Dang v OneSteel Reinforcing Pty Ltd t/as Liberty OneSteel Reinforcing

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dang v OneSteel Reinforcing Pty Ltd t/as Liberty OneSteel Reinforcing [2021] NSWPIC 476
APPLICANT:	Thanh Quoc Dang
RESPONDENT:	OneSteel Reinforcing Pty Ltd t/as Liberty OneSteel Reinforcing
MEMBER:	Glenn Capel
DATE OF DECISION:	19 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and medical expenses resolved in 2019; worker made claim for lump sum compensation in 2021 based on supplementary report that was not served in the prior proceedings; employer disputed claim on basis of an “Anshun” estoppel; Port of Melbourne Authority v Anshun Pty Ltd, Tomlinson v Ramsey Food Processing Pty Ltd, Fourmeninapub Pty Ltd v Booth, and Bruce v Grocon Ltd discussed; Held - worker not estopped from bringing his lump sum claim; assessment by a Medical Assessor not required; claim determined by Senior Member; worker awarded lump sum compensation.
DETERMINATIONS MADE:	1. The applicant sustained injury to his back arising out of or in the course of his employment with the respondent on 25 September 2016 (deemed). 2. The applicant’s employment was a substantial or the main contributing factor to his injury. 3. The applicant submitted a claim for compensation on or about 25 May 2017. 4. The respondent’s insurer declined liability and issued a notice pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 on 6 July 2017. 5. The applicant filed proceedings for weekly compensation and medical expenses in matter no. 2451/19 on 21 May 2019. 6. The applicant’s claim for weekly compensation and medical expenses was resolved at a conciliation conference and arbitration hearing on 24 July 2019. 7. The applicant made claim for lump sum compensation on 3 June 2021. 8. The respondent’s insurer declined liability and issued a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 on 6 August 2021 on the grounds of an “Anshun” estoppel. 9. The applicant is not estopped from bringing his claim for lump sum compensation. 10. The respondent is liable to pay the applicant lump sum compensation.
ORDERS MADE, BY CONSENT:	11. The respondent to pay medical expenses of $404.65 on production of accounts and/or receipts pursuant to section 60 of the Workers Compensation Act 1987.
ORDERS MADE, BY DETERMINATION:	12. The respondent to pay the applicant $30,166.50 in respect of 13% whole person impairment of the lumbar spine, including the 5% uplift, due to injury sustained on 25 September 2016 (deemed) pursuant to section 66 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Thanh Quoc Dang (the applicant) is 38 years old and commenced employment with OneSteel Reinforcing Pty Ltd t/as Liberty OneSteel Reinforcing (the respondent) as a process worker in 2003. He ceased work in October 2019.
The applicant submitted a claim form to the respondent on or about 25 May 2017. This document is not in evidence.
On 6 July 2017, OneSteel Workers Compensation New South Wales, the manager of claims for the self-insurer, Arrium Ltd (formerly OneSteel Ltd) (OneSteel Workers Compensation), issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that the applicant had suffered an injury, a disease or an aggravation of a disease, and that his employment was a substantial or the main contributing factor to his injury.
OneSteel Workers Compensation disputed that the applicant had submitted a claim in time and that he was entitled to the payment of medical expenses and lump sum compensation. It cited ss 4, 4(b), 9A, 60 and 66 of the Workers Compensation Act 1987 (the 1987 Act), and
s 261(1) of the 1998 Act. Curiously, it did not dispute that the applicant was incapacitated.
The applicant filed an Application to Resolve a Dispute (the 2019 Application) in matter
no. 2451/19 that was registered in Workers Compensation Commission (now the Personal Injury Commission) on 21 May 2019. The applicant sought weekly compensation from
25 September 2016 to 24 March 2019 and medical expenses in the sum of $2,077.28 due to a personal injury to or an aggravation of a disease in his back as a result of the nature and conditions of employment from 2003 to 25 September 2016 (deemed).
The proceedings were listed for a conciliation conference and arbitration hearing before Senior Arbitrator Bamber, as she was then known, on 24 July 2019. Mr Hickey of Counsel, instructed by Mr Lam, solicitor, appeared for the applicant and Mr Grant of Counsel, instructed by Ms Walsh, solicitor, appeared for the respondent.
The parties resolved the claim and consent orders were made by the Senior Arbitrator as follows:
“By and with the consent of the parties, the determination of the Commission in this matter is as follows:

1.Amend Application to claim weekly benefits from 2 November 2016 in place of 25 September 2016.
2.Award for the applicant at the rate of $192.30 per week pursuant to sections 36 and 37 (agreed to total $25,000) from 25 November 2016 to 2 May 2019. Award for respondent thereafter.
3.The Respondent to pay section 60 expenses to $5,500 on production of accounts receipts or Medicare Charge; otherwise award for the respondent.

The following is not a determination of the Commission; however, I note that the parties have agreed:
1. The applicant acknowledges that as and from 2 May 2019 he has been
able to earn in suitable employment as much or more than he would have earned had he remained in the employ of the respondent uninjured.”

It would seem that the settlement related to the applicant’s entitlement to weekly compensation during the first and second entitlement periods, although this could not be confirmed by the parties at the hearing of this matter. Further, it could not be confirmed whether the respondent had paid the medical expenses of $5,500 or a lesser figure. Whether it was agreed that the applicant had suffered a personal injury or aggravation of a disease was not disclosed. The Consent Orders were consistent with the Heads of Agreement executed by the applicant and both counsel in the prior proceedings.
The applicant sought approval from a claims manager via email on 1 December 2020 to undergo an MRI scan on his back. The identity of the entity that managed the respondent’s claims in late 2020 is not clear. Nevertheless, the claims manager declined to approve the proposed treatment in an email dated 2 December 2020 because he considered that the applicant had no further entitlement to medical expenses as a result of the consent orders that were made on 24 July 2019.
On 9 March 2020, the applicant’s solicitor served a claim for lump sum compensation on the GFG Alliance Australia (the self-insurer) in respect of injuries sustained to his lumbar spine on 25 September 2016 (deemed).

