Coles Supermarkets Pty Ltd v Czipo
[2006] NSWWCCPD 112
•7 June 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Coles Supermarkets Pty Limited v Czipo [2006] NSWWCCPD 112
APPELLANT: Coles Supermarkets Pty Limited
RESPONDENT: Evika Czipo
INSURERS:1. Allianz Australia Workers Compensation (NSW) Limited on risk 31.7.98 to 17.2.02.
2.Coles Myer NSW Injury Services (self insurer) on risk from 17.2.02 to date.
FILE NUMBER: WCC9101-05
DATE OF ARBITRATOR’S DECISION: 28 November 2005
DATE OF APPEAL DECISION: 7 June 2006
SUBJECT MATTER OF DECISION: Prior proceedings; res judicata and estoppel.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Goldbergs, Solicitors, for Allianz
Respondent: Barwick Boitano Lawyers
Self Insurer: No appearance
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 28 November 2005 is revoked and the following decision made in its place:
1.Award in favour of Coles Supermarkets Pty Limited.
2.No order as to costs.
2. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 31 May 2004 in proceedings No. 8539-04, Evika Czipo (‘the Respondent Worker’) filed an ‘Application to Resolve a Dispute’ in the Commission claiming permanent impairment/pain and suffering compensation as a result of an injury to her back and right leg arising out of or in the course of her employment.
The employer in that application was named as “Coles Myer Limited”. The insurer was also named as “Coles Myer Limited”.
In Part 3 of that Application, the date of injury was identified as “December 2002”. Under the heading “Describe how the injury occurred,” the Respondent Worker recorded “in December 2000, the Applicant sustained an injury to her lower back whilst lifting an object at work. The Applicant’s injuries are also due to the nature and conditions of her employment.”
In Part 4 of the Application, the Respondent Worker claimed 13% Whole Person Impairment ($17,000.00) and pain and suffering compensation in the sum of $16,666.67.
A Reply to that Application was filed by “Coles Supermarkets Pty Limited wrongly sued as Coles Myer Limited”, which disputed the Respondent Worker’s entitlements. The name of the relevant insurer was recorded as “Coles Myer NSW Injury Services” (‘the self insurer’).
Following a Teleconference on 25 August 2004 in those proceedings, the Arbitrator referred the claim to an ‘Approved Medical Specialist’ (“AMS’) for assessment. The Respondent Worker’s solicitor was in attendance as was the solicitor for the self insurer. No other parties were involved.
There are no notes as to what transpired at that Teleconference, but the outcome was reported by the Arbitrator by email to the Commission as follows: “Please find attached referral to AMS for the above matter. I am returning the file later today.”
The Arbitrator completed a “Request for Medical Assessment by Approved Medical Specialist” on the same day as the Teleconference, ie, 25 August 2004. The date of injury on that document was recorded as “December 2002” and “Nature and conditions claim as well as frank injury above.” The request was described as follows:
“AMS to determine % of permanent impairment of the back and the right leg at or above the knee. AMS to determine % proportion due to pre-existing conditions if any for each body part, and to apportion % of impairment attributed to the injury and to the nature and conditions of work until 2.04.03 on the basis of a whole person impairment.”
The Commission was to appoint an orthopaedic specialist “… as parties cannot agree.”
The AMS appointed was Dr Edward Bates who examined the Respondent Worker on 9 December 2004. It is not clear when his certificate issued, but a copy was forwarded to each party by the Commission on 4 March 2005.
The ‘Medical Assessment Certificate’ (‘MAC’) was described as “Combined Medical Assessment Certificate of Permanent Impairment. Injuries received before 1 January 2002 AND injuries received on or after 1 January 2002”. Dr Bates completed two summary tables at the conclusion of his assessment. The first was described as “Summary Table 1 – Assessment in accordance with the Table of Disabilities for injuries received before 1 January 2002”.
