STATE OF NEW SOUTH WALES v SANDO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, SHELLER and COLE JJA 23 May 1996, 24 July 1996 [1996] NSWCA 491 Workers Compensation — injuries in 1987 and 1992 — compensated twice for 1987 injury — Workers Compensation Act 1926 s16 — Workers Compensation Act 1987 s4, s65, s65(1), s73 — established interpretation of cl6. The respondent worker suffered an injury to his right hand and wrist in 1987 and was compensated by agreement in 1988, pursuant to s16 of the Workers Compensation Act 1926. In 1992 he injured his right shoulder at work. The worker filed an application for compensation, which included injury to his right shoulder. The Compensation Court found, that as a result of the two injuries, he had suffered a 20% loss of the use of the right arm, including loss of arm below the elbow, and as a result of the 1992 injury, he had suffered a permanent loss of the efficient use of the right arm at or above the elbow of 20%. The employer appealed on the basis that the worker's award contained an element that compensated him a second time for the 1987 injury. Held: by majority, Sheller JA dissenting, the materials support the trial judge's finding that the 1987 injury to the right arm below the worker's elbow should be treated as having resulted from me later injury. This follows from a combination of me statutory provisions and earlier cases. An entitlement under s66(1) of me Act is not dependent on s9, but derives from s66 itself and the defined meaning of "injury" in s4. The Table under which the subheading, "Nature of injury" lists a series of descriptions, is affected by amendments made to the Table's interpretative provisions, primarily (d1) as amended by Act No 6 1994. The meaning of "Loss of an arm at or above the elbow" is extended by (d1) and operates in conjunction with the deeming provision in CL6, as interpreted by the court in Clutha Ltd v Danswan (1993)9 NSWCCR 225. ORDERS The parties are to file within seven days of today draft minutes of orders to give effect to the court's decision, together with a note of any submissions about costs. If the parties are unable to agree on short minutes, then each party should file its draft. The court will then consider if any further argument is necessary, and if so give directions, if not, then to make final orders. Priestley JA The respondent in this appeal is a worker who worked as a carpenter for his employer, a New South Wales Government Department from 1974 to 1995. In May 1987 he suffered an injury at work to his right hand and west. He was compensated for this, by agreement, in 1988, by a payment of $5,165.50. In this appeal this payment was treated by both parties as having been in satisfaction of the worker's entitlement under s16 of the 1926 Workers Compensation Act (the 1926 Act). On 23 March 1992 the worker injured his right shoulder. By application filed 23 November 1994 the worker applied for compensation for, among other things, injury to his right arm. His case was heard by Compensation Court Judge Geraghty who delivered his decision on 13 June 1995. He found that the result of the 1987 and 1992 injuries was twenty pa cent permanent loss of use of the right arm including loss of use 2 UNREPORTED JUDGMENTS of the arm below the elbow; this finding was based on evidence Judge Geraghty was entitled to accept: see page 5 of his reasons. This court has no occasion to question it. Pursuant to that finding Judge Geraghty made the further finding that as a result of the injury of March 1992 to his shoulder, the worker suffered a permanent loss of the efficient use of his right arm at or above the elbow of twenty per cent. The judge ordered that the worker be compensated on this basis. The compensation sum thus contained an element compensating him a second time for the 1987 injury. This apparently peculiar result was the subject of the employer's appeal. Nevertheless, having considered both sides' arguments I think Geraghty J's decision was justified. My reasons depend on a combination of the statutory provisions and earlier decisions of this court. The compensation awarded to the worker was pursuant to Pt3 Division 4 (Division 4) of the Workers Compensation Act 1987 (the 1987 Act). At relevant times Division 4 comprised s65 to s73. A Table followed s73 and preceded the commencement of Division 5. The Table had two parts, one headed "Compensation for Permanent Injuries", the other "Interpretation provisions". S65(4), (inserted by Act No 6 of 1994 with effect from 2 May 1994), said the interpretation provisions formed part of the Table, applied to the interpretation of the losses mentioned in the Table, and