). The Workers Compensation (General) Regulations 1987 CL17 and CL18 and forms 5 and 6 in Schedule I made provision for and with respect to applications and certificates under s13. On 20 March 1992 the regulations were amended by the omission of CLI17 (except sub CL(3)), CL18 and forms 5 and 6. SubCL(3) provided that s131(2) be construed in a particular way for some purposes not presently material. Rules of the Compensation Court relating to medical panels were not gazetted until 10 March 1995. No such rules existed when the Registrar referred the medical dispute to the medical panel and when the medical panel certified. In his judgment of 4 November 1994 Judge Maguire held that, since only a certificate issued in accordance with the rules of the Court was conclusive under s131(5), he was left to make up his own mind as to the further degree of hearing impairment suffered by the respondent. His Honour followed Bartlett v Elcom Collieries Pty Ltd (unreported) 17 May 1994 in which Geraghty CCJ reviewed URJ STATE RAIL AUTHORITY OF NEW SOUTH WALES v CHALKER (Sheller JA) 3 a number of cases and concluded that s131 should be strictly interpreted because the ordinary meaning of the words was obvious and clear and demonstrated a clear intention of the legislature that the certificate, which was conclusive and final, should be a certificate which was given "in accordance with the rules of the Compensation Court." That certificate, or to use the words of the statute "any such certificate", was final and conclusive. The appellant challenged this conclusion. In order to resolve this issue it is necessary to examine the framework and language of the Act; Hatton v Beaumont (1978) 52 ALJR 589 at 591. S72(1) required the respondent to apply under s131 for reference of the matter to a medical panel. The Registrar had a discretion under s131(2) whether or not to refer the medical dispute to a medical panel. The Registrar having decided to refer the medical dispute to the medical panel, s131(4), by use of the word "shall", imposed upon the medical panel a duty which they were obliged to perform; s9(2) of the Interpretation Act 1987. If rules of the Compensation Court were in force, the panel were obliged to perform the duty in accordance with those rules. The question was whether, since no rules were in force, the medical panel could perform the duty imposed upon them. The situation where there are introduced into a provision conferring an authority - and by analogy imposing a duty - words requiring that a prescribed method of exercise be observed and no method has been prescribed was discussed in Downey v Prior (1960) 103 CLR 353. At 361-362 Kitto J, who with Windeyer J formed the majority of the Court, said that there might be one of two results. The words, context and nature of the provision might show that the prescribed method was of the essence of the authority. Without the prescription the authority was not capable of exercise. On the other hand the meaning might be that the authority was the subject of a power in the Executive to regulate its exercise and in the reference to the prescribed method the words "if any" were to be implied. If the method is prescribed, it must be observed. If not the authority is exercisable by any appropriate method. In the present case, in my opinion, the legislature did not intend to make the existence of rules of the Compensation Court, made for or with respect to the manner or form in which the medical panel should give a certificate, of the essence of the duty so that performance of the duty and the evidentiary effect of a certificate could be frustrated by a failure to make rules. The Court is not obliged to make rules. It is a matter for the Court whether it wishes to regulate the manner and form of certification and, if so, the extent of that regulation. The Court may conclude that regulation is unnecessary and that certificates given in any appropriate manner or form which conforms with the Act will suffice. As this case demonstrates there is no difficulty in the panel giving the certificate as to the worker's condition in the absence of rules. Mr Grey submitted on behalf of the respondent that the legislative intention was to leave to the Compensation Court the question whether or not certificates of medical panels should be conclusive pursuant to s131(5). If the Compensation Court decided not to make rules, a certificate would not be conclusive. Rather it would be evidence to be weighed with other evidence by the Court in the ordinary way. If the Compensation Court decided that, pursuant to the sub section, it was appropriate to make certificates conclusive, rules could be made under s131(8). With due respect to this valiant argument I have no doubt that the legislative intention, as it appears from the procedure set out in s72(1) and s131, was to provide a means whereby a medical dispute could be resolved 4 UNREPORTED JUDGMENTS comparatively expeditiously and conclusively by an expert panel. The Court was empowered, if it saw fit, to make rules about the manner and form of the panel's certificate. The legislative intention is achieved by reading s131(4) as though the words "if any" were inserted after the words "in accordance with the rules of the Compensation Court". The former regulations dealt only with minor procedural and formal matters and as such did not form an essential element in the statutory scheme. There is nothing to suggest that in transferring authority for delegated legislation to the Court, Parliament contemplated that such legislation would in future be an essential element in