Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217 Hearing dates: 26 May 2014 Decision date: 07 July 2014 Before: Basten JA at [1]; Barrett JA at [62]; Sackville AJA at [63] Decision: (1) Dismiss the appeal by Inghams Enterprises Pty Ltd from the decision of the Workers Compensation Commission (Deputy President O'Grady) given on 17 July 2013. (2) The appellant must pay the costs of the first respondent (Ms Sok) and of the second respondent (Integrated Parramatta Services Pty Ltd) in this Court. (3) No order as to the costs of the WorkCover Authority. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: WORKERS' COMPENSATION - appeal to Deputy President - errors of fact alleged against arbitrator - appeal limited to any error of fact, law or discretion - whether Deputy President failed to exercise appellate jurisdiction by restricting inquiry to errors of law - whether Deputy President failed to engage with the evidence to determine whether there were any errors of fact - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352 WORKERS' COMPENSATION - jurisdiction of Workers Compensation Commission - dispute over liability for weekly payments of compensation - no determination of a dispute over a "work capacity decision" by an insurer permitted - decision by insurer to dispute liability not a "work capacity decision" - whether jurisdiction excluded over matters which fall within the description of a "work capacity decision" - effect of transitional provisions - Workers Compensation Act 1987 (NSW), ss 43, 44, Sch 6 Pt 19H cl 3, cl 14 - Workers Compensation Regulation 2010 (NSW) Sch 8 cl 3 Legislation Cited: Workers Compensation Act, ss 16, 32A, 33, 36, 37, 38, 43, 44, 44A, 52; Pt 3, Div 2; Sch 6, Pt 19H, cll 1, 3, 8, 9, 14; Workers Compensation Legislation Amendment Act 2012 (NSW) Workers Compensation Regulation 2010 (NSW), Sch 8, cl 3 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 106, 352, 353 Cases Cited: Cabal v United Mexican States [2001] FCA 427; 108 FCR 311 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 Northern NSW Local Health Network v Heggie [2013] NSWCA 255 State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 55 DDCR 286 Turnbull v NSW Medical Board [1976] 2 NSWLR 281 Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 Category: Principal judgment Parties: Inghams Enterprises Pty Ltd (Appellant) Chan Tha Sok (First Respondent) Integrated Parramatta Services Pty Ltd (Second Respondent) WorkCover Authority of NSW (Intervener) Representation: Counsel: Mr J S Emmett/Mr D G Saul (Appellant) Mr B A Olding (First Respondent) Mr S L Flett (Second Respondent) Mr P D Herzfeld (Intervener) Solicitors: Leigh Virtue & Associates (Appellant) Frisina Lawyers (First Respondent) Bartier Perry (Second Respondent) WorkCover Authority of NSW (Intervener) File Number(s): CA 2012/237227 Decision under appeal Citation: Inghams Enterprises Pty Ltd v Sok [2013] NSWWCCPD 39 Date of Decision: 2013-07-17 00:00:00 Before: O'Grady DP Workers Compensation Commission File Number(s): WCC 6074 of 2012 HEADNOTE [This headnote is not to be read as part of the judgment] Ms Chan Tha Sok applied to the Workers Compensation Commission ("the Commission") to resolve a dispute over a claim for weekly compensation payments and medical expenses against Inghams Enterprise Pty Ltd ("Inghams") and Integrated Parramatta Services Pty Ltd ("Integrated"). The claim related to a back injury suffered by Ms Sok when employed by Integrated and further aggravated when employed by Inghams. An arbitrator of the Commission upheld Ms Sok's claim and apportioned liability equally between Integrated and Inghams. Inghams and Integrated appealed to a Deputy President of the Commission under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("Workplace Injury Act"), which provides that the subject matter of an appeal is limited to an determination of any "error of fact, law or discretion" and the appeal does not constitute a "review or new hearing". The challenge was initially confined to the factual findings made by the arbitrator regarding the nature of Ms Sok's injury. A further challenge was made to the jurisdiction of the Commission to award weekly compensation payments after 1 January 2013. The basis for this challenge was that s 43 of the Workers Compensation Act 1987 (NSW), which had effect under a transitional regulation from 1 January 2013, precluded the Commission from determining a dispute about weekly compensation payments when those payments were subject to a work capacity decision. While no work capacity decision had been made, it was argued that the prohibition in s 43 extended to matters that could be the subject of a work capacity decision. The Deputy President, dismissing the appeal, held that the challenge to the findings of fact demonstrated no relevant error and that, in the absence of a work capacity decision, s 43 was not an obstacle to the Commission rewarding weekly payments after 1 January 2013. The issues for determination on appeal were: (i) Whether the Deputy President failed to exercise his appellate function by misconceiving it as being limited to errors of law and by failing to determine whether any of the errors of fact alleged should be accepted; (ii) Whether the proper interpretation of s 43 precluded the Commission from determining, after 1 January 2013, matters that could be subject to a work capacity decision. The Court held, dismissing the appeal: In relation to (i) 1. Whether the Deputy President misconceived his appellate function depends upon a consideration of his reasons taken as a whole, not the use of particular words or phrases. Language used throughout the judgment is redolent of a search for errors of law but, when read in context, it is clear the Deputy President did not fail to determine whether any of the errors of fact alleged occurred. The Deputy President did not misconceive the nature of the appeal as being limited to errors of law: [25]-[29], [42] Cabal v United Mexican States [2001] FCA 427; 108 FCR 311 applied. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 considered. Turnbull v NSW Medical Board [1976] 2 NSWLR 281; State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 referred to. In relation to (ii) 2. Section 43 of the Workers Compensation Act does not exclude jurisdiction with respect to matters that could be the subject of a work capacity decision, absent such a decision. This is reinforced by the statutory scheme and the relevant savings and transitional provisions. The Commission had not exceeded its jurisdiction in allowing weekly compensation payments after 1 January 2013: [53]-[60] Judgment 1BASTEN JA: This appeal from a Deputy President in the Workers Compensation Commission involves two broad issues, namely: (1) whether the Deputy President failed to exercise the appellate jurisdiction of the Commission by failing to consider whether the arbitrator had made factual errors, and (2) whether the Commission had exceeded its powers in awarding weekly compensation payments from 1 January 2013. 2Both these issues raised questions of law and thus qualified as grounds of appeal to this Court pursuant to s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Workplace Injury Act"). The second issue concerned the savings and transitional provisions with respect to the Workers Compensation Legislation Amendment Act 2012 (NSW) ("the 2012 Amendment Act"). 3Although it has no right to intervene in proceedings in this Court (as opposed to proceedings in the Commission - see Workplace Injury Act, s 106) the WorkCover Authority was given leave to intervene, filed written submissions and made oral submissions with respect to the second issue. 4On 21 June 2012 the applicant filed an application in the Workers Compensation Commission seeking a determination of weekly compensation from 10 May 2011 to the date of the claim and continuing thereafter. She also sought an amount on account of medical and hospital expenses. On 14 March 2013 an arbitrator made a determination in her favour with respect to weekly benefits and expenses and apportioned liability between the two respondents. On 17 July 2013 Deputy President O'Grady made minor variations to the orders of the arbitrator and otherwise dismissed the appeal: Inghams Enterprises Pty Ltd v Sok [2013] NSWWCCPD 39. 5For reasons explained below, the appeal should be dismissed. Factual and procedural background 6Before explaining the reasons for this conclusion, it is necessary to set out both the factual and procedural background to the proceedings in the Commission. During the period from 21 October 2002 to 17 November 2002 Ms Chan Tha Sok ("the claimant") was employed by the second respondent, Integrated Parramatta Services Pty Ltd ("Integrated"). From 18 November 2002 until 15 June 2004 she was employed by Inghams Enterprises Pty Ltd ("Inghams"). 7The claimant suffered a frank injury to her back whilst lifting crates of chicken parts on 21 October 2002, which injury was aggravated by the nature of her work over the following four weeks. She was paid compensation and medical expenses during that period and thereafter by Integrated. 8Although the history is not entirely clear, it appears that at the time she was employed by Integrated, Ms Sok was in fact working at a chicken processing plant operated by Inghams. Her employment was transferred from Integrated to Inghams on 18 November 2002. Her symptoms apparently deteriorated over time and in March 2003 she was put on light duties for a week. She continued thereafter to have difficulties in her usual position and, after a further assignment to light duties, her employment was terminated on 15 June 2004. Thereafter she was in receipt of weekly compensation payments made by Integrated's insurer. Light duties were arranged by the insurer with another employer in September 2004, until February 2005. Both the employment and the payments of compensation ceased at about that time. 9The claimant did not work from February 2005 until about May 2007. From May 2007 until December 2010 she undertook light duties in a family business purchased by her husband but has not worked since the business was sold in December 2010. 10She continued to experience "disabling pain" and surgery was recommended. WorkCover medical certificates stating that she was "unfit to work" were provided by her general practitioner from 10 May 2011. Summarising the position at the time of the hearing before the arbitrator, the Deputy President stated at [29]: "It is common ground among the medical practitioners whose evidence is before the Commission, with the exception of Dr Edwards, that Ms Sok suffers significant disability by reason of the abnormalities demonstrated at the level of the lumbar spine by the various radiological studies and that such disability is work related. There is some divergence of opinion as to what particular work activities have caused the relevant injury and there are also differing views as to whether Ms Sok suffers or has suffered from relevant disease at that level of her spine." 11The Deputy President noted findings by the arbitrator to the following effect at [36]-[39]: (1) the claimant received a frank injury, being an acute L5/S1 intervertebral disc lesion to her spine on 21 October 2002, but no further injury up until 17 November 2002; (2) further injury occurred between 18 November 2002 and 15 June 2004 as a result of the nature and conditions of her employment with Inghams; (3) the claimant did not suffer a relevant disease, but rather an injury as a result of "repetitive traumata experienced in the course of her employment"; (4) as a result of the injuries received with each employer, she had had no practical capacity to work in the relevant labour market since 10 May 2011, and (5) her entitlement to weekly compensation and the cost of surgical treatment was apportioned equally between Integrated and Inghams. 