applied from the commencement of the Division, (30 June 1987). $65(1) provided that in Division 4, ''loss', in relation to a thing, meant: (a) the loss of that thing; or (b) the permanent loss of the use, or of the efficient use, of that thing." S66(1) provided that a worker who had "suffered the loss of a thing mentioned in the Table... as the result of an injury" was "entitled to receive from the worker's employer, by way of compensation for the loss in addition to any other compensation under the Act" an amount calculated by reference to the Table. "Injury" was defined in s4 as meaning "personal injury arising out of or in the course of employment". These provisions in my opinion make it relatively clear that the "entitlement" under s66(1) is not dependent on s9, but derives from s66 itself, and the defined meaning of "injury" in s4. The Table, under a subheading "Nature of injury", listed a series of descriptions, twelve in all, beginning with "Speech loss" and "Sensory loss" and ending with "Disfigurement". Under the first nine of these were items of "loss", for example, under "Speech loss" appeared "Loss of power of speech", under "Sensory loss", "Loss of sense of taste or smell" and "Loss of senses of taste and smell". The fifth description was "Arm injuries", under which appeared four items "Loss of right arm at or above elbow", "Loss of right arm below elbow", and then two corresponding items for the left arm. The sixth description was "Hand injuries", under which appeared seventeen items, the first of which was, "Loss of right hand". The Table's interpretation provisions included (d1), inserted by Act No 6 of 1994, which said "Loss of an arm at or above the elbow includes the loss of the arm below the elbow and loss of the hand and is to be compensated as a loss, or a proportionate loss, of a single item only (namely the loss of the arm at or above the elbow)". URJ STATE OF NEW SOUTH WALES v SANDO (Priestley JA) 3 Schedule 6 Pt6 cl6 (cl6) of the 1987 Act in its form relevant to the decision of the application provided (subcl1) that "If a loss mentioned in the Table resulted both from an injury received before... and an injury received after" 30 June 1987 "the loss shall" (for presently relevant purposes) "be treated as having resulted from the" later injury. This Court held, in Clutha Ltd v Danswan (1993) 9 NSWCCR 225, afterwards challenged, but followed, in a number of cases, that cl6 was not ambiguous, going on to say (per Cripps JA, with whom Meagher JA agreed): "Read literally it provides that where, as in the present case, a worker has suffered a 15 per cent loss as the result of an injury before and after the 1987 Act, for purposes of determining the amount of compensation payable, the loss is to be treated as having resulted from the injury (the 1990 injury) received after that commencement." (at 235) Because of the way the meaning of "Loss of an arm at or above the elbow", extended by (d1), operates, together with the deeming provision in CL6, as interpreted in Danswan, on the facts of the present case, the 1987 injury to the right arm below the worker's elbow was, in my opinion, to be treated as having resulted from the later injury. The result seems anomalous. So did that in Danswan when it was decided (5 April 1993). Kirby P, who dissented, recommended that the Legislature give attention to the matter. This it did, in a limited way, which I will mention later, in Act No 6 of 1994. The inclusion of (d1) in the 1987 Act by the same Act No 6 of 1994 was to deal with another anomaly, shown by this court's decision in Odlin Shopfitting v Kaljanac (1993) 29 NSWLR 632. The worker in that case, who had different percentages of loss of efficient use of his right arm both above and below the elbow, recovered more compensation by making separate claims for those two items than he would have done by claiming for the upper part of the limb alone. This drew to attention the position that would arise if a worker had physically lost a whole upper arm (and thus, obviously also the lower arm). It was apparently thought that such a worker should only be able to claim for one item in the Table. The Legislature accordingly, by introducing (d1) and (d2), brought about the result that compensation for the whole limb had to fall under one item of loss only. Presumably, (d1) and (d2) were added to avoid unfairness to workers that this might cause, by broadening the definition of the relevant items of loss. This broadening, in conjunction with cl6 (as interpreted in Danswan) left open a different form of double payment, as illustrated in the present case. When the Legislature first dealt, by Act No 6 of 