Atanasio v BP Refinery (Kwinana) Pty Ltd - [2011] WASCA 95

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ATANASIO -v- BP REFINERY (KWINANA) PTY LTD [2011] WASCA 95

CORAM: BUSS JA
NEWNES JA
MURPHY JA

HEARD: 6 SEPTEMBER 2010

DELIVERED : 15 APRIL 2011

FILE NO/S: CACV 84 of 2009

BETWEEN: ANTONIO M ATANASIO
Appellant
AND
BP REFINERY (KWINANA) PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISPUTE RESOLUTION DIRECTORATE, WORKCOVER WA
Coram  :COMMISSIONER P McCANN
Citation  :C17-2009
File No  :AP 95 of 2007

Catchwords:

Workers' compensation - Appellant injured in an accident at work in March 2000 - Review officer determined in November 2005 that the appellant's degree of disability was 13.5% being wholly a physical disability - Review officer found that the appellant did not suffer from any psychiatric condition - Review officer determined that the level of the appellant's overall degree of disability attributable to the injury he suffered in the accident was less than 30% - Appellant obtained new evidence in 2007 as to his alleged psychiatric condition - Appellant then made a new application seeking a determination that his overall degree of disability attributable to the injury he suffered in the accident was not less than 30% - Whether new application barred by the doctrine of issue estoppel - Whether any new assessment of the appellant's overall degree of disability must be by way of reconsideration under s 186 of the Workers' Compensation and Injury Management Act 1981 (WA)

Statutes - amending Act - Transitional provisions - Whether the appellant acquired an 'accrued right' to have the degree of disability attributable to the injury he suffered in the accident in March 2000 determined in accordance with the statutory framework in force at that time - Workers' Compensation Reform Act 2004 (WA), div 1 and div 3 of pt 4 - Interpretation Act 1984 (WA), s 37(1)

Legislation:

Interpretation Act 1984 (WA), s 37(1)
Workers' Compensation (Common Law Proceedings) Act 2004 (WA)
Workers' Compensation and Injury Management Act 1981 (WA), s 5(1), s 62, s 84ZF (repealed), s 84ZN (repealed), s 86, s 92, s 93D, s 93E, s 181, s 186, s 187, s 247, s 254
Workers' Compensation and Injury Management Regulations 1982 (WA), reg 19J
Workers' Compensation and Rehabilitation Amendment Act 1999 (WA)
Workers' Compensation and Rehabilitation Amendment Act 2000 (WA)
Workers' Compensation Reform Act 2004 (WA), s 67, s 130, s 176, s 177, s 182, s 183, s 184, s 186

Result:

Appellant granted leave to rely on proposed ground 2
Leave to appeal granted
Appeal dismissed
Leave to cross appeal granted
Cross appeal allowed

Category: A

Representation:

Counsel:

Appellant: Ms H E Prince
Respondent: Mr D W Williams

Solicitors:

Appellant: Chapmans
Respondent: WHL Legal Pty Ltd

Case(s) referred to in judgment(s):

Ainslie v Ainslie [1927] HCA 23; (1927) 39 CLR 381
BHP Billiton Ltd v Gomes [2007] WASCA 140
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853
Carr v Finance Corporation of Australia Ltd (No 2) [1982] HCA 43; (1982) 150 CLR 139
Casserly v Alcoa of Australia Ltd [2006] WASCA 150
Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1
Clough Engineering v Thomas [2004] WASCA 36
Collett v Loane [1966] HCA 71; (1966) 117 CLR 94
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson [1967] HCA 10; (1967) 117 CLR 19
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
Egri v DRG Australia Ltd (1988) 19 NSWLR 600
Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430
Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188
Geraldton Building Co Pty Ltd v May [1977] HCA 17; (1977) 136 CLR 379
Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269
Girrawheen Tavern v Joseph [2003] WASCA 244
Hocking v Western Australian Bank [1909] HCA 68; (1909) 9 CLR 738
Houssein v Under Secretary of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88
Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446
Jeans West Corporation Pty Ltd v Archer [2004] WASCA 132
K‑Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501
Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563
Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
McNair v Press Offshore Ltd (1997) 17 WAR 191
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566
O'Brien v McKean [1969] HCA 58; (1969) 118 CLR 540
O'Donel v The Commissioner for Road Transport and Tramways (New South Wales) [1938] HCA 15; (1938) 59 CLR 744
Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537
Pilcher v HB Brady & Co Pty Ltd [2005] WASCA 159
Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58
Ramsay v Pilgrim [1968] HCA 34; (1968) 118 CLR 271
Re Lloyd; Ex parte Atanasio [2008] WASC 93
Re Monger; Ex parte Wilderness Society Equipment Ltd [2003] WASCA 202
Robertson v City of Nunawading [1973] VR 819
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
Somodaj v Australian Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285
The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229
United Construction Pty Ltd v Maketic [2003] WASCA 138
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269
Western Metals Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152
WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34; (2010) 84 ALJR 700
Wyatt v MR & RC Smith Pty Ltd [2008] WASCA 55

Table of Contents

Buss JA's reasons...................................................................................................................... 7
The orders and reasons of Review Officer McCloskey
New evidence obtained by the appellant as to his alleged psychiatric condition
The orders and reasons of Arbitrator Waring
The orders and reasons of Commissioner McCann
The appellant's application pursuant to s 186 of the Act
The purposes of the Act
Part IV of the Act generally: civil proceedings in addition to or independent of the Act
Part IV div 2 of the Act: constraints on awards of common law damages
Part XI of the Act: the dispute resolution provisions since 14 November 2005
The statutory framework since 14 November 2005: the doctrine of issue estoppel and the proper construction and application of s 186 and s 187 of the Act
The statutory framework at material times before 14 November 2005: the doctrine of issue estoppel and the precursors to s 186 and s 187 of the Act
The appellant's grounds of appeal
The respondent's grounds of cross appeal
Leave to appeal should be granted on the appeal and the cross appeal
The merits of grounds 1, 2 and 3 of the cross appeal: the critical points
The merits of grounds 1, 2 and 3 of the cross appeal: the first critical point
The merits of grounds 1, 2 and 3 of the cross appeal: the second critical point
The merits of grounds 1, 2 and 3 of the cross appeal: the third critical point
The merits of grounds 1, 2 and 3 of the cross appeal: conclusion
The merits of ground 1 of the appeal
The merits of ground 2 of the appeal: general
The merits of ground 2 of the appeal: the 2004 Reform Act: the transitional provisions: general
The merits of ground 2 of the appeal: the 2004 Reform Act: the relevance, if any, of the transitional provisions in the present case
The merits of ground 2 of the appeal: the appellant's alleged substantive rights before 14 November 2005
The merits of ground 2 of the appeal: conclusion
The result of the appeal and the cross appeal
Newnes JA's reasons............................................................................................................... 51
Murphy JA's reasons............................................................................................................. 51

Introduction

Background
The 2004 proceedings - evidence and findings in relation to psychiatric injury
The grounds of appeal and the cross‑appeal

The grounds of appeal
The cross‑appeal

The issues
The Overall Scheme of the Act

Part I - Preliminary
Part III - Compensation
Part IV - Civil proceedings
Part XI - Dispute resolution
Transitional matters

Issue estoppel
Section 186 and s 187 of the Act and their predecessors
Preliminary observations on s 186
Preliminary observations on the scheme of s 93D and s 93E
Appellate decisions on s 186 and s 187
Disposition of the first ground of appeal and the cross‑appeal

Section 187 finality principle
Issue estoppel

Conclusion

BUSS JA: On 13 March 2000, the appellant was injured in an accident at work.
In 2004, he commenced proceedings in the former Conciliation and Review Directorate against each of the respondent and United Maintenance Ltd (United) seeking a determination as to his 'degree of disability', as defined in s 93E(1) of what was then called the Workers' Compensation and Rehabilitation Act 1981 (WA), but later re‑named the Workers' Compensation and Injury Management Act 1981 (the Act), for the purposes of pt IV div 2 of the Act.
The appellant filed a separate Form 22, pursuant to s 93D of the Act, in relation to each of the respondent and United. The Forms 22 described the injury as:
Lower back, right shoulder/arm and psychological/psychiatric.
The level of disability was alleged to be not less than 30%.
Review Officer McCloskey heard the proceedings. On 8 November 2005, he made orders and published written reasons for decision. The review officer determined that the appellant's degree of disability was 13.5%, comprising 9% in respect of his lower back and 4.5% in respect of his right arm. He found that the appellant did not suffer from any psychiatric condition, merely feelings of demoralisation and frustration within normal range.
On 18 April 2007, the appellant filed a new Form 22 in respect of the accident which occurred at work on 13 March 2000. He named United as the employer. The new Form 22 described the injury as:
Lower back, right shoulder/arm and psychological/psychiatric.
The level of disability was alleged to be not less than 30%.
The Director Dispute Resolution refused to accept the new Form 22. The appellant commenced proceedings against the director in the Supreme Court for prerogative relief. See Re Lloyd; Ex parte Atanasio [2008] WASC 93. The appellant was successful. A dispute as to his degree of disability was then referred to an arbitrator, pursuant to s 93D(10) and pt XI of the Act, for determination. During the course of the arbitration proceedings, the respondent was added as an employer and the proceedings against United were stayed.
The arbitration proceedings came before Arbitrator Waring. The respondent contended that, as a result of Review Officer McCloskey's determination, the appellant was barred by the doctrine of issue estoppel from relying upon an alleged psychiatric condition as a component of his degree of disability. Arbitrator Waring dealt with this point 'on the papers' as a preliminary issue. On 10 February 2009, she made orders and published written reasons for decision. The arbitrator decided that the appellant was barred by the doctrine of issue estoppel.
The appellant then applied for leave to appeal against Arbitrator Waring's decision. Commissioner McCann granted leave to appeal under s 247(3) of the Act, but ordered that the appeal be dismissed.
The appellant has applied to this court under s 254(1) of the Act for leave to appeal against the commissioner's decision. The respondent has applied for leave to cross‑appeal.