In that table, the date of injury was again recorded as “December 2002”. The “total amount of % of permanent loss of efficient use or impairment” was listed as 24% of the back and 12% of the right leg at or above the knee. The “proportion of permanent loss or impairment due to pre-existing injury, abnormality or condition” for both the back and right leg was listed as “two-thirds”. The “total percentage of permanent loss of efficient use or impairment attributable to this injury” (after deduction of any pre-existing impairment in column 4) was listed as 8% for the back and 4% for the right leg.
The second Summary Table 2 described as “Whole Person Impairment (‘WPI’) for injuries received on or after 1 January 2002” again recorded the “date/s of accidents” as “December 2002”. The “Body Part or system” was listed as “1. Lumbar spine, 2. Right lower extremity”.
The percentage WPI was listed as “10%” in respect of the lumbar spine only, and the “percentage WPI deductions pursuant to s.323 for pre-existing injury, condition or abnormality” was “two-thirds” for the lumbar spine and “N/A” for the right lower extremity. The total WPI was listed as “3.3%” for the lumbar spine and “N/A” for the right lower extremity.
Pursuant to section 371 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) the Registrar determined the matter and issued a ‘Certificate of Determination’ with a ‘Statement of Reasons’ on 18 April 2005. For some unknown reason, the employer was identified as “Coles Myer Logistics Pty Limited” despite the earlier amendment. It is important for the purposes of this appeal to set out the determination in full as follows:
“In accordance with the medical assessment certificate issued under section 325 of the Workplace Injury Management and Workers Compensation Act, 1998, the Commission determined:
1. That the Respondent pay the Applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987 $3750.00 in respect of 3% permanent impairment assessed as a percentage of whole person impairment, attributable to the date of injury of December 2002.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.
‘Statement of Reasons’ issued in accordance with Rule 73 of the Workers Compensation Commission Rules 2003:
1. Notice that a medical dispute is to be referred for assessment was given to the parties pursuant to section 321(1) of the Workplace Injury Management and Workers Compensation Act 1998 following the parties being given the opportunity to explore settlement and agreeing to this course of action.
2. The Commission issued a ‘Medical Assessment Certificate’ in respect of the Applicant’s claim for lump sum compensation under section 66 of the Workers Compensation Act 1987.
3. More than 28 days have lapsed since the ‘Medical Assessment Certificate’ was issued and an application for leave to appeal against the medical assessment has not been lodged.
4. In accordance with the ‘Medical Assessment Certificate’, the Applicant has no entitlement to lump sum compensation under section 67 of the Workers Compensation Act 1987.
5. On the basis of the information and documents in these proceedings, and given the binding nature of the MAC, and the failure of either party to raise any further issues, there are no other issues identified as being in dispute.
6. Accordingly, I have decided to determine the matter on the papers.”
On 14 June 2005, the Respondent Worker lodged a fresh ‘Application to Resolve a Dispute’ in the Commission being proceedings No. 9101-05, the subject to this appeal. In that Application, the Respondent Worker again sought permanent impairment/pain and suffering compensation this time in the sum of $4,800.00 in respect of 8% permanent impairment of the back, and $3,000.00 for 4% loss of use of the right leg at or above the knee. In that Application, the Respondent Worker named “Coles Myer Logistics Pty Limited” as the employer. The insurer was identified as “Allianz Australia Workers Compensation (NSW) Limited’”. On this occasion, the date of injury was described as “December 2000 together with the nature and conditions of employment”.
On 28 July 2005, Coles Supermarkets Pty Limited in the interest of Allianz (‘Allianz’) filed a Reply. Allianz pointed out that it was not on risk as at December 2002, and that Dr Bates “… was asked to determine the degree of impairment under the Table of Disabilities using December 2002 as the notional date of injury.” Allianz claimed that the MAC of Dr Bates assessed the Respondent Worker as suffering either an 8% permanent impairment of the back and 4% loss of use of the right leg or, in the alternative, a 3% Whole Person Impairment such that “if the current claim was accepted, [the Respondent Worker] would in fact be being compensated twice for the same injury.”
