Davies v Bisaxa Pty Ltd t/as Sir Joseph Banks Nursing Home
[2006] NSWWCCPD 103
•31 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Davies v Bisaxa Pty Ltd t/as Sir Joseph Banks Nursing Home [2006] NSWWCCPD 103
APPELLANT: Aaron Davies
RESPONDENT: Bisaxa Pty Ltd t/as Sir Joseph Banks Nursing Home
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC19530-04
DATE OF ARBITRATOR’S DECISION: 1 April 2005
DATE OF APPEAL DECISION: 31 May 2006
SUBJECT MATTER OF DECISION: Estoppel; Res Judicata; Medical Assessment Certificates; Appeal Panel Certificates
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Firths
Respondent: Thompson Cooper Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 1 April 2005 is confirmed.
No order is made as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 21April 2005 Aaron Davies (‘the Appellant Worker/Mr Davies’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 1April 2005.
The Respondent to the Appeal is Bisaxa Pty Ltd (‘the Respondent Employer’).
At all material times Mr Davies, the Appellant Worker was employed by the Respondent Employer as a handyman involved in general maintenance at its nursing home. On 18 July 2000 he was walking down some stairs at the nursing home when he “slipped on some old stairs landing heavily on [his] left foot” (see Appellant Worker's statement 21 February 2005 paragraph 4). At the same time he felt his “left knee flicking backwards and to the side”. He immediately noticed pain and swelling in his left knee.
He attended on his general practitioner, Dr Agagiotis, who referred him to Dr Waller, orthopaedic surgeon. He was treated with steroid injections, analgesics, anti-inflammatory medication, acupuncture and physiotherapy. He was ultimately referred to Dr Turnbull, orthopaedic surgeon, who performed an arthroscopy on the Appellant Worker's left knee on 10 October 2001.
The Appellant Worker's claim for compensation was accepted by the Respondent Employer's insurer, GIO Workers Compensation (NSW) Ltd (‘the GIO’) who commenced voluntary payments of weekly compensation and also met his medical expenses.
On 26 February 2003 Mr Davies filed with the Commission an Application to Resolve a Dispute number 7343-03 ('the First Application') seeking lump sum compensation in the sum of $3,750.00 in respect of a 5% permanent loss of use of his left leg at or above the knee under the Table of Maims in the Workers Compensation Act 1987 ('the 1987 Act').
The lump sum claim was referred to an Approved Medical Specialist (‘AMS’) for assessment. The assessment was carried out by Dr Long on 25 September 2003 and a Medical Assessment Certificate (‘MAC’) was issued on 27 October 2003. Dr Long assessed the Appellant Worker to have nil loss of efficient use of his left leg at or above the knee as a result of any injury with the Respondent Employer in or about July 2000.
On the basis of the MAC the GIO declined liability for the Appellant Worker's claim by letter dated 19 May 2004 and all compensation ceased on or about 30 June 2004. As a result the Appellant Worker filed a second Application to Resolve a Dispute number 19530-04 on 29 November 2004 ('the Second Application') seeking weekly compensation from 1 July 2004 to date and continuing.
On 4 November 2003 the Appellant Worker lodged an appeal to the Registrar of the Workers Compensation Commission against Dr Long’s assessment. That appeal was determined by an Appeal Panel on 28 July 2004. It revoked the MAC issued by the AMS and issued a fresh certificate (‘the Appeal Panel Certificate’) assessing the Appellant Worker to have a 5% permanent loss of efficient use of his left leg at or above the knee, but after deducting 1/5 for pre existing abnormalities, determined a loss of use of 4% ‘attributable to this injury’.
On 6 September 2004 an Arbitrator hearing the First Application noted that the parties had “come to an agreed resolution of the issues in dispute” and made the following orders (‘the Consent Award’):
“1.Finding in favour of the Applicant under Section 66 in the sum of $3,000.00 in respect of a 4% permanent impairment of the left leg at or above the knee as assessed by the Medical Appeal Panel in its Medical Assessment Certificate of the 28 July 2004.
2.Determination that the Applicant by consent withdraw his claim under Section 66.
3.Respondent to pay the Applicant’s costs to be agreed or assessed.”
The Second Application was heard and determined in conciliation and arbitration (‘the Arbitration’) on 4 March 2005 with an award being made in favour of the Respondent Employer.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 1 April 2005 records the Arbitrator’s orders as follows:
“1.Award for the Respondent.
