DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER	

CITATION:	Walters v Good Guys Discount Warehouse (Australia) Pty Ltd [2023] NSWPICPD 29	
		
APPELLANT:	Susan Walters	
		
RESPONDENT:	Good Guys Discount Warehouse (Australia) Pty Ltd	
		
INSURER:	Allianz Australia Workers Compensation (NSW) Limited	
		
FILE NUMBER:	A1-W6316/21	
		
PRESIDENTIAL MEMBER:	President Judge Phillips	
		
DATE OF APPEAL DECISION:	24 May 2023	
		
ORDERS MADE ON APPEAL:	1.	The Certificate of Determination dated 18 May 2022 is confirmed.	
		
CATCHWORDS:	WORKERS COMPENSATION – validity of a claim for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 – claim made and resolved by way of Complying Agreement – construction of a complying agreement under section 66A of the Workers Compensation Act 1987 – Cram Fluid Power Pty Limited v Green [2015] NSWCA 250 applied – Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and others [2004] HCA 52; 219 CLR 165; Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50; Warwar v Speedy Courier (Australia) Pty Ltd [2010] NSWWCCPD 92; Di Paolo v Cazac Constructions (NSW) Pty Ltd [2013] NSWWCCPD 8 considered and applied – limit of one claim for permanent impairment pursuant to s 66(1A) of the Workers Compensation Act 1987 – ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 applied; Woolworths Ltd v Stafford [2015] NSWWCCPD 36 considered – finality of a Complying Agreement – reasons in Yildiz v Victoria Yeeros Pty Ltd [2016] NSWWCC 108 considered – principles of finality in R v Unger [1977] 2 NSWLR 990 and Despot v Registrar-General of New South Wales [2016] NSWCA 5 adopted	
		