The orders and reasons of Review Officer McCloskey

At the hearing before Review Officer McCloskey, the appellant gave oral evidence. He was cross‑examined by counsel for the respondent and counsel for United.
Reports from various medical practitioners who had examined the appellant were provided to the review officer. The parties made submissions in relation to them. The reports included, relevantly, reports dated 2 September 2003 and 25 August 2004 from Dr Peter Shannon, a psychiatrist, and a report dated 31 January 2004 from Dr Lawrence Terace, a consultant psychiatrist.
Dr Shannon expressed the view that the appellant suffered from an adjustment disorder. This disorder was caused by the onset of pain which, to the best of Dr Shannon's understanding, commenced after the accident at work on 13 March 2000 and had continued. Dr Shannon considered that the appellant suffered from a recognised psychiatric condition. His 'DPI' (that is, degree of permanent impairment) was not less than 15%.
Dr Terace expressed a different opinion. He thought the history he had elicited from the appellant was of psychological experiences that were within the bounds of normal mental function and normal human experience. He did not consider the psychological experiences to be severe or to be sufficient to meet the criteria for a recognised psychiatric condition. Dr Terace concluded that the appellant did not suffer from any degree of permanent impairment by reason of a psychiatric condition.
Review Officer McCloskey said that 'effectively any degree of disability or DPI resultant from [the appellant's alleged psychiatric condition] was determined by the reports of Shannon and Terace' [97]. He then added:
In that regard, although Shannon issued 2 reports in respect of the worker, only 1 (his first report, 2/9/03) followed immediately on a review of the same and that was issued about 4 months prior to Terace's sole review of the worker in late January 2004. There is thus little difference in the time at which they saw the worker and no advantage can be ascribed to the evidence of either practitioner based on such matter [97].
The review officer made these observations about the appellant's evidence concerning his alleged psychiatric condition:
In his testimony as to how this condition affected him, the worker stated he did not attend the Portuguese club because he could not do what he could do prior to the material date and he did not want to attend the club and simply sit down; further, his daughter questioned him why he did not participate in more activities with her and he said he was prevented by pain; he also said his wife found it difficult to cope with him doing little (other than sitting on the sofa 'all day'), that he did not talk as much as previously and that he could get upset for no real reason and to a greater degree of anger than prior to the material date, he became depressed for periods of time and when friends visited the experience was less than it had been because he felt 'down'; however, he had not been referred to a psychiatrist or other related practitioner by his doctor. Of the matters referred to, the first half of the worker's complaints did not appear to relate to his psychiatric condition and the balance do not appear so serious as to warrant comment by the GP or expression of a need for treatment; combined with the comments by Terace it is difficult to see how it is possible to accept the worker's condition is as Shannon opines, particularly on the basis of a sole review of the worker. In that regard, while Shannon characterised the worker's symptoms as satisfying the criteria for an SSR impairment rating of 15, Terace expressed the view they did not constitute a psychological condition at all but were merely normal signs of frustration and demoralisation within the bounds of normal human experience [98].
Review Officer McCloskey then made this finding of fact:
In my view, the symptoms described by the worker at review are of such a nature that it cannot be said that they constitute a psychological condition; in other words, I am not satisfied that the worker has established on the balance of probabilities that he has suffered a psychiatric condition as distinct from the demoralisation and frustration diagnosed by Terace. Thus he cannot suffer a DPI by reasons of any such condition [99].
In these circumstances, the review officer concluded that the appellant's degree of disability was no more than 13.5% [100].
The review officer made this additional comment about the appellant's alleged psychiatric condition:
By way of comment, if the worker had established on the balance of probabilities that he has suffered a psychiatric condition as diagnosed by Shannon and that it produced a DPI by reason of such condition to the extent described by that practitioner, the worker's DPI would satisfy the criteria for an SSR impairment rating of 15, which I feel would translate to a percentage DPI of 15%. If that were so I would still be compelled to conclude the referred questions must be dismissed because the worker's degree of disability would be 28.5%, which is less than the relevant level nominated in the Form 22s [101].
The review officer's formal order reads:
I DIRECT the Form 22 in each [proceeding] be dismissed [105].

New evidence obtained by the appellant as to his alleged psychiatric condition

After Review Officer McCloskey published his reasons and made his formal order, the appellant was assessed in March 2007 by Dr AG Linde, a consultant psychiatrist.
In a report dated 28 March 2007, Dr Linde noted that he had been consulted by the appellant on 14 March 2007 and 28 March 2007. Another appointment had been scheduled. Dr Linde made the following diagnosis:
Serious back disc injury and serious right shoulder injury both work related. He has understandable dismay, demoralization, sadness, and anger reactive to his work injury, the post injury workers compensation processes, and the realization that his future work prospects are poor. He now has a major depressive illness secondary to the ongoing pain, disability and inescapability from the injury and its losses. These occur in an otherwise formerly healthy man from a good background, and who is by nature dutiful, responsible, and not prone to anxiety nor histrionics. He now might have neuropathic pain as well as tissue damage pain, and the magnification of pain by depression. (emphasised added).
According to Dr Linde, the appellant's 'serious degree of depression reactive to his bodily disability will further magnify his distress, and lower his coping with mental as well as physical work and life enjoyment, while his body is disabled'.
Dr Linde made this prognosis:
His reactive depression, bitterness, general distress and sense of depression will last as long as he is in pain, and disabled by his body. This reactive depression will further 'institutionalize' him at home, and lessen any incentive to sit or stand at work, thereby acquiring more pain. The major depression component, now on its own biochemical momentum, triggered by the work injuries, will lessen with antidepressants, and be controllable. However, controlling this will not alone allow resolution of his disabilities in day to day life, nor guarantee work. Currently, I see his employment prognosis as gloomy.
In a supplementary report dated 18 May 2007, Dr Linde emphasised that the appellant had a significant depression that negatively interacts with his bodily injuries. He then said:
In my opinion, the injuries received on 13.3.2000 triggered his loss of work due to bodily injury and pain. While I stated in my original report that the Psychiatric condition was secondary to the ongoing pain, it is also due to the accident removing him as a breadwinner and enjoyer of a happy lifestyle. The depression is also primary to his work related accident, and the unsuccessful attempts at rehabilitation over the last six years.
Dr Linde expressed the opinion in each of his reports that the appellant was unlikely to be able to work again in paid employment. He considered him to be permanently impaired.

The orders and reasons of Arbitrator Waring

Arbitrator Waring noted in her reasons that the parties had sought a ruling 'on the extent to which issue estoppel (in respect of [the appellant's] degree of disability) applies in determining the Second Form 22 on the basis that both physical and psychological conditions were cited and considered when Review Officer McCloskey determined the First Forms 22' [7].

The arbitrator said that:
[A] 'component determination' was made [by Review Officer McCloskey] in relation to [the appellant's] alleged psychiatric condition to the extent that a nil degree of permanent impairment (or degree of disability) was assessed by the review officer because he was:
' … not satisfied that the worker had established on the balance of probabilities that he [had] suffered a psychiatric condition … [and] thus he cannot suffer a DPI by reason of any such condition.'
While [the appellant] had alleged that he had a permanent psychiatric disability, Review Officer McCloskey was not satisfied there was any permanent psychiatric impairment, or any impairment at all. In my view this constitutes a negative finding that there was no impairment [28] ‑ [29].
Later in her reasons, Arbitrator Waring reiterated:
In relation to the particular 'degree of disability' (if any) suffered by [the appellant] because of the alleged psychiatric condition, I note the wording Review Officer McCloskey uses in para 99:
'Thus he cannot suffer a [degree of permanent impairment] by reason of any such condition.'
I am satisfied that Review Officer McCloskey is here expressing (in similar language to that employed by him in paragraph 96) his conclusion that the 'particular' degree of disability of nil was attributable to [the appellant's] alleged psychiatric condition.
Whether this finding (of a nil degree of disability in relation to the worker's psychiatric condition) is characterised as being 'expressly made' or as 'implied', I am satisfied that Review Officer McCloskey did make a solemn finding that a nil degree of disability applied to the psychiatric aspect of the worker's 30% claim [40] ‑ [41].
Arbitrator Waring said that Review Officer McCloskey directed the dismissal of the First Form 22 applications because the appellant had failed to show that 'his degree of disability rose to the level claimed (30%)' [42].
The arbitrator concluded that the review officer had:
•made a 'solemn finding' that a nil degree of disability should attach to the psychiatric component of the worker's claim;
•made a 'solemn finding' that the worker's 'overall' degree of disability was limited to 13.5% being the extent of his physical injuries;
•determined the question referred to him (ie what is the worker's overall degree of disability); and
•dismissed the application for no reason other than because the worker had failed to establish that his degree of disability rose to the level claimed (30%) [44].
Arbitrator Waring made a formal order, which reads:
The [appellant] is estopped from asserting in the Second Form 22 proceedings that he has any degree of permanent disability arising from a psychiatric condition.

