Awick v Formcorp Pty Ltd (No 2)
[2011] NSWWCCPD 50
•8 September 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Awick v Formcorp Pty Ltd (No 2) [2011] NSWWCCPD 50 | ||||
| APPELLANT: | Mohammad Awick | ||||
| RESPONDENT: | Formcorp Pty Ltd | ||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | A1-10154/10 | ||||
| ARBITRATOR: | Mr G Edwards | ||||
| DATE OF ARBITRATOR’S DECISION: | 11 May 2011 | ||||
| DATE OF APPEAL DECISION: | 8 September 2011 | ||||
| SUBJECT MATTER OF DECISION: | Estoppel; nature of issues in dispute in earlier proceedings between the same parties; whether issue estoppel arose from earlier determination; whether worker had received a primary psychological injury or secondary psychological injury; s 65A of the Workers Compensation Act 1987 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | P K Simpson & Co | |||
| Respondent: | Bartier Perry | ||||
ORDERS MADE ON APPEAL: | The Arbitrator’s decision of 11 May 2011 is confirmed. Each party is to pay his or its own costs of the appeal. | ||||
INTRODUCTION
This appeal concerns whether an issue estoppel arose from an earlier decision by an Arbitrator in proceedings between the same parties where, in later proceedings, the worker sought different relief arising out of the same accident.
BACKGROUND
Mr Awick worked as a labourer on a building site. On 30 June 2007, he was struck on the head by falling scaffolding. The respondent employer, Formcorp Pty Ltd (Formcorp), disputed whether Mr Awick was a worker, whether he received an injury, and whether he was incapacitated as a result of the injury.
In proceedings commenced in the Commission in 2008 (the first proceedings), Mr Awick claimed weekly and lump sum compensation. The lump sum compensation related solely to his alleged physical injuries. He alleged that, because of the incident on 30 June 2007, he injured his neck, right arm, left arm, chest, back, thoracic spine, right leg, right foot, left foot, bowel function, sexual organs and suffered scarring as a result of a laceration to his scalp.
Because the pleadings from the first proceedings were not tendered, it is unclear if he also alleged that he had received a psychological injury. It is clear, however, that Mr Awick never alleged, in those proceedings, that he had suffered a primary psychological injury as a result of the trauma of the accident on 30 June 2007.
In a decision delivered on 18 February 2009, Arbitrator Conley found in favour of Mr Awick. On the issue of injury, she accepted that he had injured his head and neck, but did not accept that he had injured any other part of his body. Regardless of the pleadings, she also accepted that there was “some level of anxiety and depression as a result of the injury”, which contributed to his incapacity, but also a degree of embellishment. She made an award in Mr Awick’s favour under s 40 of the 1987 Act in the sum of $225 per week from 23 December 2007 to date and continuing.
In proceedings commenced in the Commission in 2010 (the second proceedings), Mr Awick sought an increase in his weekly compensation because of an alleged deterioration in his psychological condition. He did not seek lump sum compensation in respect of his alleged psychological condition. After a contested hearing, Arbitrator Minus concluded that Mr Awick’s psychological condition had not deteriorated and he made an award for the respondent.
Mr Awick lodged a third Application to Resolve a Dispute in the Commission on 7 December 2010 in which he sought, for the first time, lump sum compensation in respect of a 25 per cent whole person impairment as a result of having received a primary psychological injury in the incident on 30 June 2007.
Formcorp disputed that Mr Awick had received a primary psychological injury and alleged that Arbitrator Conley’s decision of 18 February 2009 determined that the psychological injury was a secondary psychological injury and not a primary psychological injury, and an issue estoppel arose from that decision. Mr Awick argued that the estoppel was to the opposite effect, namely, that Formcorp was estopped from denying that he had received a primary psychological injury.