the statutory scheme. Accordingly in my opinion and with respect to those who think otherwise, s131(5) operated in the present case to make the certificate of 23 September 1994 conclusive evidence of the respondent's condition. The appellant's counsel agreed that if the certificate was conclusive evidence of the respondent's hearing loss the amount of the award should be varied to $2,190.50 in respect of an additional binaural hearing loss of 2.6 per cent. I think we should proceed on this concession without staying to examine or pass upon its correctness. I would propose the following orders: [11] 1. Appeal allowed; [12] 2. Set aside O.1 of the award; [13] 3. Substitute for O.1 of the award the following: [14] "The respondent pay the applicant, as lump sum compensation under s66, $2,190.50 in respect of an additional binaural hearing loss of 2.6 per cent."; [15] 4. The respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors Fund Act. Powell JA I have had the advantage of reading in draft the Judgment which has been prepared by Sheller JA, with which Judgment I understand Handley JA to agree. In relation to the only question which was the subject of any real submissions on the hearing of the Appeal, I agree that, notwithstanding that Rules relating to Medical Referees and Medical Panels were not made until December 1994 and were not published in the Gazette until March 1995, the certificate of the medical panel dated 23rd September 1994 had the effect provided for by s131(5) of the Act. However, the fact that, on the hearing of the Appeal, no real submission was directed to the form of the Award to be made in the event of the Appeal succeeding - in its Notice of Appeal the Appellant had sought an Order that there be substituted "an Award in favour of the Respondent Worker in the sum of $624.26 in respect of an additional binaural loss of 0.98%", the basis for which proposed Award has never been explained - in my view has left the Court in a position of some difficulty in determining the Orders proper to be made in order to dispose of the Appeal. In order to demonstrate why this is so, I set out below the two problems - to one of which I adverted in the course of argument, and to the other of which I believe I have inadvertently contributed - which I believe the Court is required to overcome in order that it might dispose of the Appeal. The first problem, so it seems to me, arises from the facts, first, that the Respondent had, by no later than 1979, suffered monaural loss, for which he received compensation under the 1926 Act; second, that his claim, in the present proceedings, was for compensation for further loss; third, that, despite this, the URJ STATE RAIL AUTHORITY OF NEW SOUTH WALES v CHALKER (Powell JA) 5 claim, as made in his application, was for 10.75% binaural loss; finally, that the certificate of the medical panel related, not to the extent of any further loss since 1979, but to the binaural loss as measured in September 1994, so that the conclusive nature of the certificate related only to the then measured loss. In these circumstances, it seems to me, for the reasons which I will set out below, that it is only if the Court accepts the "concession" made by Mr MJ Cranitch, who appeared for the Appellant, in the course of argument (see Transcript at 4.55-5.15), or unless the Court is of the view that that "concession" represents the correct approach to be taken to the transitional provisions - in particular Sch. 6 Pt6 CL3, CL5, CLSA, CL6 - of the 1987 Act as amended up to and including May 1994, that the Court can properly determine the Appeal. So far as the first of these matters is concerned, it is to be recalled that, although, by no later than 1960, the "Table of Maims" contained in s16 of the 1926 Act provided for lump sum compensation in respect of (inter alia) "Loss of hearing of both ears" and "Loss of hearing of one ear", and although, in relation to the latter, provision was made for lump sum compensation for the partial loss of hearing of one ear, the High Court in Commissioner for Railways v Bain! held that, in the case of partial loss of hearing of both ears, the compensation payable was, not a percentage of the sum payable for total loss, but the sum of the amounts payable for the relevant partial loss of hearing in each ear. In the proceeding in 1979, the Respondent was found - the loss seemingly being determined upon a scale different from that which is now used (Transcript at 5.14) - to have a loss of 8.1% in the left ear, and no loss in the right (AB 5,20) in respect of which loss he was awarded compensation in the sum of $554.85 (AB 21) that sum representing 8.1% of $6,850.00 the maximum sum payable in 1979 for the loss of hearing of one ear. Although s16 of the 1926 Act was amended in 1966 by the addition of subsSA - from which s71 of the 1987 Act is drawn - and, in order to overcome the decision of the High Court in Sadler vy Commissioner for Railways (NSW), was amended in 1970 by the insertion of subs5B - from which s70 of the 1987 Act is drawn - so as to require, in "boilermakers deafness" cases, an allowance for presbycusis, and although any such amendment would have been simple to draft, no amendment to the 1926 Act intended to overcome the decision of the High Court in Commissioner for Railway v Bain3 was made prior to the repeal of the 1926 Act. The effect of the decision of the High Court in Commissioner for Railways v Bain+ was overcome, for the future, with the passing of the 1987 Act, the provisions of s65(1), s68(1) of which differed from the provisions of s16(4), s16(5) of