1994, with the Danswan situation it did so in a somewhat limited way, by accepting the correctness of Danswan in regard to proceedings determined or commenced before 2 May 1994, and by modifying its effect from that date. The modification was by amendment of cl6 so that where compensation had been paid under s16 of the 1926 Act, and compensation was now being sought both for the same injury (again) and for a 1987 Act injury, the amount paid under the 1926 Act was to be deducted from the compensation payable under the 1987 Act. Later the Legislature twice more changed the position, by Acts Nos 30 and 89 of 1995. CL6 was amended so that no compensation was payable pursuant to Division 4 for the part of a loss claimed under the 1987 Act resulting from injury before the Act, whether or not compensation had been paid or was payable under 4 UNREPORTED JUDGMENTS sl6 of the 1926 Act. This amendment was retrospective, but subject to qualifications which, the parties agreed, meant that it did not govern the present case. It was also agreed that the amendment made by Act No 6 of 1994, having taken effect before the worker began his proceedings, meant that if the main point of the appeal failed, nevertheless the 1987 payment of $5,165.50 must in any event be deducted from the s66 award made by the trial judge. The appellant's submission in the present case takes issue with the relevance of (d1) to the argument I have outlined, saying that since the injury the worker was claiming for was only a loss of the arm above the elbow, (d1) never came into the picture. However, compensation under s66(1) is for "the loss of a thing mentioned in the Table... as the result of an injury". The interpretation provision expands the loss of the relevant "thing" ("right arm at or above elbow") into a loss including the loss "below the elbow"; that is the loss mentioned in the Table in the opening words of cl6, (set out at 3 above) and in this case, (on the Danswan interpretation) this loss was from an injury received before and after 30 June 1987, and so, to be treated as having resulted from the later injury. I therefore think the main point of the appeal fails. There is no doubt Danswan revealed that Schedule 6 produced some anomalous results in s66 claims. The Legislature seems now to have dealt fully with such anomalies, leaving some cases wholly or partly untouched by the amendments, because of retrospectivity considerations. The present case is one which is partly affected in the way earlier mentioned. Subject only to that matter I think the appeal should be dismissed. That matter will however require some adjustments to the trial judge's orders. The parties should be able to agree upon these. I suggest that the court direct the parties to file within seven days of today draft minutes of orders to accord with these reasons, together with a note of any submissions the parties may wish to make about costs. If the parties are unable to agree on the short minutes, then each party should file its or his own draft. The court will then consider whether any further argument is required, and if so, give directions, and if not, make final orders. Sheller JA In this matter I have had the benefit of reading the judgment of Cole JA. It is unnecessary for me to re-state the facts or the various ways in which the provisions of the Workers Compensation Act 1987 (the Act) have been amended. Suffice it to say that at relevant times the Act contained the following provisions the meaning of which determines this appeal. S66(1) provides that a worker "who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker's employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of (a specified sum) set out opposite to that loss in that Table." The Table includes under the heading "Arm Injuries": "Loss of right arm at or above elbow Loss of right arm below elbow." Against each the percentage of the maximum amount payable was set. It is perhaps trite to emphasise that s66 (1) speaks of "the loss of a thing as the result of an injury". The Table consists of a series of items under various heads. I have quoted two. Quite obviously an injury may result in the loss of more than one of the things so itemised: see s66(2) which speaks of the worker suffering "more than one of URJ STATE OF NEW SOUTH WALES v SANDO (Sheller JA) 5 the losses mentioned in the Table". In particular, an injury may result in the loss of right arm at and above elbow and the loss of right arm below elbow, whether that be the result of a severance of the arm at the shoulder or above the elbow. or damage to the right arm at or above and below the elbow, which is less severe. To address this in 