HEARING:	On the papers	
		
REPRESENTATION:	Appellant:	
	Ms K Balendra, counsel	
	Star Lawyers NSW	
		
	Respondent:	
	Mr T Ainsworth, solicitor	
	Hall & Wilcox	

DECISION UNDER APPEAL		
		
MEMBER:	Ms K Garner	
		
DATE OF Member’s DECISION:	18 May 2022	

INTRODUCTION
1.	The facts in this application are not a matter of controversy between the parties. They can be shortly stated and provide the factual background for what is a dispute about the legal effect of the resolution of a “claim” made by the appellant in 2014, which I describe below. 
2.	The appellant, Ms Susan Walters, worked for the respondent, Good Guys Discount Warehouse (Australia) Pty Ltd, as a shop assistant. On 31 March 2012, while at work, the appellant suffered injury to her left knee. The respondent accepted the appellant’s claim. On 20 January 2014, the appellant made a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 4% whole person impairment (2014 claim). This claim was resolved by the parties entering a “Complying Agreement” on 26 February 2014. By this agreement the respondent agreed to pay the appellant $5,500 for 4% whole person impairment (WPI) with respect to the left knee and subsequently paid this sum. The respondent also agreed to pay the appellant’s legal costs as agreed or assessed. The Complying Agreement, which was signed by the appellant, confirmed that the appellant had received independent legal advice about the Complying Agreement before it was entered into. 
3.	In November 2018 the appellant had a total knee replacement performed on her left knee. Following this surgery, the appellant’s right knee developed symptoms. The right knee soon deteriorated leading to a total knee replacement on the right knee in March 2020.
4.	On 30 August 2021 the appellant made another claim for WPI pursuant to s 66 of the 1987 Act, this time claiming the combined amount of 34% WPI for both knees (2021 claim). This was based on the opinion of Dr Peter Giblin dated 7 July 2021, who assessed the appellant’s left knee with 20% WPI, and assessed the right knee with 18% WPI. The form accompanying this claim noted that the appellant had already received compensation in respect of 4% WPI in respect of the left knee. The respondent defended the 2021 claim on two grounds by way of a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 18 October 2021. Firstly, the respondent argued that the appellant had already received her one claim for permanent impairment compensation arising from the injury and therefore had no further entitlement, as restricted by s 66(1A) of the 1987 Act. Secondly, the respondent, relying upon report of Dr Richard Powell dated 17 December 2020, stated that the appellant’s permanent impairment was not greater than 10% as required by s 66(1) of the 1987 Act, and as a consequence she was not entitled to pursue the claim. Dr Powell was the respondent’s independent medical examiner, who was of the opinion that the appellant had only 3% WPI in respect of the left knee and 5% WPI in respect of the right knee, following reductions for a pre-existing degenerative conditions. 
5.	I detail the Member’s reasoning below, but the Member found that the appellant had no entitlement to pursue the 2021 claim and entered an award for the respondent. In that circumstance it was not necessary for the Member to resolve the whole person impairment dispute between the parties.
6.	The appellant appeals against this decision.
ON THE PAPERS
7.	Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) 	If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
8.	Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
9.	There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. 
THE EVIDENCE
10.	Given the nature of the issues existent in this appeal, it is not necessary to traverse the evidence in greater detail than I have set out in the introduction section of this decision. As I have said above, the facts in this matter are not in dispute. I discuss the background of the 2014 claim and the Complying Agreement further in my consideration of this appeal. 
THE MEMBER’S REASONS
11.	The case put before the Member related primarily to the validity of the Complying Agreement and whether it restricted the appellant from making her 2021 claim. The appellant worker submitted to the Member that the Complying Agreement for 4% WPI was invalid, as it was agreed contrary to the legislative provision of s 66(1) of the 1987 Act (then in force, as per the Workers Compensation Legislation Amendment Act 2012 (2012 amending Act)) which does not entitle the payment of lump sum compensation for impairment which is not greater than 10%. It was also submitted that the High Court’s decision in ADCO Constructions Pty Ltd v Goudappel meant that s 66(1) applied to both the 2014 and 2021 claim in the absence of there being a claim for lump sum compensation made prior to 19 June 2012 (that is, prior to the operation of the 2012 amending Act which limited entitlements to lump sum compensation). The appellant submitted that the 2014 claim was thus not resolved or determined based on this invalidity, and thus the 2021 claim was an amendment to the 2014 claim, not a second claim precluded by s 66(1A) of the 1987 Act. The appellant put forward this assertion based on the reasoning in Woolworths Ltd v Stafford, where Deputy President Roche examined the statutory meaning of the term “claim” with regard to s 66(1A) of the 1987 Act, to import more than a mere demand for payment, but a claim made. In that case, the Deputy President held that a claim made for lump sum compensation was not valid as it was not capable of payment within the context of the 1987 Act and could not be the “one claim” for permanent impairment under s 66(1A) of the 1987 Act. The Deputy President stated that a claim, whether valid or invalid, can be amended prior to its resolution.
12.	The respondent argued that the 2014 claim was validly made in accordance with the law at the time, being the prior Court of Appeal judgment in Goudappel v ADCO Constructions Pty Ltd, which would have allowed the payment of permanent impairment not greater than 10% WPI. It was submitted that s 66(1A) of the 1987 Act now precludes the appellant from making the 2021 claim as she had exhausted her entitlement by making the 2014 claim. The respondent submitted that the emphasis of s 66(1A) was on the “making” of the claim, not the “entitlement” to compensation, supported by the definition of a “claim” in s 4 of the 1998 Act to include a claim a person “has made, or is entitled to make” (emphasis in original). Such a distinction was accepted in Goudappel No 2. The High Court’s decision did not overturn the appellant’s ability to “make” the 2014 claim, only her entitlement to “receive” permanent impairment compensation. 
