Eraring Energy v Graf
[2007] NSWWCCPD 6
•9 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Eraring Energy v Graf and anor [2007] NSWWCCPD 6
APPELLANT: Eraring Energy
FIRST RESPONDENT: Ferdinand Joseph Graf
SECOND RESPONDENT: Macquarie Generation
APPELLANT’S INSURER: Self-Insured
SECOND RESPONDENT’S INSURERS: CGU Workers Compensation (NSW) Limited from 1 January 1996 to 29 February 2000
Allianz Australia Workers Compensation (NSW) Limited from 1 March 2000
FILE NUMBER: WCC8390-06
DATE OF ARBITRATOR’S DECISION: 24 August 2006
DATE OF APPEAL DECISION: 9 January 2007
SUBJECT MATTER OF DECISION: Res Judicata; issue estoppel; effect of prior decision by Compensation Court of NSW; parking expenses; sections 60(2)(a) and 64 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Johnston Robinson Legal
FirstRespondent: Slater & Gordon
Second Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: The Arbitrator’s decision of 24 August 2006 is revoked and the following orders made in its place:
1.That the First Respondent is to make weekly payments to the Applicant under section 40 of the Workers Compensation Act 1987 for the period from 24 June 2005 to date and continuing in accordance with the provisions of the Act at the rate prescribed under sections 37(1)(a) for a worker and 37(1)(c)(i) for 1 dependent child, as adjusted;
2.That the First Respondent pay the Applicant up to $23,413.24 under section 60 of the Act for the Applicant’s medical and related expenses incurred to date for:
a.physiotherapy treatment from Stephen Armstrong Physiotherapy Pty Ltd;
b.treatment from Dr Nanda of the Greta Medical Centre;
c.related travel expenses for his attendances at Stephen Armstrong Physiotherapy Pty Ltd and Greta Medical Centre consisting of his costs of travel by private motor vehicle calculated in accordance with the rate set under s64(b) and his parking fees,
upon production of accounts and receipts and other documents to verify these expenses being incurred;
3.That there be an award for the Second Respondent.
4.That the First Respondent pay the Applicant’s costs as agreed or assessed.
5.The matter is certified complex.
The Second Respondent (Macquarie) is to pay the Appellant Employer’s (Eraring) and Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 12 September 2006 Eraring Energy (‘the Appellant Employer/Eraring’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 24 August 2006.
The First Respondent to the Appeal is Ferdinand Joseph Graf (‘the Respondent Worker/Mr Graf’). The Second Respondent to the Appeal is Macquarie Generation (‘the Second Respondent/Macquarie’). Before the Arbitrator Eraring was Second Respondent and Macquarie the First Respondent.
Mr Graf was born on 2 March 1949 and started work with Eraring (then known as ‘Elcom’) as a fitter and turner in 1970. He resigned in 1971 and worked in other areas until he returned to work with Eraring in 1977 at the Lidell Power Station. He remained with Eraring until 1 March 1996 when his employment was transferred to Pacific Power, which later changed its name to Macquarie, the Second Respondent.