2.No award as to costs.
3.I direct that the soundcard used to record these proceedings be copied to a
compact disc and sent to the parties.”
An earlier Certificate of Determination dated 18 March 2005 had been issued to the parties in exactly the same terms as the Certificate of Determination of 1 April 2005.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding the Appellant Worker’s incapacity was due to pre existing gout unaffected by his work injury;
(b)effectively seeking to override the determination by the Appeal Panel;
(c)finding that there was no estoppel given the Appeal Panel findings in the lump sum claim;
(d)finding that there were “many more facts that were available to the Panel”[sic];
(e)finding that the causation question as found by the Appeal Panel was not binding;
(f)failing to award section 60 expenses which flowed from the findings of the Appeal Panel, and
(g)failing to give any or any proper consideration to all of the evidence before him.
There is also an issue of whether the appeal has been lodged in time.
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Appellant Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCC PD 5).
The appeal was lodged outside 28 days of the first Certificate of Determination but within 28 days of the second Certificate of Determination.
After the first Certificate of Determination was issued the solicitors for the Appellant Worker wrote to the Commission on 8 March 2005 seeking a copy of the Arbitration’s reasons pointing out that the Arbitrator directed that the soundcard be transcribed and sent to the parties. On 21 March 2005 the Appellant Worker's solicitors again wrote seeking the transcript of reasons as a matter of urgency so that “the Applicant can lodge an Appeal”. As a result of that correspondence a letter was sent to the Appellant Worker's solicitors headed “Amended Outcome of Application For Dispute Resolution” attaching a fresh Certificate of Determination dated 1 April 2005.
A compact disc containing a record of the proceedings before the Arbitrator on 4 March 2005 was made available to the parities but I do not know on what date. The compact disc was transcribed by the Appellant Worker's solicitors and the appeal was filed on 27 April 2005.
I find that the time in which to appeal runs from 1 April 2005, the date of the “Amended Outcome of Application for Dispute Resolution”. To hold otherwise would involve a substantial and unfair prejudice to the Appellant Worker when at no stage was he or his solicitor in default in any way. Therefore, the appeal is lodged in time.
If I am wrong in finding that time to appeal runs from 1 April 2005 it is necessary for an extension of time to be granted before leave to appeal can be granted. An extension of time in which to appeal can be granted in certain limited circumstances. Rule 77(8) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides that:
“(8) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
In the present case there has been no default or delay by either the Appellant Worker or his solicitors. There is no explanation as to why two Certificates of Determination were issued. Having regard to the history of the matter, the conduct of the Appellant Worker's solicitors in urgently seeking a copy of the transcript/soundcard and to the fact that a second Certificate of Determination was issued by the Commission, I believe that there would be a demonstrable and substantial injustice to the Appellant Worker if the right to seek leave to appeal was lost. If it is necessary, I extend the time to appeal until 27 April 2005 pursuant to Rule 77(8).
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellant Worker's solicitors that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
SUBMISSIONS AND FINDINGS
The first issue is the effect of the Appeal Panel Certificate. The challenge to the MAC was that it contained inconsistent findings because it found that there were no symptoms or pathology in one part but in another found the symptoms were explained by gout. The Appeal Panel accepted there was a specific injury to the Appellant Worker’s left knee and that there was no history of previous symptoms or injury to that knee. The Appeal Panel did not examine the Appellant Worker.
The Appeal Panel referred in detail to the only other medical evidence before it, the report of Dr Turnbull of 1 August 2002. It noted Dr Turnbull’s opinion that the Appellant Worker's condition had been “aggravated by his fall at work, and that the aggravation would last approximately six months” (see Appeal Panel Certificate paragraph 26). The Panel also refers to Dr Turnbull’s assessment of a 5% “disability” (see Appeal Panel Certificate paragraph 27). The Appeal Panel does not seem to have acknowledged that Dr Turnbull did not say that the disability he assessed was due to the work incident or that Dr Turnbull’s clear opinion was that the effects of the work aggravation would last only six months.
The Appeal Panel then concluded that, based on Dr Turnbull’s report, the history of injury and its assessment, there was a 5% permanent loss of efficient use of the left leg at or above the knee from which it deducted 1/5 for a pre existing condition (see Appeal Panel Certificate at paragraphs 32 and 33).