12The procedural history may be summarised as follows: (1) a claim was lodged with her employer (Inghams) on 28 May 2004; (2) on 21 June 2012 an application to resolve a dispute was lodged by the applicant with the Commission; (3) on 14 March 2013 the arbitrator awarded compensation payable at the statutory rate for a worker with a dependent child from 10 May 2011 to 14 September 2012, and at the statutory rate for a worker with a dependent spouse and child from 15 September 2012; (4) on 17 July 2013 the Deputy President made orders confirming the first period of payment, terminating the second period as at 31 December 2012 and requiring payment at a somewhat lower rate from 1 January 2013 "and continuing". The new rate was calculated as 80% of the relevant rate, in accordance with s 37 of the Workers Compensation Act, as amended by the 2012 Amendment Act. Legal principles governing appeal to Deputy President 13Before the Deputy President, Inghams challenged the factual findings of the arbitrator that the claimant had suffered any injury whilst employed by Inghams and in apportioning any liability to Inghams. There was also a challenge to the finding of total incapacity and a claim that, by way of alternative, the arbitrator should have found that any injury in fact suffered by the claimant was a temporary aggravation of an injury suffered whilst working for Integrated, that her condition involved a disease and that Inghams was not the last employer who had employed the claimant in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, within the terms of s 16(1) of the Workers Compensation Act. 14The scope of an appeal to a Deputy President of the Commission is governed by s 352 of the Workplace Injury Act. Relevantly for present purposes, that section provides: 352 Appeal against decision of Commission constituted by Arbitrator ... (5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing. ... (6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case. (7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission. 15The language of s 352(5) and (6) was amended with effect from 1 February 2011. Prior to that amendment, s 352(5) had provided that an appeal under the section was to be "by way of review of the decision appealed against." The amendment to subs (6), by adding the last sentence to that provision, restricted the scope of any further evidence which could be given on appeal. It may be accepted that the Legislature, in requiring that an appellant identify "error" and by stating that the appeal was neither a "review" nor a "new hearing" was intending to constrain the scope of an appeal. 16The High Court requires caution in determining the scope of such provisions. In relation to a provision under a different statute, the court has stated, "it is not useful to attempt to chart the metes and bounds of the task given to the [appellate court] and to attempt to do so is dangerous": Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [88] (Hayne, Heydon, Crennan and Kiefel JJ). Further, as the High Court also noted in Kostas, it may be misleading to seek to determine the limits of a particular provision by reference to similar language in other statutes: at [89]. If "metes and bounds" identify the outer limits of a power, it may not be necessary to chart those limits in order to decide, as required by the present case, whether the appellate body has imposed a level of self-constraint inconsistent with the full exercise of its function. Further, although it is not necessarily useful to consider the scope of other statutory provisions, subs (5) is based on an assumption that a requirement to identify "error" distinguishes such an appeal from one by way of "review or new hearing." 17As explained in the joint reasons in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [11], there is "no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another": per Gleeson CJ, Gaudron and Hayne JJ. The footnote to that proposition referred to the judgment of Glass JA in Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297-298. (It is not necessary in the present context to repeat the six categories of appeal or review identified in Turnbull.) 18It has been accepted (or assumed) that the amendments to s 352(5) were designed to override a broad form of internal merits review identified as appropriate under the old provision in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 at [22] and [30] (Spigelman CJ) and at [63]-[66]: see Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 at [46] (Sackville AJA). As explained in Heggie, "[t]he power to admit additional evidence indicates that the appeal under s 352(5) is not an appeal in the strict sense, where a court is limited to determining 'whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given': Coal and Allied Operations ... at [12]": Heggie at [66]. 19In the present case, no additional evidence was admitted and there was no relevant change in the law between the date of the decision of the arbitrator and hearing before the Deputy President. Accordingly, the appeal proceeded on the basis that it was necessary to identify error of fact, law or discretion on the part of the arbitrator. Relevantly, Inghams relied only upon factual errors. 20Inghams' challenge in this Court was that the Deputy President had failed to engage with the task of identifying whether the errors of fact alleged by Inghams were made out. Each of the following passages in the reasons of the Deputy President was said to demonstrate abdication of the appellate function. (1) At [50] the Deputy President noted the evidence of a number of medical witnesses and stated: "The expert medical witnesses nominated by the Arbitrator each provide sufficient evidence to permit the conclusion reached by the Arbitrator, and the reasons for her conclusion have been plainly stated. No factual error has, in my opinion, been established by Inghams." (Emphasis added.) (2) The Deputy President then noted criticisms made by Inghams of the medical evidence relied on by the arbitrator and continued at [52]: "That criticism goes to the weight of that evidence and, whilst such argument may be relevant to a review of the Arbitrator's determination of factual matters, such argument has little or no force in circumstances where the present task on appeal is to determine the commission or otherwise of relevant factual error." (Emphasis added.) (3) The Deputy President further stated at [56], that the arbitrator's finding of incapacity as a result of injury suffered whilst employed both by Integrated and by Inghams, "was open to her and that the reasons stated by her for that conclusion had been plainly and sufficiently expressed by her." (4) Noting that the appeal was not by way of review, the Deputy President stated at [58]: "The Arbitrator has, as I have earlier stated, addressed the totality of the evidence. In my view, she has sufficiently expressed her reasons for the acceptance of Ms Sok's evidence ...." (Emphasis added.) (5) Finally, the Deputy President stated at [61], referring to the conclusion that the disease provisions of the Workers Compensation Act had no relevance, that such a conclusion was "supported by the evidence; her reasons for that conclusion were, again, plainly stated and no relevant error is made out." (Emphasis added.) 