Following a Teleconference on 12 September 2005, the Arbitrator directed that the Respondent Worker file an Amended Application joining “… the self insurer Coles Myer [sic] Logistics Pty Limited as a Respondent in these proceedings …” and that the file in proceedings No. 8539-04 be provided to him.
Pursuant to that direction, on 26 September 2005, “Coles Supermarkets Pty Limited” filed a Reply, identifying its insurer as the self insurer. The self insurer claimed that it was “… the Respondent in proceedings … 8539 – 2004, in which a binding ‘Medical Assessment Certificate’ dated 4 March 2005 was issued…” and that it [sic] “… discharged their liability and obligations … in accordance with … the ‘Certificate of Determination’ dated 18 April 2005, and has no further outstanding liability to the Applicant.”
The matter was listed for conciliation/arbitration hearing on 24 November 2005. The transcript records the Arbitrator noting “Coles Myer Logistics Pty Limited named as Respondent but, on the understanding of the parties, the proper Respondent is Coles Supermarkets Pty Limited …”
On 28 November 2005, a ‘Statement of Reasons – Ex Tempore Orders’ issued. The Arbitrator noted separate representation for the Respondent Worker, the self insurer and Allianz. The orders made were as follows:
“1. I determine that the Applicant suffered an injury to her back in (or about) December 2000, for which work was a substantial contributing factor.
2. The Applicant’s claim for permanent impairment due to the injury in (or about) December 2000, is to be assessed by an Approved Medical Specialist (‘AMS’) to be selected by the Registrar.
3. The Applicant’s claim for permanent impairment of her back as a result of the nature and conditions of employment with a deemed date of 2 April 2003 is not referred to an AMS as this injury was the subject of an earlier application, being WCC8539-04 for which a ‘Certificate of Determination’ has been issued and the Applicant has been paid compensated [sic].
4. I determine that this matter, which went directly to arbitration, was a complex matter as provided for by Regulation 129 of the Workers Compensation (General) Amendment (Costs) Regulation 2001.
5. The Respondent is to pay the Applicant’s costs as agreed or assessed.”
On 22 December 2005, Allianz filed an ‘Appeal Against Decision of Arbitrator’. The grounds of appeal are identified as follows:
“(a) Failure to give proper reasons.
(b) Misapplying the law in relation to the issue of res judicata.”
On 13 February 2005, the Respondent Worker filed a ‘Notice of Opposition’ to the Appeal. In essence, the Respondent Worker submits that “… an estoppel cannot apply in this case as the question of liability in respect [of] an injury prior to 1 January 2002 was never determined”, and that the Respondent Worker “… has not been compensated for injury prior to 1 January 2002, in particular the December 2000 frank incident, nor had there been any determination, agreement or settlement to base the principles of res judicata.” The Respondent Worker seeks orders that the appeal be dismissed and the determination of the Arbitrator confirmed.
Although the ‘Notice of Opposition’ was filed out of time, the Respondent Worker wrote to the Commission on 25 January 2006 advising that the solicitor’s office was closed over the Christmas period until 23 January 2006 and seeking an extension of time. In the circumstances, an extension of time is granted.
No appearance or submissions have been filed by the self insurer.
LEAVE TO APPEAL
The appeal was filed within the time limits prescribed by section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the criteria set out in section 352(2) of the 1998 Act.
Leave to appeal is granted.
ON THE PAPERS
Neither party has made any submission on this point. Section 354(6) of the 1998 Act provides that “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.”
In this case, all parties made extensive submissions to the Arbitrator as is recorded in the transcript. The submissions on appeal are also substantial, and in the case of Allianz, accompanied by a number of authorities.