On 6 August 2021, Gallagher Bassett Services Pty Ltd, the manager of claims for the self-insurer (Gallagher Bassett) issued a notice pursuant to s 78 of the 1998 Act, disputing that the applicant was entitled to bring a claim because he relied on evidence that was available and was not disclosed at the time of the previous proceedings. It relied on the principles discussed in Port of Melbourne Authority v Anshun Pty Ltd[1] and in Fourmeninapub Pty Ltd v Booth[2], and indicated that:
“GFG Alliance raises issues of prejudice on the basis it resolved the full extent of your claim as presented in the Application to Resolve a Dispute registered on
[1] [1981] HCA 45; (1981) 147CLR 589
[2] [2019] NSWWCCPD 25.
21 May 2019.”

By an Application to Resolve a Dispute (the Application) registered in the Commission on
8 September 2021, the applicant claims medical expenses pursuant to s 60 of the 1987 Act and lump sum compensation in respect of injury sustained to his back/lumbar spine on
25 September 2016 (deemed).

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
During the conciliation conference on 21 October 2021, I used my best endeavours to bring the parties to the dispute to a settlement acceptable to all of them. I encouraged the applicant’s counsel, Mr Robison, to discuss my preliminary views with his instructing solicitor, Ms Walsh, and the two representatives of the self-insurer, Colette Nancarrow and Nicole Mitchell.
After conferring for approximately 50 minutes, Mr Robison informed me that the matter could not resolve. I said that this was disappointing, given the inordinate amount of time that it had taken to reach that decision.
Mr Robison then informed me that during the telephone conference, he had obtained a signed statement from Ms Nancarrow, and he wished to seek leave to have the statement admitted into evidence in these proceedings. I questioned why this had not been attended to earlier, but no reasonable explanation was forthcoming.
As the applicant’s counsel, Mr Hickey, consented to the admission of the statement into evidence, I granted leave to the respondent.
Given that the extensive time taken by the respondent’s representatives in conference, there was insufficient time to hear the submissions. Accordingly I issued the following Direction:
“The Commission directs:
1.     The following issues are in dispute:
a.Whether the respondent is liable to pay for medical expenses of $220 claimed by the applicant.
b.Whether the applicant is estopped from bringing a claim for lump sum compensation in respect of the injury sustained to his back on 25 September 2016 (deemed).
2.     The documents attached to the applicant’s Application to Admit Late Documents filed in the Commission on 13 October 2021 are admitted into evidence by consent.
3.     The respondent is to file and serve an Application to Admit Late Documents, attaching the statement of Colette Nancarrow dated 13 October 2021 (with annexures), by 25 October 2021.
4.     The statement of Colette Nancarrow dated 21 October 2021 (with annexures) is admitted into evidence by consent.
5.     The applicant is to file and serve written submissions by 1 November 2021.
6.     The respondent is to file and serve written submissions by 8 November 2021.
7.     Any written submissions in reply are to be filed and served by 19 November 2021.
8.     At the conclusion of the time allowed for submissions the dispute will be determined ‘on the papers’.”
Written submissions were filed by the applicant on 2 November 2021. No submissions were filed in reply.
Written submissions were filed by the respondent on 8 November 2021.

ISSUES FOR DETERMINATION

Although the respondent disputed liability in respect of the payment of medical expenses at the hearing, Mr Robison advised in his submissions that the respondent had agreed to pay the applicant’s medical expenses of $404.65.

The parties agree that the following issues remain in dispute:

(a) whether the applicant is estopped from bring his claim for lump sum compensation, and

(b) quantification of the applicant’s entitlement to lump sum compensation – s 66 of the1987 Act.

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    the Application with attached documents;
(b)    Reply with attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 13 October 2021, and
(d)    Application to Admit Late Documents filed by the respondent on 12 November 2021.

Oral evidence

Neither party sought leave to adduce oral evidence or cross examine any witnesses.

REVIEW OF EVIDENCE

Applicant’s statements

The applicant provided a statement on 17 September 2018. He described the nature of his duties as a process worker, and he provided details of the circumstances of his injury, his symptoms, and treatment. He denied that he had injured his back in a motor vehicle accident in March 2016 and that he had undertaken any concreting work in October 2016. He confirmed that he had consulted Dr Darwish on 24 November 2016, and the doctor had recommended an injection or “perhaps an operation”.
In his statement dated 6 September 2021, the applicant advised that he continued to experience pain in his back extending down his right leg to his ankle. He saw Dr Darwish on 13 September 2018, and the doctor gave him an injection, which provided only short-term relief. At a consultation on 1 November 2018, Dr Darwish suggested that he could have a further injection, learn to live with his pain or have surgery. The applicant stated that he wanted to manage his pain without surgery.
The applicant stated that Dr Tran referred him for an MRI scan on 20 December 2020. He consulted Dr Darwish on 22 February 2021. The doctor informed him that surgery would help with his right leg pain, but it would not relieve his back pain. The doctor recommended another injection.
The applicant indicated that after hearing Dr Darwish's advice, he decided that he did not want any further injections or undergo any surgery due to the risks involved with the operation. He continued to experience constant pain in his back, right leg and ankle, and this impacted on his daily activities.
Finally, in his statement dated 5 October 2021, the applicant advised that he was told by his solicitors that he could only make one claim for lump sum compensation. Accordingly, he instructed them to refrain from making such a claim at the time of the previous proceedings because he wanted to receive further treatment from Dr Darwish and see whether he required surgery. After discussing his treatment regime with Dr Darwish in February 2021, he decided not to have surgery, and he instructed his solicitors to make a claim for lump sum compensation.

Reports of Dr Darwish

Dr Darwish reported on 24 November 2016. He noted that the applicant presented with a six -week history of low back pain and right sciatica, which was consistent with right L5 radiculopathy. He arranged for a cortisone injection and prescribed medication. He advised that if the applicant’s pain did not improve with conservative treatment, he might require a right L4/5 discectomy and L5 nerve root rhizolysis.
In a report dated 8 June 2017, Dr Darwish noted that the applicant had low back pain extending to his right buttock. He observed that a CT scan had shown a right L4/L5 disc protrusion causing right L4/L5 lateral recess stenosis with potential compression of the right L5 nerve roots. Accordingly, the doctor arranged for a further cortisone injection, but this did not provide any lasting benefit.
Dr Darwish reported on 25 January 2018. He advised that the applicant continued to complain of low back pain radiating to the right leg. Although the applicant’s symptoms had improved with Lyrica and Mobic, the doctor recommended a decompression of the right L5 nerve root, but the applicant preferred to continue with conservative measures.
In a report dated 4 December 2018, Dr Darwish provided a summary of his consultations and noted that the applicant had continued to complain of low back pain and sciatica at the consultations in 2018. The applicant had another injection because he was not keen on surgery.
Dr Darwish confirmed that on 1 November 2018, after reviewing an MRI scan dated
20 September 2018, he discussed treatment options with the applicant. He recommended that the applicant have a right L4/L5 discectomy and decompression of the right L5 nerve roots. The applicant was undecided about having surgery.