21Inghams submitted that each of these statements revealed that the Deputy President was limiting his assessment to identifying errors of law. Thus, if there was "sufficient evidence to permit" a particular conclusion, there could be no error of law, as there would be if it could be said there was "no evidence" to support the conclusion. Similarly, statements that reasons had been given were apt, but as a basis for rejecting an error of law which would arise if there were an absence of any or adequate reasons. The same error is said to be revealed by the refusal to assess the weight of the evidence, the reference to a particular conclusion being "open" and apparent reliance on the fact that the arbitrator had not ignored material evidence. The converse of each of these propositions would have been the commission of an error of law. Similarly, each of them revealed the Deputy President eschewing any assessment of whether there had been factual error. 22There are two premises underlying Inghams' submissions which should be accepted. First, the law draws a distinction between errors of law and errors of fact and the language adopted in the passages set out above is redolent of search for the former. That is not to say that the passages necessarily demonstrated error: identification of errors of law were part of the appellate function of the Deputy President. Secondly, the language of the statute requires, where an appellant raises such matters, an assessment of the factual findings to see if they can properly be described as erroneous, by reference to the evidence upon which they were based. Nevertheless, despite acceptance of these premises, Inghams' submissions require careful consideration for three reasons. 23First, whilst the distinction between error of law and error of fact is accepted, the boundary is by no means easy to establish in any particular circumstances. Thus, whilst it is convenient to say that assessment of the weight of evidence does not raise a question of law, whereas an allegation of "no evidence" does, to classify specific reasoning by reference to that distinction is a fallible process. 24Secondly, the concept of "error" itself has no clear boundaries. Linguistically, according to authority, it is not sufficient for the appellate court to say it "prefers" a different conclusion, but it is sufficient for the appellate court to say that the trial judge's conclusion is "wrong". This too, involves no bright line boundary. 25The blurred nature of the distinctions in this area of discourse can be illustrated by reference to the comment of the Deputy President that a particular criticism went "to the weight of that evidence": at [52]. In Cabal v United Mexican States [2001] FCA 427; 108 FCR 311 a Full Court of the Federal Court (Hill, Weinberg and Dowsett JJ), after referring to authorities relating to an appeal by way of rehearing from a judge sitting without a jury, continued at [224]: "Notwithstanding the fact that the learned primary judge's review was conducted on the papers, and without any opportunity to consider the demeanour of the witnesses, the weight to be accorded to the evidence of the experts was primarily a matter for his Honour to determine. This Court can consider whether he fell into appealable error in that regard but it will not approach that evidence as though this were a rehearing de novo in which his Honour's views count for nought. If, after giving full weight to his Honour's views, we are persuaded that the conclusions which he reached were erroneous we must set aside his findings of fact. We cannot however simply substitute for his Honour's findings of fact those findings which we would have made had we been the judges on review who determined this matter at first instance." 26In applying that standard, the Full Court continued at [226]: "The conclusions reached by French J regarding the weight to be accorded to the evidence given by the appellants' experts were all properly open on the evidence. For the reasons given by his Honour the views expressed by these witnesses were in various ways tainted or to be accepted only with reservations. We do not accept that his Honour failed to accord proper weight to that evidence. Nor do we consider that any of his Honour's findings of fact relating to that evidence were in any way incorrect." 27If the approach adopted by Inghams in the present case were correct, references to "weight" and to what was "properly open" to the primary judge would have been indicative of an error on the part of the appellate court. That conclusion would, however, be false. The proper conclusion is that identification of error by the Deputy President in the exercise of his appellate function must depend upon a consideration of his reasons taken as a whole, and not be limited to the use of particular words or phrases. Errors of approach are not identified by reference to linguistic niceties, particularly where the language used has no precise meaning. 