Having carefully read all of the documents before me, I am satisfied that I have sufficient information within the meaning of section 354 and in accordance with Practice Direction No. 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
I note at this point that annexed to the appeal filed by Allianz was a “transcription of the proceedings”. Its origin is unclear. I have been provided with a transcript by the Commission in the appeal file. I am advised by the Commission that it has been issued to the parties. For the purposes of the appeal, I propose to rely on the Commission’s transcript rather than the transcribed material annexed to Allianz’s appeal.
THE DECISION UNDER REVIEW
The Arbitrator’s reasons for his decision were given orally and commence at page 36 of the transcript. He notes the submissions by Allianz to the effect that the Respondent Worker suffered a “deterioration of her condition” over a period beginning “sometime possibly in 2000 or 2002” culminating in her ceasing work on 2 April 2003.
The Arbitrator then stated:
“That claim for a nature and conditions claim causing deterioration with a date, a deemed date, a notional date of injury on 2 April 2003 was an issue that was dealt with in the previous application, being No. 8539 of 2004, and was referred to an AMS, Dr Bates, who made a finding of 3% whole person impairment …”
He went on to state:
“More than 28 days had elapsed since that ‘Medical Assessment Certificate’ had issued and no application had been made to appeal it, and on the basis of that … and the failure of either party to raise any further issues, there are no other issues identified as being involved in that dispute.”
The Arbitrator then makes reference to the ‘Certificate of Determination’ dated 18 April 2005 issued by the Registrar where the deemed date of injury was recorded as December 2002. He then stated at page 37 of the transcript: “To the extent that that’s a correct date, then that Certificate stands …” noting that Dr Bates “… makes a finding of 3% as a result of her employment with Coles Myer until 2 April 2003, which I believe to be the correct date or correct deemed date of injury.” After noting the self insurer’s submission that “… those monies were paid by Coles Supermarkets and that, therefore, closed off the liability for the Respondent in relation to the claim for a nature and conditions as at that date, deemed date of injury”, he then stated: “However, despite the persuasive nature of [Allianz’s] very extensive analysis of the medicine, it is my determination that the Applicant did suffer a further injury as pleaded in this claim, being an injury which occurred in December 2000”.
After making a formal finding on page 38 of the transcript, that the Respondent Worker “… suffered an injury in December 2000,” the Arbitrator then indicated that he would refer the claim to an ‘Approved Medical Specialist’.
Allianz submits that the Arbitrator’s decision focused on its “extensive analysis of the medicine” only, and made no reference to its submissions that the Respondent Worker’s claim was res judicata, and that “… the facts of this matter clearly disclose that the Applicant is seeking to re-litigate a matter that had been previously the subject of proceedings in respect of which an award had been entered …”
SUBMISSIONS, EVIDENCE AND FINDINGS
The Res Judicata Issue
Res Judicata and its relevance to workers compensation cases was the subject of detailed analysis by Acting Deputy President Lansdowne in Quarmby v Motor Traders Association of NSW [2005] NSWWCCPD 43 (‘Quarmby’s case’) to which Allianz has referred in its submissions.
Acting Deputy President Lansdowne noted at paragraph 34 that:
“The authorities establish that there are three types of instances in which a party may be estopped from raising an issue, claim or defence in subsequent proceedings because, in broad terms, of the principle of res judicata. These are as follows:
1. Cause of action estoppel (res judicata in the narrow sense).
2. Issue estoppel.
3. Anshun estoppel.”
As to the difference between res judicata and issue estoppel, reference is made to the decision of Dixon J in Blair v Curran [1939] 62 CLR 462 (as quoted by Priestly JA in Lambidis v Commissioner of Police [1995] 12 NSWCCR 225 at 240) as follows:
“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.”
The ‘Anshun estoppel’ to which Acting Deputy President Lansdowne referred was a reference to Port ofMelbourne Authority v Anshun Pty Limited [1981] 147 CLR 589. In brief, the Anshun estoppel differs from res judicata and issue estoppel in that it relates not to what was determined by the previous proceedings, but what could have been. For reasons which will become apparent, I do not consider it relevant to this particular claim.