Finally, in a report dated 22 February 2021, Dr Darwish noted that the applicant had pain in his lower back radiating to his right leg. The MRI scan dated 20 December 2020 showed L4/5 disc dehydration and an annular tear with potential compression on the L5 nerve roots. The doctor again advised the applicant regarding his treatment options, but he did not want to have surgery or a cortisone injection.
The MRI scan dated 20 December 2020 revealed L5/S1 disc desiccation with a posterocentral and right paracentral annular tear and disc protrusion, with moderate thecal sac compression and right L5 root impingement.

Reports of Dr Giblin

Dr Matthew Giblin reported on 8 October 2018. He recorded a detailed history of the applicant’s pre-injury duties and noted that the applicant had experienced low back pain on and off since 2015. In October/November 2016, he developed low back pain with radiation down his right leg. He ceased work and had undergone a number of diagnostic tests. The doctor noted that Dr Darwish had recommended back surgery in January 2018.
Dr Giblin diagnosed an injury to the applicant’s L4/5 disc as a result of the nature of his employment duties. He noted that the applicant had elected not to proceed with surgery and that he intended to continue with conservative treatment. He stated that the applicant was unfit for work involving repetitive bending and heavy lifting.
In a supplementary report dated 8 October 2018, which was not served on the respondent or attached to the 2019 Application, Dr Giblin advised that the applicant had 13% whole person impairment of his lumbar spine due to injury sustained on 25 September 2016 (deemed).

Medical expenses

The schedule of medical expenses and accounts total $404.65, comprising $220 for the MRI scan taken on 20 December 2020, and $184.65 paid to Dr Darwish for the consultation on
22 February 2021.

Statement of Colette Nancarrow

Colette Nancarrow, the self-insurance and fitness for work partner for the self-insurer, provided a statement on 21 October 2021. She indicated that she had been responsible for the applicant’s claim since its inception, and the dispute notice dated 6 July 2017 was issued under her supervision. She stated that the main issues from the self-insurer’s perspective was whether the applicant’s claim was dishonest in terms of whether there was a work injury or not. She advised that “there were no significant medical aspects of the claim”. What this means is not entirely clear.
Ms Nancarrow stated that the supplementary report of Dr Giblin dated 8 October 2018 was not served on her during the course of the prior proceedings. She attended the arbitration hearing on 22 July 2019, and she confirmed that a witness, who had provided a statement, gave oral evidence on behalf of the applicant. The identity of the witness was not disclosed, and I do not have the benefit of a transcript of the prior hearing.
Ms Nancarrow stated that she anticipated that the prior proceedings would be fully contested, but the parties were able to negotiate a commercial settlement, “which attempted to exhaust the Applicant’s entitlements to weekly payments and limited medical expenses”. She indicated that there was no claim for lump sum compensation at that time nor was there one expected.

Ms Nancarrow indicated that she would not have instructed her solicitors to resolve the prior proceedings in the manner that they were resolved had she expected that the applicant would be making a claim for lump sum compensation.

APPLICANT’S SUBMISSIONS

Mr Hickey submits that no “Anshun” estoppel arises. Whist the applicant had the short report of Dr Giblin dated 8 October 2018 at the time of the previous proceedings, he explained in his statements the reasons for not wishing to bring his one and only claim.
Mr Hickey submits that Dr Darwish initially raised the prospect of surgery on
24 November 2016 and then again on 24 July 2017, 25 January 2018 and 1 November 2018. The applicant was hesitant to undergo surgery, so he continued with conservative treatment. The applicant had injections, but he was unhappy with this treatment.

Mr Hickey submits that the applicant had an MRI scan on 20 December 2020, and
Dr Darwish again recommended surgery when he saw the applicant on 22 February 2021. This occurred after the completion of the prior proceedings.
Mr Hickey submits that the 1987 and 1998 Acts permit the claiming of weekly benefits, medical expenses, and gratuitous and domestic assistance repeatedly if and when the need arises. Such benefits may become due and payable as a result of the continuing or intermittent effects of the same injury from time to time.
Mr Hickey submits that there is not a once and for all ending of the potential litigious processes between a worker and an insurer/ respondent unless by way of damages, a redemption or commutation of the worker’s rights, or an award entered in favour of the respondent. The exception is a claim for lump sum due to the application of s 66 (1A) of the 1987 Act which was introduced by the 2012 amendments, although cl 11 of Pt 1 of
Sch 8 of the Workers Compensation Regulation 2016 (the 2016 Regulation) permits a worker, who had an "existing impairment" as of 19 June 2012, to bring one further lump sum claim.
Mr Hickey submits that the statutory regime for workers compensation in New South Wales is designed to permit the re-opening of claims and claims processes, and the Commission has the jurisdiction to reassess the continuing needs of a worker from time to time, apart from claims for lump sum compensation made after 19 June 2012.
Mr Hickey submits that prior to the 2012 amendments, multiple claims could be made for lump sum compensation in respect of an injury if there were good reasons for doing so. He submits that s 263(1) of the 1998 Act requires that all claims for permanent impairment be made at the same time as far as is practicable, but the section recognises that there may be instances where the claim for lump sum compensation may be split or in part brought at a later time for good reason.
Mr Hickey submits that the 1987 and 1998 Acts and the statutory scheme of compensation are not designed to put workers outside from their rights to claim by a once and for all outcome as in an “Anshun” estoppel except in limited contexts. This is consistent with the comments of McGrath CJ in Thompson v George Weston Food Ltd[3], where he stated:

“I do not consider that there is a rule which would prevent a worker bringing an action claiming one type of benefit and leaving another type of benefit for later. or other, adjudication... At the time of hearing a claim on original liability a claim under the Table of Maims may not have crystallised into one of the scheduled losses. The fact that it had not been claimed in the original proceedings could not prevent it being claimed subsequently, if the applicant succeeded on the issue of basic liability. Even if it were crystallised, and not included, there would be no bar to its subsequent determination by the Court, or a medical panel. although its non-inclusion in the original claim might be relevant to the question of costs."

[3] [1990] NSWCC 18; (1990) 6 NSWCCR 370, (Thompson).