Since 1984 Mr Graf has sustained numerous injuries in the course of his employment and has made several claims for compensation. His history can be summarised as follows:
a)on 3 July 1984 he injured his back when he jumped off the rear of a truck at Muswellbrook Power Station. He was off work for a period and claimed compensation. From that point on he suffered ongoing niggling problems with his back (statement Mr Graf 15 July 2005, paragraph six);
b)on 4 November 1989 he injured his low back whilst leaning over awkwardly to work on a machine. As a result he was placed on light duties for three months and then returned to normal duties;
c)on 31 July 1992 he suffered further injury to his back when he was attempting to remove the clinker build up from a boiler;
d)on 30 May 1993 he was changing a filter when he noticed an onset of low back pain, restriction and discomfort;
e)in 1994 his claim for the cost of physiotherapy treatment as a result of his injuries on 31 July 1992 and 30 May 1993 was heard and determined by Commissioner Ashford (as she then was) in the former Compensation Court of NSW (matter 31528 of 1992) (‘the first Court claim’). In a decision delivered on 25 May 1994 it was found that Mr Graf exacerbated a pre-existing back condition in the two incidents concerned and was entitled to the costs of physiotherapy treatment claimed ($2,550.00);
f)on 9 June 1994 he injured his back when lifting heavy items during a stock take;
g)on 10 October 1995 he injured his back when he slipped and jarred his back whilst attempting to perform a safety check on a heavy door. He was off work for a period and returned to work on light duties;
h)on 3 May 1995 Mr Graf’s claim for lump sum compensation against the Eraring (then known as the Electricity Commission of NSW t/as Pacific Power) (‘the second Court claim’) was settled by consent (‘the 1995 award’) in the Compensation Court of NSW (matter 32393 of 1994) in the following amounts: $4,845.00 in respect of 5% loss of use of the left leg at or above the knee, $4,845.00 in respect of 5% loss of use of the right leg at or above the knee, $11,628.00 in respect of 15% permanent impairment of back, $8,000.00 in respect of pain and suffering, and $3,682.00 for interest;
i)in March 1996 Mr Graf ceased to be employed by Eraring and commenced employment with Macquarie performing the same duties;
j)in April 1998, whilst working for Macquarie or one of its predecessors in title, he aggravated his back whilst performing his duties which included changing filters and performing regular maintenance on plant;
k)on 11 July 2000 Mr Graf further injured his back and legs whilst riding as a passenger in a truck when it drove through a deep trench and he was bounced heavily throughout the cabin;
l)on 8 December 2000 Judge Ashford decided a further claim (matter 42554 of 1998) by Mr Graf in the Compensation Court (‘the third Court claim’) in respect of unpaid medical expenses as a result of his back condition. In this claim both Eraring and Macquarie were the named Respondents. Her Honour found in favour of Mr Graf on the basis that his condition was a disease and that his employment with Macquarie had been a substantial contributing factor to the aggravation of that disease. On the basis of the authority of Colliar & Colliar t/as Mid North Coast Mushrooms v Bulley and another (2000) 19 NSWCCR 302 (‘Colliar’) her Honour ordered the relevant section 60 expenses to be paid by Macquarie as the last relevant employer;
m)on 28 June 2003 Mr Graf injured his back and legs whilst using a pipe bending machine when the clamp device holding the pipe fractured resulting in him jarring his back;
n)shortly after the June 2003 injury Mr Graf’s light duties were withdrawn and he was paid weekly compensation benefits under section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’);
o)on 27 February 2004 a section 66A agreement was signed by Mr Graf. This agreement provided for the payment by Macquarie of an additional $6,000.00 as a result of a 10% permanent impairment of the back as a result of the 11 July 2000 injury;
p)on 26 October 2004 and 18 January 2005 Macquarie’s worker’s compensation insurer, Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’), wrote to Mr Graf advising that liability for the cost of physiotherapy treatment would no longer be accepted, and
q)on 12 May 2005 Allianz gave Mr Graf notice under section 54 of the 1987 Act that liability for his claim was denied on the ground that his condition was no longer related to his injuries of 11 July 2000 or 28 June 2003. As required under the legislation, weekly compensation payments continued until 23 June 2005.
On 31 May 2006 an Application to Resolve a Dispute (‘the Application’) (matter 8390-2006) was filed in the Commission seeking compensation from Eraring and Macquarie. An earlier application naming only Macquarie (matter 18053-2005) was discontinued on 3 February 2006. The Application alleges the following injuries against Eraring:
(i)3 July 1984, injury to the low back and legs when Mr Graf jumped from the rear of a truck at Muswellbrook Power Station;
(ii)4 November 1989, injury to the low back and legs whilst working on a machine at Bayswater Power Station;
(iii)31 July 1992, injury to the low back and legs whilst attempting to remove the clinker build up from a boiler;
(iv)30 May 1993, injury to the low back and legs whilst changing a rear discharge filter;
(v)9 June 1994, injury to the low back and legs whilst participating in a stock take and lifting heavy items over 12 hours (this injury is listed as number ‘(vi)’ in the Application);
(vi)10 October 1994, injury to the low back and legs whilst attempting to perform a safety clearance on a 1 1/2 to 2 tonne door (this injury is listed as number ‘(v)’ in the Application);
(vii)nature and conditions of employment between 13 July 1984 and 1 March 1996
The Application alleges the following injuries against Macquarie:
(i)April 1998, aggravated low back and legs whilst performing normal duties;
(ii)11 July 2000, further injury to the back and legs whilst riding as a passenger in a truck when it drove through a steep trench and Mr Graf was bounced heavily throughout the cabin;
(iii)28 June 2003, injury to the low back and legs whilst using a pipe bending machine. The clamp device holding the pipe fractured and Mr Graf sustained a jarring injury to his back;
(iv)28 June 2003, in the alterative Mr Graf is suffering from a disease of gradual onset in accordance with section 15, or in the alterative, section 16 of the Act.