13.	The respondent also submitted that Stafford was wrongly decided and that the appellant’s reliance on Stafford was misconceived, as Roche DP did not give proper emphasis to the meaning of the word “claim” in that decision. That case was factually distinguishable to the present matter, as unlike in Stafford, the appellant here had not just made a claim, but the claim progressed to resolution by way of the Complying Agreement. It was not open to the Commission to conclude that the 2014 claim was not a claim at all on the basis of Stafford, as it had been determined (that is, made, accepted and paid). Such a construction was submitted to be “irrational and unjust”, and if the appellant’s argument was accepted, the respondent raised concern that it would apply to all workers in similar circumstances and require repayment to insurers under the principles of restitution. It was argued that Stafford would have no application to a determined claim, and instead, the applicable legal principles were those in the matter of Yildiz v Victoria Yeeros Pty Ltd, where a worker did not have an entitlement to pursue a further claim for WPI in November 2015 where an initial claim had been determined by the Workers Compensation Commission (assessed by way of a Medical Assessment Certificate in 2014), in light of Goudappel No 2 and s 66(1A) of the 1987 Act. As noted in that decision, the approach was consistent with the principle of finality of the previous determination. It was submitted that in Yildiz, Arbitrator Harris (as he then was) considered Stafford applied to a claim which had not been determined. The respondent argued that Yildiz rejected the proposition that a determined claim could be invalid and was applicable to the present case where the Complying Agreement had been entered into, noting that the Court of Appeal in Cram Fluid Power Pty Limited v Green considered that such an agreement had the effect of finally resolving a claim. 
14.	In response, the appellant argued against the application of Yildiz as it concerned principles of estoppel in circumstances where there was a determination by the Commission, not a complying agreement. It was submitted that s 66A(3) of the 1987 Act drew a distinction between an award of the Commission and a complying agreement by allowing for the payment of additional compensation under s 66(2) if the requirements under s 66A(3) were met, thus meaning that the 1987 Act contemplated the power to override a complying agreement. It was also argued that the Complying Agreement was erroneous in that the date of injury appeared incorrect, which, at the outset, was rejected by the Member. 
15.	After hearing from the parties, the Member approached her determination with regard to the following question: does s 66(1A) of the 1987 Act preclude the making of the 2021 claim for permanent impairment compensation? Relevant to this was the validity and effect of the 2014 claim, the Complying Agreement and the 2021 claim in the context of the legislative and transitional provisions. The Member referred to the history and purpose of the 2012 amending Act with reference to the Second Reading Speech, and specifically the purpose of the amendments to s 66 of the 1987 Act (being the introduction of a threshold of greater than 10% WPI and a limit of only one claim) “to reduce disputes and reduce administration costs while allowing the scheme to focus on more seriously injured workers”. Noting the transitional provisions relevant to the 2012 amending Act and the Court of Appeal’s interpretation of such in Goudappel No 1, the Member considered that at the time the 2014 claim was made and the Complying Agreement entered into, the amended s 66 was not applicable; however, Goudappel No 2 changed this. With reliance on Gifford v Strang Patrick Stevedoring Pty Limited, the Member held that the amended s 66 provisions applied to the 2014 claim, the Complying Agreement and the 2021 claim, and therefore, held that the 2014 claim for 4% WPI could not have advanced on a proper construction of the law. The Member examined the decision of Stafford in detail and in particular, Deputy President Roche’s consideration regarding the validity of a “claim” at [67] and [90]–[96], where the Deputy President held that a claim (valid or invalid) may be amended where there is a change in impairment between the date of an initial claim and the date of resolution or determination of that claim. 
16.	The Member did not accept the respondent’s submission that Stafford was wrongly decided. With reliance on Stafford, the Member was satisfied that the 2014 claim was not a valid claim because “it was not capable of payment in accordance with the 1987 Act as the [appellant] did not have a degree of permanent impairment greater than 10% and, accordingly, a claim for permanent impairment compensation could not be advanced on a proper construction of the law”. However, the Member proceeded to state that “… the 2014 claim, whether valid or invalid, could be amended prior to its resolution or determination” (emphasis added). In the present matter, the Complying Agreement raised the issue of “resolution” or “determination” of the 2014 claim, an issue which was not addressed in Stafford, and thus would have bearing on the amendment or “variation” of the 2014 claim as sought by the appellant. 
17.	The Member considered the authorities, including Yildiz and the finding that the receipt of compensation by the worker in accordance with a Medical Assessment Certificate had the effect of resolving that claim, thus precluding the making of a further claim by operation of s 66(1A) of the 1987 Act. The Member noted the Arbitrator’s view that the circumstances in Yildiz were distinct to Stafford which dealt with a claim that had not yet been determined. The Member referred to Cram Fluid, whereby the Court of Appeal was unanimous in the view that a complying agreement resolved the initial claim in question, and also Yildiz v Fullview Plastics Pty Limited whereby I determined that a 2017 claim for pain and suffering pursuant to the repealed s 67 of the 1987 Act could not be attached to a 2007 lump sum compensation claim which had resolved by way of complying agreement. 
18.	With regard to these authorities, the Member was of the view that “the signing of the Complying Agreement and payment of compensation pursuant to the Complying Agreement had the effect of ‘resolving’ the 2014 claim”, and thus the Member did not accept that the 2014 claim could be amended by the 2021 claim. The appellant therefore had no entitlement to pursue the 2021 claim for lump sum compensation pursuant to s 66(1) of the 1987 Act. 
19.	The Certificate of Determination issued on 18 May 2022 records:
“The Commission determines:
1. 	The [appellant] has no entitlement to pursue her claim for permanent impairment compensation pursuant to s 66(1) of the Workers Compensation Act 1987.
The Commission orders:
2.	Award for the respondent in respect of the [appellant’s] claim for permanent impairment compensation pursuant to s 66(1) of the Workers Compensation Act 1987.”
APPEAL GROUND
20.	The appellant pursues a single ground of appeal against the Member’s decision. This ground is framed in the following manner:
“It is the Appellant’s contention that the Member, in making her determination that the effect of the Complying Agreement was that the claim was ‘resolved’, committed an error of mixed fact and law. Such a finding is an error of fact as it accepts that the entry into a Complying Agreement made contrary to law was valid and was an error as to the law as it determined that such a Complying Agreement was capable of bringing resolution to an invalid claim”
LEGISLATION 
21.	Section 66 of the 1987 Act (as amended by the 2012 amending Act) provides:
“66 	Entitlement to compensation for permanent impairment
(1) 	A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note—
No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) 	Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.
…” 
(Inserted by Workers Compensation Legislation Amendment Act 2012 No 53, Schedule 2, item 2.1, operative from 27 June 2012)
22.	Section 66A of the 1987 Act (as amended by the 2012 amending Act) provides:
“66A 	Agreements for compensation
(1) 	In this section, complying agreement means a written agreement—
(a) 	under which a worker who has received an injury, and an employer or insurer, agree as to the degree of permanent impairment that has resulted from the injury, and
(b) 	in which there is a provision in which the employer or insurer certifies that it is satisfied that the worker has obtained independent legal advice, or has waived the right to obtain independent legal advice, before entering into the agreement.
(2) 	If a worker enters into a complying agreement in relation to an injury, the permanent impairment compensation to which the worker is entitled in respect of the injury is the compensation payable in respect of the degree of impairment so agreed.
(3) 	The Commission may award compensation additional to the compensation payable under subsection (2) by virtue of a complying agreement if it is established that—
(a) 	the agreed degree of permanent impairment is manifestly too low, or
(b) 	the worker has been induced to enter into the agreement as a result of fraud or misrepresentation, or
(c) 	since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed.
(4) 	Complying agreements, and the payments made under them, are to be recorded in accordance with the Workers Compensation Guidelines.
(5) 	Subsection (2) has effect despite section 234 (No contracting out) of the 1998 Act.
(6) 	Nothing in this section prevents a complying agreement from containing provision as to the payment of costs.”
23.	Clauses 3 and 15 of Div 1 of Pt 19H of Sch 6 of the 1987 Act provide: 
“3	Application of amendments generally
(1)	Except as provided by this Part or the regulations, an amendment made by the 2012 amending Act extends to:
(a)	an injury received before the commencement of the amendment, and
(b)	a claim for compensation made before the commencement of the amendment, and
(c)	proceedings pending in the Commission or a court immediately before the commencement of the amendment.
(2)	An amendment made by the 2012 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.”
“15 	Lump sum compensation
An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.”
24.	Section 4 of the 1998 Act defines the term “claim” as follows: 
“4 	Definitions
(3)	In this Act:
claim means a claim for compensation or work injury damages that a person has made or is entitled to make …”.
25.	The manner of making a claim is set out in s 260 of the 1998 Act. It provides:
“260 	How a claim is made
(1)	A claim must be made in accordance with the applicable requirements of the Workers Compensation Guidelines.
...”
26.	Section 281 of the 1998 Act states:
“281	Liability to be accepted and settlement offer made
(1)	The person on whom a claim for lump sum compensation or work injury damages is made, must within the time required by this section, determine the claim by:
(a) 	accepting liability and making a reasonable offer of settlement to the claimant, or
(b) 	disputing liability under Division 3 of Part 2 of Chapter 4.
...”
27.	Section 234 of the 1998 Act provides:
“234 	No contracting out (cf 1926 s 45; 1987 s 272)
This Act and the 1987 Act apply despite any contract to the contrary.”
SUBMISSIONS
The appellant’s submissions
28.	The appellant’s submissions are directed to two topics. The first is the validity of the Complying Agreement. The second deals with the resolution of the claim, meaning the 2014 claim.
29.	The appellant says that the 2014 claim could not have been a valid claim at the time that it was made and that it was a claim that was not capable of being paid. That is because the claim pursued by the appellant in the 2014 claim did not exceed the 10% permanent impairment threshold. The appellant accepts that the Member was correct in determining that the 2014 claim was invalid. The appellant argues as follows:
“Having determined that the 2014 claim was invalid, the Appellant contends that there is no basis for the Member to find that the complying agreement was valid.” 
30.	The appellant argues that the Complying Agreement had no basis as compensation was not payable in respect of a 4% whole person impairment. The appellant points to s 234 of the 1998 Act which expressly forbids contracting out of both it and the 1987 Act.
31.	Secondly, the appellant takes issue with the Member’s following finding at reasons [106]:
“Having regard to the authorities, I am of the view that in the present case, the signing of the Complying Agreement and payment of compensation pursuant to the Complying Agreement had the effect of ‘resolving’ the 2014 Claim. That being the case, it could be said that there was a ‘resolution’ of the 2014 Claim.”
32.	The appellant argues that in so far as the Member relied upon the Court of Appeal decision in Cram Fluid, this was mistaken. The appellant says as follows:
“The application of any principle to be derived from Cram Fluid as to the effect of a complying agreement can only be applied to a valid claim and a valid complying agreement.”
33.	The appellant says the 2014 claim cannot be categorised as valid. The appellant states that by filing the 2021 claim, which had the effect of amending the 2014 claim, the claim was thereby validated.
34.	As a consequence, the appellant argues that the Member’s decision ought be set aside.