In the present case, Allianz submits that the Arbitrator’s determination was res judicata since the Respondent Worker had sought lump sum compensation as a result of an alleged injury in December 2000 in proceedings No. 8539-04 which has “passed into judgment”.
Whilst the employer in the pleadings in both matter No. 8539-04 and 9109-05 has been variously described, the transcript records all parties’ clear understanding that the correct name of the employer in both sets of proceedings was ‘Coles Supermarkets Pty Limited’. It is clear then that the parties in both proceedings are identical. I note that no issue is taken by the Respondent Worker on this point.
Allianz submits that the claim or ‘cause of action’ is similarly identical in both sets of proceedings. It is clear from a proper review of the previous proceedings No. 8539-04 that the Respondent Worker stated that: “In December 2000 the Applicant sustained an injury to her lower back whilst lifting an object at work. The Applicant’s injuries are also due to the nature and conditions of her employment.”
Of particular relevance are the letters ‘duly making a claim’ both dated 10 March 2004 annexed to the Application in matter No. 8539-04. The date of injury is noted as “December 2000” whilst the “particulars of loss” seek “$17,000.00 in respect of a 13% whole person impairment.”
In other words, as Allianz submits, “… the same injuries have been claimed as giving rise to disability in both sets of proceedings”. Allianz has referred to the decision of King CJ in Salmon Street Limited (In Liquidation) v Jorgenson [1991] 56 SASR 158 (‘Jorgenson’s case’). In paragraph 16 of the decision he stated:
“He [a worker] may obtain an award in respect of one or more injuries or impairments, and subsequently pursue his claim in respect of other injuries or impairments suffered in the same accident. If, however, a claim in respect of a particular injury or impairment is pleaded in the proceedings and is the subject of a determination either granting compensation or dismissing the claim, the claim in respect of that injury or impairment merges in the determination, and subsequent proceedings for the determination of a disputed claim in respect of the same injury or impairment would be barred as res judicata”.
The Respondent Worker in her submissions interprets King CJ’s decision such that “res judicata can only be held to arise in circumstances where it is clear and unambiguous.” The Respondent Worker submits that:
“The circumstances in the present case are clearly not unambiguous as the ‘Medical Assessment Certificate’ of Dr Bates contained two different permanent impairment assessments, namely an assessment pursuant to the Table of Disabilities and whole person impairment.”
The Respondent Worker’s interpretation of Jorgenson’s case must be read in context. As King CJ said in paragraph 16: “It is therefore necessary to examine the pleadings in the prior proceedings and the terms of the award, in order to determine whether the subsequent claim is barred”.
There is no doubt that the “terms of the award” in proceedings No. 8539-04 were “… in respect of 3% whole person impairment … attributable to the date of injury of December 2002”. Nevertheless, the critical point involves an examination of the pleadings in the prior proceedings. These issues were considered at length by Neilson J in Bruce v Grocon Pty Limited [1995] NSWCC 10 where he referred to a number of authorities including Jorgenson’s case and also McGrath CJ’s decision in Thompson v George Weston Foods Limited [1990] 6 NSWCCR 370 (‘Thompson’s case’). His Honour concluded:
“From these cases, I distil the following principles:
(a) There is no ‘cause of action’ for workers compensation. The Act creates a number of rights which a worker is entitled to pursue independently of other rights: Jorgenson’s case, Thompson’s case.
(b) Estoppel will arise if the relief claimed in second or subsequent proceedings was claimed in original proceedings: Jorgenson’s case.”
In both sets of proceedings, the relief sought was permanent impairment/pain and suffering compensation. In the earlier proceedings, that entitlement was alleged to have arisen as a result of injuries in December 2002, December 2000, and as a consequence of the nature and conditions of employment. The subsequent proceedings repeat the allegations save that the alleged injury in December 2002 is deleted.