The question arises as to whether the assessment by the Appeal Panel without more is binding on the parties in the present claim for weekly compensation. In my opinion the answer is ‘no’. Issues of ‘injury’ and ‘causation’ are matters for the Commission to determine. The extent to which a MAC is binding on the parties was considered by the Commission in Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSW WCC PD where Deputy President Fleming said at [27]:
“However the issue of a MAC does not equate to a determination of the dispute by the Commission. There are obvious reasons why the legislature would have intended that the ultimate determination of the matter rests with an Arbitrator. There may be a number of issues in dispute between the parties which, while not medical issues, must be agreed, or determined by an Arbitrator, in order to finally resolve the matter. These may include issues of liability and associated claims for compensation by way of weekly benefits and medical expenses. Procedural fairness, the filing of evidence and compliance with the procedural requirements of the Workers Compensation Acts (‘the 1987 Act and the 1998 Act’) may also need to be considered.”
In my view the same reasoning applies to an Appeal Panel Certificate. Whilst the Appeal Panel Certificate is “conclusively presumed to be correct” as to the degree of “permanent impairment of the worker as a result of an injury” (see section 326(1)(a) of the 1998 Act) it does not determine ultimate liability. The question of whether a worker has sustained a compensable injury, the nature and extent of that injury, and the consequences that follow from it are still to be determined by the Commission.
Confusion can arise when an Arbitrator refers a matter to an AMS for assessment under section 326 of the 1998 Act before there has been a determination of the nature and extent of the injury and whether the event complained of (and any pathology said to flow from the event) is compensable under the legislation. That has happened in the present case. The expression ‘as a result of an injury’ in section 326(1)(a) means ‘as a result of a compensable injury’. Whether an injury (the event causing the injury) or the consequences of an injury (the pathology said to flow from the injury) are compensable is to be determined by an Arbitrator applying the provisions of legislation to the facts as found by the Arbitrator at a hearing.
Therefore the issuing of an Appeal Panel Certificate before all other matters are determined or agreed can lead to uncertainty where there has been no final determination of liability by an Arbitrator. Had the Respondent Employer chosen to contest the Appeal Panel Certificate it would have been entitled to do so on the ground that the issue of ‘causation’ had not been decided. However in the present case the Respondent Employer chose not to contest the Appeal Panel Certificate but elected to pay the amount of compensation certified, namely, $3,000.00. The agreement to pay was formalised in the Consent Award made on 6 September 2004. This raises an additional issue of estoppel.
Whether a consent order creates an estoppel was considered by Judge Neilson in Anderson v Charles Sturt University (2000) 25 NSWCCR 407 (‘Anderson’) where his Honour said a [30]:
“Parties can ask the Court to enter up an award in accordance with their agreement. The Court, provided jurisdiction exists, can enter up that award. However, even though formed in the terms of a Court award, it is still in effect an agreement between the parties. It does not create any issue estoppel. Mere payment of compensation cannot amount to an estoppel but, at most, if anything, an admission. Such was the decision of Court of Appeal in APD Snack Foods Pty Limited v Vuic [1984] WCR 62, a decision of Hutley AP, Glass and Mahoney JJA.”
His Honour was correct to say that the ‘mere payment of compensation’ does not create an estoppel. The weight to be given to such payments was considered by the Court of Appeal in Department of Education and Training v Sinclair [2005] NSWCA 465 at [90] to [93] (‘Sinclair’). The Chief Justice noted at [93]:
“Finally, I would particularly reject any suggestion that an employer might adversely affect their position in the Commission by not fully investigating each possible defence prior to making their first payment. Such an outcome would have the effect of deterring precisely the kind of reasonable behaviour that beneficial legislation such as the workers compensation scheme seeks to encourage.”
Since Anderson was decided the question of whether a consent award creates an estoppel was considered by the Court of Appeal in Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 (‘Dimovski’). In that case the parties settled a claim by consent for 25% loss of use of a leg and an award was entered in those terms. In later proceedings the worker sought an additional payment under section 66 of the 1987 Act as a result of an alleged increase loss of use of the same leg due to further injuries. The trial judge held that the worker had sustained further injuries which had a permanent effect on the leg but she did not increase the award of 25%.