The orders and reasons of Commissioner McCann

The grounds of appeal relied on by the appellant before the commissioner were these:
(1)The arbitrator erred in law in finding that an issue estoppel arose in respect of the [appellant's] psychiatric disability because he suffered the relevant psychiatric injury subsequent to the first determination.
(2)The arbitrator erred in law in holding that the doctrine of issue estoppel applied to determinations made pursuant to s 93D of the Act, when there were changed circumstances subsequent to the first determination and when s 93E(9) expressly recognises the potential for subsequent and further determinations of a degree of disability, and the arbitrator ought to have applied the principles enunciated in Waddington v Silver Chain Nursing Association (1998) 20 WAR 269.
(3)Further or alternatively, the arbitrator erred in law in finding that Review Officer McCloskey had made a final decision in respect of the worker's psychiatric condition when she earlier held that the review officer had 'not made a finding one way or the other'.
The commissioner said that Review Officer McCloskey decided that, as at 8 November 2005, the appellant had a degree of disability which comprised certain physical disabilities, but no psychiatric condition. The commissioner noted that in the proceedings before Arbitrator Waring, the appellant contended that his degree of disability now includes a psychiatric condition. The commissioner then said that if 'such is the case' then 'the condition must have come into being subsequent to 8 November 2005' [15].
According to the commissioner, the arbitrator 'wrongly assimilated the nature of the psychiatric issue involved in [Review Officer McCloskey's determination] with the psychiatric issue in the present matter'. He explained:
The issues before Review Officer McCloskey were threefold: first, whether the worker then suffered from a psychiatric condition, second, whether that condition was permanent and, if so, the degree of disability. Having determined the first issue in the negative, the review officer was not obliged to consider the second and third. As such, his determination that the worker did not suffer from a psychiatric condition said nothing as to the permanency of that state of affairs; nor did it establish that the worker could never subsequently develop a psychiatric condition [17].
In the commissioner's view, the parties were 'estopped' in the proceedings before the arbitrator from contending that the appellant's permanent degree of disability in respect of his physical injuries was other than 13.5% [18]. He then said:
[A]n issue estoppel would also have arisen if the first determination had included a finding that the worker suffered from a permanent psychiatric disease (and the degree of disability was assessed). In that case there would have been a conclusive finding as to the fact of the worker's disease, as to its permanency and as to the degree of disability [18].
The commissioner held that the appellant was not barred by issue estoppel from contending that 'his degree of disability should be determined with regard to a new, permanent psychiatric disease as well as his pre‑determined physical conditions' [21].
The commissioner then turned to the respondent's notice of contention which relied on s 187(1)(a) of the Act. The commissioner said:
As I have said, [Review Officer McCloskey's] determination comprised two 'decisions' within the statutory meaning of that term, namely the review officer's antecedent determination as to the worker's degree of permanent disability (13.5%) and the ultimate, consequential determination as to whether or not such degree of disability was 'not less than the relevant level' of 30%. In my opinion, pursuant to s 187(1)(a), and by contrast to the doctrine of issue estoppel, the first of these decisions was final and conclusive as to the worker's psychiatric condition (or the lack of one) at all material times unless and until revoked or amended by means 'otherwise provided' by the Act. The reason for this outcome lies in the inter‑relationship between ss 186 and 187(1)(a). The purpose of those provisions is to achieve a form of finality in [the Dispute Resolution Directorate] which is different to that which is available under common law principles or other statutory schemes …
Were it not for s 186 and the definition of 'decision', s 187(1)(a) might be regarded as conferring no more finality than the former provisions … However, s 186(2) confers a power of review on arbitrators which enables a decision to be reconsidered and varied or revoked, or for any further decision to be made, as an arbitrator considers appropriate having regard to new information. And, unlike the former provisions (s 84ZF(3) and (4)), the definition of 'new information' in s 186(1) is sufficiently wide to embrace any relevant information which justifies a reconsideration, provided that it was not available to the arbitrator when the decision was first made. And, by contrast with the doctrine of issue estoppel, which seeks to limit re‑litigation by focussing on the issues, the Act seeks to do so by permitting re‑litigation by reference to the state of the information that was available to the arbitrator [22].
Section 186 and s 187(1)(a) and the definition of 'decision' in the Act commenced on 14 November 2005; that is, after Review Officer McCloskey's determination. The commissioner addressed the possible application of s 37(1) of the Interpretation Act 1984 (WA), as follows:
The issue to be decided is whether the worker's rights in relation to Form 22 proceedings and the statutory constraints on the award of damages were repealed and replaced to any materially different extent by the current provisions. In my view this question should be answered in the negative for the following reasons:
(i)A worker's conditional right to obtain an award of damages was not affected. In particular, in the present case, the worker's entitlement to an award of damages that is conditional on him obtaining a determination of a degree of disability of not less than 30% was unaffected.
(ii)In substance, a worker's right to obtain a qualifying determination in accordance with his or her circumstances from time to time was not affected by the legislative changes either. Instead of being required and enabled to bring fresh Form 22 proceedings (as I believe was open under the former provisions) and to demonstrate that the issues were not precisely the same as in the first proceedings, a worker is required and enabled under the current legislative scheme to bring an application for reconsideration in the original proceedings. However, the threshold question remains basically the same, namely whether, in the light of the information available to the arbitrator at the time of the second proceedings, the original determination of the worker's degree of disability should be reconsidered and revoked or varied [26].
The commissioner concluded that grounds of appeal 1 and 2 had been made out. He also concluded that the point raised in the notice of contention had been made out. He said that, by reason of the point raised in the notice of contention, the 'current Form 22 proceedings are incompetent' [28]. The commissioner therefore decided that the appeal should be dismissed and the matter remitted to the arbitrator 'to be summarily disposed of' in accordance with the commissioner's reasons [28]. He noted that it would 'remain open' to the appellant to apply for a 'reconsideration of [Review Officer McCloskey's] determination pursuant to s 186' of the Act [28].

The appellant's application pursuant to s 186 of the Act

On 27 October 2009, after Commissioner McCann published his reasons and made his orders, the appellant filed an application under s 186 of the Act. The respondent was the respondent to that application. The appellant sought a reconsideration of Review Officer McCloskey's determination made on 8 November 2005. The appellant relied on 'new information', as defined in s 186(1), being the reports of Dr Linde (in relation to his psychiatric condition) and a report from Dr David Kennedy (in relation to his physical condition).
Arbitrator Waring determined the application 'on the papers'. On 5 March 2010, she made orders and published written reasons for decision. The arbitrator dismissed the appellant's application.
The appellant has applied for leave to appeal against Arbitrator Waring's decision pursuant to s 247(3) of the Act. That application has been stayed by the commissioner pending the resolution of the applications for leave to appeal and leave to cross‑appeal to this court.

The purposes of the Act

The Act established a compulsory third party liability insurance scheme which covers the liability of an employer to its workers in respect of injuries which are relevantly connected with their employment. The term 'injury' is broadly defined in s 5(1).
The purposes of the Act are set out in s 3. These purposes include, amongst other things, making provision for the compensation of workers who suffer an injury (s 3(a)(i)) and making provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick (s 3(d)).

Part IV of the Act generally: civil proceedings in addition to or independent of the Act

Part IV of the Act, which comprises s 85 ‑ s 93S, is headed 'Civil proceedings in addition to or independent of this Act'. By s 86, except as expressly provided by the Act, nothing in the Act affects any liability that exists independently of the Act. But damages awarded in relation to a liability that exists independently of the Act, and compensation under the Act, are not both recoverable. Section 92 provides that when an action is brought by a worker for damages independently of the Act, the amount paid and payable under the Act is to be deducted from the amount of the judgment. See s 92(b) and s 92(c). If the action proceeds to judgment, the worker cannot commence or continue proceedings for compensation under the Act in respect of the same injury. See s 92(e). Generally see Western Metals Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152.

Part IV div 2 of the Act: constraints on awards of common law damages

In 1993, the Parliament enacted pt IV div 2 of the Act, which now comprises s 93A ‑ s 93S. Division 2 has a heading which reads 'Constraints on awards of common law damages'.
The Parliament introduced the constraints on awards of common law damages for the purpose of reducing pressures on workers' compensation insurance premiums payable by employers.
Section 93C provides that if div 2 applies, a court is not to award damages to a person contrary to div 2. The term 'damages' is defined in s 93A. See also s 93B.
Section 93D is concerned with the assessment of disability. Section 93D, as currently enacted, was inserted by the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) (which, relevantly, came into operation on 5 October 1999) and subsequently amended by the Workers' Compensation Reform Act 2004 (WA) (the 2004 Reform Act) (which, relevantly, came into operation on 14 November 2005). Section 93D, as currently enacted, reads, relevantly:
(1)In this section ‑
relevant level, in relation to a question as to the degree of disability of the worker, means ‑
(a)if the question arises for the purposes of section 93E(3)(a), (9) or (12), a degree of disability of 30%; or
(b)if the question arises for the purposes of section 93E(4), a degree of disability of 16%.
(2)For the purposes of section 93E, the degree of disability of the worker is to be assessed ‑
(a)so far as Schedule 2 Part 1 provides for an injury suffered by the worker, as a percentage equal to ‑
(i)if only one item of that Part applies to the injury, the percentage of the prescribed amount provided for by that item, as read with section 25; or
(ii)if 2 or more items of that Part apply to the injury, the sum of the percentages of the prescribed amount provided for by those items, as read with section 25;
(b)to the extent, if any, that paragraph (a) does not apply, as the degree of permanent impairment assessed in accordance with the AMA Guides;
(c)to the extent, if any, that neither paragraph (a) nor (b) applies, in accordance with the regulations,
or if more than one of paragraphs (a), (b) and (c) applies, as the cumulative sum of the percentages assessed in accordance with those paragraphs.
…
(5)If the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level, the worker may, subject to subsection (6), refer the question to the Director.
(6)A question can only be referred under subsection (5) if the worker produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level.
(7)As soon as practicable after receiving a referral under subsection (5) the Director is to notify the employer in accordance with the regulations.
(8)If within 21 days after being notified under subsection (7) the employer notifies the Director in accordance with the regulations that the employer considers that the degree of disability is less than the relevant level, a dispute arises for the purposes of Part XI.
(9)The Director is to consider the dispute in consultation with the parties.
(10)Except in a case to which subsection (11) applies, if the dispute is not resolved by agreement it is to be dealt with under Part XI, and for that purpose ‑
(a)an application is taken to have been made by the worker under section 181; and
(b)the requirement to give copies under section 182 does not apply.
…
(12)Unless notification is given by the employer under subsection (8), the employer is to be regarded as having agreed that the degree of disability is not less than the relevant level.
At all material times, reg 19J of the Workers' Compensation and Injury Management Regulations 1982 (WA) has provided, relevantly, that a referral under s 93D(5):
(a)is to be made in the form of Form 22 in Appendix I; and
(b)is to nominate one, and only one, relevant level of the degree of disability in respect of which the referral is made.
The form of Form 22, as set out in Appendix I, requires details of the worker, the employer and the insurer to be set out. It also requires, relevantly, a description of the injury, the date on which the injury occurred, the date on which weekly payments commenced, the degree of disability as assessed by a medical practitioner, and the degree of disability alleged by the worker, being either not less than 30% or not less than 16%. The form, like reg 19J, specifies that the worker is to nominate only one of 'not less than 30%' or 'not less than 16%'.
Neither the Act nor the regulations expressly limits the worker to the filing of only one Form 22.
Section 93E is concerned with restrictions on the awarding of damages and the payment of compensation. Section 93E, as currently enacted, was inserted by the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) (which, relevantly, came into operation on 5 October 1999) and was amended by the Workers' Compensation and Rehabilitation Amendment Act 2000 (WA) (which, relevantly, came into operation on 17 November 2000), by the Workers' Compensation (Common Law Proceedings) Act 2004 (WA) (which came into operation on 25 October 2004) and by the 2004 Reform Act (which, relevantly, came into operation on 14 November 2005). Section 93E, as currently enacted, provides, relevantly:
(1)In this section -
agreed means agreed between the worker and the employer, whether under section 93D(12) or otherwise;
degree of disability means the degree of disability of the worker assessed in accordance with section 93D(2);
determined means determined or decided when dealt with as described in section 93D(10) or (11);
termination day means the day that is 6 months after the day on which weekly payments commenced.
(2)Weekly payments of compensation ordered by an arbitrator to commence are to be regarded for the purposes of this section as commencing or having commenced on ‑
(a)the first day of the period in relation to which weekly payments are ordered to be made; or
(b)the day that is 5 months (or such shorter period as is prescribed) before the day on which the order is made,
whichever is later.
(3)Damages can only be awarded if ‑
(a)it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or
(b)the worker has a significant injury and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.
(4)For the purposes of subsection (3)(b) the worker has a significant injury if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations.
(5)Subject to subsections (6), (6a), and (7), if weekly payments of compensation in respect of the injury have commenced an election cannot be made under subsection (3)(b) after the termination day.
…
(8)Subject to subsections (9) and (11), if an election has been made under subsection (3)(b) compensation under this Act is not payable in respect of the injury, or any recurrence, aggravation or acceleration of it, in relation to any period after the day on which the election is registered or any expenses incurred during such a period.
(9)Subsection (8) ceases to apply if, after the election is made, it is agreed or determined that the degree of disability is 30% or more and that agreement or determination is recorded in accordance with the regulations.
(10)Subsection (9) relates only to the degree of the original injury, and any recurrence, aggravation or acceleration of it is not to be taken into account.
(11)If an agreement or determination under subsection (9) is recorded, the worker may apply for any compensation which, but for subsection (8), would have been payable under this Act in relation to a relevant period or expenses incurred during a relevant period.
(12)In subsection (11) ‑
relevant period means any period ‑
(a)which is after the day on which the election is registered and before the agreement or determination under subsection (9) is recorded; and
(b)during which the degree of disability is agreed or determined to have been not less than 30%.

