Awick v Formcorp Pty Ltd (No 2)

[2011] NSWWCCPD 50

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

1. 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

1. 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.

2. 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.

3. 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.

4. 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.

5. In proceedings commenced in the Commission in 2010 (the second proceedings), Mr Awick sought an increase in his…