In the MAC of Dr Bates, he recorded the date of injury as “December 2002”. He went on to state however: “Despite this date being provided, and the Nature and Conditions of her employment being part of the claim, Ms Czipo could not remember today any specific item, incident or reason for December 2002 to be used as the date of injury”. He then records the Respondent Worker’s history that “… her problems began in the year 2000 at a date unknown whilst she was working in the checkout.”
The difficulties faced by Dr Bates in light of the Arbitrator’s referral were summarised by him at paragraph 10 of his report, which was issued on 4 March 2005. He stated:
“Having been asked to determine the percentage of permanent impairment of the back and of the right leg at or above the knee, this terminology implied that an assessment was to be made in relation to the Table of Disabilities and in comparison with a most extreme case.
A further request to determine the proportion of percentage due to pre-existing conditions of each body part, and to apportion these to the injury and the nature and conditions of work until April 2003 on the basis of whole person impairment implied the use of the WorkCover Guides and the AMA 5 Guidelines.
In the first instance … I felt that her symptoms and signs at or around the date of December 2002 … implied a 24% of the back and 12% impairment of the right leg.
From these figures, I would deduct two-thirds as being due to pre-existing or underlying constitutional changes. The remaining one-third, 16% [sic] back and 4% right leg, I would attribute to the nature and conditions of her work until 2 April 2003.
As regards Whole Person Impairment, her overall back pain and right sciatica was assessed … at 10%, from which I would deduct two-thirds or 6.6%, leaving a total, when rounded, of 3% Whole Person Impairment as a result of her employment with Coles Myer until 2 April 2003.
There was no doubt that the majority of her underlying pathology was pre-existing and of a constitutional origin … I felt that one-third of this total might be assessed on the basis of aggravation by the nature and conditions of service.”
Allianz submits that this means that Dr Bates:
“… Found that the worker had significant pathology that was pre-existing and of constitutional origin that was aggravated by the nature and conditions of employment and that there had been no change in that condition since April 2003. In other words, it is clear that the finding of the AMS is consistent with a finding that the worker suffered from a disease despite the fact that the frank incident of December 2000 had been pleaded by the Applicant as one of the injuries sustained.”
This is certainly one interpretation of Dr Bates’ assessment. There is no doubt that he had a history of symptoms occurring in or around December 2000, yet his assessments appear to reflect a finding that the Respondent Worker’s condition was in the nature of an aggravation brought about the nature and conditions of employment.
However, it should also be noted that the Arbitrator’s referral in matter No. 8539-04 included a request to “… apportion % of impairment attributable to the injury and to the nature and conditions of work until 2 April 2003 …” In Dr Bates’ report, in response to the question “Is apportionment between the several accidents necessary?” He replied, “No”.
The other medical evidence before the Arbitrator, which was also provided to Dr Bates, is of relevance as well. In proceedings No. 8539-04, the Respondent Worker relied upon the opinion of Dr Clive Sun dated 31 January 2004. He was asked to examine the Respondent Worker at the request of her solicitors. He noted the history of a lifting incident in December 2000. He noted: “In December 2002, she considered resigning from work because of the increase in pain …” In his opinion, the Respondent Worker suffered a “… lumbo sacral sprain in December 2000 with gradual deterioration over a two year period.” He concluded:
“As the injury occurred before January 2002 I refer to the Table of Maims and calculate 30% permanent impairment of the back and 15% permanent loss of efficient use of the right leg at or above the knee. Pursuant to the WorkCover Guides to the Evaluation of Permanent Impairment and using AMA 5th Edition … the lumbar condition falls under DRE Impairment Category 3 and 13% WPI.”
In other words, Dr Sun was similarly cognizant of the Respondent Worker’s history of a lifting incident in December 2000 and he, like Dr Bates, provided two separate assessments.