So, by s 93E(3) and s 93E(4), damages can only be awarded if:
(a)it is agreed or determined that the worker's 'degree of disability' is not less than 30%; or
(b)it is agreed or determined that the worker's 'degree of disability' is not less than 16%, and the worker elects to retain the right to seek damages.
See also s 93F, which is concerned with, amongst other things, restrictions on the awarding of damages if the worker's 'degree of disability' is less than 30%.

Part XI of the Act: the dispute resolution provisions since 14 November 2005

Part XI of the Act, which comprises s 176 ‑ s 225, is headed 'Dispute resolution'. Part XI, as currently enacted, was inserted into the Act by the 2004 Reform Act. It commenced operation on 14 November 2005.
By s 93D(8), if, within 21 days after being notified under s 93D(7), the employer notifies the Director Dispute Resolution in accordance with the regulations that the employer considers that the degree of disability is less than the relevant level, a 'dispute' arises for the purposes of pt XI. Section 93D(9) requires the Director to consider the dispute in consultation with the parties. By s 93D(10), relevantly, if the dispute is not resolved by agreement, it is to be dealt with under pt XI and, for that purpose, relevantly, an application is taken to have been made by the worker under s 181.
Section 176(3) provides that, subject to the Act, arbitrators have exclusive jurisdiction to examine, hear and determine all 'disputes', as defined in s 176(1). The term 'dispute', as defined, includes, relevantly, any dispute or matter for which provision is made under the Act for determination by an arbitrator.
By s 181(2), a proceeding before an arbitrator commences when the application is accepted by the Director.
Section 186 and s 187 of the Act provide:
186.Arbitrator may review decision
(1)In this section ‑
new information means information relevant to a decision that, although available to a party at the time the decision was made, was not available to the arbitrator and, in the opinion of the arbitrator, justifies reconsideration of the matter.
(2)If new information becomes available after an arbitrator makes a decision, the arbitrator may reconsider the decision and ‑
(a)vary or revoke the decision previously made; or
(b)make any further decision,
as the arbitrator considers appropriate having regard to the new information.
187.Decisions of arbitrator
(1)Except as otherwise provided by this Act a decision of an arbitrator ‑
(a)is final and binding on the parties and is not subject to an appeal; and
(b)is not to be vitiated because of any informality or want of form.
(2)A decision of an arbitrator or anything done under this Act in the process of coming to a decision of an arbitrator is not amenable to judicial review.
In s 5(1), the term 'decision' is defined to include 'an order, award, direction or determination'.

The statutory framework since 14 November 2005: the doctrine of issue estoppel and the proper construction and application of s 186 and s 187 of the Act

In Wyatt v MR & RC Smith Pty Ltd [2008] WASCA 55 and Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58, this court examined the doctrine of issue estoppel and the proper construction and application of s 186 and s 187 of the Act in the context of the statutory scheme which has existed since 14 November 2005.
A number of propositions are discernible from the reasons published in those cases.
First, the Act requires an arbitrator to determine the dispute between the parties as to whether the worker's 'degree of disability' is not less than the relevant level. See s 93D(5) and s 181(1). The arbitrator, in the course of determining the dispute, must make a determination as to the particular 'degree of disability' and not merely whether the 'degree of disability' is not less than the relevant level specified in the Form 22. See Pilcher v HB Brady & Co Pty Ltd [2005] WASCA 159 [38]. The arbitrator's determination of the degree of disability, expressed as a percentage, is antecedent to the determination of whether the overall degree of disability is not less than the relevant level. The determination as to whether the overall degree of disability is not less than the relevant level is consequential on the determination of the particular degree of disability. See Wyatt [43] ‑ [45], [51]; Prestige Property Services [10].
Secondly, except as otherwise provided by the Act, a 'decision' of an arbitrator is 'final and binding on the parties and is not subject to an appeal': s 187(1)(a). Further, a 'decision' of an arbitrator, or anything done under the Act in the process of coming to a 'decision', is not amenable to judicial review. See s 187(2). As I have mentioned, 'decision' is defined in s 5(1) to include 'an order, award, direction or determination'. This definition of 'decision' includes determinations by an arbitrator as to a worker's particular degree of disability and as to whether his or her overall degree of disability is not less than the relevant level specified in the Form 22. See Prestige Property Services [38]. A consequence of each of these determinations being 'final' under s 187(1)(a) is that the determination in question is 'completely effective unless and until it should be rescinded, altered or amended': Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 [39]. See also Somodaj v Australian Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285, 298; Prestige Property Services [38], [67].
Thirdly, as I have mentioned, s 187(1)(a) operates and takes effect 'except as otherwise provided by [the] Act'. Section 187(1)(a) is, relevantly, subject to the 'exceptions' contained in s 186 and s 93E(9) ‑ s 93E(11). See Prestige Property Services [45] ‑ [46], [67].
Fourthly, in Wyatt I made these observations (Wheeler & Pullin JJA agreeing) in relation to s 186:
In s 186, the term 'new information' is defined for the purposes of the section. The phrase, 'although available to a party at the time the decision was made', does not exclude from the definition, information which is 'fresh' (in the sense of information which the party did not have, and could not have obtained with reasonable diligence, for use at the earlier hearing) as distinct from information which is 'new' (in the sense of information which the party had, or could have obtained with reasonable diligence, for use at the earlier hearing, but was not made available to the Arbitrator). The word, 'although', means 'even though'. The phrase, 'although available to a party at the time the decision was made', conveys a legislative intention that information will be 'new information', as defined, notwithstanding the fact that the relevant information was available to the party at the time of the earlier decision, but was not disclosed to the Arbitrator. The phrase in question operates by way of extension, and not by way of restriction. That is, the phrase makes plain that 'new information', as defined, comprises not only information which is 'fresh' (in the sense I have explained), but also information which is 'new' (in the sense I have explained).
Accordingly, a party may make an application, for the purposes of s 186(2) of the Act, based on information that was not 'available' to the party at the time the earlier decision was made. Also, a party may make such an application based on information that was 'available' to the party at the time the earlier decision was made. In each case, however, the information in question must not have been available to the Arbitrator when he or she made the earlier decision, and the Arbitrator hearing the s 186(2) application must be of the opinion that the relevant information justifies reconsideration of the matter [21] ‑ [22].
See also Prestige Property Services [21], [58].
Fifthly, if 'new information' (as defined in s 186(1)) becomes available after an arbitrator has made a decision about a worker's particular degree of disability and whether the overall degree of disability is not less than the relevant level specified in the Form 22, either the worker or the employer may apply to an arbitrator for a reconsideration of the earlier decision, including a variation or the revocation of the earlier decision, and the making of any further decision that the arbitrator considers appropriate, having regard to the new information. See Prestige Property Services [21], [69]. For example, 'new information' includes new or fresh evidence to the effect that the worker has developed a new physical or psychiatric condition attributable to the accident he or she suffered at work or an aggravation of the injury in question, and the relevant new physical or psychiatric condition or the aggravation of the injury has resulted in a material increase in the worker's particular degree of disability or his or her overall degree of disability.
Sixthly, subject to s 186, an arbitrator's decision as to a worker's particular degree of disability and whether the overall degree of disability is not less than the relevant level specified in the Form 22, may give rise to an issue estoppel. See Wyatt [36] ‑ [50], [52]; Prestige Property Services [40] ‑ [54], [59] ‑ [70]. Ordinarily, for the purposes of the doctrine of issue estoppel, an arbitrator will make two determinations; one as to the particular degree of disability and the other as to whether the overall degree of disability is not less than the relevant level. By virtue of s 187(1)(a), these decisions will be final, except as otherwise provided by the Act. See Prestige Property Services [44], [67]. The Act provides for there to be only one decision in relation to each of these determinations. Although the Act does not preclude an arbitrator from examining a supervening change of fact in relation to any physical or psychiatric injury suffered by a worker, by s 186 and s 187 it regulates the circumstances in which this may occur. See Prestige Property Services [49] ‑ [53] and the distinguishing features between the Act, on the one hand, and the legislation under consideration in Collett v Loane [1966] HCA 71; (1966) 117 CLR 94, on the other.

The statutory framework at material times before 14 November 2005: the doctrine of issue estoppel and the precursors to s 186 and s 187 of the Act

Section 186 superseded s 84ZF, which was repealed. At all material times before 14 November 2005, s 84ZF provided:

84ZF.Orders generally
(1)The review officer may make such order as may be appropriate for giving effect to the review officer's decision.
(2)The review officer may confirm, vary or revoke an order made by a conciliation officer.
(3)If new information becomes available after the review officer makes a decision, the review officer may reconsider the decision and ‑
(a)vary or revoke any order previously made by the review officer;
(b)make any further order,

as the review officer considers appropriate having regard to the new information.
(4)For the purposes of subsection (3), 'new information' is information that was not available to the review officer when the decision was made and, in the opinion of the review officer, justifies reconsideration of the decision.