On appeal it was argued that the earlier consent award created estoppels which meant that if the later injuries had a permanent effect then there had to be an increase in the percentage loss of use awarded. Justice Handley set out the principles in some detail from [9] to [12]:
“9 Mr King submitted that the Judge erred in law in failing to give effect to the estoppel created by the consent award by finding that although the worker had suffered further injuries to his left leg his current loss of use was still only 25%. A consent judgment can create res judicata estoppels: Spencer Bower, Turner & Handley "Res Judicata" 1996 pp 21-2. The estoppels flowing from the consent award bound the second respondent as a party and the appellant as a privy in interest, as the second respondent's statutory successor: Spencer Bower & Ors (above) pp 119-22.
10 The argument based on issue estoppel involved two propositions. The first was that the consent award conclusively determined that as at 16 October 1996 the worker had a permanent impairment of his left leg at or above the knee of 25% which was the result of an injury or injuries sustained in the employment of the second respondent. This is correct. The second was that he suffered two further injuries to his left leg in the employment of the appellant, one from the nature and conditions of his work, and the other the frank injury on 25 May 1998. This was also correct.
11 If these further injuries caused other than temporary aggravations of the worker's condition they must have increased the impairment in his left leg. The Judge did not find that they only caused temporary aggravations, but nevertheless found no increased impairment. Accordingly it was submitted that she had disregarded the estoppel. Mr King relied strongly on her statement that the consent award was ‘possibly not reflective of an accurate assessment’.
12 These submissions must be rejected because they are contrary to the principles established in O'Donel v Commissioner for Road Transport (1938) 59 CLR 744. A decision that a worker's total blindness between 14 September 1934 and 15 February 1935 arose from an injury in the course of his employment was held not to issue estop the employer from contending that his blindness after 15 February 1935 arose from other causes. Evatt J said at 763:
‘The argument involves and is based upon the fallacy that where an issue between A and B related to a state of things which is capable of subsequent alteration, the conclusive determination in A's favour of that state of things as at one date plus conclusive proof that up to a later day there has been no alteration of such state of things establishes in A's favour as against B an estoppel as to the state of things existing at the later day ... this method, thought logically sound, is not permitted by law ... The unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be.’
Dealing specifically with the consent awards his Honour said at [14]:
“The consent award involved admissions by the parties and these, coupled with the presumption of continuance, were of some weight. However there was much other evidence, lay and expert, relating to the worker's impairment at the later date and the weight to be given to the admissions and the presumption of continuance was a question of fact for the Judge.” (emphasis added)
In the same case Justice Hodgson said at [57]:
“However, although an issue estoppel binds the parties as to the issues actually determined, they are not bound in relation to any different issue, not even where the combination of the original issue and extremely strong evidence would support a finding on the second issue: see O'Donel v. The Commissioner for Road Transport and Tramways (NSW) (1938) 59 CLR 744 at 763.” (emphasis added)
It is also important to note that Justice Handley spoke of ‘res judicata estoppel’ but Justice Hodgson spoke of ‘issue estoppel’. The distinction is important in the present case and was considered by the Full Bench of the South Australian Workers Compensation Tribunal in Pond v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Wunda Joinery) [2001] SAWCT 69 which said:
"19 The principles of res judicata and issue estoppel are both based on the premise that a party cannot re-litigate that which has already been decided. In the case of res judicata, one need go no further than the formal judgment or order of the relevant adjudicating authority. It speaks for itself. In the case of issue estoppel, one can go further to the sub-stratum of findings upon which the formal judgment or order is based, although there are limitations. These are sometimes described as ‘facts fundamental to the decision arrived at’: Hoystead v Commission of Taxation [1926] AC 155; Blair v Curran (1939) 62 CLR 464 at 531 - 533 per Dixon J (as he then was).”
For the present purposes the ‘formal order’ in respect of the Consent Award is the Certificate of Determination of 6 September 2004 set out earlier in this decision. However there are no ‘findings’ and no ‘formal judgment’ to be analysed to determine what ‘issues’ were decided because no issues were decided by the Commission in the First Claim. Therefore it seems reasonably clear that there is no ‘issue estoppel’ in the present case.
The question of res judicata is still relevant. The doctrine was considered by the High Court in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 597 (‘Anshun’) where Gibbs CJ, Mason and Aickin JJ said:
“The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.”