The Commission listed the matter for conciliation and arbitration before Arbitrator Edwards. In a reserved decision delivered on 11 May 2011, Arbitrator Edwards determined that:
(a) no issue estoppel arose from Arbitrator Conley’s decision because the question of whether Mr Awick suffered a primary psychological injury or a secondary psychological injury was not litigated before her and she did not determine that issue, and
(b) Mr Awick suffered a secondary psychological injury as a consequence of, or secondary to, a physical injury received on 30 June 2007 and he had no entitlement to lump sum compensation in respect of that condition.
Mr Awick has appealed this decision.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether Arbitrator Edwards erred in:
(a) failing to find that Arbitrator Conley’s decision created an issue estoppel on the issue of whether Mr Awick had received a primary psychological injury;
(b) accepting the evidence from Drs Roldan and Champion when, by implication, Arbitrator Conley rejected their opinions because they had provided a diagnosis of no injury, and
(c) accepting Dr Moore’s opinion because it predated Arbitrator Conley’s decision and, by implication, was not accepted by her.
THE ARBITRATOR’S REASONS
After referring to the history of the matter, the parties’ submissions and to the relevant authorities on estoppel, the Arbitrator stated (at [48]):
“In my view, applying the principles and statements of the authorities to which I have referred, the cardinal or precise matter of fact and law which Arbitrator Conley had to decide in respect of any psychological condition with which the applicant was suffering as a result of personal injury arising out of or in the course of employment with the respondent was the issue of his capacity for work resulting from the injury. The arbitrator did not, in my opinion, finally determine whether Mr Awick suffered a primary psychological injury or a secondary psychological injury because no claim was made in the proceedings before her that he suffered a primary psychological injury arising out of or in the course of his employment with the respondent on 30 June 2007.”
He noted that Arbitrator Conley accepted that there was “some level of anxiety and depression as a result of the injury”. He said that she also accepted that “some incapacity” had resulted from a psychological condition “variously described as PTSD, Adjustment Disorder and anxiety and depression”. She did not, however, accept that the psychological condition was as severe as reported by Mr Awick. That was because of embellishment both of the mechanism of injury and the level of injury sustained.
Arbitrator Edwards accepted the submission made on behalf of the worker that Formcorp was estopped from arguing that Mr Awick did not suffer from a psychological injury.
He concluded that Arbitrator Conley had given a “narrative” of the various diagnostic labels given to Mr Awick’s psychiatric condition without making a finding as to the specific diagnosis other than to “accept that there is some level of anxiety and depression as a result of the injury again despite embellishment”. He did not believe it could be inferred from Arbitrator Conley’s reasons that she made a finding or determination that Mr Awick’s psychological condition was either a primary psychological injury or a secondary psychological injury. As a result, the doctrine of estoppel did not apply because “the question of law whether the applicant suffered a primary psychological injury or a secondary psychological injury as a result of the incident on 30 June 2007 was not litigated before Arbitrator Conley” (Reasons at [55]).
Arbitrator Edwards then reviewed the evidence relating to the incident. He said that Mr Awick’s evidence of the incident was inconsistent with the history recorded by Ms Issavi, psychologist, in her report of 24 October 2008. He referred to Ms Issavi’s evidence that Mr Awick reported having severe recurrent nightmares and intrusive distressing recollections of the incident, including images and thought, with an inability to dismiss the memories and recurrent dreams of the incident nightly, with difficulties returning to sleep.
The evidence for Formcorp included evidence from Dr Roldan, clinical psychologist, who carried out a functional assessment of Mr Awick. Dr Roldan concluded that, consistent with Arbitrator Conley’s findings, there was “strong evidence of manufacturing and/or embellishment of cognitive symptoms”. However, he could not entirely discount that Mr Awick “may have some genuine reactive psychological symptoms” as a result of the injury. He was critical of Ms Issavi’s diagnosis of post-traumatic stress disorder.