1994 the legislature, in the Act to which Cole JA has referred, introduced para(d1) into the "Interpretation" part of the Table which provides that "Loss of an arm at or above the elbow includes the loss of the arm below the elbow and loss of the hand and is to be compensated as a loss, or a proportionate loss? of a single item only (namely, the loss of the arm at or above the elbow)." Thus if a worker suffers an injury which results in pain below and at and above the elbow, the worker is to be compensated on the basis that the loss is a loss of a single item only, namely, the loss of the arm at or above the elbow; compare KB Hutchinson Pty Ltd v Correia (1995) 183 CLR 50, a case of pain below and at and above the knee; now para(d2). To understand how this works it is necessary to bear in mind that the entitlement to compensation under the Act depends upon the worker having received an injury defined as a personal injury arising out of or in the course of employment; s4 and s9(1) of the Act. If the injury or injuries which the Court finds entitle the worker to compensation result in the loss of right arm at or above the elbow and not loss of right arm below the elbow, that is to say one item only, para(d1) has no part to play. In the course of his judgment Judge Geraghty referred to the injury to the applicant's right hand and wrist which he sustained in May 1987 and for which he was compensated under s16 of the 1926 Act. His Honour then said: "Now, Mr Sando claims for an injury to his right shoulder, in addition to an injury to his left shoulder." There was no history of any injury of the arm below the elbow after 1987. His Honour found: "On 23 March 1992 the applicant was lifting a dishwasher from a truck, when he injured his right shoulder. He reported the injury, and was treated by a Dr Whelan or a Dr Hinch. His shoulder was x-rayed' and he received physiotherapy treatment three times a week for about five weeks. He was away from work for about a week, and returned for a period on light duties." His Honour then made the following relevant findings and award: "1. The applicant was injured in the course of his employment on 93 March 1992 when he sustained an injury to his right. non- dominant arm. 3. As a result of the injury sustained on 23 March 1992 the applicant has suffered a permanent loss of efficient use of the right arm, at or above the elbow, of 20 percent. This assessment was based on Dr Plowman's opinion as to the prognosis of the applicant, which addressed both the right wrist, the two fingers of his right hand, and also the shoulders. Dr Plowman said: "He will continue to have trouble in his present employment but without a further aggravation or injury there should be no deterioration complication namely arthritis or need for significant treatment." The doctor assessed IMPAIRMENT (my emphasis) of the right arm: "20 percent permanent loss of use of the right arm as a whole, or at or above the elbow, and including the arm below the elbow." On his Honour's finding that the injury of 23 March 1992, which was the subject of the claim before him, resulted in a loss of right arm at or above the elbow but not a loss of right arm below the elbow, the terms of para(d1) were not relevant for his consideration. 6 UNREPORTED JUDGMENTS However the May 1987 injury to the applicant's right hand and wrist was said to complicate the matter. This injury was compensated under s16 of the 1926 Act as a "loss of lower part of either arm, either hand, or five fingers of either hand" in the Table to that section. The transitional provisions of the 1987 Act contained in Pt6 of Schedule 6 include the following: "6 (1) 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 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." It is not suggested that the itemised loss of right arm at or above elbow resulted from the May 1987 injury received before the commencement of the 1987 Act. The most that Dr Plowman said was the impairment of the right arm was 20 percent permanent loss of use of the right arm as a whole or at or above the elbow, and including the arm below the elbow. However it is said that, if the loss mentioned in the Table referred to in cl6(1) is a loss of an arm at or above the elbow, para(d1) means that it includes the loss of the arm below the elbow and sustained before the commencement of the Act. In my opinion this can only be so if the injury or injuries which found the claim to compensation resulted in a loss of right arm at or above the elbow and a loss of right arm below the elbow. Thus if the applicant in these proceedings had successfully claimed compensation for loss resulting from both the