Mr Hickey submits that an “Anshun” estoppel does not apply in this matter, and even if it did, it would be necessary to assess whether the applicant could be excused for not bringing a lump sum claim in the 2019 proceedings.
Mr Hickey submits that the applicant acted reasonably given that he had received legal advice and had deferred his lump sum claim until such time as he had received further medical treatment and exhausted his treatment options.
Mr Hickey submits that the applicant provided his reasons and given the restriction of only one lump sum claim, a worker should wait until he has achieved maximum medical or until the need for surgery has passed, so as not to lose any potential lump sum compensation, particularly so where the DRE rating for assessing back impairment may be substantially influenced by surgery.
Mr Hickey submits that Port of Melbourne Authority v Anshun Pty Ltd[4] concerned an issue that could and should have been litigated in earlier proceedings, and the Court of Appeal acknowledged that there might be circumstances why a party may justifiably refrain from litigating an issue in one proceeding and then litigating the issue in other proceedings. The applicant’s lump sum claim is such a case for the reasons identified in his statements.
[4] (1981) HCA 45: (1981) 47 CLR 589, (Anshun).
Mr Hickey submits that the potential outcome in the lump sum claim would not conflict with the award of compensation and the Certificate of Determination in the earlier proceedings. It represents a separate entitlement to be determined by and in accordance with the processes within the Commission in relation to the same injurious event. The issues involve quantification of the applicant’s entitlement to lump sum compensation and whether there is any sufficient evidence to apply a deduction pursuant to s 323 of the 1998 Act.
Mr Hickey submits that the applicant’s claim could not be seen to have merged in or with the outcome of the 2019 proceedings so as to create a res judicata or cause of action estoppel, consistent with the reasoning in Thompson. Mr Hickey relies on a number of authorities to support his submissions. I have reviewed these and will comment on some of them later.
Mr Hickey submits that although the respondent alleges that that is prejudiced by this claim because it resolved the full extent of the applicant’s claim as presented in the 2019 proceedings, there is no clear evidence as to how the outcome in the earlier proceedings would have been different had the short report of Dr Giblin had been admitted into evidence.
Mr Hickey submits that there had not been a claim made for lump sum compensation at that time, and the report was not relevant to the issues of that prior claim. There were no inconsistencies between the two reports of Dr Giblin.
Mr Hickey submits that the issue of prejudice is not a defence to the applicant's current claim. Prejudice is an issue to be considered by a tribunal in relation to weighing up justice and the merits of a party's case and claim when determining whether evidence should be admitted or excluded, or when considering applications for leave. It is not relevant when it concerns the right of a worker to bring a substantive claim. The applicant has a statutory entitlement to bring a claim in the absence of a statutory defence pursuant to ss 254 and s 261 1998 Act.
Mr Hickey submits that as there is no medical dispute regarding the assessment of 13% whole person impairment of the lumbar spine provided by Dr Giblin, so an award should be entered in the sum of $30,166.50 due to injury sustained on 25 September 2016 (deemed), and in the sum of $404.65 for medical expenses pursuant to s 60 of the 1987 Act.

RESPONDENT’S SUBMISSIONS

The respondent’s counsel, Mr Robison, submits that the applicant’s claim is defeated on the grounds of an “Anshun” estoppel. He submits that Dr Giblin provided two reports dated
8 October 2018 based entirely on the applicant’s clinical history and an evaluation of objective findings and history obtained at that time. The opinion now relied upon was extant as of that date. The prior proceedings only concerned weekly compensation and medical expenses. The applicant split his case, despite having the two reports from Dr Giblin.
Mr Robison submits that according to Ms Nancarrow, lliability was in issue. The claim which was before the Commission in 2019 resolved on a significantly compromised basis by consent orders made on 24 July 2019. The settlement was against the background of the real issues identified in the dispute notice. The respondent denied that an injury had occurred in the course of employment, relying on, inter alia, the lack of contemporaneous evidence of such an injury.
Mr Robison submits that the principle in Anshun, which had the effect of extending estoppel beyond matters captured by cause of action estoppel and issue estoppel, is that a party should not unreasonably split its case. He relies on Tomlinson v Ramsey Food Processing Pty Ltd[5] where the High Court considered the three types of estoppel. I will comment on this decision later.
[5] [2015] HCA 28; (2015) 256 CLR 507, (Tomlinson).
Mr Robison submits that all of the forms of estoppel identified in Tomlinson apply in the Commission[6], and one needs to be cautious when having regard to older cases from the Compensation Court because they preceded Tomlinson which dealt with estoppel arising from an abuse of process. He submits that the principles applied on Thompson appear to be directly opposed to what has been admonished since Tomlinson on the question of case splitting. Case management and the notion that the Court’s resources are a relevant consideration have also developed since that time[7]. It is also contrary to the reasoning in Fourmeninapub.
[6] Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25, (Fourmeninapub).
[7] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 - 239 CLR 175; 83 ALJR 951; 258 ALR 14
Mr Robison submits that whilst it is accepted that the finality of litigation in common law claims is different to statutory claims in some cases, the difference would be in relation to issue estoppel where an award of statutory benefits does not estop a claim for benefits in futuro which are the subject of changing circumstances[8]. This is different to a party splitting its case at the outset when it has the evidence, as is the case here. The applicant should not be permitted to proceed with the current claim because he should not have split his case.
[8] Roche v Australian Prestressing Services Pty Ltd [2013] NSWWCCPD 7, (Roche).
In the alternative, Mr Robison submits that if it was permissible for the applicant to defer his lump sum claim for the reasons set out in his statements, it was not reasonable for him to split his case by withholding evidence. The explanation in deferring the lump sum claim does not explain why the evidence was withheld in circumstances where the worker knew that his litigated claim would be determined or settled based on Dr Giblin’s evidence, as incomplete and as misleading as it was.
Mr Robison submits that the application of an “Anshun” estoppel is primarily premised on the reasonableness of the splitting of the case, but it is a matter of discretion. He submits that the Commission should consider the actual prejudice demonstrated by Ms Nancarrow’s statement. This is not determinative alone of the issue, and should prejudice not be considered to be demonstrated, that does not mean the worker is not estopped because of his own conduct. Another discretionary matter to consider is that the worker conducted his case in a misleading way by withholding the shorter report of Dr Giblin, which meant that the true nature and extent of the doctor’s opinion, and the effect of that opinion on the worker’s rights and the respondent’s obligations, were not frankly put before either the respondent or the Commission in the prior proceedings.
Mr Robison submits that consistent with Roche, the respondent accepts that an order can be made, and it consents to an order with respect to the applicant’s claim for medical expenses.
Mr Robison submits that as one of the functions and purposes of an “Anshun” estoppel is to avoid putting a respondent to the cost of defending litigation for a second time, the respondent did not obtain a report on the question of impairment. Therefore if, the applicant succeeds, the question of impairment should be referred to a Medical Assessor as the quantum of impairment is not conceded.