the 1926 Act, and the Table to s73 of which did not contain the footnotes to the Table of Maims in s16 of the 1926 Act, upon which the High Court had relied for its decision in Commissioner for Railways v BainS - the result thus was that, as from 30th June 1987, awards of compensation for partial binaural loss could be made. - (1964-1965) 112 CLR 246 - (1969) 123 CLR 216 . (supra) . (supra) . (supra) URwWN 6 UNREPORTED JUDGMENTS When the 1987 Act was passed, Schedule 6 Savings etc. Provisions Pt6 Provisions relating to Compensation for Non Economic Loss (Table of Maims), so far as is relevant, contained the following (inter alia) provisions: [16] "Act applies irrespective of date of injury [17] 1. Subject to this Schedule, Division 4 of Pt3 of this Act applies whether the injury was received before or after the commencement of that Division. [18]... [19] Compensation for loss not payable if awarded or paid under former Act - occupational diseases [20] 3. Compensation is not payable to a worker who has suffered a loss of a thing mentioned in the Table to Division 4 of Pt3 of this Act (being an occupational disease within the meaning of s71 of this Act) if compensation for the loss was awarded to the worker, or the worker received or agreed to receive compensation for the loss, in accordance with sl6 of the former Act. Compensation not payable in respect of new item if it resulted from existing injury. 21] 5. Compensation is not payable to a worker who has suffered a loss or impairment of a thing mentioned in the Table to Division 4 of Pt3 of this Act if 22] (a) it resulted from an injury received before the commencement of that Division; and 23] (b) it is not a loss or impairment for which compensation was payable under s16 of the former Act. INTERPRETATION 24] 6. If a loss mentioned in the Table to Division 4 of Pt3 of this Act resulted both from an injury received before the commencement of that Division and an injury received after that commencement, the loss shall, for the purposes of this Part and this Schedule, be treated as having resulted from the injury received after that commencement. In 1994, there was introduced into Sch 6 Pt6 a new CL3AA, reading as follows: [25] "Compensation for further losses - occupational diseases [26] 3AA. (1) If compensation has been paid or has become payable under s16 of the former Act for a loss of a thing (being an occupational disease within the meaning of s71 of this Act), s71 applies to the determination of compensation under Division 4 of Pt3 of this Act for a further loss of that thing regardless of whether the description of the loss in s16 of the former Act differs from the corresponding description of the loss in the Table to Division 4 of Pt3. 27] (2) This clause is enacted to avoid doubt and, accordingly, is taken to have applied from the commencement of Division 4 of Pt3 of this Act. " the Explanatory note in relation to (inter alia) that amendment - which was 28] (b) being as follows: 29] "Explanatory note - Schedule 2 (18) 30] Schedule 2 (18)(a)-(c) clarifies the application of certain transitional provisions contained in Pt6 of Schedule 6 and which concern compensation for non-economic loss and the Table of Disabilities. In 1991, there was introduced into Sch 6 Pt6 a new CLSA, reading as follows: 31] "Compensation for further loss of hearing - special provision URJ STATE RAIL AUTHORITY OF NEW SOUTH WALES v CHALKER (Powell JA) 7 [32] SA. (1) For the purposes of CL5(b), partial loss of hearing of both ears is to be treated as a loss of impairment for which compensation was payable under s16 of the former Act (even though that section provided compensation only for partial loss of hearing of one ear). (2) A loss of hearing (resulting from an injury received before the commencement of Division 4 of Pt3 of this Act) is, if it involved a partial loss of hearing of both ears, to be treated as a proportionate loss of hearing of both ears for the purposes of: [33] (a) calculating the compensation payable for the loss of hearing (if the worker has not been awarded, and has not received or agreed to receive, compensation for the loss); or [34] (b) calculating the compensation payable for a further loss of hearing (if the worker has been awarded, or has received or agreed to receive, compensation for the previous loss of hearing). [35] (3) If a worker, before the commencement of this clause, has suffered a further loss of hearing (being a partial loss of hearing of both ears) and has been awarded or has received or agreed to receive compensation for that further loss that was (for the purposes of calculating the compensation payable) treated as a loss of hearing of one ear under the Table to Division 4 of Pt3 of this Act, nothing in this clause entitles the worker to additional compensation for that further loss. the Explanatory note in relation to which was in the following terms: [36] "Explanatory note [37] The amendment makes a transitional provision for compensation for partial loss of hearing in both ears. The amendment will ensure that compensation is payable under s71 of the Principal Act even though under s16 of the Workers' Compensation Act 1926 a different method of assessing loss of hearing in both ears applied. (see also Pasalic v Vana Pty Ltd°.) In 1990, CL6 was amended so as to read as it now appears in CL6(1) set out below, and, in 1994, CL6, as so amended, was further amended by the insertion of subCL(2) and subCL(3) as set out below. [38] "Loss resulting both from exiting injury and from injury received after commencement of this Act [39] 6. (1) If a loss mentioned in