The self insurer had relied upon the opinions of Dr Khan in reports dated 16 June 2003, 26 June 2003 and 25 March 2004. Dr Khan obtained a history of:
“Sometime in the year 2001, she was packing groceries and felt a pull in her lower back. She did not take notice of this incident and continued working. Later on that year her back started hurting and the symptoms gradually deteriorated with time.”
He concluded:
“This lady appears to have a long standing pre-existing constitutional degenerative condition of her lumbar spine … this constitutional condition has gradually progressed along its natural course and has become symptomatic sometime in the year 2001.”
The medical evidence was certainly equivocal and does lend weight to the Respondent Worker’s assertion that the MAC of Dr Bates was “not unambiguous”.
That however is not the issue on appeal. The totality of the evidence including the pleadings, the medical evidence and the ‘duly made claims’ clearly demonstrate that the relief claimed by the Respondent Worker in the subsequent proceedings No. 9101-05 was claimed in the original proceedings No. 8539-04. The Respondent Worker effectively ‘elected’ to pursue the ‘Whole Person Impairment Assessment’ made by Dr Sun notwithstanding conflicting evidence, such that she was estopped from pursuing the subsequent proceedings in accordance with the authorities to which I have referred.
Estoppel and res judicata were recently considered in a number of appeal decisions, namely Davies v Bisaxa Pty Limited [2006] NSWWCCPD 103 (‘Davies’ case’) and De Witte v Tawnay Pty Limited [2006] NSWWCCPD 109 (‘De Witte’s case’).
The facts in Davies' case were that the worker filed an Application in the Commission seeking lump sum compensation for loss of use of his left leg. He was referred to an AMS. The AMS determined that he suffered nil loss. The insurer then denied liability for weekly benefits. A second application was filed seeking weekly compensation. Subsequent to that, the worker filed an appeal against the AMS assessment. He was successful and found to have suffered 4% loss of use of his left leg. The insurer paid that claim. The claim for weekly benefits was heard and determined at arbitration and there was an award in favour of the employer. The worker appealed that decision. The question was whether the assessment by the Appeal Panel without more was binding on the parties in the claim for weekly compensation. Acting Deputy President Roche determined that it was not, since “issues of ‘injury’ and ‘causation’ are matters for the Commission to determine”. He quoted from Deputy President Fleming in Jopa Pty Limited v Edenden [2004] NSWWCCPD 50 as follows: “However the issue of a MAC does not equate to a determination of the dispute by the Commission.” ADP Roche decided that the same reasoning applies to an Appeal Panel Certificate. Although conclusively presumed to be correct as to any loss, it does not determine whether a worker has suffered a compensable injury.
He noted that the employer could have contested the ‘Appeal Panel Certificate’ on the ground that the issue of ‘causation’ had not been decided. The employer chose not to. Did that ‘consent award’ create an estoppel? ADP Roche considered a number of authorities on estoppel and concluded that the ‘consent award’ created estoppels on the issues of injury and loss of use of the worker’s left leg. But that was not the issue before the Arbitrator in the second claim which was for weekly benefits where the worker was unsuccessful. ADP Roche found that there was no error by the Arbitrator.
The facts in De Witte’s case were not dissimilar and involved a prior consent award in the former Compensation Court such that there was no determination of factual issues. Acting Deputy President Snell referred to a number of authorities as to the status to be ascribed to a prior consent award in subsequent proceedings. ADP Snell concluded at paragraph 54: “Its legal effect on the later proceedings did not go beyond whatever evidentiary force lay in the admission by the parties, which were inherent in the terms and consent award.”
In other words, the terms of any ‘consent award’ must be construed according to the matters contained therein. If such terms do not identify issues of ‘injury’ or ‘causation’ then they may not create an estoppel on those issues in future proceedings.