REASONS

Is the applicant estopped from bringing a claim for lump sum compensation?

In Anshun, Gibbs CJ, Mason and Aickin JJ, considered whether the principles of res judicata and issue estoppel should be extended to matters that could and should have been determined in prior proceedings. Their Honours stated:
“In this situation, we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few....”.[9]
[9] Anshun, [37].

Their Honours continued:

“The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.”[10]

[10] Anshun, [40].

In Tomlinson, French CJ, Bell, Gageler and Keane JJ compared the three different forms of estoppel and commented:
“…The third form of estoppel is now most often referred to as ‘Anshun estoppel’, although it is still sometimes referred to as the ‘extended principle’ in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a ‘true estoppel’ and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.”[11] (Citations removed).
[11] Tomlinson, [22].
Their Honours expanded upon the concept of an abuse of process as follows:

“The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.”[12] (Citations removed).
[12] Tomlinson, [24] - [26].

Their Honours continued:
“…It is a principle at the core of our legal system that a party claiming or denying the existence of a legal right or obligation should have an opportunity to present evidence and arguments to establish the facts and law on which the claim or denial is founded. There are countervailing considerations, some of which operate to create exceptions to that principle. Finality and fairness, including maintaining the certainty of past adjudicated outcomes and ensuring the predictability of future adjudicated outcomes, are amongst those countervailing considerations, and the estoppels informed by those considerations are amongst the exceptions to the principle. The operation of an estoppel, it must be remembered, is to preclude the assertion in a subsequent proceeding of what is claimed to be the truth.
The justice of binding to an estoppel a person who was a party to an earlier proceeding is readily apparent: the person has already had an opportunity to present evidence and arguments. The justice of binding to an estoppel a person whose legal interests stood to benefit from the making or defending of a claim by someone else in an earlier proceeding will often also be apparent. With the benefit of the claim or defence also comes the detriment of the estoppel. That, at least, is the underlying theory. But it is a theory which has limitations. It would be quite unjust for such a person to be precluded from asserting what the person claims to be the truth if the person did not have an opportunity to exercise control over the presentation of evidence and the making of arguments in the earlier proceeding and if the potential detriment to the person from creating such an estoppel was not fairly taken into account in the decision to make or defend the claim in the earlier proceeding or in the conduct of the earlier proceeding.”[13]
[13] Tomlinson, [38] - [39].
These cases are authority for the proposition that if the matter relied upon in the subsequent proceedings was so relevant to the issues in the first proceedings, and it would have been unreasonable not to rely on it, then the offending party would be estopped from relying on the matter in subsequent proceedings. This is based on the principle of litigating the whole case at once and not in a piecemeal fashion, so as to avoid inconsistent outcomes and unnecessary costs. The crucial component is whether the decision to refrain from raising the matter, or in the present case, making the claim for lump sum compensation at the same time as the claims for weekly compensation and medical expenses, constituted an abuse of process and was unreasonable.
In this matter, the applicant had in his possession two reports from Dr Giblin. Dr Giblin provided an assessment of 13% whole person impairment “on the proviso that he is not having surgery within the next twelve months”[14]. At that stage, the applicant was still contemplating the surgery that had been repeatedly recommended by Dr Darwish since November 2016.
[14] Application, p 25.
In his last statement, the applicant explained why he did not bring a lump sum claim at the time of the earlier proceedings. His solicitors told him that he could only make one claim for lump sum compensation, so he decided not to make a claim because he wanted to consider his treatment options, including surgery. He finally decided against having surgery in February 2021 when he returned to see Dr Darwish armed with an updated MRI scan.

The 1987 and 1998 Acts were significantly amended in 2012. Prior to June 2012, workers were able to make multiple claims for “top up” lump sum compensation, even if there had been only a minor increase in the degree of their whole person impairment.
The current legislation does not prevent injured workers from bringing multiple claims for weekly compensation and medical expenses, unless there are statutory restrictions in doing so, such as the obligations imposed on workers respect of the payment of weekly compensation after the second entitlement period pursuant to s 38 of the 1987 Act, the age restrictions in s 52 of the 1987 Act, and the limitations imposed on the payment of medical expenses by s 59A of the 1987 Act. Workers with high or highest needs are exceptions.
There is merit in Mr Hickey’s submission regarding the finality of a worker’s claim. Under the 1926 legislation, workers were able to settle all of their rights to compensation by way of a redemption of the employer’s liability. Such a settlement had to be approved by a Judge of the Compensation Court and its predecessors. The solicitors for employers usually included all of a worker’s body parts in the settlement, even if there had been no injury to same, in the hope that this would end all potential liability. The other option was settlement at Common Law for damages. An award for the respondent would remove a worker’s rights in respect of the pleaded injury under the 1926 and 1987 Acts.
Redemptions were abolished in 1987 and replaced by commutations as provided in Division 9 of Pt 3 of the 1987 Act. The requirements are stringent and have to be approved by SIRA. For this reason, commutations are extremely rare. The Commission’s only role relates to the registration of the agreement. This settlement usually only relates to the injured body part and does not provide the same protection as the redemption. Settlement by Common Law damages is still an option.
The 2012 amendments put in place some stringent restrictions on workers’ rights with respect to lump sum compensation, such as the inclusion of the 10% threshold in s 66(1) and the limitation on the number of claims that could be made for lump sum compensation in
s 66(1A) of the 1987 Act. This has resulted in less litigation and a reduction in costs for the scheme, even allowing for the legal aid assistance that was introduced for workers in 2012.
As a result of the 2012 amendments, workers could only bring one claim after 19 June 2012, whilst workers, whose whole person impairment was not more than 10%, were prevented from bringing a claim. As a result of the 10% threshold in s 66(1) of the 1987 Act, the concept of the “consequential condition” surfaced, so much so that it is now rare that an injury to one body part has not caused symptoms and an impairment in another body part. This has allowed workers to bring claims where the whole person impairment resulting from the primary work injury is under the threshold in s 66(1A) of the 1987 Act.