Section 187 superseded s 84ZN, which was repealed. At all material times before 14 November 2005, s 84ZN provided:
84ZN.Appeal
(1)Subject to this section, a decision or order of a review officer is not open to question or review in any court, and proceedings by or before a review officer may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court.
(2)A party to the proceedings who is dissatisfied with a decision or order of the review officer may, where a question of law is involved, appeal to a compensation magistrate's court against the decision or order.
(3)An appeal under subsection (2) is to be made in accordance with the regulations within one month after the making of the decision or order concerned, but the court may, if satisfied that it is just and reasonable in the circumstances to do so, extend the period within which the appeal may be made.
(4)Without limiting any other powers of the court on dealing with the appeal, the court may, before determining the appeal, make an order that, until the appeal is determined ‑
(a)suspends the effect of the decision or order, with or without substituting any decision or order that the review officer could have made in the first instance; or
(b)varies the effect of the decision or order.
(5)The power given by subsection (4) to suspend or vary the effect of a decision or order includes the power to suspend or vary its effect as previously varied under that subsection.
In McNair v Press Offshore Ltd (1997) 17 WAR 191, the salient facts were these. The appellant claimed that he had fallen and injured his back at work. He applied for compensation under the Act from his employer. Later, the respondent was joined as a third party, having been responsible for the site where the fall allegedly occurred. A review officer heard and dismissed the application, finding that the appellant had not been involved in an accident at work.
Before the review officer dismissed the application, the appellant commenced a common law action against his employer and the respondent. After the review officer dismissed the application, the respondent applied to amend its defence in the action to raise issue estoppel, and to strike out the allegation of an accident in the appellant's statement of claim. Leave to amend was granted and the relevant pleading was struck out. The appellant appealed to the Full Court of the Supreme Court of Western Australia on the question of whether the review officer's determination created an issue estoppel.
At the material time, s 86 of the Act stated that, except as expressly provided by the Act, nothing in the Act affected any liability existing independently of the Act. By s 92, common law damages and workers' compensation were not both recoverable.
In the Full Court, Owen J (Kennedy & Pidgeon JJ agreeing) held that s 86 and s 92 did not demonstrate a legislative intention to exclude issue estoppel arising from a review officer's determination. It was legally essential for the appellant to establish an accident in both the workers' compensation proceedings and the common law action. The review officer's determination on this question created an issue estoppel in the common law action. The appellant's appeal was dismissed.
Kennedy J said:
In my opinion, the construction of s 86 is governed by Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285. The High Court in that case was concerned with s 63 of the Workers' Compensation Act 1926 (NSW), which provided as follows:
'(1)Nothing in this Act shall affect any civil liability of the employer where the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible.
(2)In such case the worker may proceed both under this Act and independently of this Act but where he obtains judgment against his employer independently of this Act he shall not be entitled to any compensation under this Act other than compensation paid to him before such judgment.'
The majority of the court, Kitto, Taylor and Menzies JJ, held, over the dissents of Dixon CJ and McTiernan J, that a decision by the Workers' Compensation Board constituted an adjudication upon the rights of the parties, not of an interlocutory character, and that once an issue common to both forms of proceedings (those under the Act and those independently of the Act) had been finally determined in one of them, a worker was not exempt from the consequences of the general law (see at 297). That is the situation in this case. Section 86 does not, therefore, exclude the application of issue estoppel (194).
In Waddington v Silver Chain Nursing Association (1998) 20 WAR 269, the appellant was injured in the course of her employment with the respondent. She applied for leave to bring an action in respect of her injury under the then existing s 93D of the Act. It was necessary for the appellant to demonstrate that she was likely to have a future pecuniary loss resulting from the disability occasioned by the injury in an amount at least equal to the prescribed amount.
Before the appellant made the application under s 93D, a review officer had determined an earlier application made by the appellant under the then existing s 62 of the Act, which provided:
Any weekly payment may be reviewed by the Directorate at the request either of the employer or of the worker and on such review, may be discontinued, reduced, or increased subject to any maximum provided, as from such date as the Directorate, having regard to the past or present condition of the worker, sees fit.
The review officer found that the appellant was 'both physically fit and vocationally capable of undertaking positions such as a car park attendant and clerical work', but considered she was more suited to clerical work.
The appellant's application under s 93D was dismissed on the basis that the review officer's finding on the application pursuant to s 62 created an issue estoppel and, in consequence, the court hearing the application under s 93D was bound to hold that she was physically and vocationally capable of full‑time clerical work.
The appellant appealed to the Full Court of the Supreme Court of Western Australia. The Full Court allowed the appeal and granted the appellant leave to bring an action under s 93D. Malcolm CJ, Kennedy and Owen JJ held, relevantly:
(a)The doctrine of issue estoppel can apply to an issue of fact or law, but the application of the doctrine to an issue of fact is confined to an issue of ultimate fact.
(b)The question, in determining whether a review officer's finding of fact is a finding of ultimate fact, is whether it was necessary for the review officer to reach a finding on that factual issue in order to make a decision upon the case.
(c)In the case in question, it was necessary for the review officer, in making the decision under s 62, to determine whether the appellant had a physical and vocational capability of undertaking clerical work.
(d)A decision under s 62 will be subject to issue estoppel if, and only if, the circumstances at the time of the subsequent hearing are precisely the same as they were at the time of the original decision. Otherwise, the original decision is open to review. If there is other evidence at the subsequent hearing which may lead to a different result, an earlier decision under s 62 is not a final decision and does not create an issue estoppel.
(e)Another way of looking at the matter is to recognise the distinction between the issue before the review officer under s 62 and the issue to be determined on the application under s 93D. The decision of the review officer in the case in question was a finding of ultimate fact in the context of the review under s 62 but it was not a final decision and, in consequence, the finding was not binding on the basis of issue estoppel in the context of the application under s 93D.
In Kuligowski (High Court), Marek Kuligowski was injured in the course of his employment. His injury included a twisted left ankle. After paying compensation for some time pursuant to s 18 and s 21 and the schedule to the Act, Metrobus disputed Mr Kuligowski's entitlement to compensation, by application under the then existing s 84N of the Act. The dispute was referred for review by a review officer in accordance with the then existing s 84ZA. The review officer found that the injury sustained in the course of employment had resolved; that the evidence failed to establish that certain later injuries suffered by Mr Kuligowski arose out of or in the course of his employment; that there were no grounds for finding that, within the meaning of 'disability' as defined in the Act (later re‑named and re‑defined as 'injury'), there had been recurrence or aggravation of the injury suffered in the course of his employment; and that Mr Kuligowski had not proved incapacity for work. The review officer ordered that compensation payments be discontinued.

Subsequently, Mr Kuligowski obtained leave under the then existing s 93D of the Act to commence proceedings against Metrobus claiming damages at common law. He commenced a common law action and alleged in his statement of claim that his injury occurred as a result of Metrobus's negligence and that, in consequence of ongoing instability in his left ankle, a number of medical difficulties had flowed from that injury and that these difficulties had caused him damage. Metrobus appealed against the grant of leave, and applied to strike out the statement of claim, on the basis that an issue estoppel had arisen from the review officer's decision. Mr Kuligowski asserted that no issue estoppel had arisen in that the review officer's decision was not final, and the issue it determined was not the same as the issue which would arise for determination in the common law action.
Commissioner Ley allowed Metrobus's appeal and application, and ordered that Mr Kuligowski's application for leave and common law action be dismissed.
Mr Kuligowski then appealed from the commissioner's decision to the Full Court of the Supreme Court of Western Australia: Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137. The Full Court (Malcolm CJ, Steytler & Templeman JJ; Wallwork & McLure JJ dissenting) dismissed the appeal. The majority refused to hold, and thereby overrule the court's earlier decision in McNair, that the review officer's decision was not a final determination. According to the majority, the review officer's decision was final. They considered the Act did not exclude the availability of issue estoppel. The minority were of the view that the intention of the Act was that decisions and orders of review officers not be final in the sense in which that term is used in the context of issue estoppel. It is unnecessary to consider the reasoning of Wallwork and McLure JJ. On appeal, the High Court described their reasoning as 'flawed' [31].
The High Court held that the decision of the majority in Kuligowski (Supreme Court) should be reversed. Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ said that no issue estoppel had arisen because, although the review officer's decision was final (in that it was effective unless and until rescinded, altered or amended), the issue which it determined was not the same as that which would arise for determination in the common law action. Their Honours made these observations in relation to the nature of a 'final' decision:
(a)A 'final' decision is one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final. It must be 'final and conclusive on the merits'; 'the cause of action must be extinguished by the decision which is said to create the estoppel': Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853, 935 (Lord Guest) [25].
(b)In the Act (in the form in which it applied in the case in question, where the injury occurred on 23 March 1994 and the review officer's orders were made on 6 September 1996), there was no explicit general power to reconsider the decisions of review officers in the light of further information (compare s 84ZF(3), introduced in 1999). However, in addition to s 60, which enabled employers to apply for payments to be discontinued or reduced, s 62(1) conferred on the worker and the employer the right to request a review of weekly payments and a discontinuance of, reduction in, or increase in them [26].
(c)The critical feature of a final decision, namely, complete effectiveness unless and until it can be amended, may be absent from proceedings of the most formal and elaborate character, and may be present in proceedings of the most informal and brisk character [32].
(d)The legislative object of having workers' compensation disputes heard and determined in an informal, quick and cheap manner would not be assisted by a construction of the legislation which prevented the doctrine of issue estoppel from ever applying: that would increase the chance of double litigation of issues and vexation of parties [32].
(e)The provision in s 84ZN that, subject to an appeal to a compensation magistrate's court on a question of law, decisions or orders of a review officer were not open to question or review in any court, was a provision that they were final ‑ despite the non‑inclusion of the words 'final and conclusive' [37].
(f)The review officer's decision was final, because it was 'completely effective unless and until it should be rescinded, altered or amended': Somodaj (298) (Kitto, Taylor & Menzies JJ) [39].
(g)The issue before the review officer, which was stated as being whether the 23 March 1994 accident had 'resolved', was ambiguous. If the stated issue was ambiguous, so was the review officer's finding. The ambiguity was not removed by the content or context of the review officer's reasons. Since the review officer did not direct his mind to the relevant question arising in the District Court, namely, whether the 23 March 1994 accident resulted in a latent susceptibility to injury, his general remarks, which the Full Court characterised as causation findings, could not work an issue estoppel, if only because of their vagueness [52].

The appellant's grounds of appeal

Before the commencement of the hearing in this court, the appellant relied on one ground of appeal (ground 1) which alleges, in essence, that the commissioner erred in law in deciding that the 'current Form 22 proceedings are incompetent' [28]. The particulars to this ground assert, in effect, that:
(a)On 8 November 2005, Review Officer McCloskey dismissed the original Forms 22.
(b)In late 2006 or early 2007, the appellant obtained new medical evidence as to his degree of disability.
(c)On 18 April 2007, the appellant filed his new Form 22 relying upon, amongst other things, this new medical evidence.
(d)The commissioner decided that there was an issue estoppel in relation to the appellant's 'earlier physical injuries'.
(e)The commissioner decided that the appellant could not bring 'multiple Form 22 proceedings' and that any new assessment of his degree of disability had to be pursuant to s 186 of the Act.
(f)These decisions of the commissioner 'are against the statutory framework in the Act, and contrary to decisions such as Waddington v Silver Chain Nursing Association (1998) 20 WAR 269'.
At the hearing before this court, counsel for the appellant sought leave to rely on a new ground of appeal (ground 2). Ground 2 reads:
The learned commissioner erred in law in finding section 186 of the Act applied and not section 93D(5) and Form 22 as section 186 became operational after the decision of review officer McCloskey and does not have retrospective application to the extent it purports to restrict the appellant's substantive rights under section 93D(5) and Form 22 which had accrued prior to 14 November 2005.
We received oral submissions, and made orders for the filing and service of written submissions, in relation to ground 2. Pursuant to this order, each party filed and served written submissions after the hearing. We reserved our decision as to whether the appellant should be granted leave to rely on ground 2.
The orders wanted by the appellant include the setting aside of the commissioner's decision and the determination that the appellant's degree of disability is not less than 30% or, alternatively, the remission of the matter to a different arbitrator for determination according to law.