May 1987 and the March 1992 injuries, the loss would be treated pursuant to cl6(1) as having resulted from the injury received after that commencement, ignoring for the moment the possible differentiation suggested by Kirby P in Clutha Ltd v Danswan (1993) 9 NSW CCR 225 at 230. Accordingly, pare (dl) would require that the loss be compensated as a loss, or a proportionate loss, of a single item only (namely, the loss of the arm at or above the elbow). But that is not the present case. The applicant's claim and the Court's finding was that the March 1992 injury resulted in loss of right arm at or above elbow and not loss of right arm below elbow. This meant that para(d1) did not apply because only the one item of loss was claimed as the basis for compensation and cl6(1) did not apply because that item of loss was not the result of the 1987 injury. Accordingly in my opinion the appeal should be allowed and the matter remitted to the Compensation Court for further consideration. Cole JA This appeal challenges the finding of Geraghty CCJ that: "As a result of the injuries sustained on 23 March 1992 the applicant has suffered a permanent loss of efficient use of the right arm, at or above the elbow, of 20%."! That finding was made in the following circumstances. On 21 May 1987 the respondent worker suffered an injury to his right hand and wrist. The worker received the sum of $5,162.50 in settlement of his claim for compensation, that sum being calculated on the basis of a 25% loss of the use of "the lower part of either arm, either hand or five fingers of either hand"2. The terms of settlement referred to the loss being "of efficient use of the lower right arm". The loss in respect of which that compensation was paid thus resulted from an injury 1. Appeal Book, at 65J. 2. Table to s16. Worker's Compensation Act 1926 (as amended). URJ STATE OF NEW SOUTH WALES v SANDO (Cole JA) 7 received before the commencement of Division 4 of Pt3 of the Workers Compensation Act 1987, the relevant portions of which were assented to and commenced on 30 June 1987. On 23 March 1992 the worker suffered injury to his right shoulder. Later he suffered other injuries to his left arm and shoulder. On 21 November 1994 he filed a worker's compensation claim seeking periodical payments for partial and total incapacity as well as s66 and s67 lump sum payments. The nature of injury was described as "injury to both arms and shoulders".3 There was evidence from a Dr Plowman, accepted by the trial judge, that the worker suffered a "20% permanent loss of use of his arm as a whole, or at or above the elbow and including the arm below the elbow". The trial judge found as follows: "This is a case in which a loss, namely, a loss to an arm at and above the elbow, [which includes also a loss below the elbow], mentioned in the Table to Division 4 of Pt4 (sic 3) of the Act, [and there is no doubt the loss as assessed by Doctors Plowman and Hicks, is a loss mentioned in the Table, nor is there any doubt that the loss, as assessed, results both from an injury received before the commencement of the Division, namely in May 1987, and an injury received after the commencement, in March 1992], that 'the loss shall, for the purpose of determining the amount of the compensation payable in accordance with this Part and this Schedule, be treated as having resulted from the injury received after that commencement*.''4 This latter quotation is from cl6(1) of Pt6 of Schedule 6 to the 1987 Dr Hicks regarded the permanent loss of the efficient use of the right arm as a whole as being 35%. He said: 'The loss of use of his right upper limb comprises 5% due to the finger injuries, 25% to his wrist and 5% to the shoulder injury."S Thus, as the trial judge found, it was possible to distinguish, on the medical evidence, the ingredient losses to the efficient use of the right arm by reference to the accidents which pre-dated and post-dated the 1987 Act. Whilst this appeal relates to the finding of the trial judge in accepting Dr Plowman's assessment of 20% loss, the appeal has been argued upon the basis that, were only the post 1987 Act shoulder injury to be considered, and the pre 1987 injuries to the fingers and wrist disregarded, the trial judge's assessment of the loss of efficient use of the right arm at or above the elbow of 20% could not be sustained. Geraghty CCJ followed the approach of the majority of this Court in Clutha Ltd v Danswan®. Cripps JA, with whom Meagher JA agreed, said: In my opinion, cl6 is not ambiguous. Read literally it provides that where, as in the present case, a worker has suffered a 15% loss as a result of an injury before and after the 1987 Act, for the purposes of determining the amount of compensation payable, the loss is to be treated as having resulted from the injury (the 1990 injury) received after that commencement."7 In Australian Iron and Steel Pty Ltd v Nixon, a Court comprising Clarke, Handley and Sheller JJA declined leave to reargue Danswan'. In those circumstances Geraghty CCJ in applying the provisions of cl6 Pt6 Schedule 6 as interpreted in Danswan, rejected a contention that the pre-Act injury referred to 3. Appeal Book at 2. 