There was a great deal of confusion regarding a worker’s rights to bring claims for lump sum compensation following the 2012 amendments. The High Court in ADCO Constructions Pty Ltd v Goudappel[15] and the Court of Appeal in Cram Fluid Power Pty Ltd v Green[16] discussed the effect of the 2012 amendments, and in order to avoid any further confusion, cl 11 of Pt 1 of Sch 8 of the 2016 Regulation was introduced. This confirmed that a worker with an existing impairment could bring one further lump sum claim after June 2012. Of course, in this matter, the applicant’s injury in 2016 is governed by the current legislation.
[15] [2014] HCA 18 (Goudappel).
[16] [2015] NSWCA 250 (Cram Fluid).
Mr Robison submits that according to the principles discussed in Anshun, a party should not unreasonably split its case, as has occurred in the present matter. He submits that the decisions of the Judges of the Compensation Court should be considered with some caution, however, the decisions that have been cited by Mr Hickey were mostly handed down well after Anshun, and the Judges had regard to the principles discussed in that matter.
The guiding principles in the earlier decisions focussed on the reasonableness of a party’s actions and the potential for inconsistencies. They were succinctly summarised by Neilson CCJ in Bruce v Grocon Ltd[17] as follows:
“The principles which I distil from these authorities are:
(a) the principle in the Port of Melbourne Authority v. Anshun Pty Ltd extends to claims as well as to defences: O'Brien's case in the Court of Appeal and Boles' case;
(b) estoppel will arise if in second or further proceedings there would be a judgment inconsistent with a judgment in the first proceeding or the granting of remedies inconsistent with the remedy originally granted or the declaration of rights of parties inconsistently with the determination of those rights made in the earlier proceedings;
(c) the matter being agitated in the second or further proceedings must be relevant to the original proceeding; and
(d) it was unreasonable not to rely on that matter in the original proceedings; such unreasonableness would depend on the facts of each particular case: Boles' case.”[18]
[17] [1995] NSWCC 10; (1995) 11 NSWCCR 247, (Bruce).
[18] Bruce, [6].
I am mindful that in Tomlinson, the High Court cited Anshun with approval, so the case law has not markedly changed since the demise of the Compensation Court. Of course, the focus in Tomlinson was the abuse of process. What has changed are the restrictions that have placed on workers by the amendments to s 66 of the 1987 Act.
Mr Robison says that the older causes are inconsistent with Fourmeninapub, a matter in which Mr Robison appeared, but that decision did not deal with any abuse of process.
In Tomlinson, the High Court commented that an “Anshun” estoppel arose “if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding”.
The Hight Court stated that such conduct could amount to an abuse of process and could apply “in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute” and can be available “to relieve against injustice to a party or impairment to the system of administration of justice”.
In the present matter, the applicant had an assessment of whole person impairment in his possession, whereas in Fourmeninapub, there was no evidence to support the s 4(b)(ii) claim available at the time of the previous proceedings.

According to Fourmeninapub, the respondent bears the onus to show that the applicant’s failure to bring a claim in the earlier proceedings was unreasonable, and that there was no valid reason from doing so. The respondent relies primarily on the statement of
Ms Nancarrow in support of its defence of the claim.
According to Ms Nancarrow:
“The main issues from our perspective was whether this was a dishonest claim in terms of whether it was a work injury or not. There were no significant medical aspects of the claim.”[19]
[19] Respondent’s AALD, p 1
Ms Nancarrow stated:
“I was anticipating that the original proceedings would run with a hotly contested issue on the basic facts of the matter. However, as the parties were able to negotiate a commercial settlement, which attempted to exhaust the Applicant’s entitlements to weekly payments and limited medical expenses, I was minded to do so. There was no claim for s.66 benefits at that time or expected. I would not have instructed my solicitors to resolve the claim in that way had a s 66 claim been expected.”[20]
[20] Respondent’s AALD, p 1