The respondent's grounds of cross appeal

The respondent relies on three grounds in its cross appeal, as follows:
1The Commissioner erred in law in finding that no issue estoppel arose in respect of the Appellant's psychiatric/psychological disability as determined by the Review Officer on 8 November 2005, when:
1.1the issues and questions for consideration and determination of the Review Officer … were precisely the same as the issues and questions for determination by the Arbitrator … ;
1.2his Honour erred in finding by necessary implication (at paragraph [15] of his Reasons for Decision) that the Appellant did not contend that his degree of disability included a psychiatric condition in the proceedings … before the Review Officer;
1.3his Honour erred in finding (at paragraph [19] of his Reasons for Decision) that the Appellant sought 'to add or include an additional determination of a new disease' in [the proceedings before the Arbitrator];
1.4his Honour agreed with the Arbitrator … that the Review Officer … made a solemn finding that the Appellant did not suffer from a psychiatric disability;
1.5[his Honour agreed with the Arbitrator that] the Review Officer … made a solemn finding that the Appellant's degree of disability was 13.5%.
2.The Commissioner erred in law in finding that no issue estoppel arises, in relation to determinations under s 93D of the [Act], where there were changed circumstances subsequent to any such initial determination.
3The Commissioner erred in law in effectively finding, at paragraphs [17] and [18] of his Reasons for Decision, that it was necessary for the [Review Officer] to make an express finding:
3.1that the Appellant could never subsequently develop a        psychiatric condition;
3.2that the Appellant suffered from a permanent psychiatric      disease; and
3.3as to the percentage degree of disability of the Appellant's    psychiatric condition;
before issue estoppel could operate in relation to the determination of the Appellant's psychiatric/psychological disability as considered, assessed and determined by that Review Officer on 8 November 2005.
The orders wanted by the respondent include the setting aside of the commissioner's order remitting the matter to Arbitrator Waring to be disposed of in accordance with the commissioner's reasons and, instead, the dismissal of the Form 22 application that was before the arbitrator.

Leave to appeal should be granted on the appeal and the cross appeal

The commissioner's decision in relation to the doctrine of issue estoppel and his decision as to the proper construction and application of s 93D(5) and s 186 of the Act were decisions on questions of law within s 254(1) of the Act. The decisions in question did not relate to findings of fact or the assessment of evidence. They involved the identification of legal principles and the application, in the applicable statutory framework, of those principles to relevantly undisputed facts. The questions of law are of some importance, both generally and as between the parties. I would therefore grant the appellant leave to rely on ground 2. Further, I would grant leave to appeal on grounds 1 and 2 and, also, leave to cross appeal on grounds 1, 2 and 3.

The merits of grounds 1, 2 and 3 of the cross appeal: the critical points

It is convenient to consider the cross appeal before turning to the appeal.
Grounds 1, 2 and 3 of the cross appeal may be distilled to this question: did Review Officer McCloskey's determination give rise to an issue estoppel in relation to:
(a)the appellant's particular degree of disability attributable to the alleged injury he suffered in the accident at work on 13 March 2000; or
(b)whether the level of the appellant's overall degree of disability (both physical and psychiatric), attributable to the alleged injury he suffered in the accident, was not less than 30%, being the relevant level specified in the Forms 22 before the review officer?
In Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, Dixon J explained the doctrine of issue estoppel in these terms:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order (531 ‑ 532).
In my opinion, the doctrine of issue estoppel extended to the determination of a review officer, under the provisions of the Act applicable at material times before 14 November 2005, as to a worker's particular degree of disability and as to whether the level of his or her overall degree of disability (both physical and psychiatric) was not less than the relevant level specified in the Form 22. See McNair (194, 197 ‑ 198); Kuligowski (High Court) [21] ‑ [22], [39], [47] ‑ [54]; Wyatt [36] ‑ [50]; Prestige Property Services [40] ‑ [54], [59] ‑ [69].
Although Wyatt and Prestige Property Services were decided on the provisions of the Act applicable on and after 14 November 2005, it is apparent from the reasoning of the High Court in Kuligowski that the differences in the statutory framework before and after 14 November 2005 are not material in relation to whether the doctrine of issue estoppel extended to determinations by review officers of the kind under consideration in this appeal. See, in particular, the analysis by Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ of s 84ZN of the Act and their conclusion that the decision of the review officer in that case as to whether the later injuries of the employee arose out of or in the course of his employment was final, because it was completely effective unless and until it should be rescinded, altered or amended [37] ‑ [39].
A court, in deciding whether an issue estoppel exists, may examine the record of the first set of proceedings, including the reasons for decision, for the purpose of identifying the issues of fact and of law that were raised and determined in those proceedings. See Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446, 467 (Fullagar J); Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 263 (Brennan J).
In the present case, each of the appellant and the respondent assert that the commissioner made errors of law in the course of deciding the question I have distilled from grounds 1, 2 and 3 of the cross appeal.
The Forms 22 before Review Officer McCloskey described the appellant's alleged injury as:
Lower back, right shoulder/arm and psychological/psychiatric.
The review officer made orders and published written reasons for decision on 8 November 2005.
The Form 22 before Arbitrator Waring described the appellant's alleged injury as:
Lower back, right shoulder/arm and psychological/psychiatric.
The arbitrator made orders and published written reasons for decision on 10 February 2009.
The appellant's description of his injury in each Form 22 was identical.
Each Form 22 alleged that the appellant's level of overall disability was not less than 30%.
The critical points in deciding whether the appellant was precluded, by the doctrine of issue estoppel, from agitating the dispute which came before Arbitrator Waring, are these.
First, was the issue which Review Officer McCloskey determined on the Forms 22 before him the same as that which arose for determination on the Form 22 before Arbitrator Waring? Secondly, was the determination of Review Officer McCloskey, which is said to create the issue estoppel, final? Thirdly, were the parties to the determination by Review Officer McCloskey (or their privies) the same as the parties to the proceedings before Arbitrator Waring (or their privies). See Kuligowski (High Court) [21]; Wyatt [38].

The merits of grounds 1, 2 and 3 of the cross appeal: the first critical point

As to the first critical point, there was a contested hearing before Review Officer McCloskey. The appellant gave oral evidence and was cross‑examined. Numerous written reports from various medical practitioners who had assessed the appellant were provided to the review officer. There was psychiatric evidence from Dr Shannon and Dr Terace. Their opinions in relation to the appellant were materially different. Dr Shannon was of the view that the appellant suffered from a recognised psychiatric condition (namely, an adjustment disorder) which was attributable to his accident at work. By contrast, Dr Terace was of the view that the appellant did not suffer from any recognised psychiatric condition. The parties, by their legal representatives, made submissions to the review officer as to the findings that should be made, including the findings as to whether the appellant had a recognised psychiatric condition or not.
The key findings of Review Officer McCloskey are set out at [99] and [100] of his reasons. After determining the appellant's permanent disability attributable to his physical injuries, and after weighing the psychiatric evidence adduced by the parties, the review officer concluded:
In my view, the symptoms described by the worker at review are of such a nature that it cannot be said that they constitute a psychological condition; in other words, I am not satisfied that the worker has established on the balance of probabilities that he has suffered a psychiatric condition as distinct from the demoralisation and frustration diagnosed by Terace. Thus he cannot suffer a [degree of permanent impairment] by reason of any such condition.
In such circumstances, the worker's degree of disability is no more than 13.5% and the referred question must be dismissed [99] ‑ [100].
It is apparent, on a fair reading of Review Officer McCloskey's reasons as a whole and in the context of the Forms 22 and the evidence and submissions before him (in particular, from his consideration and evaluation of the appellant's evidence and the reports of Dr Shannon and Dr Terace), that the review officer accepted that the appellant suffered from the symptoms he had described in his evidence, but concluded that these symptoms did not constitute a recognised psychiatric condition. This conclusion was reasonably open on the basis of the views expressed by Dr Terace. The review officer appears to have accepted his opinions.
Review Officer McCloskey's conclusion is properly to be characterised as a positive finding, in substance, that the appellant suffered from psychological experiences, but they were not sufficient to meet the criteria for a recognised psychiatric condition, and that the appellant did not suffer from any recognised psychiatric condition attributable to his accident at work. The review officer did not merely conclude that the appellant had failed to establish his case in relation to his alleged psychiatric injury, without making any positive finding. The review officer's assessment of the level of the appellant's overall degree of disability attributable to the injury he suffered in the accident was 13.5%. He necessarily found, in substance, that the appellant's particular degree of psychiatric disability was 0%. See Egri v DRG Australia Ltd (1988) 19 NSWLR 600, 605 (McHugh JA); Kuligowski (High Court) [59]. The review officer dismissed the application embodied in the Forms 22 because the level of the appellant's overall degree of disability attributable to the injury he suffered in the accident was less than 30%.
The issue which Review Officer McCloskey determined on the Forms 22 before him was, relevantly, the same as that which arose for determination on the Form 22 before Arbitrator Waring. That issue was as to the appellant's particular degree of disability attributable to the alleged injury he suffered in the accident at work and whether the level of his overall degree of disability (both physical and psychiatric), attributable to the alleged injury he suffered in the accident, was not less than 30%. As I have mentioned, the appellant's description of his injury in the Forms 22 before the review officer and in the Form 22 before the arbitrator was identical. The issue that I have identified was an issue of ultimate fact, and the review officer's finding on that issue was a finding of ultimate fact.