4. Appeal Book at 63T-64E. 5. Appeal Book at 61Z. 6. (1993) 9 NSW CCR 225. 7. (1993) 9 NSW CCR 225 at 235. 8. (unreported) Court of Appeal (NSW) 13 April 1995. 8 UNREPORTED JUDGMENTS in cl6 must be "an injury to the same part of the body" as the injury suffered in the post 1987 Act occurrence. Accordingly the loss resulting from the pre-1987 Act injury to the finger and wrist were treated as having resulted from the occurrence which caused the injury to the shoulder received in March 1992. Thus the finding of the 20% loss of efficient use of the right arm at and above the elbow, taking account of the finger and wrist injury was found. On this appeal the question whether the pre and post 1987 Act injury must be "an injury to the same part of the body", meaning the parts of the body referred to in the Table to Pt3 Division 4, was agitated. That Table distinguishes between, relevantly, loss of right arm at or above the elbow, and loss of the right arm below the elbow. In respect of the former the percentage of the maximum amount payable is 80 whereas in respect of the latter it is 75. It is to be observed that the decision in Danswan was concerned with the interpretation of cl6 Pt6 Schedule 6 to the Act. Cl6(1) is concerned with a loss resulting from two injuries, one prior to the Act and one post Act which together produced a loss mentioned in the Table. It was not concerned with the interpretation of the meaning of the expression in the Table "loss of right arm at or above elbow." The question of the interpretation of "loss of right arm at or above the elbow" in the Table where a worker suffered two injuries, one below the elbow and the other above, arose for consideration in J Odlin Shop Fitting International Pty Ltd v Kaljanac.° In that case both of the injuries arose from the one accident. The Court comprising Kirby P, Meagher and Cripps JJA held that the item "loss of right arm at or above the elbow" in the Table was not equivalent to a loss of the whole right arm. Thus a worker who suffered a permanent loss of efficient use of an arm at or above the elbow as well as below the elbow was entitled to claim compensation under both items of loss as set forth in the Table. That decision, and a decision to similar effect by the Court of Appeal in KB Hutchinson Pty Ltd v Correia,!° were disapproved by the High Court in KBH Hutchinson Pty Ltd v Correia!! where it was held that only one assessment of injury should be made for the loss of use of a limb, and that accordingly, where loss of use is suffered both below and above the knee, or the elbow, the injury should be assessed only as loss at or above the knee or elbow as the case may be. The decision in Correia was delivered by the High Court on 16 March 1995. However, prior to that date, namely, on 2 May 1994 the Worker's Compensation Legislation (Miscellaneous) Amendments Act!2 enacted an amendment to the interpretation provisions immediately following the Table to Pt3 Division 4. There was introduced subpara(d1) and subpara(d2) which provide as follows: "(d1) Loss of an arm at or above the elbow includes the loss of the arm below the elbow and loss of the hand and is to be compensated as a loss, or a proportionate loss, of a single item only (namely, the loss of the arm at or above the elbow). (d2) Loss of a leg at or above the knee includes the loss of the leg below the knee and loss of the foot and is to compensated as a loss, or a proportionate loss, of a single item only (namely, the loss of the leg at or above the knee)." 9. (1993) 29 NSWLR 632. 10. (unreported) Court of Appeal (NSW) 23 March 1993. 11. (1995) 183 CLR 50. 