28Thirdly, the appellate body's reliance on reasons may have relevance to both factual and legal questions. The requirement that a decision-maker give reasons is based on the need for a person affected to understand how a particular conclusion was reached. The reasons given may be persuasive or they may reveal error. For the appellate body to say that the reasons are persuasive or demonstrate no error may be sufficient to establish, at least on one basis, that there was no legal or factual error. For an appellate judge simply to adopt the reasoning of the first instance decision-maker may indicate a failure to address adequately the grounds of appeal. So long as that does not happen, there would be no necessary error in an appellate body accepting the reasons of the first instance decision-maker as a basis for dismissing a claim of factual error. 29The exercise necessary to establish that the Deputy President neither misunderstood his function, nor failed to carry it out, requires reference to a number of further aspects of his reasons. It is not necessary to be comprehensive with respect to each ground of appeal, nor to repeat the process with respect to all grounds, as there was significant overlap. 30The starting point is to note that the Deputy President addressed the nature of the appeal, setting out (correctly) the full terms of s 352(5) and seeking to identify the challenges raised by Inghams. He noted that there had been a complaint of error of law, but stated that the "suggested error is not identified in the submissions": at [48]. There is no challenge to that statement. The Deputy President expressly identified by the nature of his function at [49]. "The arguments advanced by Inghams represent a more concise presentation of those arguments advanced before the Arbitrator. A question raised is whether the appellant has, on appeal, established error of fact. Such an error will be made out in those circumstances addressed by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506), that is where: '... material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge's decision is wrong.'" 31Having correctly identified the scope of his function, the Deputy President may be seen to have exercised it in full. Thus, he referred, at least in outline, to the large volume of evidence (all documentary) obtained from treating doctors and experts who were qualified for the purposes of the litigation: at [15] and [16]; [25]-[28]. He noted at [29]: "It is common ground among the medical practitioners whose evidence is before the Commission, with the exception of Dr Edwards, that Ms Sok suffers significant disability by reason of the abnormalities demonstrated at the level of the lumbar spine by the various radiological studies and that such disability is work related. There is some divergence of opinion as to what particular work activities have caused the relevant injury and there are also differing views as to whether Ms Sok suffers or has suffered from relevant disease at that level of her spine. It is not proposed to summarise that evidence, which was addressed with particular care by the Arbitrator in the course of her Reasons, but reference will be made to that material, where relevant, in the course of discussion which appears below." 32The Deputy President then turned to the submissions before the arbitrator and summarised her determination: at [30]-[42]. He described the arbitrator (whose reasons extended to 185 paragraphs) as giving a "thorough summary of the evidence" and addressing each of the issues raised, "giving attention firstly to the question of the occurrence of injury" at [36]. The critical question before the arbitrator was whether the claimant had suffered a further injury whilst working for Inghams. There was no suggestion that the arbitrator had not correctly identified the issues, nor was it demonstrated to this Court that her summary of the medical evidence was inaccurate. 33After referring to Whiteley Muir (see above) the Deputy President then made findings at [50] about which complaint has been noted at [20](1) above. To understand the context of the words complained of, it is desirable to set out the paragraph in full: "I have earlier made reference to the Arbitrator's careful attention to the evidence as summarised by her. The Arbitrator's Reasons demonstrate that her conclusion concerning the disputed finding of injury was founded upon the opinions as expressed by Dr Holman, the AMS, Dr Chau, Dr Houston and Dr New. The expert medical witnesses nominated by the Arbitrator each provide sufficient evidence to permit the conclusion reached by the Arbitrator, and the reasons for her conclusion have been plainly stated. No factual error has, in my opinion, been established by Inghams. The submission that the Arbitrator had erred in finding the occurrence of injury, which was described by her (at [144] of Reasons) as being '... as a result of repetitive traumata caused at work in the performance of her duties with [Inghams] between 18 November 2002 and 15 June 2004', must be rejected." 34To say that each of five separate witnesses provide "sufficient evidence" to support the finding made, is not to state merely that there is some evidence to support the finding: it is a statement that there is evidence which, several times over, would be sufficient. Absent some error in accepting each of those witnesses, a challenge alleging factual error cannot be made good. That passage disposed of ground (a) identified by Inghams below. It did not demonstrate a failure to address the allegation of factual error. 35The Deputy President then turned to ground (b) alleging that the arbitrator had made a finding that the injury received arose out of the "nature and conditions" of the claimant's employment: at [51]. The Deputy President accepted that the criticism of that basis of injury was "well founded", but referred back to a separate finding that the injury was "a result of the repetitive traumata experienced in the course of her employment with [Inghams]": at [38]. The Deputy President then concluded that Inghams' submission that the arbitrator had failed to address the question of injury was itself erroneous and must be rejected. Following that conclusion, but still addressing the same ground, the Deputy President used language said to be indicative of error at [52], which should now be read in context: "I have earlier summarised the Arbitrator's approach to the evidence, her reasoning and her conclusion concerning injury. I have found no error as suggested. It is for those reasons that Inghams' challenge under ground (b) must be rejected. The criticism made of the medical evidence relied upon by the Arbitrator must, likewise, be rejected. That criticism goes to the weight of that evidence and, whilst such argument may be relevant to a review of the Arbitrator's determination of factual matters, such argument has little or no force in circumstances where the present task on appeal is to determine the commission or otherwise of relevant factual error." 