The respondent’s submissions
35.	The respondent states that appellant incorrectly assumes the requirement for the validity of a claim. The respondent submits that whether valid or not, the Member correctly determined that the 2014 claim was “validly made” (emphasis in original) and was resolved by the Complying Agreement and as a consequence could not be subject of a later amendment. The result is the appellant has made her one claim pursuant to s 66(1A) of the 1987 Act.
36.	The respondent relies upon the reasoning of Arbitrator Harris (as he then was) in the former Workers Compensation Commission in the matter of Yildiz. The respondent notes that in Yildiz, the applicant had obtained an assessment of whole person impairment of 10% by an Approved Medical Specialist of the then Commission. A Certificate of Determination was issued to this effect. Mr Yildiz filed a further claim for whole person impairment arising from the same set of facts. Arbitrator Harris found that Mr Yildiz’s rights had merged by the issuing of the Certificate of Determination and that he could not pursue the second claim. The respondent states that whilst the merger at judgement and res judicata issues are not relevant to this matter, the status of a determined or resolved claim remains relevant. The respondent relies upon Cram Fluid where the Court of Appeal held that the complying agreement had the effect finally resolving a claim for a permanent impairment compensation under s 66 of the 1987 Act. The respondent also relies upon my decision in Fullview Plastics as to what constitutes a new claim and what constitutes an amended claim.
37.	The respondent concludes by stating that the Member correctly decided that the final resolution of the 2014 claim precludes the appellant from pursuing the 2021 claim by virtue of the operation of s 66(1A) of the 1987 Act. The respondent states that the 2014 claim, having been resolved, cannot now be amended in the 2021 claim.
The appellant’s submissions in reply
38.	The appellant filed a brief reply:
“At paragraph 9 of the Respondent's submissions, the Respondent states that ‘the Member correctly determined that the claim was validly made’ and ‘therefore could not be the subject of an amendment’. However the Member did not make such a determination. As noted at [101] of the Certificate of Determination the Member stated that she was ‘satisfied that the 2014 Claim was not a valid claim’. The Member also determined that ‘the 2014 Claim, whether valid or invalid, could be amended prior to its resolution or determination’.
The Respondent also relies on the decision of [Cram Fluid] for the proposition that a complying agreement had the effect of finally resolving the claim. However as previously noted in the Appellant's appeal submissions, the decision in Cram Fluid was in relation to a claim that was valid at the time it was made and the complying agreement entered into, whereas there is no dispute that the current claim relates to an invalidly made claim.”
CONSIDERATION 
Relevant Background
39.	As stated above, the appellant suffered her injury in the course of her employment with the respondent on 31 March 2012. Notification of the injury was given to the respondent’s insurer who accepted the claim. The appellant’s 2014 claim for permanent impairment compensation pursuant to s 66 of the 1987 Act was made on 22 January 2014. Between these two dates, the Parliament passed the 2012 amending Act. The 2012 amending Act commenced on 27 June 2012 and amended s 66 of the 1987 Act in two important respects. Firstly, s 66(1) was amended to limit workers’ entitlements to circumstances where a worker “received an injury that results in a degree of permanent impairment greater than 10%”. There was also a consequential amendment to s 66(2) which removed the mechanism for calculating compensation where the degree of permanent impairment was less than 10%. Secondly, s 66(1A) was introduced and limited workers to only one claim for permanent impairment compensation in respect of an injury. I would remark that in Cram Fluid the Court of Appeal emphasised the clear legislative intent in limiting workers to a single claim for lump sum compensation, construing s 66(1A) as the “leading provision” so as to maintain “the unity of the statutory scheme”.
40.	The 2012 amending Act and its effect upon injured workers’ entitlements has been discussed in a number of cases, notably by the Court of Appeal in Cram Fluid. In Cram Fluid, Gleeson JA said follows:
“The High Court acknowledged in Goudappel [No 1] (at [29]) that the 2012 amendments had a non-beneficial operation. It could not be in doubt that the effect of the new s 66 operated to the detriment of workers who claimed an entitlement to lump sum compensation after 19 June 2012.
It should be accepted that the 2012 amendments disclose a cost-savings objective. Part of the reforms to the existing scheme under the 1987 and 1998 Acts was to disentitle workers from making more than one claim for lump sum compensation. The Court must give effect to this legislative intention, notwithstanding the detrimental impact on injured workers.”
41.	The 2014 claim for permanent impairment was made by the appellant’s then solicitors in the following terms, by letter dated 22 January 2014:
“We enclose by way of service copy of report from Dr Bodel dated 2 December 2013 (x 2).
In accordance with the Workers Compensation Act and based on the report of Dr Bodel, our client claims compensation as follows; 
1.	Section 66 – 4% whole person impairment 	$5,000.00”
2. 	…”
42.	This letter also gave general notice of other claims, not relevant for present purposes, including medical expenses, weekly payments, and claiming costs as agreed or taxed. 
43.	Pausing here, this letter of 22 January 2014 contains a claim, amongst a number of other claims, for compensation under s 66 of the 1987 Act. Axiomatically this is a claim made after the commencement of the 2012 amending Act. 
44.	The insurer responded by letter dated 12 February 2014 accepting the claim as made in the following terms:
“We have reviewed the supporting assessor’s report, and the information on your file, and accept that the degree of permanent impairment as a result of injury on 31/03/2012 is fully ascertainable and is as claimed at 4% whole person impairment with respect to the left knee.”
45.	This correspondence attached the Complying Agreement specifying a 4% WPI, identifying the relevant body part as the left knee and agreeing to pay the amount of $5,500. This document was then completed by hand and signed by the appellant on 26 February 2014, with an additional notation that the appellant’s costs would be paid as agreed or assessed. It confirmed that the appellant had received independent legal advice about the Complying Agreement before it was entered into. The document was then signed by the respondent insurer on 14 March 2014. The claim as made was accepted and a slightly higher amount than had been claimed by the appellant was paid by the respondent.