Ms Nancarrow did not explain why the previous claim was resolved, other than suggesting that it was a commercial settlement. One can infer that a payment of only $192.30 per week and medical expenses of only $5,500 represented a compromise by both parties.
Ms Nancarrow indicated that she had “attempted to exhaust” the applicant’s entitlements to weekly payments and limit her medical expenses, so the use of these words would seem to acknowledge that she was doing her best to ensure that the applicant’s claim was finalised. There was no mention of any attempt to exhaust the worker’s entitlement and/or the respondent’s liability with respect to lump sum compensation.
It is true that there was no lump sum claim at the time, but Ms Nancarrow did not explain why she did not expect that the applicant would be making a claim for lump sum compensation in the future. Any expectation that a settlement of the weekly and medical claims would extinguish any future lump sum claim was misconceived and somewhat naive.
Ms Nancarrow indicated that she would not have instructed her solicitors to resolve the prior proceedings in the manner that they resolved had she expected that the applicant would be making a claim for lump sum compensation. How her instructions would have differed was not disclosed.
Ms Nancarrow did not identify any prejudice or indicate how the Commission’s procedures were “unjustifiably oppressive” as a result of the applicant’s failure to include Dr Giblin’s supplementary report in the prior proceedings. She has not explained in any detail why the claim for lump sum compensation was so connected with the previous claim that the applicant’s actions in failing to litigate that claim in the prior proceedings were unreasonable.
Whilst it is true that the applicant issued prior proceedings for weekly compensation and medical expenses, and his current claim for lump sum compensation relates to the same body part and date of injury, that does not mean that it was unreasonable for the latter claim not have been made in the previous proceedings. They are separate heads of damages or compensation. One does not necessarily mean that both can result from an injury.
For example, a tradesman can suffer the loss of an index finger and have a whole person impairment, but that does not mean that he can no longer work at his full pre-injury capacity. The same could not be said for a concert pianist, whose loss of a finger would make it highly unlikely that he could resume his pre-injury duties.
The dispute notice that was issued on 6 July 2017 denied liability in respect of the applicant’s injury primarily because the applicant did not report his injury or make a claim, he did not submit a WorkCover certificate and there was evidence to suggest he injured his back when undertaking some concreting. He did not seek treatment at the time of his alleged injury and a claim had not been made within six months. There were also issues regarding the nature of the applicant’s duties. OneSteel Workers Compensation also denied that the applicant was entitled to lump sum compensation.
OneSteel Workers Compensation attached case notes, an email, five statements, a claim form and one medical certificate from Dr Tran to its notice, so the issues largely concerned a factual dispute. It made a commercial decision to resolve the claim rather than litigate the matter and test the applicant’s evidence under cross examination.
In the dispute notice dated 6 August 2021, Gallagher Bassett raised the issue of an “Anshun” estoppel and indicated that it raised prejudice “on the basis it resolved the full extent of your claim as presented in the Application to Resolve a Dispute registered on 21 May 2019”. This is consistent with the facts, namely that the claim pleaded in the prior proceedings was resolved, but it did not explain how the insurer was prejudiced.
In Fourmeninapub, President Phillips considered the concept of reasonableness, which was discussed in Anshun and Tomlinson, and said:
“It is clear that the objective of Anshun estoppel is the public policy that there are no conflicting judgments on the same set of facts. Applying the relevant principles, it must be determined whether the claim or defence was so closely related to the earlier subject matter that it would reasonably have been expected to have been raised. To answer this question the onus lies on the appellant to demonstrate that the failure to bring a claim in the earlier proceedings was unreasonable, and that there was no valid reason for refraining from doing so. In determining the Anshun estoppel question it is necessary to undertake an analysis of the medical evidence available in the proceedings below, to determine whether Ms Booth failed to bring the claim under
[21] Fourmeninapub, [130].
s 4(b)(ii) in the proceedings before Arbitrator O’Moore. In particular it is necessary to consider whether, in the proceedings before Arbitrator O’Moore, there was an absence of medical evidence required to support the s 4(b)(ii) claim (which was determined in proceedings before Arbitrator Edwards). I accept Ms Booth’s submissions that the appellant has not taken me to any particular evidence to support its claim that the “alternative case” was plainly available but not utilised in the previous proceedings….”[21]
Mr Robison submits that it was not reasonable for the applicant to split his case by withholding evidence in circumstances where the worker knew that his litigated claim would be determined or settled based on Dr Giblin’s evidence. That might well be true, and in my view, both reports of Dr Giblin should have been served, even if the lump sum claim was not pressed, but I would not consider the action to withhold the report was misleading or that this would make both reports inadmissible in the current proceedings. In my experience, legal representatives of workers and employers almost always seek lump sum assessments of impairment in separate supplementary reports, whether there is a lump sum claim or not.
Mr Robison submits that one of the principles of an “Anshun” estoppel is that the respondent is not put to the cost of defending litigation for a second time. It is true that further costs are incurred for a respondent for its own legal representation where there are more than one set of proceedings, but it is not liable to pay the worker’s costs unless the claim involves an exempt worker. The costs issue has to be weighed up with the reasonableness of the worker’s actions.

The applicant’s solicitors chose not to serve the smaller report of Dr Giblin in 2019, and it is the same evidence that is relied upon in these proceedings. Any ethical considerations arising from this omission are not my concern. Those are matters for the Bar Association and Law Society. In my view, it is always a risk to rely on a dated assessment of impairment, and
I would have thought that an updated report should have been obtained as the applicant’s condition may have deteriorated. It might also have encouraged the respondent to qualify its own Independent Medical Examiner (IME).
The applicant stated that he instructed to refrain from litigating his lump sum claim because he was contemplating surgery and he was only entitled to bring one claim. The 2012 amendments were enacted to reduce the number of claims and the cost to the scheme and employers. It means that injured workers need to ensure that they have reached maximum medical improvement and that the degree of whole person impairment will not increase in the future.
The decision to proceed with a lump sum claim is not one to be made lightly. The applicant had a valid reason for splitting his case, consistent with the principles discussed in Anshun, Tomlinson and Fourmeninapub. If the applicant had surgery, it is possible that his whole person impairment might have increased, so his reasons for delaying his claim in my view were entirely understandable and reasonable.
According to Tomlinson, “a party claiming or denying the existence of a legal right or obligation should have an opportunity to present evidence and arguments to establish the facts and law on which the claim or denial is founded”.

The respondent and its solicitors made the forensic decision to refrain from qualifying an IME during the course of the prior claim, so it did not have a fall-back position if the factual dispute was unsuccessful.
In the current proceedings, yet another forensic decision was made against qualifying an IME. It could not be said that the respondent has not been afforded the opportunity to obtain medical evidence to challenge the applicant’s lump sum claim.
Whilst the finality of litigation is an important consideration, the 1987 and 1998 Acts only permit a final closure in extremely limited circumstances. In the initial dispute notice, OneSteel Workers Compensation disputed that the applicant’s entitlement to lump sum compensation. Both insurers failed to qualify their own IME to deal with this issue.
Whilst it is true that there was no lump sum claim in the prior proceedings, there was nothing to prevent the respondent from insisting on an amendment to the pleadings to include such a claim, and that an award be entered in the respondent’s favour as a condition of the settlement. Had that step been undertaken, the respondent would have had appropriate protection, and the applicant would have been prevented from making the current claim.
Whilst it is preferable to bring all claims at the same time, the legislation does not prevent a worker from splitting up his case. The applicant had a reasonable and valid reason why he did not litigate his claim during the course of the prior proceedings, and this outweighs any prejudice that the respondent might have suffered. Accordingly, I am satisfied that the applicant is not estopped from bringing his claim for lump sum compensation.

Lump sum compensation

Prior to 1 January 2019, s 65(3) of the 1987 Act provided:
“Determination of degree of permanent impairment
…
(3) If there is a dispute about the degree of permanent impairment of an injured
     worker, the Commission may not award permanent impairment compensation
     unless the degree of permanent impairment has been assessed by an approved
     medical specialist.”
The section was repealed by the by cl 2 of Sch 2 of the Workers Compensation Legislation Amendment Act 2018 (the 2018 amending Act). This schedule commenced on the date of proclamation of 1 January 2019.
Savings and transitional provisions were added by the 2018 amending Act at cl 2(1) of Pt 19L of Sch 6, which provides:
“2   Application of amendments generally
(1)Except as provided by this Part or the regulations, an amendment made by the 2018 amending Act extends to—
(a)  an injury received before the commencement of the amendment, and
(b) a claim for compensation made before the commencement of the
     amendment, and
(c) proceedings pending in the Commission or a court immediately before
     the commencement of the amendment.”