36Ground (c) purported to challenge the finding that the claimant was "totally incapacitated or totally [sic] as a result of any injury with [when employed by?] the appellant." As the Deputy President fairly noted, the submissions in support of that ground had a somewhat different focus. They commenced: "If it is found that the worker was injured with the appellant (which is not admitted) the appellant submits that any such injury did not result in incapacity, either total or partial. Any incapacity that the worker suffers is due to the injury on 21.10.02 or factors that are not related to her employment with the appellant." 37The Deputy President understood that the challenge was to a finding of causal nexus between the incapacity as found and the work performed at Inghams: at [55]. Somewhat ironically, given its present complaints about the reasoning of the Deputy President, Inghams' submissions (RB 505) before the Deputy President stated that "it was not open to arbitrator to find that the worker became incapacitated some 7 years after leaving the employ of the appellant." (Emphasis added.) The reasoning at [56] rejected that submission in its terms. 38Ground (f) challenged a finding that any such injury (that is an injury suffered whilst working for Inghams) resulted in "further pathology in her lumbar spine", necessitating an operation. The Deputy President dealt with this ground at [58], noting that Dr New had expressed the opinion that surgery was required due solely to the injury in October 2002. Inghams submitted that Dr New was "in the best position to form an opinion on causation, being the worker's treating doctor and having examined the worker on a number of occasions since 03.05.11." The submission further stated that the approved medical specialist (Dr Holman) had also expressed the need for surgery, but his opinion was said to be "compromised" for a number of reasons and that the arbitrator erred in failing to prefer the evidence of Dr New. The Deputy President addressed those submissions squarely, but noted that they "failed to acknowledge the view expressed by Dr New in his report dated 7 June 2012 that 'the nature of [Ms Sok's] work from 2002 to 2004 would certainly aggravate and exacerbate her low back pain and sciatica and lead her to the point when I feel that she would require surgical intervention'." 39It was only after identifying that as a basis for rejecting the error alleged by Inghams that the Deputy President went on to make the remarks identified at [20](4) above. That reasoning, to be set out in full, was as follows: "The appeal is not by way of review of the Arbitrator's determination of the dispute. The Arbitrator has, as I have earlier stated, addressed the totality of the evidence. In my view, she has sufficiently expressed her reasons for the acceptance of Ms Sok's evidence concerning the history of symptoms experienced whilst working with Inghams, and that of the expert medical witnesses whose opinions inculpate that work as being, in part, causative of the need for the surgery in question. Ground (f) is rejected." 40Finally, with respect to the question of injury, the Deputy President addressed grounds (g) and (h) which alleged error in failing to find that the injury was "an injury by way of disease" and that Inghams "was not the last employer" for the purposes of s 16(1)(b) of the Workers Compensation Act. The submission stated that it was made "in the alternative only." The Deputy President dealt with this ground and the supporting submissions at [60] in the following terms: "These grounds require determination on appeal as to whether any relevant error has been established concerning the Arbitrator's findings as to the disease provisions of the 1987 Act as expressed between [121] and [142] of Reasons. Following consideration of relevant authority and the expert medical evidence, the Arbitrator found that Ms Sok had not contracted a disease, expressed by her as being one of 'gradual onset', within the meaning of s 4(b)(i). The Arbitrator also found that Ms Sok's injury did not consist in the aggravation, acceleration, exacerbation or deterioration of a disease: ss 4(b)(ii). The argument advanced concerning the disease provisions was put on behalf of Integrated. Had such argument prevailed the provisions of ss 4, 15 and/or 16 would apply, so it was argued before the Arbitrator, to relieve Integrated of any liability. Any such liability found would thus devolve upon the last relevant employer. That argument was countered by Inghams in the course of submissions before the Arbitrator. However it was, in the alternative, faintly argued that, should relevant disease be found, Inghams were not the last relevant employer." 41That was the reasoning which preceded the last paragraph of which specific complaint is made, namely [61], which, in full, reads as follows: "The Arbitrator's conclusion that the disease provisions have no relevance on the present facts was supported by the evidence; her reasons for that conclusion were, again, plainly stated and no relevant error is made out. It is thus unnecessary to address argument, such as it is, that Inghams were not the last relevant employer. Grounds (g) and (h) are rejected." 42Once the language used by the Deputy President is placed in its context (both legal and factual) within the reasons, the submission that the Deputy President either failed to understand his proper function or failed to exercise it to its full extent must be rejected. Effect of transitional provisions 43The period of employment of the claimant by Inghams terminated on 15 June 2004. The application to the Commission was filed on 21 June 2012. The determination of the arbitrator was made on 14 March 2013 and the matter came before the Deputy President in July 2013. 