Dr Champion, psychiatrist, said that Mr Awick had not specifically mentioned symptoms that would identify post traumatic stress disorder, with the exception of a passing reference to nightmares of the event. He was also critical of Ms Issavi’s diagnosis of post-traumatic stress disorder. Dr Moore, psychiatrist, assessed Mr Awick to have chronic pain disorder with predominant psychological symptoms related to a chronic adjustment disorder with predominant depression.
Dr Akkerman, psychiatrist qualified by Mr Awick’s solicitor, said, without explanation, that Mr Awick’s condition (major depression) was a primary psychological condition because it “was caused by the trauma of the head injury”. In a subsequent report, Dr Akkerman said that Mr Awick’s depression had been caused by “experiencing the trauma to the head”. The Arbitrator said that, apart from this “cryptic” comment, the doctor gave no reasons as to why he felt the condition was a primary psychological injury, and he did not accept the doctor’s evidence.
Arbitrator Edwards felt that the history recorded by Dr Moore provided a fair climate for the acceptance of her opinion that Mr Awick’s condition was a chronic pain disorder with predominant psychological symptoms and a related chronic adjustment disorder with predominant depression. He therefore concluded (at [92]) that Mr Awick’s psychological condition was “a secondary psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury”.
THE LEGISLATION
Section 65A of the 1987 Act provides:
“65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division (either as permanent impairment compensation or pain and suffering compensation) in respect of permanent impairment that results from a secondary psychological injury.
Note: This does not prevent a secondary psychological injury from being compensated under section 67 as pain and suffering resulting from permanent impairment (but only if that permanent impairment results from a physical injury or a primary psychological injury).
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division (either as permanent impairment compensation or pain and suffering compensation) in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note: If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply:
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note: If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) In this section:
‘primary psychological injury’ means a psychological injury that is not a secondary psychological injury.
‘psychological injury’ includes psychiatric injury.
‘secondary psychological injury’ means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
SUBMISSIONS
The submissions made on behalf of Mr Awick have essentially repeated the submissions made before Arbitrator Edwards and, apart from the bald assertion of error noted at [13] above, have made no attempt to identify how the Arbitrator erred in his finding that no estoppel arose from Arbitrator Conley’s decision. That is surprising and demonstrates a lack of understanding of the nature of an appeal under s 352 of the 1998 Act, which is restricted to the identification and correction of error.
Mr Awick’s solicitor submitted:
(a) “[t]he applicant agrees that there is an issue estoppel and that the respondent cannot argue that the applicant does not suffer from a psychological injury”;
(b) it was clear that Arbitrator Conley found that the post-traumatic stress disorder, anxiety and depression “resulted from the injury” and not “as a consequence of” the injury. She clearly found a primary psychological injury;
(c) Arbitrator Conley’s deliberations and findings (at [61]–[65]) were based on Ms Issavi’s report of 2 July 2008. It was clear from Ms Issavi’s report that the condition is a primary psychological disorder. Ms Issavi reported that the accident had an impact on Mr Awick “both physically and psychologically” and he was re-experiencing the event, avoiding stimuli associated with the event and had persistent symptoms of increased arousal and somatic symptoms consistent with post-traumatic stress disorder;
(d) there is no doubt that an injury can be both a primary psychological injury and a physical injury (Romanous Constuctions Pty Ltd v Arsenovic [2009] NSWWCCPD 82 (Arsenovic));
(e) Arbitrator Conley’s findings (particularly at [65]) of Mr Awick suffering a post-traumatic stress disorder “can only be consistent with a factual finding that the applicant suffered a primary psychological condition”, namely, post-traumatic stress disorder with depression, and must create an issue estoppel;
(f) Arbitrator Edwards erred in finding that Arbitrator Conley’s finding was a “narrative”. The finding by Arbitrator Conley formed part of the award for weekly benefits and was clearly based on the opinion from the treating psychologist, Ms Issavi, and, by implication, Arbitrator Conley rejected the opinions of Formcorp’s doctors;
(g) Arbitrator Edwards erred in accepting the opinions of Drs Roldan and Champion when, by implication, Arbitrator Conley rejected their opinions because they provided “a diagnosis of no injury at all”, and
(h) Arbitrator Edwards erred in accepting the opinion of Dr Moore because it predated Arbitrator Conley’s decision and, by implication, was not accepted by her.