There is an extended sense in which expression res judicata is used. In Henderson v. Henderson (1843) 3 Hare, at p 115 (67 ER, at p 319) (‘Henderson’) the Vice-Chancellor expressed the principle in these terms:
“…where a given matter becomes the subject of litigation in, and of
adjudication by, a Court of competent jurisdiction, the Court requires the
parties to that litigation to bring forward their whole case, and will not
(except under special circumstances) permit the same parties to open the
same subject of litigation in respect of matter which might have been
brought forward as part of the subject in contest, but which was not brought
forward, only because they have, from negligence, inadvertence, or even
accident, omitted part of their case. The plea of res judicata applies,
except in special cases, not only to points upon which the Court was
actually required by the parties to form an opinion and pronounce a
judgment, but to every point which properly belonged to the subject of
litigation, and which the parties, exercising reasonable diligence, might
have brought forward at the time.”
The first thing to note about Henderson is that it refers to ‘adjudication by a court’. In the present matter there was no ‘adjudication’ by any tribunal in respect of the Consent Award. Nevertheless the question remains whether the general principles set out in Henderson as explained and applied in Anshun (now accepted as ‘Anshun Estoppel’) apply to the matter before me.
In considering these principles the High Court said at page 603 of Anshun:
“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.” (emphasis added)
Anshun Estoppel was explained by Justice Kirby in Lambidis v Commissioner of Police (1995) 37 NSWLR 320 at 322 (‘Lambidis’) where his Honour said that such an estoppel:
“…prevents a party from later relying upon a claim or defence which it has unreasonably refrained from raising in earlier proceedings which were so closely connected with the later subject matter that it might reasonably have been expected that the claim or defence would have been raised?” (emphasis added)
Anshun Estoppel depends on “considerations of public policy and the reasonableness of the conduct of litigants” (per Justice Kirby in Lambidis at 325)
The Appellant Worker would say of the present case that the issue of ‘causation’ was so ‘relevant’ to the ‘subject matter’ of the First Application that it was unreasonable of the Respondent Employer not to raise it rather than paying the sum of $3,000.00 found by the Appeal Panel Certificate and, therefore, the Respondent Employer should not be allowed to rely on it as a defence in the Second Application. Against that the Respondent Employer submits it was justified in not litigating the issue of causation in the First Application because the percentage loss and the dollar amount were both extremely modest. It made a ‘commercial decision’ to pay that amount. I agree with the Respondent Employer. Given the way the proceedings unfolded and the limited information available to the Respondent Employer in the First Application, it was not unreasonable of it to pay the modest amount claimed. However when faced with a claim for continuing weekly compensation from a worker now aged 45 it was entitled to scrutinise the claim more closely and to take all issues into account. It was also entitled to present all available evidence to the Arbitrator and invite a determination of the claim on the merits, including a determination on the issue of causation of the Appellant Worker’s incapacity. When one considers the medical evidence in detail there are no reasons of ‘public policy’ or ‘reasonableness’ which would or should prevent the Respondent Employer from relying on the evidence of the Appellant Worker's treating doctors in the hearing of the Second Application. Those reports were not available to it in the First Application and were only obtained under a Direction for Production issued in the Second Application.
In addition, it is relevant to note section 354(3) of the 1998 Act which states that the Commission is “to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form”. When one considers the whole of the medical evidence in the present matter, the ‘substantial merits’ of the case are overwhelmingly against the Appellant Worker. To find that Anshun Estoppel prevents the Respondent Employer from now arguing the true merits of the case would result in the absurd situation of a worker possibly succeeding when every doctor who has examined him and provided a report has concluded that the current condition in his left knee is no longer work related. In my opinion, ‘public policy’ requires, consistent with the legislative objectives set out on section 354 of the 1998 Act, that the Respondent Employer be allowed to argue the causation issue so that the case can be determined on its merits. Therefore, in the circumstances of this case, I do not believe any Anshun Estoppel arises that prevents the Respondent Employer from raising ‘causation’ as a defence to the Second Application.