12. No 6 of 1994. URJ STATE OF NEW SOUTH WALES v SANDO (Cole JA) 9 The explanatory note accompanying those sections of the Act stated as follows: "The Table of Disabilities lists a number of injuries that are generally described in the table as being "losses" of certain things. A loss can be a physical loss of a thing, or it can be the loss of the use of a thing. The losses are itemised separately in the Table to facilitate the accurate proportionate assessment of any injury. Doubt has recently been cast over the operation of the Table, the result of which would indicate that workers are entitled to "double dip" in respect of a loss which can be compensated by a combination of items. In particular, the Court of Appeal in Odlin Shopfitting International v Kaljanac held that the loss of an arm at or above the elbow (for which an injured worker is entitled to receive up to 80% of the maximum Table amount) meant that the worker, in addition, is entitled to receive up to 75% of the maximum Table amount for the loss of the arm below the elbow. The amendments in Schedule 2(5)(c) and (d) are designed to clarity the operation of the Table of Disabilities and to avoid the anomalous situation of allowing an injured worker to claim twice (or more) for the loss of function extending to the upper part of an arm or leg."!3 The interpretation provisions introduced to the Table by the 1994 amendment was thus aimed at preventing double dipping. Other provisions introduced by the same Act, No 6 of 1994, also had that aim. C118 of Schedule 2 to the 1994 Worker's Compensation Legislation (Miscellaneous) Amendments Act introduced a new cl6(2) Pt6 Schedule 6 to the 1987 Act. The new subcl(2) and subcl(3) provided: "(2) However, any amount of compensation paid under s16 of the former Act for the part of the loss resulting from the injury received before the commencement is to be deducted from the amount of compensation payable in accordance with this Part and this Schedule. (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 Worker's Compensation Legislation (Miscellaneous) Amendments Act 1994." The present proceedings were commenced on 23 November 1994, that is, after the commencement of Act No 6 of 1994. Accordingly, as was conceded by Mr King SC for the respondent, if the award made by Geraghty CCJ is upheld, the worker must give credit for the sum received for injuries to his finger and wrist pursuant to s16 of the 1926 Act. Cl6(2), Pt6, Schedule 6 has been further amended by the Worker's Compensation Legislation Amendments Act 1995 (No 30). Schedule 7 cl3 to that Act omitted cl6(2) to Pt6 Schedule 6 to the 1987 Act and inserted in lieu the following: "(2)However, no compensation is payable in accordance with this Part and this Schedule for the part of the loss resulting from the injury received before that commencement if compensation has already been paid under s16 of the former Act for that part of the loss." 13. Workers Compensation Legislation (Miscellaneous Amendments) Act 1994 No 6, s3, schedule 25) 10 UNREPORTED JUDGMENTS The explanatory note to the new cl6(2) stated: "(3)... of the proposed amendments clarify the operation of a transitional provision inserted by the Worker's Compensation Legislation (Miscellaneous Amendments) Act 1994 dealing with lump sum entitlements under the Table of Disabilities where the loss results from an injury under the former Act and an injury under the current Act. The provision is amended so that a worker who has already received lump sum compensation under the former Act for the earlier part of the loss will receive compensation under the new Act for the further loss only. This is consistent with s71 of the current Act which prevents double payment in cases where the worker's loss involves an industrial disease by providing that additional lump payment to a worker who has already been paid lump sum compensation for part of the loss is only to be for that further loss." Act No 30 of 1995 was assented to on 19 June 1995, but the relevant sections effecting the amendment to cl6(2) did not commence until 1 September 1995. The latest amendment to cl6 was by the WorkCover Legislation Amendment Act 1995 (No 89). S3 of that Act amended the Workers Compensation Act 1987 as set forth in Schedule 1. C1103 of Schedule 1 omitted the words "if compensation as already been paid" in cl6(2) and inserted in lieu "whether or not compensation has been paid or is payable". C16(2) thus now reads: "However, no compensation is payable in accordance with this Part and this Schedule for the part of the loss resulting from the injury received before that commencement whether or not compensation has been paid or is payable under s16 of the former Act for that part of the loss." That Act also introduced a new cl6(2A) reading: "The amendment made to subcl(2) by the WorkCover Legislation Amendment Act 1995 is made to avoid doubt, and accordingly, is taken to have applied from the Division 4 of Pt3 of commencement of this Act. The amendment extends to court proceedings commenced but not finally determined before the commencement of the amendment but does not affect any award of compensation made before that commencement or any