The worker subsequently obtained further psychiatric evidence to the effect that he had a psychiatric disability of 15%. On the basis of this further medical evidence, the worker did two things (reasons [14], [24]). One was to file a further form 22 application (described as the 'second form 22'), again seeking a determination that his degree of disability was not less than 30%. The second form 22 was in substantially the same terms as the first form 22 - the claimed disability was in respect of injuries to the right and left knees, and depressive illness.
The other step taken by the worker, contemporaneously with the filing of the second form 22 application, was to file an application under s 186(2) of the Act, seeking a reconsideration of the determination of the first form 22 application on the basis of 'new information'.
The arbitrator rejected the application under s 186(2) on the basis that the further evidence was not 'new information' within the meaning of s 186 of the Act. There was no appeal against that decision. The arbitrator nevertheless allowed the application in respect of the second form 22, and determined that the worker had a degree of disability of not less than 30%. The employer then appealed that determination (to the Commissioner) on the ground that the worker was precluded, by issue estoppel, from seeking a second determination that his degree of disability was not less than 30%. The Commissioner upheld the employer's appeal. The worker appealed to this court against the Commissioner's decision, and this court upheld the worker's appeal (reasons were given by Buss JA, with Wheeler and Pullin JJA agreeing).
This court held that, in the circumstances, the worker was not estopped, by the doctrine of issue estoppel, from seeking a determination of his degree of disability in accordance with the second form 22 application, because the 'same question' had not been determined in the earlier application. The court also observed that the arbitrator had, in dismissing the application under s 186(2) of the Act, misconstrued s 186 ([18] ‑ [23]).
In Wyatt v MR & RC Smith, it appears to have been accepted by the arbitrator, and the court's reasoning proceeds on the basis that the arbitrator accepted, that the worker had a psychiatric condition. It was not the existence of a psychiatric condition, but rather its permanency and percentage, which the arbitrator failed to determine in relation to the first form 22 application. The arbitrator accordingly did not determine on the first occasion the worker's degree of disability in respect of his psychiatric injury, nor, thereby the worker's 'overall degree of disability'. The result was that there had been no prior determination of precisely the 'same question' which the worker sought to be determined by the second form 22 application, and thus no issue estoppel arose: Wyatt v MR & RC Smith [12], [40], [45] ‑ [49].
The court said that it was unnecessary to consider whether other elements of issue estoppel (such as whether the first decision was 'final') had been satisfied: [50].
As I would understand it, the court also held, in effect, that there is no proper determination of the worker's degree of disability for the purposes of s 93E where the arbitrator has not determined, pursuant to s 93D(10), the worker's 'overall' degree of disability by determining, in an assessment in accordance with s 93(D)(2), the degree of disability (if any) with respect to each proven or admitted injury the subject of the referral under s 93D(5): Wyatt v MR & RC Smith [51].
The court also made obiter observations to the effect that if a determination had properly been made pursuant to s 93D(10) by the arbitrator on the first occasion, it would have been 'open' to the worker to make an application pursuant to s 186(2) in relation to the further psychiatric evidence: Wyatt v MR & RC Smith [51]. It was not said that if, subsequent to the first determination, there had been a deterioration in the degree of disability, the worker had developed a new injury or existing injuries had deteriorated, then he or she would be shut out from the operation of s 93D(5) ‑ (12).
The other appellate decision is Prestige Property Services v Madzoski. The events in that case were unusual. The worker was injured on 30 July 2001. On 18 December 2001, he filed an application (form 22) for a determination that his degree of disability was not less than 16%. The disability claimed was in respect of his back, right foot and right ankle (reasons [14]). Some four years later, on 14 December 2005, there was a determination by an arbitrator, Arbitrator Sharp, to the effect that the worker had a total degree of disability of 36%, comprising 21% in respect of physical disability and 15% in respect of psychiatric disability. Arbitrator Sharp accordingly determined in effect first, that the worker had a degree of disability of 36% and secondly, that the worker's degree of disability was consequently not less than 16% (reasons [2], [15] ‑ [16]). Importantly, the first and primary determination by Arbitrator Sharp was that the worker had a degree of disability of 36%.
Some time prior to 14 December 2005, the worker filed a second form 22 application, this time seeking a determination that his degree of disability was not less than 30%, again in respect of disabilities suffered on 30 July 2001 (reasons [17]). This second application claimed physical disability of 21% and psychiatric disability of 15%. The worker also originally alleged in this second application, in addition, a disability in respect of sexual dysfunction of 4%, but this allegation was withdrawn, it seems, following Arbitrator Sharp's determination in respect of the first application that the worker's total degree of disability was 36%, comprising 21% in respect of physical disability and 15% in respect of psychiatric disability. Pullin JA observed that, at the hearing of the second application, the worker, in effect, sought a determination of a degree of disability of not less than 30% based on Arbitrator Sharp's determination in the first application in relation to the 'same disabilities' (reasons [18]).
The employer, at the hearing of the second application, sought to adduce evidence, garnered subsequent to Arbitrator Sharp's determination, which, if admitted, would tend to displace the findings of degree of disability made by Arbitrator Sharp in the first determination, and show that the worker had 'substantially improved' since the first determination (reasons [3], [19], [21] ‑ [22]). The employer did not, at or in connection with the second hearing, seek to use the additional evidence to vary or revoke Arbitrator Sharp's determination under s 186 of the Act (reasons [23]). The arbitrator, at the second hearing, held that an issue estoppel arose from the findings of Arbitrator Sharp and he 'adopted' the earlier findings of Arbitrator Sharp as to the degree of physical disability (21%), the degree of psychiatric disability (15%), and the overall degree of disability (36%). The arbitrator thereupon declared in this second application that the worker had a degree of permanent disability of not less than 30% (reasons [25] ‑ [29]). An appeal by the employer to a commissioner failed (reasons [30]).
I would note at this juncture the following matters in relation to Prestige Property Services v Madzoski. First, although the decretal order was that the degree of disability was not less than 16%, Arbitrator Sharp had, by determining that the degree of disability was 36%, thereby determined that the worker's degree of disability was not less than 30% - that being the relevant determination for the purposes of s 93E(3)(a).
Secondly, in any event, it is not clear why the worker would not have asked Arbitrator Sharp (subject to any particular issues concerning procedural fairness), when seeking final orders on the first determination, formally to declare that the worker's degree of disability was not less than 30% on the basis that the reasoning in Pilcher v HP Brady & Co Pty Ltd (see [234] above) could apply by analogy where the worker's referral under s 93D(5) nominates the degree of disability as being not less than 16%, but the arbitrator ultimately determines that the degree of disability is 30% or more.
Thirdly, in Prestige Property Services Pty Ltd v Madzoski the worker did not contend, in his amended second application:
(a)that a secondary condition had emerged since the previous determination leading to a higher degree of disability; or
(b)that he had suffered an increase of his overall degree of disability in respect of injuries existing at the previous determination; or
(c)(for obvious reasons) that his overall degree of disability was not less than 16%.
In substance, he sought in the second application a formal order that his degree of disability was not less than 30%, based on the previous determination that it was 36%. The employer did not contend, in the second form 22 proceedings, that the worker was precluded by an issue estoppel from making the allegations made in the second application. Instead, the employer sought to introduce evidence of a supervening improvement in the worker's degree of disability from that first determined. The employer, in substance, sought to contradict Arbitrator Sharp's primary decision that the worker had a degree of disability of 36% and that the worker thereby had a degree of disability of not less than the 30% threshold required for the purposes of s 93E(3)(a).
I return to the reasons for judgment of the court. Pullin JA said, in effect, that Arbitrator Sharp's primary decision that the degree of disability was 36% was rendered final by s 187 'because as a matter of construction the word "'decision" in s 187 is wide enough to cover that decision [the primary decision as to 36%] as well as the subsequent and consequential determination of the dispute which had been referred for a determination of Arbitration Sharp, namely whether the degree of disability was "not less than the relevant level"' [38].
In relation to issue estoppel, Pullin JA said that Arbitrator Sharp's first determination was 'final' insofar as he decided that the worker's degree of disability was not less than 16%. His Honour noted that there were some exceptions to s 187, and referred to s 186 and s 93E(9) ‑ (11), and noted that neither applied: [45] ‑ [46]. His Honour also considered whether Arbitrator Sharp's determination of the worker's degree of disability at 36% was the 'same question' raised in the second form 22 application, and said that it was [47] ‑ [48].
His Honour also went on to consider whether the High Court's decision in Collett v Loane [1966] HCA 71; (1966) 117 CLR 94 might be regarded as being 'at odds' with his conclusions concerning the finality conferred by s 187, and the operation of issue estoppel, in that case.
In relation to Collett v Loane, Pullin JA said in Prestige Property Services v Madzoski [51] ‑ [53]:
As appears above, Barwick CJ said that the fact that the determination was final could not preclude an examination of a supervening change of fact. The Act in this case similarly does not preclude the examination of a supervening change of fact. In fact, it expressly permits it. However, it spells out how that is to happen. Section 186 says that:
'If new information becomes available after an arbitrator makes a decision the arbitrator may reconsider the decision.'
In Collett v Loane the High Court made it clear that the first determination would remain undisturbed and there could be a subsequent determination to different effect. They would not contradict each other. They would simply be determinations made based on different facts at different times based on what the person claimed his beliefs were at the time he made his claim.
In this case, the legislation provides that there is to be only one decision so as to prevent the existence of separate determinations which may produce contradictory effect.
That is, there is to be only one decision determining the degree of disability even though there may be two consequential decisions, one determining that the degree of disability was not less than 16% and another determining that the degree of disability was not less than 30%. If new information warrants it, the arbitrator may 'reconsider' the first decision determining the degree of disability and the consequential decision about whether it was not less than the relevant level. On a reconsideration the arbitrator may vary or revoke the earlier decisions or make further decisions (which must in context mean further decisions to be substituted for the first decisions). (emphasis added)
Pullin JA also said that in that case, the employer could have sought to invoke s 186 for the purpose of revoking the first determination by Arbitrator Sharp (reasons [21]).
His Honour held, as I understand it, that where a worker had obtained a determination that his or her degree of disability was equal to or exceeded 30%, thereby meeting the threshold to preserve his or her right to common law damages for the purposes of s 93E(3)(a), s 187 precludes an employer from contending, otherwise than via s 186, that the worker's degree of disability is less than that previously determined by the arbitrator. It was in this context, as I understand it, that Pullin JA considered that the evident purpose of the statutory scheme is to prevent conflicting decisions as to a worker's overall degree of disability. In other words, as I understand the effect of his Honour's reasoning, one determination that the degree of disability is or exceeds 30% would operate, once recorded, to allow the worker to fully recover common law damages, and another that it is less than 30% would purportedly operate to take that right away. To avoid that conflicting result, there can only be one determination for the purposes of s 93E(3)(a).
I also think that it is implicit that his Honour did not consider either that the director lacked jurisdiction to receive and act upon the second form 22 application filed by the worker in that case, or that the second arbitrator lacked jurisdiction to determine the dispute the subject of the second form 22 application. Wheeler JA agreed with Pullin JA's reasons.
It is to be noted that Pullin and Wheeler JJA were members of the court who concurred with Buss JA in Wyatt v MR & RC Smith. Wyatt was heard the day before Prestige Property Services v Madzoski and the reasons for judgment in Prestige were delivered two days after reasons were delivered in Wyatt. It is to be inferred that their Honours did not regard the reasoning they applied in Prestige Property Services Pty Ltd v Madzoski [38], concerning the proper construction of the Act and finality with respect to s 187, as precluding the director from receiving and acting upon the second form 22 application in that case, or as precluding the arbitrator from determining the dispute in respect of it.
In Prestige Property Services v Madzoski, Buss JA did not refer to s 93E(8) ‑ (11) in his reasons Nor did Buss JA refer to Collett v Loane, but his Honour held that Arbitrator Sharp's determination was final and conclusive on the merits of the case' [67], and that the worker's overall degree of disability of 36% 'gave rise to an issue estoppel in relation to, relevantly, the respondent's overall "degree of disability", assessed in accordance with s 93D(2)' (reasons [68]). His Honour added that the issue estoppel was 'subject to' s 186 of the Act (reasons [69]). Buss JA did not suggest that there was any jurisdictional problem with the worker filing the second form 22 application, thereby seeking a second referral under s 93D(5) in that case.