These submissions demonstrate a misunderstanding of the principles of issue estoppel and have not properly addressed the findings made by Arbitrator Edwards that Arbitrator Conley’s decision created no estoppel on the question of whether Mr Awick suffered a primary or secondary psychological injury.
While it is correct that Arbitrator Edwards accepted that Formcorp could not argue that Mr Awick had not received a psychological injury as a result of the accident, that is a completely different question to whether that injury was a primary psychological injury or a secondary psychological injury under s 65A.
Though it is correct that a primary psychological injury and a physical injury can result from the one incident (Arsenovic), the question is whether Arbitrator Conley made such a finding in the first proceedings to create an estoppel on that issue in the current proceedings.
It is appropriate to first look at Arbitrator Conley’s decision. The issues before her concerned the nature and extent of Mr Awick’s physical injuries and his entitlement to weekly compensation. Formcorp conceded that he had received a direct injury to his forehead, but disputed the alleged physical injuries to other parts of the body. Though the pleadings have not been tendered, it is clear from Arbitrator Conley’s detailed reasons that no question arose as to whether Mr Awick had received a primary or secondary psychological injury. As a result, she did not consider that question, let alone make a considered determination on it.
The Arbitrator accepted that Mr Awick injured his head and neck, but rejected his claim that he also injured his right arm, left arm, chest, back, thoracic spine, right leg, right foot, left leg, bowel or sexual organs. She rejected the claim for scarring because there was no evidence to support it. The Commission refused leave to appeal her decision that there was no evidence of any scarring (Awick v Formcorp Pty Ltd [2009] NSWWCCPD 61).
In assessing Mr Awick’s claim, Arbitrator Conley noted that he gave evidence that he had been referred to a psychologist “for ongoing depression and anxiety” and that he claimed that he still suffered symptoms from the accident that affected his head, neck and back, and that he had anxiety and depression (Reasons at [35]).
In determining his claim for weekly compensation, she said (at [45]):
“Having found that the Applicant did sustain an injury to his neck, I must therefore further determine if there is any incapacity for work which results from the injury. It is also claimed that at [sic, as] a result of his injuries on 30 June 2007 that the Applicant has also developed a psychological condition which impacts upon his capacity to work.”
This paragraph does not support the submission that, because the psychological condition resulted from the injury, it was not a “consequence of” the physical injury and, therefore, had to be a primary psychological injury. Arbitrator Conley’s expression “as a result of his injuries” at [45] was merely an application of the terms of the legislation, which require that, for compensation to be payable, the incapacity (or impairment) must result from an injury (ss 33 and 66 of the 1987 Act). Because it was not an issue before her, she did not say if the worker’s psychological condition had resulted from the physical effects of the neck injury or from the traumatic circumstances of the accident. As that issue had not been argued, she did not turn her mind do it.
She then reviewed the medical evidence and concluded that Mr Awick continued to have some pain in his neck that impacted on the type of work he could perform on the open labour market. She thought he had an ongoing incapacity as a result of his physical injury.
Dealing with the worker’s psychological condition, she said:
“61. In relation to the psychological condition Ms Issavi, Psychologist initially diagnoses Adjustment Disorder, then Post Traumatic Stress Disorder (‘PTSD’). She reports a history from the Applicant that that 1 metal scaffold fell against him causing him to fall, then a further 6 scaffolds fell against him impacting upon his head. In addition to the laceration this has resulted in back and neck pain, he has right sided head pain and blurred vision.