Applying the authority of Dimovski to the present case it is clear that the Consent Award does create estoppels on the issue of injury and loss of use of the Appellant Worker's left leg at or above the knee resulting from that injury. Therefore the Respondent Employer is estopped from now denying that the injury sustained by the Appellant Worker at work on 18 July 2000 caused a permanent 4% loss of use of his left leg at or above the knee. That was correctly acknowledged by the Arbitrator at page three line one of the transcript (all transcript references are to the transcript forwarded to the parties on 18 October 2005) where he said:
“The findings of the Medical Panel are binding so far as the opinion of the AMS is related to the impairment. An order has already been made by Arbitrator Virtue with a finding in favour of the applicant for the 4 per cent that was found in his favour. There was, therefore, an acceptance by all parties that there was an injury that created that disability.”(emphasis added).
However that was not the issue in the matter before the Arbitrator in the Second Application. That claim was not for further lump sum compensation but was for weekly compensation. The estoppel did not bind the Arbitrator to find that the Appellant Worker had an incapacity as a result of that loss nor did it prevent him from considering all of the available evidence in determining the issue before him, namely, from what did the claimed incapacity result? The Arbitrator posed the question in this way: “is that incapacity after 1 July 2004 causally related to the injury on 18 July 2000?” (see transcript page six line 23). On this issue there was ‘much other evidence’ (to use the words of Handley JA) for the Arbitrator to consider.
The evidence before the Arbitrator consisted of reports from Dr Turnbull, one of the Appellant Worker's treating specialists. In his report to 1 August 2002 Dr Turnbull stated that he first saw Mr Davies on 30 August 2001. He took a history of an injury in July 2000 when the Appellant Worker slipped on stairs and developed lateral knee pain with swelling. An MRI scan was performed but did not show any meniscal tears. At arthroscopy on 10 October 2001 crystal deposits were found throughout the joint with some chondral changes in the medial compartment. Dr Turnbull last examined Mr Davies on 1 March 2002 when there was a report of some improvement in his pain but the effusion persisted together a restricted range of movement. Dr Turnbull felt the Appellant Worker's condition was that of “crystal arthropathy along with some early chrondal changes” which had been “aggravated by his fall at work.” He estimated that the aggravation “would last approximately six months”. In his report of 29 August 2002 Dr Turnbull stated that Mr Davies had a 5% disability in his left lower limb. He did not say if that disability had resulted from the work incident. He made no comment on the Appellant Worker's fitness for work.
The Arbitrator also had medical certificates from Dr Agagiotis, the Appellant Worker's general practitioner. Those certificates dated from August 2000 until July 2001. The last certificate diagnosed “(L) knee injury associated strain recurrence” which was “100% work related”. The doctor declared the Appellant Worker totally unfit for work from 2 July 2001 until 3 August 2001. It should be noted that as at the Arbitration hearing in March 2005 the only medical evidence from the Appellant Worker dealing with incapacity was about three years and six months old.
The Arbitrator also had the Appeal Panel Certificate of 28 July 2004, the Consent Award, certain correspondence between the Appellant Worker's solicitors and the GIO, and a statement from the Appellant Worker dated 21 February 2005. In that statement the Appellant Worker said at paragraph 17 that “by reason of my injuries and disabilities I do not believe I am capable of performing the handyman work that I was performing with the respondent”. It adds that his previous job involved repetitive bending, twisting, heavy lifting and standing. He said he had looked for suitable work but had been unable to find any. He said at paragraph 19 that “leaving aside the injuries sustained in the fall, I have no doubt that I would be able to return to all forms of work for which I am qualified”.
The Appellant Worker's employment with the Respondent Employer was terminated by letter dated 6 February 2002 “due to the fact that you have been unable to perform full duties for a period of 19 months” and because no alternative duties were available.
In its Reply filed on 20 December 2004 the Respondent Employer attached reports from Dr Blue dated 24 March 2003 and 1 November 2004. Dr Blue first examined the worker on 21 March 2003 and took a history similar that noted by Dr Turnbull. He states that the findings at arthroscopy of crystal deposits throughout the joint indicated that his symptoms “were due to gout or pseudogout” (Dr Blue report 24 March 2003 at page 1). The Appellant Worker complained to Dr Blue that he had recurrent swelling in his left knee and an inability to fully flex it. His complaint of swelling at the time of consultation was not confirmed on examination by the doctor. He presented with a gross limp on his left side, but was seen by the doctor to walk normally after the examination.