Disposition of the first ground of appeal and the cross‑appeal

Section 187 finality principle

The issue to be decided by an arbitrator following an application under s 93D(5) is the worker's degree of disability. The issue, in the words of Evatt J in O'Donel's case 'relates to a state of things which is capable of subsequent alteration'. Pullin JA observed in Prestige Property Services v Madzoski that the Act makes provision for an arbitrator to examine subsequent alterations to the state of affairs determined in a prior determination. In the case of an employer (which is the only perspective from which the issues in Prestige Property Services v Madzoski were addressed), s 186 is the only provision permitting that course. It seems to me, however, that in the case of a worker, s 93D(5) is, on the face of it, also available. Whether or not that is the case was not something that arose for the court's consideration in Prestige Property Services v Madzoski. Section 187(1) commences with the words 'except as otherwise provided by this Act'. It does not say 'except as provided in s 186'. Accordingly, in my view it does not dictate a result contrary to what I would otherwise regard as the ordinary meaning of s 93D(5). That view is also, I think, supported by analogy with the reasoning in Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 (see particularly McHugh J [15]).
It is said nevertheless, in effect by the employer in this appeal, that s 186 applies to both employers and workers under the Act, and that a construction which permitted s 93D(5) to operate in accordance with its ordinary meaning could not be correct as it would render s 186 redundant in its application to a worker. I do not agree with that submission.
In my view, both s 186 and s 93D(5) are available to a worker. For example, if a worker failed at a hearing before an arbitrator because of the acceptance of the evidence of a doctor called by the employer, and it subsequently became known that the doctor was struck off or guilty of a crime or other conduct which reflected adversely on the doctor's integrity or reliability as a witness, the most convenient, if not the only, course open to the worker would be to apply under s 186. Nor, in any event, can the asserted redundancy of s 186 be established simply by reference to its potential application to a worker in connexion with s 93D and s 93E of the Act. It is a provision of general application.
It follows, in my view, that the 2007 application was not 'incompetent' by virtue of s 187.
Accordingly, in my view, the director in this matter had jurisdiction to receive and act upon the referral under s 93D(5), and the arbitrator had jurisdiction to determine the consequential dispute arising from the referral. Indeed I note that the employer never contended, prior to the notice of contention before the learned commissioner, that s 187 operated to present a jurisdictional obstacle. The point was not raised in 2008 when the director's jurisdiction was, unsuccessfully, attacked by the employer on the basis that the further medical evidence did not comply with s 93D(6): Lloyd v Ex parte Atanasio.
That leaves for consideration the question of issue estoppel.

Issue estoppel

In the cross‑appeal, the employer contends that the judge erred in holding that there was no issue estoppel with respect to the appellant worker's psychiatric injury.
In this case, the appellant worker had alleged psychiatric injury in the 2004 proceedings. Review Officer McCloskey found that at the time of review, the appellant worker's psychological symptoms on which the appellant worker relied as evidencing psychiatric illness were of a degree and character which did not evince psychiatric injury. Rather, the review officer found that they were 'normal signs of frustration and demoralisation within the bounds of normal human experience'. Although he said that he was 'not satisfied that the worker has established on the balance of probabilities that he has suffered a psychiatric condition', the reason given for that was that at the time of review, the worker's psychological symptoms did not constitute or signify psychiatric injury (see reasons of Review Officer McCloskey [98] ‑ [99]). This, in my view, was a positive finding that the appellant worker had no psychiatric injury at the time (cf Wyatt v MR & RC Smith). The review officer did not find that the appellant worker was then suffering from psychiatric injury, but that it was impermanent with no degree of disability attaching to it.

In my opinion, Review Officer McCloskey's 2005 determination decided that the appellant worker then had a degree of disability, assessed in accordance with s 93D(2), in respect of his back of 9%, a degree of disability in respect of his right arm of 4.5%, and that (consequently) the overall degree of disability, assessed in accordance with s 93D(2), in respect of all the injuries alleged and found to exist, was then 13.5%.
For the reasons given earlier, in my view a worker is not precluded by s 187 from making a further application pursuant to s 93D(5) in the event that it is alleged that the worker's degree of disability has deteriorated since a previous determination pursuant to s 93D(10).
Nevertheless, as the court in Prestige Property Services Pty Ltd v Madzoski held, determinations by arbitrators of a worker's degree of disability are 'final' for the purposes of the general law of issue estoppel. The conclusion is inescapable, in my view, as a matter of construction of the language of s 187. Further, the determination of a worker's degree of disability, for the purposes of pt IV div 2 of the Act, is reserved to the exclusive jurisdiction of the arbitrators: s 176(3). The existence of exceptions to s 187, including s 186 and, as I have found, the bringing of a fresh (form 22) application in certain circumstances pursuant to s 93D(5), do not divest such determinations of their finality. In my view, the intention of the Act is not to leave determinations 'floating', rather, they are intended to be final 'unless and until rescinded, altered or amended': Kuligowski v Metrobus [25]; Ainslie v Ainslie [1927] HCA 23; (1927) 39 CLR 381, 390.
Notwithstanding that the 2005 determination was, in my view, final in the relevant sense, I have come to the conclusion that it did not determine the 'same question' raised in the 2007 proceedings. The relevant question, for present purposes, is: 'What is the "degree of disability" suffered by the worker?': Wyatt v MR & RC Smith [43]; Pilcher v HB Brady & Co Pty Ltd [38]. As I have said, given that injuries are, by their nature, capable of change over time, an answer to that question at one point in time cannot deny the possibility that at a future point in time, the answer may well be different. In my view, the question is similar in character to that considered by the High Court in Collett v Loane. An arbitrator's determination can only be conclusive as to the worker's 'overall degree of disability' as at the time of the determination (see Barwick CJ (101) and Taylor J (107)). There was no finding in the 2005 determination that the appellant worker had a psychiatric injury. Consequently, there was no finding of any degree of disability in respect of psychiatric injury, and no finding of an overall degree of disability which included a component of psychiatric disability.
The appellant, by the 2007 application, did not seek to challenge the 2005 determination. In other words, the appellant did not seek to establish that, as at the time of the 2005 determination, his degree of disability was other than the 13.5% determined by Review Officer McCloskey. Indeed, to do so would ask the arbitrator to consider precisely the same question that was determined by the 2005 determination which, by virtue of s 187, is 'final and binding', and an issue estoppel would arise. What the appellant sought, by virtue of the 2007 application, was a determination that as at that later point in time, he had a degree of disability of not less than 30% which included, relevantly, a component of psychiatric injury. That is not the 'precise matter' that was determined by Review Officer McCloskey in the 2005 determination and is not, therefore, 'the same question' for the purpose of the general law of issue estoppel (see Ramsay v Pilgrim [1968] HCA 34; (1968) 118 CLR 271, 276). I would not understand Pullin JA's observations in Prestige Property Services Pty Ltd v Madzoski, directed as they were to the unusual circumstances of that case, to require a different conclusion.
That is not to say that a worker would be permitted to bring multiple applications at different points in time based upon, in substance, the same evidence that was relied upon in an earlier application, in the hope that he may eventually get a determination in his favour. For example, if a worker's degree of disability was assessed to be 20% on one day, that same worker could not come back the next day, present the same evidence and assert that his degree of disability is other than 20%. If an arbitrator came to the view that, in substance, the evidence for the existence of the alleged injuries was no different from the evidence relied upon in an earlier application, 'one would expect his new application to be promptly rejected' (adopting the words of Windeyer J in Collett v Loane 109). Also, if the second application did not indicate an increase in the worker's overall degree of disability since the prior determination due to the worsening of the injuries and, properly characterised, was an application to determine, for a second time, the degree of disability as at the date of the earlier determination, an issue estoppel would arise.
In Prestige Property Services Pty Ltd v Madzoski, Pullin JA (Wheeler JA agreeing) said ([51] ‑ [52]), in effect, that it is the policy of the Act that there be only one determination of a worker's degree of disability and that any supervening changes of fact are dealt with exclusively by s 186. In reaching the conclusion that he did in Prestige Property Services Pty Ltd v Madzoski, Pullin JA spoke of the importance of avoiding separate determinations which may produce a contradictory effect. In that case, Arbitrator Sharp's decision had determined that the worker's degree of disability exceeded 30%, so that in that case the statutory threshold for the worker to fully enjoy his common law rights to damages had been satisfied. The avoidance of contradicting determinations is clearly important to avoid interference with rights with respect to accrued causes of action which have in substance been perfected in accordance with the statutory regime. It was within that factual context that Pullin JA in Prestige Property Services Pty Ltd v Madzoski considered the purpose of the statutory scheme and, as I have said, it is understandable why an employer, in those circumstances, should be confined to the s 186 process and the strictures imposed by that process. However, that is not this case. In this case, it is the worker who is seeking to establish the statutory criteria to implement his common law rights. A subsequent determination of a worker's degree of disability based on an alleged deterioration of his or her condition would not contradict a previous determination; it would simply be a determination based upon the evidence at the relevant time. Further, where it is the worker seeking to fulfil the statutory requirements for full access to his common law rights, the potential for the contradictory effect of which Pullin JA speaks in Prestige Property Services Pty Ltd v Madzoski [52] does not arise. In those circumstances, I would not see the Act as precluding a fresh s 93D(5) application and a corresponding subsequent determination.
The conclusion I have reached finds some support in the observations of Anderson, Parker and Templeman JJ in United Construction Pty Ltd v Maketic [2003] WASCA 138 [63], [67] and [72].
Accordingly, in my view, the 2005 determination did not decide the 'same question', in the sense required for general law issue estoppel, sought to be determined by the 2007 application. I agree with the appellant worker's submission on the cross‑appeal that there was no issue estoppel with respect to psychiatric injury arising from the 2005 determination.

Conclusion

For these reasons I would grant leave to appeal and cross‑appeal, allow the appeal in respect of ground 1, and dismiss the cross‑appeal. It is accordingly unnecessary to determine whether leave should be given to the appellant to add ground 2, or to consider its merits.