46.	At the time the 2014 claim was made by the appellant, the relevant law was that as stated by the Court of Appeal in Goudappel No 1, a decision of 29 April 2013. This decision meant that at the time the appellant made the 2014 claim, she was entitled to do so. Subsequently, on 16 May 2014, the High Court in Goudappel No 2 overturned the Court of Appeal decision in Goudappel No 1, meaning that the appellant was not entitled to pursue the 2014 claim as the 2012 amending Act applied to it. As is evident from the above chronology, the 2014 claim was resolved by complying agreement in the period after the Court of Appeal decision but before the High Court decision. 
47.	In support of the application, the appellant has provided a very short statement dated 26 November 2021. This statement is noteworthy for its brevity. The statement says nothing about the circumstances of the appellant agreeing to and executing the Complying Agreement. The statement takes no issue with any matter or circumstance associated with the entering of the Complying Agreement by the appellant. Indeed, the statement contains no reference to the Complying Agreement at all.
48.	I would also remark that the appellant advances no argument about the circumstances specifically provided for by s 66A(3) of the 1987 Act which would establish an entitlement, on the appellant’s part, to “additional compensation” as contemplated by this provision. The purpose of s 66A(3) could be seen to somewhat temper the otherwise non-beneficial operation of the 2012 amending Act, and in particular the effect of the new s 66(1A), by permitting an award of additional compensation if one of the confined circumstances set out in s 66A(3) apply. I would remark though that the Court of Appeal in Cram Fluid did say that the operation of s 66A(3) was limited, with s 66A(1) being the leading provision.
Some principles regarding the making of a claim
49.	In Fullview Plastics I discussed the requirements for the making of a claim under the workers compensation legislation:
“A ‘claim’ is defined in s 4 of the 1998 Act. It means a ‘claim for compensation or work injury damages that a person has made or is entitled to make’. ‘Compensation’ is also defined in s 4 of the 1998 Act. It means ‘compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts’. The term ‘made’ is not defined in the Act.
As discussed in the Presidential decision in Ottomen Pty Ltd ATF Labour ADM t/as Otto Design Interiors v Lee-Chee [[2013] NSWWCCPD 42], the provisions dealing with the manner of making a claim for compensation have had a long history of legislative amendment. The relevant claim provisions are those contained in Ch 7 of the 1998 Act, in particular ss 260 and 261 of the 1998 Act. Section 260 provides for how a claim is to be made and s 261 provides the time within which a claim for compensation must be made. Relevantly, s 261(1) provides that compensation cannot be recovered unless a claim for compensation has been made.”
50.	It is not disputed that the 2014 claim, the details of which I set out above, is a claim made in accordance with these principles and the Member found as much. This says nothing about the validity of the 2014 claim which the appellant challenges and which I will consider later in this decision.
Some principles regarding the making of a complying agreement
51.	In Campbelltown Tennis Club Ltd v Lee, President Judge Keating was called upon to consider the meaning and effect of a complying agreement made under s 66A of the 1987 Act. His Honour initially dealt with the principles of construction as they apply to contracts. His Honour then turned to consider the scheme of complying agreements under the 1987 Act, saying as follows:
“The underlying purpose of s 66A of the 1987 Act is to permit the parties to reach a final and binding agreement concerning the entitlements to lump sum compensation. This section is an exception to s 234 of the 1998 Act, which prevents parties from contracting out of the Act, and is subject to any statutory exceptions such as those found in s 66A(3).”
52.	In Warwar v Speedy Courier (Australia) Pty Ltd Deputy President Roche considered the construction of the s 66A complying agreement in the following terms:
“42. 	As there is no suggestion that any of the exceptions in section 66A(3) apply in the present case, the complying agreement is a written agreement that is to be interpreted according to the usual principles of contract law. It is an exception to section 234 of the 1998 Act, which prevents parties from contracting out of the terms of the 1987 Act and the 1998 Act.
43. 	The High Court considered the principles relevant to the construction of a contract in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and others [2004] HCA 52; 219 CLR 165, where it held (at [40]):
‘This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.’ [Roche DP’s emphasis]
44. 	The fundamental principle is what reasonable parties would take a clause to mean at the time of making the contract, taking into account the text and structure of the written agreement and its background (Synergy Protection Agency Pty Ltd v North Sydney Leagues Club Limited [2009] NSWCA 140). It is not necessary to identify ambiguity as a pre-condition before contextual and background material can be considered in interpreting the contract (Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 (‘Masterton Homes’)). The construction of a written contract takes into account the text of the document and the context of the surrounding circumstances known to the parties (Franklins Pty Ltd v Metcash Pty Ltd [2009] NSWCA 407). The surrounding circumstances attributed to a reasonable person in the situation of the contracting parties is to be understood by reference to what the parties knew in the context of their mutual dealings (QBE Insurance Australia v Vasic [2010] NSWCA 166).
45. 	Essentially, what is required is that, by reference to the surrounding circumstances known to the parties, and the purpose and object of the transaction, I must determine what reasonable parties would objectively understand the complying agreement to mean.”
53.	In Di Paolo v Cazac Constructions (NSW) Pty Ltd, Deputy President O’Grady says as follows:
“The lumbar spine impairment in respect of which this claim is made, if proven, is the result of the injurious event of 2006. However, it must be emphasised that such impairment is not an ‘injury’ in terms of s 4 of the 1998 Act, but rather a consequential condition being a result of the injury (see discussion by Roche DP, in Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). The appellant’s assertion … that Gonzales[] is authority for the proposition that ‘there will be circumstances where parties may not reach a final binding s 66A complying agreement with respect to all injuries’ is wrong and, as is argued by the respondent, is a ‘misinterpretation’ of what was there stated.”
And:
“The purpose of the provision, as stated in Gonzales, was that such complying agreements permit ‘a worker and an employer’ to reach a final and binding agreement concerning entitlements to lump sum compensation. The section represents an exception to the ‘no contracting out provision’ being s 234 of the 1998 Act. It was Parliament’s intention that such agreements provide finality, subject only to those exceptions appearing in the section. It is not argued that the provisions of s 66A(3) have any relevance to the present facts.”
54.	In Cram Fluid, the Court of Appeal (per Emmett JA) said this about a further claim made by a worker under s 66 of the 1987 Act in circumstances where a previous s 66 claim had been settled by the parties entering a complying agreement:
“The short answer to the Worker’s contention is that, by the letter of 29 October 2013, the Worker made a further claim under s 66 of the Act. While the claim made by the letter of 29 October 2013 was a claim that specifically sought compensation under s 66, it was not made before 19 June 2012. Of course, the Worker had in fact made an earlier claim for compensation that specifically sought compensation under s 66. He made such a claim on 14 December 2010. However, that claim was resolved by the complying agreement entered into on 22 December 2010. The claim made on 14 December 2010 was no longer on foot. It was a totally separate and discrete claim from the claim made by the letter of 29 October 2013. It follows that Mr Green is not entitled to the benefit of cl 11, and s 66(1A) operates to preclude any further claim for compensation for permanent impairment arising out of the injury that he suffered in May 2005.”
55.	In terms of the Complying Agreement, the appellant says two things: 
(a)	that the Complying Agreement could not finally resolve an otherwise invalid claim, and/or 
(b)	the Complying Agreement itself offended s 234 of the 1998 Act (no contracting out). 
Discussion
56.	The appellant’s argument about the effect of s 234 of the 1998 Act can be dealt with relatively shortly. Section 66A(5) is an express statutory exception to the s 234 prohibition against contracting out: see the remarks of former President Judge Keating in Lee at [77] (extracted at [51] above), Deputy President Roche in Warwar at [42] (extracted at [52] above) and Deputy President O’Grady in Di Paolo at [43] and [47] (extracted at [53] above). This argument is without merit and is dismissed. 
57.	This leaves the appellant’s argument about the validity of the 2014 claim and the Complying Agreement. It also leaves a subsidiary argument regarding the 2021 claim being an amendment to the 2014 claim, thus avoiding the statutory prohibition on pursuing more than a single lump sum compensation claim. Whether this argument has substance depends upon the answer to the anterior question, namely the validity of the 2014 claim and resolution. 
58.	At the time the 2014 claim was filed and resolved, the law was as stated by the Court of Appeal in Goudappel No 1. This is an important consideration when considering “the surrounding circumstances known to the parties, and the purpose and object of the transaction” (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and others quoted at [52] above). At this point in time the 2014 claim was a valid claim. The resolution of this claim, objectively viewed, paid total impairment benefits to the appellant in a slightly larger amount than had been claimed by the appellant at a time where the surrounding circumstances known to the parties would have included knowledge about the effect of Goudappel No 1. As I have said above, the appellant takes no issue with any of the circumstances surrounding the entering of the Complying Agreement and certainly makes no complaint with respect to the provisions of s 66A(3). In accordance with the remarks that I have outlined above from Cram Fluid, the 2014 claim had been resolved.
59.	The real question for consideration is the effect, if any, of the High Court’s decision in Goudappel No 2 upon the validity of the 2014 claim and its resolution. A similar question had been considered by the former Workers Compensation Commission in Yildiz. The difference between Yildiz and this case is the manner in which each claim was resolved. In Yildiz, the claim was resolved by the issuing by the then Commission of a Certificate of Determination following a Medical Assessment Certificate. This case involved the settlement of the 2014 claim by way of a complying agreement. Whilst Arbitrator Harris (as he then was) in Yildiz had to consider the principle of merger in judgement, the principles discussed in that case regarding finality apply equally to the resolution of the matter by way of a complying agreement. With respect, I endorse and adopt the approach of Arbitrator Harris in Yildiz and the principles he set out arising from the cases regarding finality and which I set out below.
60.	In Yildiz the Arbitrator set out the following principles:
“The principle concerning changes in the interpretation to the law with respect to other cases decided in civil litigation was addressed by the High Court in Piening v Wanless (1968) 117 CLR 498 at 506 (per Barwick CJ) and with respect to the criminal law in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 106 (per Dixon J). 
This principle is fully set out in the judgment of Street CJ (Begg and Ash JJ agreeing) in R v Unger [1977] 2 NSWLR 990 at 995–996. That case involved an application for an extension of time to appeal a conviction selling a prohibited drug. Subsequent to the appellant’s conviction, the District Court had declared (in R v Lind) that the relevant Regulation purportedly made under the Poisons Act which prescribed a ‘quantity’ for an offence under the Act, to be ultra vires. In declining the application to appeal the conviction out of time, Street CJ outlined the reasons behind the principle of merger in judgment or conviction. It is necessary to quote at length his Honour’s reasons. 
Street CJ stated (at 995–996): 
‘The Court has an ultimate discretion in the matter, but it is a discretion to be exercised by regard not only to all of the facts and circumstances of the particular application, but also to what the Court of Criminal Appeal in R v Ramsden described as the alarming consequences flowing from a general policy of permitting the re-opening of cases in consequences of the subsequent exposure of a misconception as to the prior state of the law. 