Therefore, the applicant’s claim is governed by s 65 of the current version of the 1987 Act.
Mr Hickey submits that there is no medical dispute regarding the assessment of 13% whole person impairment of the lumbar spine provided by Dr Giblin, so an award be should be entered in the sum of $30,166.50.
Mr Robison submits that the question of impairment should be referred to a Medical Assessor as the quantum of impairment is not conceded.

The second reading speech in respect of the Bill relating to the 2018 amending Act explained the reasoning behind the repeal of s 65(3) of the 1987 Act as follows:
“Schedule 2 to the bill provides for the Workers Compensation Commission to award permanent impairment compensation without referral to an approved medical specialist.
This amendment recognises that, in certain circumstances, the requirement to refer all permanent impairment disputes to an approved medical specialist was unduly delaying proceedings in the Workers Compensation Commission. The amendment will allow arbitrators to make determinations of permanent impairment by removing section 65 (3) from the 1987 Act, which requires all permanent impairment disputes to be referred to an approved medical specialist prior to the Workers Compensation Commission awarding permanent impairment compensation.”[22]
[22] Legislative Council 19 September 2018, Second Reading Speech of the Hon. David Clarke.

In his supplementary report dated 8 October 2018, Dr Giblin explained his assessment of impairment as follows:
“Whole person impairment was assessed using The American Medical Association Guide as to the Evaluation of Permanent Impairment 5th Edition.
His whole person impairment assessment was given on the proviso that he is not having surgery within the next twelve months.
I do not consider there is any significant pre-existing condition.
Lumbar Spine - was assessed using Table 15.3, page 384.
He falls into DRE Lumbar Category (3) which gives him 10% whole person impairment.
Using the NSW Workers Compensation Guidelines for the Evaluation of Permanent
Impairment - 4th Edition - 1st April 2016. Table 4.34, page 28.
He has difficulty with yard, garden, home care and self-care, which gives a further 3%.
10%+3%=13% whole person impairment.”[23]
[23] Application, p 26.

Mr Robison submits that quantum of impairment was not conceded. He has made no compelling submissions why I should not determine the claim. It would have been different if the respondent had its own assessment of impairment that challenged that of Dr Giblin.

The respondent did not qualify its own IME during the prior proceedings or when the applicant’s solicitor served the notice of claim for lump sum compensation on 3 June 2021. Further, the respondent did not qualify its own IME before or after the present Application was filed in the Commission. Clearly, the respondent had ample opportunity to address this.
Both Applications contained copies of medical and radiological reports from treating clinicians, including a number of comprehensive reports from Dr Darwish.
I consider that this is an appropriate case for me to determine. A referral to a Medical Assessor will not be cost effective and will only delay the finalisation of this claim, something that Ms Nancarrow wanted to avoid in the prior proceedings.
The substantive report of Dr Giblin dated 8 October 2018 is comprehensive. He is an experienced orthopaedic specialist with an interest in spinal and knee surgery. The doctor recorded that the applicant had persistent low back pain with radiation down his right leg. The scans showed a protrusion at L4/5 with impingement on the L5 nerve root. This is consistent with a DRE III classification as described in the American Medical Association Guides to the Evaluation of Permanent Impairment Fifth Edition (AMA 5), because there is a “history of a herniated disc at the level and on the side that would be expected from objective clinical findings, associated with radiculopathy…”[24].
[24] AMA 5, Table 15-3, p 384 and Example 15-4, p 386.
Dr Giblin also considered the diagram and explanation in cl 4.34 and cl 4.35 of SIRA Workers Compensation Guidelines for the Evaluation of Permanent Impairment Fourth Edition (the Guidelines). Clause 4.35 of the Guidelines provides:
“4.35 The diagram is to be interpreted as follows:
Increase base impairment by:
3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected
2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances
1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.”
Dr Giblin recorded that the applicant’s injury had impacted on his ability to perform domestic tasks and heavy work, and he experienced increased pain when attending to activities of self-care. This history satisfies a 3% increase in accordance with the Guidelines.
In my view, Dr Giblin’s approach discloses that he has taken a thorough and informed approach and he applied the Guidelines and AMA 5. His report goes to the substantive merits of the claim and I see no error in his reasoning.
In my view, Dr Giblin has not misapplied the criteria used to assess permanent impairment. He has not rushed to a decision. He recorded a detailed history and conducted a thorough examination. He explained how he arrived at his assessment and it does not disclose error to warrant a referral to a Medical Assessor.
Accordingly, I am satisfied that there is no reason why the applicant’s lump sum claim should be referred to a Medical Assessor. Since the repeal of s 65(3) of the 1987 Act, Arbitrators and Members of the Commission have been empowered to determine an impairment. I am not undertaking an assessment per se, but I am determining an impairment based on an unchallenged assessment provided by a SIRA approved assessor of permanent impairment.

Accordingly, the respondent is to pay lump sum compensation of $30,166.50 in respect of 13% whole person impairment of the lumbar spine, including the 5% uplift, due to injury sustained on 25 September 2016 (deemed).

Medical Expenses

The respondent consents to the payment of medical expenses of $404.65, so I will order payment of that sum.

FINDINGS

The applicant sustained injury to his back arising out of or in the course of his employment with the respondent on 25 September 2016 (deemed).
The applicant’s employment was a substantial or the main contributing factor to his injury.
The applicant submitted a claim for compensation on or about 25 May 2017.
The respondent’s insurer declined liability and issued a notice pursuant to s 74 of the 1998 Act on 6 July 2017.
The applicant filed proceedings for weekly compensation and medical expenses in matter
no. 2451/19 on 21 May 2019.
The applicant’s claim for weekly compensation and medical expenses was resolved at a conciliation conference and arbitration hearing on 24 July 2019.
The applicant made claim for lump sum compensation on 3 June 2021.
The respondent’s insurer declined liability and issued a notice pursuant to s 78 of the 1998 Act on 6 August 2021 on the grounds of an Anshun estoppel.
The applicant is not estopped from bringing his claim for lump sum compensation.
The respondent is liable to pay the applicant lump sum compensation.

By consent, the Commission orders:

The respondent to pay medical expenses of $404.65 on production of accounts and/or receipts pursuant to s 60 of the 1987 Act.

By determination, the Commission orders:

The respondent to pay the applicant $30,166.50 in respect of 13% whole person impairment of the lumbar spine, including the 5% uplift, due to injury sustained on 25 September 2016 (deemed) pursuant to s 66 of the 1987 Act.

[2021] NSWPIC 476

19 November 2021