After a detailed examination Dr Blue concluded that he had no doubt the Appellant Worker's left knee problems were due to either gout or pseudogout that was temporarily aggravated by the incident of mid July 2000 when he stumbled down the stairs. He added that the Appellant Worker's “impairment of function is potential rather than real and does simply relate to his non work related relapses of acute gout” (see Dr Blue 24 March 2003 page 2). He thought the Appellant Worker was “completely capable of returning to all forms of work for which he is qualified by way of education and training including handyman work”. It is significant to note that the doctor conceded that the Appellant Worker did have symptoms in his left knee and that he had a ‘potential impairment’ of function as a result of those symptoms. I assume the doctor expressed himself in this way because he believed that it was necessary for symptoms to be constantly present in the knee before an ‘actual impairment’ arose. That is not correct. In Drayton v Crossroads Motors Pty Ltd (1995) 12 NSWCCR 207 the Court of Appeal held that the intermittent nature of the symptoms of dermatitis did not disentitle a worker from receiving compensation under section 66 of the 1987 Act. Dr Blue’s findings on examination were not inconsistent with the Appeal Panel Certificate assertion of a 5% loss of use of the left leg at or above the knee. Even with that ‘potential impairment’ the doctor felt that the Appellant Worker was fit for work.
At his review on 29 October 2004 Dr Blue noted that Mr Davies continued to have intermittent symptoms in his left knee whereby excessive walking or prolonged standing can produce knee pain. The Appellant Worker said he had seen several local doctors in Queensland following his move from Sydney. No reports were tendered from those doctors.
After examining the Appellant Worker for a second time Dr Blue confirmed his opinion that he thought Mr Davies was fit for work as a handyman. On this occasion the doctor concluded that there was no whole person impairment regarding the left knee. Unfortunately that is not the test to be applied for injuries sustained before 1 January 2002. The doctor’s findings on examination were sufficient to conclude that there was a loss of efficient use of the left leg at or above the knee, but in Dr Blue’s opinion that loss had not resulted from the work incident of July 2000.
The Arbitrator also had before him several reports from the Appellant Worker's first treating specialist, Dr Waller. In his report of 3 August 2000 Dr Waller thought Mr Davies might have sustained ligament damage and he arranged for an MRI scan. The scan showed some fluid around the iliotibial band but no tear of the lateral meniscus. He diagnosis was ‘lilotibial band friction syndrome’. He recommended physiotherapy and injected the affected area. In his report of 12 June 2001 Dr Waller recorded that “Mr Davies states that his left knee symptoms have resolved” but there was some minor right knee discomfort. The right knee discomfort resolved and forms no part of this case. On examination on 12 June 2001 the Appellant Worker had a full range of movement of his left knee, with no meniscal tenderness. There was no effusion in the knee. Dr Waller declared Mr Davies fit to return to work on full duties from 13 June 2001. At review on 24 July 2001 the Appellant Worker said his left knee had been swollen for a couple of weeks and he complained of pain and swelling. Dr Waller aspirated fluid from the knee.
Dr Waller prepared a report on 10 August 2001 addressed to the Appellant Worker's solicitors, but tendered by the Respondent Employer's solicitors. In that report Dr Waller states he made a clinical diagnosis of gout on or about 24 July 2001. On 31 July 2001 the Appellant Worker seemed to be making a reasonable recovery and the doctor allowed him to return to work the following week. Under ‘diagnosis’ Dr Waller refers to the Appellant Worker's iliotibial band friction syndrome following the work injury on 18 July 2000 and then adds “he has recently had an attack of synovitis, probably gout, affecting his left knee which is not work related”. He further stated that:
“He is unlikely to have any future problems as a result of injuries sustained at work on 18/7/00. He may, however, suffer further attacks of gout.
He needs no further treatment to his left knee as a result of injuries sustained on 18/7/00.
…In my opinion, he is unlikely to suffer any long term restrictions of his employment capabilities as a result of injuries to the left knee sustained at work on 18/7/00.”
After considering the above evidence the Arbitrator stated that he had “no alternative but to uphold the views of the applicant’s own specialists” (transcript page six line 48). The Arbitrator then engaged in a lengthy exchange with the legal representatives in the case. During that exchange the solicitor for the Appellant Worker outlined his arguments in detail so they would be recorded on the transcript. These arguments had already been outlined in full in the conciliation phase of the proceedings and there is no allegation of procedural unfairness. At page 13 of the transcript the Arbitrator states his conclusion and ultimate finding:
“However, I am faced with incontrovertible evidence, as I’ve already mentioned, that whatever the opinion of the Medical Appeal Panel was as to impairments that any incapacity from which Mr Davies suffers - I’ve got not doubt that he does suffer some - is not work related and, as I said before, I cannot ignore the opinions of his own medical specialists.