However, in the present case, the determination of the Commission in proceedings No. 8539-04 was not a consent award, nor simply an agreement between the parties, but one which ‘passed into judgment’. This present case can also be distinguished from the other decisions to which I have referred on the basis that the subsequent proceedings sought the same relief as in the earlier proceedings such that in those circumstances, the subsequent proceedings were res judicata [see also Humphreys v Plaspak Closures Pty Limited [2006] NSWWCCPD 98].
The Failure to Give Reasons Issue
In view of my findings in the preceding paragraph, it is not necessary to canvass this issue at length. In brief, Allianz submits that the Arbitrator’s failure to either identify the res judicata issue or give reasons, constitutes an “… irredeemable error on the part of the Arbitrator …”
It is clear from the transcript that detailed submissions were made by Allianz’s representative to which no reference is made by the Arbitrator in his determination. He simply referred to Allianz’s “… extensive analysis of the medicine”.
An Arbitrator is not required to set out lengthy written reasons in order to comply with the legislation [see Liverpool City Council v Trovato [2004] NSWWCCPD 15)]. Nevertheless, an Arbitrator is required to apprise the parties of the essential grounds upon which the decision rests [see Mahoney JA in Soulemezis v Dudley (Holdings) Pty Limited [1987] 10 NSWLR 247].
In the present case, the Arbitrator has failed to adequately identify the essential grounds upon which his decision was based, and such failure constitutes an error of law.
CONCLUSION
The Respondent Worker submits that these proceedings are not res judicata essentially because there was no explicit finding by the Arbitrator as to the date/s of injury in the earlier proceedings. The Arbitrator however relied upon the Respondent Worker’s claim as pleaded which included various ‘dates’ of injury and a ‘nature and conditions’ claim. Despite pleading an injury in December 2000, the Respondent Worker nonetheless elected to pursue a claim for whole person impairment, without seeking alternative findings which may or may not have been available to her. A failure to call relevant evidence and properly litigate earlier proceedings, does not entitle a worker to re-litigate the claim. As Acting Deputy President Lansdowne said in Quarmby’s case: “This is a clear instance of a worker seeking to argue the same claim (not just the same issue) again, after that claim has been determined in earlier proceedings” giving rise to a ‘cause of action’ estoppel or res judicata.
The MAC was in my view somewhat ambiguous although as I said, the medical evidence was equivocal both as to diagnosis and onset of symptoms such that it would not have greatly assisted Dr Bates. It is clear that as a matter of law, the Respondent Worker would not be entitled to benefits under the Table of Disabilities if the date of injury was in fact December 2002.
The Respondent Worker seems to have merely assumed that the MAC gave rise to two entitlements, one under the Table of Disabilities and the other for whole person impairment such as to entitle her to bring these proceedings. That is by no means the clear or only interpretation of the MAC of Dr Bates.
Similarly, it appears that the issue of ‘injury’ may not have been properly determined by the Arbitrator in the earlier proceedings. In the absence of any information as to what transpired between the parties at the Teleconference prior to the referral to Dr Bates, it is by no means clear what, if any, agreement was reached between the parties on the issue of ‘injury’.
These are all matters relevant to the determination of the earlier proceedings, not the issue on appeal.
It would have been open to the Respondent Worker to lodge an appeal against the medical assessment under section 327 of the 1998 Act on the grounds that either the assessment was made on the basis of incorrect criteria or contained a demonstrable error, or file an appeal against the Registrar’s decision dated 18 April 2005 pursuant to section 352 of that Act or to seek reconsideration pursuant to section 350.
My task on appeal is to determine the issues raised by the Appellant in these proceedings, in accordance with the provisions of section 352 of the 1998 Act, not to review or reconsider the earlier proceedings.
DECISION
The decision of the Arbitrator dated 28 November 2005 is revoked and the following decision made in its place:
1. Award in favour of Coles Supermarkets Pty Limited.
2. No order as to costs.
COSTS
No order as to cost of the appeal.
Deborah Moore
Acting Deputy President
7 June 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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