62. The history taken by Ms Issavi in respect of the mechanism of injury described is not consistent with the clinical notes at the hospital in respect of self reported complaints and findings on examination. The Applicant complains of neck and back pain, burning right sided head pain and blurred vision. This symptomology extends beyond the findings of injury in this matter. A CT scan of the brain was performed at the hospital. There is no medical evidence of any complications from the impact to the head, no brain injury and no evidence of any loss of vision. The laceration has healed well.
63. There is no medical evidence that the Applicant has loss of vision or that his vision has been affected in any way. There was no bruising or lacerations to any other body part apart from the head. The head injury was confined to a 3cm laceration on the right side of the forehead. If the Applicant had been repeatedly hit on the head and chest 7 times by scaffolding his physical injuries upon admission to hospital would have been more extensive. The mechanism of injury described by the Applicant has therefore clearly been embellished.
64. Ms Issavi reports that the Applicant’s prognosis is guarded because of factors including chronic pain and his physical injuries. She concludes that he is unfit to resume employment in his ‘pre-injury’ role due to PTSD symptoms. Relevantly she does not state that the Applicant is totally unfit for employment, simply that he is unfit for his pre-injury duties. Dr Davidson in her clinical notes had previously noted anger, anxiety and depression and referred the Applicant for counselling. Because there has been a consistency of complaint and treatment I therefore accept that there is some level of anxiety and depression as a result of the injury again despite the embellishment.
65. The extent to which this is impacting upon the Applicant’s capacity for work is not clear from the medical evidence due to the level of embellishment. I accept that there is however some incapacity resulting from a psychological condition variously described as PTSD, Adjustment Disorder and anxiety and depression. I do not accept that it is as severe as reported. This is because of embellishment both of the mechanism of injury and the level of injury sustained and proven ongoing symptomology. I note again that it is relevant that even in Ms Issavi’s opinion while the Applicant is not fit for his pre-injury duties, she does not state that he is totally unfit for work.”
These passages do not support the submissions made on behalf of Mr Awick.
Arbitrator Conley concluded that Mr Awick was partially incapacitated for work resulting from the combined effects of the neck injury and the psychological condition. It was not necessary for her to decide, and she did not decide, whether Mr Awick had received a primary psychological injury or a secondary psychological injury within the terms of s 65A of the 1987 Act. Her acceptance of the submission that, as a result of his injury on 30 June 2007, Mr Awick had developed a psychological condition, did not address the issue that arises in the present claim, namely, whether, within the terms of s 65A of the 1987 Act, Mr Awick suffered a primary psychological injury or a secondary psychological injury.
In a statement approved by the High Court in Kuligowski v MetroBus [2004] HCA 34; 220 CLR 363 (at [21]), Lord Guest held in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 (at 935) that, for an issue estoppel to arise, three condition must be satisfied:
“(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”
Mr Awick’s argument falls at the first hurdle. Arbitrator Conley did not decide whether his psychological condition was a primary psychological injury or a secondary psychological injury. That issue was not pleaded or argued before her. It simply did not arise. Arbitrator Edwards correctly applied the above principles and concluded that no issue estoppel arose from Arbitrator Conley’s decision. Mr Awick has advanced no relevant argument why that conclusion is incorrect and has referred to no relevant authorities.
Arbitrator Edwards then considered the medical evidence. On appeal, the only argument presented by Mr Awick is that the Arbitrator erred in accepting Formcorp’s medical evidence because, by implication, Arbitrator Conley had rejected that evidence. That argument depends upon an acceptance of the estoppel argument. As I have explained, the estoppel argument is fundamentally flawed because the issues determined by Arbitrator Conley were not the same issues that arose before Arbitrator Edwards.