Therefore, and because those pre date the date compensation ceased by some years, it’s sufficient for me to find that there will be an award in favour of the respondent and there will be no order as to costs.”
There then follows an application that the Appellant Worker was entitled to an order in his favour for medical expenses under section 60 of the 1987 Act. That application was correctly refused by the Arbitrator because “it would be too inconsistent with my earlier decisions” (transcript page 15 line 19). There are additional reasons why the application for an order under section 60 should be refused: first, section 60 is an indemnity provision and there was no evidence that any medical expenses were outstanding (see NSW Sugar Milling Co-Operative Ltd v Manning (1998) 16 NSWCCR 606); second, if any expenses had been outstanding it is difficult to see how those expenses could have been for treatment ‘as a result of’ the injury on 18 July 2000 given the evidence of the treating specialists, and third, the Appeal Panel Certificate did not provide any support in respect of section 60 expenses.
The Appellant Worker submits that it was inappropriate for the Arbitrator to consider evidence that was not before the Commission in the First Application. I reject that submission. No objection was taken to the evidence tendered before the Arbitrator. In any event the Arbitrator was entitled to consider all relevant evidence in reaching his decision on incapacity. Whether the information could have been obtained earlier was irrelevant.
It was also submitted that “clearly the Arbitrator erred in finding that the additional material could override the findings made by the Appeal Panel as to causation” (Appellant Worker's submissions paragraph 18). For reasons I have already given I do not agree with this submission.
Next it was submitted that once the Respondent Employer agreed to the Consent Award it was bound by the findings made by the Appeal Panel. I agree with this submission so far as it relates to the 4% loss of use of the left leg at or above the knee. But on the issue of incapacity the Arbitrator was entitled (once it is determined that there is no Anshun Estoppel) to consider all of the evidence and reach his own conclusion. He did that and I see no error in his approach.
Last, it is submitted that the Arbitrator failed to give any or any proper consideration to all of the evidence before him (see Appellant Worker's submissions paragraph 21). I agree that the Arbitrator does not refer to all of the evidence in his reasons but he is not required to do so. All that is required is a statement that sufficiently sets out the reasons for his conclusions (see Rule 73 of the Workers Compensation Commission Rules 2003). That has been provided. The evidence that has not been referred to in the transcript has been considered by me on appeal and does not alter my conclusion.
I am not satisfied the Arbitrator has made any error of fact, law or discretion in his reasons and I confirm his orders.
ALTERNATIVE FINDING
If I am wrong in my application of the law of res judicata and estoppel, there is an alternative basis on which the Arbitrator's conclusion can and should be confirmed. Assuming that it was not open to the Arbitrator to accept the evidence of the Appellant Worker's treating doctors on the issue of causation, it is open to find, and I do find, that the Appellant Worker has no economic incapacity as a result of the 4% loss of use of his left leg at or above the knee. Such a finding is supported by Dr Blue’s report of 24 March 2003 referred to above and is not inconsistent with the evidence of the treating specialists, or the evidence of the Appeal Panel Certificate which was silent of question of incapacity. It is also relevant to note that the Appellant Worker's medical evidence on incapacity was more than three and a half years out of date at the time of the Arbitration and no evidence was called from any of the Appellant Worker's current treating doctors. A finding of a 4% loss of use of the leg does not automatically mean that the Appellant Worker has an economic incapacity on the open labour market. There is no correlation between loss of use of a limb on the one hand and economic incapacity on the other. In Anderson this issue was dealt with by Judge Neilson as follows at [24]:
“Mr Kearns rightly pointed out that it was not inconsistent that a worker have entitlements under s66 of the Act without being entitled to any weekly payments of compensation. The two are not inconsistent at all. Therefore I cannot see how, even if the result by way of comprise of the earlier proceedings created an estoppel, it creates any estoppel in connection with the current matter.”
DECISION
The decision of the Arbitrator dated 1 April 2005 is confirmed.
COSTS
No order is made as to costs of the appeal.
Bill Roche
Acting Deputy President
31 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
9
5
0