the Table to Division 4 of Pt3 of this Act resulted both from an injury received from the commencement of that Division and an injury received after that commencement, the loss shall, for the purposes of determining the amount of compensation payable in accordance with this Part and this Schedule, be treated as having resulted from the injury received after that commencement. [40] (2) However, any amount of compensation paid under s16 of the former Act for the pat of the loss resulting from the injury received before that commencement is to be deducted from the amount of compensation payable in accordance with this Part and this Schedule. [41] (3) SubCL(2) is enacted to avoid doubt and, accordingly, is taken to have applied from the commencement of Division 4 of Pt3 of this Act. However, subCL(2) does not affect any court proceedings determined or commenced before the date of assent to the Workers Compensation Legislation (Miscellaneous Amendments) Act 1994. " 6. Court of Appeal 17 August 1994 (unreported) 8 UNREPORTED JUDGMENTS The Explanatory note relating to (inter alia) the first of these amendments which was (18) - was in the following terms: [42] "Clarification of transitional provisions [43] The proposed amendments to Pt3, Pt4, Pt6 and Pt7 of Schedule 6 put it beyond doubt that the transitional provisions contained in those Parts do not negate the liability of any employer to pay compensation or of any insurer to indemnify an employer for payment of compensation in respect of injuries received before the commencement of the Act but merely establish the benefits applicable in each instance (items (16) - (19)). [44] while the Explanatory note relating to (inter alia) the second of these amendments - which was (c) - was in the following terms: [45] "Explanatory note - Schedule 2 (18) [46] Schedule 2(18) (a)-(c) clarifies the application of certain transitional provisions contained in Pt6 of Schedule 6 and which concern compensation for non-economic loss and the Table of Disabilities." All of these amendments had come into operation before this application came before Maguire CCJ in November 1994. In his application in the present proceedings, the Respondent - clearly relying on Dr Vance's report (AB 18) - asserted (AB 3) that the permanent loss for which compensation was claimed was 11.3% left ear 10.6% right ear, the "amount of compensation claimed" being "$6,841.38 for 10.74% binaural loss" - $6,841.38 represented 10.74% of $63,700.00 the maximum amount payable in respect of claims for binaural loss "happening" between I April and 30 September 1991, a figure to which I will need later to return. Although the language of the provisions of Sch 6 Pt6 is less than clear - and the matter is not concluded by the decision in Pasalic v Vana Pty Ltd', since, in that case, the partial binaural hearing loss had been suffered prior to 1987, and the applicant had neither sought, nor received, compensation in respect of it under the 1926 Act - I am disposed to think that, as partial binaural loss was not compensable as such under the 1926 Act; as, in any event, the respondent in this case only received compensation under the 1926 Act for partial monaural loss; he is to be treated as not having previously received any compensation of his binaural loss, and, thus, is entitled to an award equal to 2.6% of the relevant figure. On this approach, the first part of Mr Cranitch's submission or "concession" (Transcript at 4 (foot)) was correct. The second part of that "concession" - that is, that, in this event, the appropriate Award would be in the sum of $2,190.50 (see Transcript at 5) - which is referred to at the conclusion of Sheller JA's Judgment is, I believe, erroneous, the error being inadvertently induced by me in the circumstances to which I now refer. Although the application was filed with the Compensation Court in December 1993 (AB 1), the Respondent appears to have left the employ of the SRA in June 1991 (AB 2), a fact which I appear, at the time of the hearing, to have overlooked. Two things, as it seems to me, flow from this, they being, first, that the relevant "injury" is deemed to have occurred, not at the date of the giving of notice, or making the claim (see s17(1)(a)(i)), but, at the date of the termination of the employment (see s17(1)(a)(ii)); and, second, that the statutory amount by reference to which the relevant Award was to be calculated was that in force at the time of the termination of the employment ($63,700) and not that 7. (supra) URJ STATE RAIL AUTHORITY OF NEW SOUTH WALES v CHALKER (Powell JA) 9 in force at the time of the filing of the application ($84,402.50) (see, for example, Bresmac Pty Ltd v Starr') the appropriate figure thus being $1,656.20 rather than $2,190.50, the latter figure being the one to which, as the result of what I believe to have been my error, Mr Cranitch assented on the hearing of the Appeal. In the circumstances, while agreeing with O.1, O.2 and O.4 proposed by Sheller JA, I would propose that O.3 as proposed by Sheller JA be amended by deleting therefrom "$2,190.50" and substituting therefor "$1,656.20". 1. Appeal allowed; 2. Set aside O.1 of the award; 3. Substitute for O.1 the following: "The respondent pay the applicant, as lump sum compensation under $66, $2,190.50 in respect of an additional binaural hearing loss of 2.6 per cent". 4. The respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors Fund Act. Counsel for the Appellant: MJ Cranitch/SK Devine Instructed by: Astridge and Murray Counsel for the Respondent: LT Grey Instructed by: McClellands 8. (1992) 29 NSWLR 318