compensation that a worker has received or agreed to receive before that commencement." The relevant provisions of Act No 89 of 1995 commenced on | January 1996. The proceedings the subject of this appeal were concluded by a judgment dated 13 June 1995, that is eight days before Act No 30 of 1995 was assented to and some three months prior to the introduction of cl6(2) in its second last form. Thus, at the time Geraghty CCJ gave his decision cl6(2) contemplated that although cl6(1) required that a loss resulting from a pre-1987 Act injury and a post 1987 Act injury was to be treated as having resulted from the post-1987 Act injury, credit was to be given in the amount awarded for such loss for any sum received by the worker in respect of the pre-1987 Act injury pursuant to s16 of the 1926 Act. "Double dipping" had by then been legislated against and that legislative policy has been continued by subsequent amendments, as well as being denied by the decision of the High Court in Correia. This case was decided during a narrow window in the legislative progress towards avoidance of double dipping. At the time this case was decided in June 1995, the legislature had recognised that cl6(1) permitted double dipping and had provided by Act No 6 of 1994 that that double dipping would be overcome by requiring there to be deducted from compensation payable in respect of pre and post 1987 Act injuries, the sum awarded in respect of the pre 1987 Act injury under the 1926 Act. Subsequently double dipping was effectively eliminated by URJ STATE OF NEW SOUTH WALES v SANDO (Cole JA) 11 qualifying the provisions of cl6(1) by the introduction of sub-clause (2) in Act No 30 of 1995, as subsequently amended by Act No 89 of 1995. The provision of cl(d1) in the interpretation provisions to the Table to Division 3 Pt4 was a part of the 1994 approach to double dipping, that is, it contemplated that if there was injury to an arm below and above the elbow, that would be treated as loss of the arm above the elbow. If the loss was occasioned by one accident causing injury to the above and below elbow portions of the arm, and the accident was post Act No 6 of 1994, the loss was to be treated as loss of the arm above the elbow. If the injuries above and below the elbow were caused by different occurrences all post 1987 Act, the same position applied if a claim was made pursuant to s66 in respect of the loss occasioned by those two injuries. However if the loss flows from two injuries, one of which pre-dates the 1987 Act and the other does not, double dipping was after the 1994 amendment and prior to Act No 30 of 1995 overcome by treating the loss as being occasioned by the post 1987 injury but by providing for a credit to be given in respect of any compensation received under the 1926 Act in respect of the pre 1987 Act injury. Tf the pre and post 1987 Act injuries both affected the arm above the elbow, the s66 claim would be for loss of the arm at or above the elbow. If one of the incidents affected the below elbow area and one above, and it matters not in which order that occurred because the effect of cl6(1) is to deem them both to be caused by the second incident, the interpretation cl(d1) permits the claim to be brought for loss of the arm at or above the elbow. If both pre and post 1987 Act incidents affected the arm below the elbow, no question of application of the interpretation cl(d1) arises once it is recognised that the intention of cl(d1) is to prevent double dipping by claiming in respect of two of the categories referred to in the Table. In that instance there would be no claim in respect of two classes under the Table because each incident would relate to below the elbow. There is no justification, or need for interpretation purposes to introduce the gloss suggested by the appellant of the words "an injury to the same part of the body" to qualify the pre and post 1987 Act injuries where they are referred to in cl6. It follows, in my opinion, that the decision of Geraghty CCJ was correct and the appeal should be dismissed. I agree with the orders of Priestley JA The parties are to file within seven days of today draft minutes of orders to give effect to the court's decision, together with a note of any submissions about costs. If the parties are unable to agree on short minutes, then each party should file its draft. The court will then consider if any further argument is necessary, and if so give directions, if not, then to make final orders. Counsel for the appellant: J Poulos QC Solicitors for the appellant: Hunt and Hunt Counsel for the respondent: L King SC / B Batchelor Solicitors for the respondent: Armstrongs, Morisset