In any event, though Arbitrator Conley described (at [65]) the psychological condition as having been “variously described as PTSD, Adjustment Disorder and anxiety and depression that it had”, her finding (at [64]) was that, despite the embellishment in Mr Awick’s presentation, there was “some level of anxiety and depression as a result of the injury”. She also said that Ms Issavi’s history of the accident was “not consistent with the clinical notes at the hospital in respect of self reported complaints and findings on examination” and had been “embellished”. It follows that Arbitrator Conley did not accept that the post-traumatic stress disorder resulted from the accident, as asserted by Ms Issavi. This finding was consistent with the evidence from Drs Roldan and Champion that Mr Awick does not have post-traumatic stress disorder and that he embellished his presentation.
Dr Roldan was critical of Ms Issavi’s diagnosis of post-traumatic stress disorder. His testing found strong evidence of manufacturing or embellishment of cognitive symptoms, but he could not entirely discount that Mr Awick may have some genuine reactive psychological symptoms. Arbitrator Edwards accepted Dr Roldan’s opinion, based on tests he gave Mr Awick, that the accident had not caused any brain trauma. That finding was open to him.
Dr Champion was also critical of Ms Issavi’s diagnosis of post-traumatic stress disorder and concluded that he would not diagnose Mr Awick to be suffering from any current psychiatric disorder. Arbitrator Edwards did not accept that opinion, and concluded that Mr Awick has a psychological condition, but it is a secondary psychological injury as a consequence of the physical injury.
Dr Moore’s evidence was also consistent with Arbitrator Conley’s decision. Dr Moore did not say that Mr Awick had no psychological condition. She said that it was a chronic pain disorder with predominant psychological symptoms related to his chronic adjustment disorder with predominant depression. Dr Moore’s opinion went directly to the issue before Arbitrator Edwards and it was open to him to accept it.
As no alternative submissions have been made on behalf of Mr Awick in the event that the estoppel argument was unsuccessful, it is unnecessary to deal in any more detail with whether Arbitrator Edwards erred in his factual finding that Mr Awick suffered a secondary psychological injury. I note, however, that the Arbitrator gave logical reasons for rejecting the evidence of Dr Akkerman and for accepting the evidence of Dr Moore that the psychological condition was a secondary psychological injury not a primary psychological injury. That finding was open to him and discloses no error.
CONCLUSION
This appeal was completely without merit and should not have been filed. It is unsatisfactory that the appellant’s solicitors have merely repeated on appeal the submissions that, in a carefully reasoned and detailed decision, the Arbitrator rejected. Mr Awick’s solicitors did not refer to relevant authorities on issue estoppel or to the issues in dispute before Arbitrator Conley.
The appellant’s solicitors are reminded that the provision of legal services in an appeal that is without reasonable prospects of success is capable of amounting to unsatisfactory professional conduct or professional misconduct (Beale v Walgett District Hospital [2009] NSWWCCPD 60). If solicitors are not prepared to undertake basic preparation and research, they should not practice in the Commission.
A further issue arises as to why Mr Awick’s claim for lump sum compensation as a result of his psychological condition was not brought as part of the first proceedings or, at the latest, as part of the second proceedings. Dr Akkerman reported on 16 December 2009 that Mr Awick had a whole person impairment as a result of his psychological condition. On 16 February 2010 Mr Awick’s solicitors, who have acted for him in all three proceedings, filed the second application seeking an increase in weekly compensation, but did not claim lump sum compensation for the whole person impairment that allegedly resulted from the psychological condition. That was not claimed until the current application was filed on 7 December 2010.
Section 263 of the 1998 Act requires that all claims for permanent impairment in respect of an injury be made at the same time. In the circumstances of the present matter, the filing of multiple proceedings arising out of the same incident was unacceptable. On the face of it, it was blatant abuse of process in an attempt to milk extra costs. Such conduct may result in a failure to recover costs, even if the claim is successful, and solicitors who systematically engage in that conduct may be reported for unsatisfactory professional conduct or professional misconduct.
DECISION
The Arbitrator’s decision of 11 May 2011 is confirmed.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
8 September 2011
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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