There is no difference in principle between a subsequent judicial decision which has the effect of exposing a prior misconception in relation to a principle of law which was wrongly regarded as well founded at the time of the trial, and a subsequent judicial decision exposing the invalidity of regulations that were wrongly treated as valid at the time of the trial…. It is to be borne in mind that the effect of a conviction in a criminal court, no less than a verdict and judgment in a civil court, is to merge in that conviction or judgment, as the case may be, all of the material upon which it proceeded … 
The concept of merger is no blind, arbitrary proposition. It is founded deeply in the fabric of the philosophy of the common law. Although in pure theory the overruling or modification by judicial decision of previous conceptions of legal principle does no more than correct a departure from the timeless perfection of the law, the plain fact is that legal principle is constantly evolving and being moulded in the light of the changing and developing social context. Recognising this, there has always been an unwillingness to permit the re-opening of past decisions ... This finality of decision in each individual case leaves the courts free to permit a judicious flexibility in the development of principle in later cases, free from inhibition lest such development may set at large disputes that have previously been resolved. The concept of merger in judgment, both in the civil and in the criminal field, to which Dixon C.J. referred, equally with the doctrine of res judicata, serves this requirement of flexibility for potential development of the law.’
In respect of the appeal under consideration in R v Unger, the Court concluded that there was “no taint” in respect of the conviction which “depended ultimately upon the authority belonging to the District Court at the time of the trial”. 
61.	The Arbitrator also discussed the Court of Appeal authority of Despot v Registrar-General of New South Wales. Despot relevantly provided as follows:
“It has been said that a central tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. This is because underpinning the system is the need for certainty and finality of decision. This tenet finds reflection, among others, in the restriction upon the reopening of final orders after entry, and the doctrines of res judicata and issue estoppel: Achurch v The Queen [2014] HCA 10; 253 CLR 141 at [14]–[17].”
62.	Consistent with the decision of the Court of Appeal in Cram Fluid, the execution of the Complying Agreement had the effect of resolving the 2014 claim. Is this agreement then rendered invalid by the High Court’s later decision in Goudappel No 2? The answer to this question must be no. My reasons are these. Firstly the 2014 claim, having been resolved, was no longer a live claim capable of being affected by the High Court decision. Secondly, this result sits comfortably with the principles of finality which I have set out above, discussed in Yildiz, arising from the cases of R v Unger and Despot. Whilst these cases dealt with decisions which would have been made differently if decided after a later appellate decision, for the reasons described above, the earlier decisions stand unaffected. There is no reason in principle not to apply the same approach to the circumstance of a matter being resolved by virtue of a statutorily recognised agreement such as a complying agreement provided for in s 66A. One of the objects of the Act is “to [encourage] early dispute resolution”. One way of achieving this object is by way of a s 66A complying agreement. Thirdly, the 1987 Act provides for the making of complying agreements and in s 66A(3) provides for limited circumstances where additional compensation might be later sought. No such circumstance exists in this matter. Fourthly, there is a significant public policy benefit which attaches to resolution of claims by agreement. Scarce court and tribunal resources are then not taken up with hearing matters that ought to be resolved by agreement. Pausing here, I note that there is no issue taken with any aspect of the Complying Agreement or the circumstances by which it was entered. The scheme of the 1987 Act provides for parties to resolve lump sum claims by way of entering a complying agreement, which as I have described above the Court of Appeal in Cram Fluid confirms has the effect of resolving the claim. Disturbing agreements otherwise lawfully entered is contrary to the public policy benefit I have identified above. Further, given the terms of s 66A, it is the clear intent of the legislature that such agreements be final and binding subject only to the limited capacity to obtain additional compensation as provided for in s 66A(3).
63.	Consequently, I do not accept that the Member was in error when she found that the Complying Agreement had the effect of resolving the 2014 claim. Whilst I do not agree with the Member’s finding that the 2014 claim was invalid, given the state of the law of the time it was made and the fact that the 2014 claim was resolved before the High Court decision in Goudappel No 2, nothing turns on that finding. In light of the decision that I have reached, this error regarding the validity of 2014 claim does not affect the result.
64.	Finally, for the sake of completeness I will deal with the subsidiary argument regarding the 2021 claim being an amendment to the 2014 claim. As I found in Fullview Plastics, the later claim could not be attached to an earlier claim which had been resolved by complying agreement. The same situation exists in this case, the resolution of the 2014 claim meant that that claim was at an end and as a consequence there was no claim existent that could be amended by a later claim (such as the 2021 claim). Before the Member and on appeal, the appellant has pointed to the decision of Deputy President Roche in Stafford. Stafford can be distinguished from the circumstances in this case. In Stafford the earlier invalid claim had never been resolved. Deputy President Roche, for the reasons outlined in Stafford, found that a later valid claim was an amendment to the earlier invalid claim. The difference with respect to this matter is that the 2014 claim had been finally resolved by the Complying Agreement. The Member was correct to find as she did at reasons [107]. 
DECISION
65.	As a consequence of the above, this appeal is dismissed. I make the following orders:
(a)	The Certificate of Determination dated 18 May 2022 is confirmed.

Judge Phillips
President
24 May 2023