44During the course of these proceedings, on 1 October 2012, changes made by the 2012 Amendment Act to Pt 3, Div 2 (dealing with weekly compensation payments) commenced. Although generally the amendments were said to apply to both injuries received and claims made before that date, there was an exception with respect to compensation paid or payable before that date: Workers Compensation Act, Sch 6, Pt 19H, cl 3(1) and (2). Those transitional provisions were varied by the Workers Compensation Regulation 2010 (NSW), Sch 8, cl 3(1) so that, with respect to a claim for compensation made before 1 October 2012, the amendments do not apply to compensation payable until 1 January 2013. 45Ground 2 in Inghams' notice of appeal was as follows: 2. The Deputy President erred in (a) holding that the Workers Compensation Commission has jurisdiction to determine a dispute about matters that are properly the subject of 'work capacity decisions' within the meaning of s 43 of the Workers Compensation Act 1987 in respect of the [claimant's] entitlement to weekly benefits from 1 January 2013; and (b) making orders against the appellant and [Integrated] for payment of weekly benefits to the [claimant] in respect of any period from 1 January 2013. 46The first order sought in the appeal, reflecting no doubt the combined effect of success on both grounds of appeal, was that the decision of the Deputy President be set aside and the matter remitted to the Commission for reconsideration of the internal appeal. Relevant to the second ground, an order was sought that the remitted appeal be limited to determining the obligation to make weekly payments "up to 31 December 2013." 47The nature of the second ground does not turn on the operation of the transitional provisions, the brief summary of which set out above may suffice. Rather, it turns upon the meaning and operation of the substantive provisions, as amended. 48Those provisions, which do not apply to compensation payable in respect of an injury until 1 January 2013, are identified in cl 3(1) of the Regulation as "the weekly payments amendments". The "weekly payments amendments" are defined to mean amendments made by the 2012 Amendment Act to Pt 3, Div 2 of the Workers Compensation Act, other than the amendment made to s 52 (dealing with termination on retirement): see Workers Compensation Act, Sch 6, Pt 19H, cl 1. The substantive provisions in Pt 3, Div 2 commence with s 33 (unchanged by the amendments) which provides that weekly payments of compensation are payable during total or partial incapacity for work. Entitlements are to be calculated by reference to three "entitlement periods" the first extending for 13 weeks, the second from weeks 14-130, and the third from week 130: ss 36-38. 49It is common ground that the claimant, whose entitlement to compensation relevantly commenced on 10 May 2011 is within the second entitlement period. If she is an injured worker who has "no current work capacity" her entitlement is to be calculated in accordance with s 37(1). (Different calculations apply with respect to workers who have returned to work for either less than or not less than 15 hours per week.) The amendments inserted definitions in s 32A of the Workers Compensation Act including the following: current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment. ... suitable employment, in relation to a worker, means employment in work for which the worker is currently suited: (a) having regard to: (i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), ... (b) regardless of: (i) whether the work or the employment is available ... 50At the end of the second entitlement period, continuing payments are dependent upon satisfaction of the requirements of s 38 which, so far as presently relevant states: 38 Special requirements for continuation of weekly payments after second entitlement period (after week 130) (1) A worker's entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section. (2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period. ... (4) An insurer must, for the purpose of assessing an injured worker's entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted: (a) during the last 52 weeks of the second entitlement period, and (b) thereafter at least once every 2 years. 51Critical to the appellant's present argument are the provisions of Subdiv 3 relating to work capacity. The operative and relevant provisions read as follows: 43 Work capacity decisions by insurers (1) The following decisions of an insurer (referred to in this Division as work capacity decisions) are final and binding on the parties and not subject to appeal or review except review under section 44 or judicial review by the Supreme Court: (a) a decision about a worker's current work capacity, (b) a decision about what constitutes suitable employment for a worker, (c) a decision about the amount an injured worker is able to earn in suitable employment, (d) a decision about the amount of an injured worker's pre-injury average weekly earnings or current weekly earnings, (e) a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment, (f) any other decision of an insurer that affects a worker's entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)-(e). (2) The following decisions are not work capacity decisions: (a) a decision to dispute liability for weekly payments of compensation, (b) a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act. (3) The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer. ... 44 Review of work capacity decisions (1) An injured worker may refer a work capacity decision of an insurer for review: (a) by the insurer (an internal review) in accordance with the WorkCover Guidelines within 30 days after an application for internal review is made by the worker, or (b) by the Authority (as a merit review of the decision), but not until the dispute has been the subject of internal review by the insurer, or (c) to the Independent Review Officer (as a review only of the insurer's procedures in making the work capacity decision and not of any judgment or discretion exercised by the insurer in making the decision), but not until the dispute has been the subject of internal review by the insurer and merit review by the Authority. ... (5) The Commission is not to make a decision in proceedings concerning a dispute about weekly payments of compensation payable to a worker while a work capacity decision by an insurer about those weekly payments is the subject of a review under this section. ... 44A Work capacity assessment (1) An insurer is to conduct a work capacity assessment of an injured worker when required to do so by this Act or the WorkCover Guidelines and may conduct a work capacity assessment at any other time. (2) A work capacity assessment is an assessment of an injured worker's current work capacity, conducted in accordance with the WorkCover Guidelines. (3) A work capacity assessment is not necessary for the making of a work capacity decision by an insurer. 52The appellant's claim that the Commission had no jurisdiction to make determinations as to weekly compensation from 1 January 2013 was based on the withdrawal of jurisdiction by s 43(3). 53The phrase "work capacity decisions" is defined in s 43(1) as the itemised "decisions of an insurer". They do not include decisions to dispute liability for weekly payments: subs (2)(a). Having decided to dispute liability to the claimant, the insurer conceded that it had made no work capacity decision with respect to the claimant. The substance of the appellant's submission is succinctly stated in the following passage from its written submissions: "Section 43 carves out a number of matters as the exclusive province of insurers. The regime would be unworkable if the Commission had jurisdiction to determine those matters for as long as no work capacity decision has been made. For example, there would be nothing to prevent an insurer from making an inconsistent work capacity decision. The only sensible construction of s 43(3) is that it deprives the Commission of jurisdiction in relation to matters properly the subject of a work capacity decision." 54The WorkCover Authority made two broad submissions as to why that proposition should not be accepted. First, it required reading the phrase "any dispute about a work capacity decision" as if it referred to "any dispute about a matter of a kind which may be the subject of a work capacity decision". That, the Authority noted, was not the language of the section although the extra words could readily have been added had that been intended. 55Furthermore, the second limb of subs 43(3) operates only where a work capacity decision has been made. If the first limb had a broader operation, one would ordinarily expect the second limb to provide, "and, where a decision has been made, is not to make a decision ... inconsistent with the work capacity decision of the insurer." That no such distinction was drawn suggests that both limbs assume that a work capacity decision has been made. 56Further, regardless of s 43(3), s 44(5) purports to remove the power of the Commission to make a decision in proceedings concerning a dispute about weekly payments while a work capacity decision (which must have been made) is the subject of a review. The purpose of that provision, it was submitted, must be open to doubt if the Commission had no jurisdiction with respect to any matter falling within paragraphs (a)-(f) of s 43(1) even absent a decision of an insurer. 57This construction is reinforced by the relevant savings and transitional provision in Sch 6, Pt 19H which provides: 14 Jurisdiction of Commission Sections 43(3) and 44(5) as inserted by the 2012 amending Act extend to proceedings pending in the Commission when a relevant work capacity decision is made. Clause 14 would be entirely otiose if the appellant's construction were to be adopted. 58These submissions of the WorkCover Authority should be accepted. They are sufficient to dispose of ground 2 of the appeal. 59If the appellant's submissions were correct, one might expect there to be an obligation on insurers (which are assumed to include self-insurers for the purposes of this argument) to make work capacity decisions in all appropriate circumstances where the entitlement to compensation will depend upon them. Statutory obligations, however, are far more limited. First, the transitional provisions impose an obligation with respect to each "existing recipient of weekly payments" being those in receipt of weekly payments immediately prior to the commencement of the amendments: Sch 12, Pt 19H, cl 1. Pursuant to cl 6, such recipients remain entitled to compensation "but only until the weekly payments amendments apply to the compensation payable to the person as provided by this Division." The application of that Division (Pt 19H, Div 2) depends upon the insurer first conducting a work capacity assessment: cll 8 and 9(1). Clause 14 (referred to above) also falls within Div 2. 60At the cessation of the first and second entitlement periods, the worker's entitlement to compensation is said to "cease" unless the worker is entitled to compensation under the relevant provision for the next period, which depends upon an assessment of current work capacity. There is compulsion to conduct a timely work capacity assessment in each case: see s 38(4). Conclusion 61The appellant has failed with respect to both grounds of appeal. The Court should make the following orders: (1) Dismiss the appeal by Inghams Enterprises Pty Ltd from the decision of the Workers Compensation Commission (Deputy President O'Grady) given on 17 July 2013. (2) The appellant must pay the costs of the first respondent (Ms Sok) and of the second respondent (Integrated Parramatta Services Pty Ltd) in this Court. (3) No order as to the costs of the WorkCover Authority. 62BARRETT JA: I agree with Basten JA. 63SACKVILLE AJA: I agree with Basten JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2014