The matter was listed for conciliation and arbitration before a Commission Arbitrator on 22 August 2006. The matter could not be resolved and was heard and determined by the Arbitrator in Mr Graf’s favour. Liability between the two employers was apportioned as set out below.
Eraring seeks leave to appeal from the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
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. It is conceded that at least 20% of the amount awarded is in dispute on appeal and, therefore, the threshold in section 352(2)(b) is also satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
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 parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 24 August 2006, records the Arbitrator’s orders as follows:
“1.That the Respondents make weekly payments to the Applicant under section 40 of the Workers Compensation Act 1987 for the period from 24 June 2005 to date and continuing in accordance with the provisions of the Act at the rate prescribed under sections 37(1)(a) for a worker and 37(1)(c)(i) for 1 dependent child, as adjusted, with those payments to be apportioned between the Respondents such that the First Respondent [Macquarie] pay 70% and the Second Respondent [Eraring] pay 30%
2.That the Respondents pay the Applicant up to $23,413.24 under section 60 of the Act for the Applicant’s expenses incurred to date for:
a. physiotherapy treatment from Stephen Armstrong
Physiotherapy Pty Ltd;
b. treatment from Dr Nanda of the Greta Medical Centre;
c. related travel expenses for his attendances at Stephen Armstrong Physiotherapy Pty Ltd and Greta Medical Centre consisting of his costs of travel by private motor vehicle calculated in accordance with the rate set under s64(b) and his parking fees,
upon production of accounts and receipts and other documents to verify these expenses being incurred, with the First Respondent [Macquarie] to pay 90% of these expenses and the Second Respondent [Eraring] 10%.
3. That the Respondents pay the Applicant’s costs as agreed or assessed.”
The Arbitrator also determined the matter to be complex.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to find a res judicata estoppel due to the determination of the issues as to injury and liability by Judge Ashford in the third Court claim;
(b)his interpretation of the law relating to issue estoppel;
(c)determining that as Judge Ashford did not make an express finding in respect of every fact leading to, or relevant to her final conclusion of fact he was not precluded from making findings contrary to her Honour on the same evidence;
(d)effectively overruling, reviewing and/or reconsidering the decision of Judge Ashford in the third Court decision when there was no change in circumstances sufficient to support a review of her Honour’s decision, and
(e)in finding that Mr Graf was entitled to recover the cost of parking fees in addition to the claim for the ‘per km’ allowance for using a private motor vehicle as set out in section 64(b) of the 1987 Act.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 79; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
ARBITRATOR’S DECISION
In a carefully considered, well researched and detailed decision the Arbitrator:
·reviewed the lay and medical evidence relating to Mr Graf’s numerous accidents with Eraring and Macquarie;
·accepted the evidence of Dr Best, coupled with the evidence of Mr Graf, that the “heavy task that Mr Graf was continuously required to do in performing his employment with the second respondent [Eraring] and the first respondent [Macquarie] aggravated or exacerbated his lumbar disc disease” (transcript page 53 line 58);
·accepted that Mr Graf sustained the specific injuries alleged in the Application and also an injury “in the sense of a continual aggravation from the duties he was performing throughout his employment, continual aggravation, that is, of the lumbar disc disease” (transcript page 54 line 17);
·referred to the three prior Court claims (transcript pages 54 to 55);
·analysed in detail the decision of Judge Ashford in the third Court claim, noting that her Honour found “that there was an injury in the form of an aggravation of a diseased lumbar spine and that the claim for the specific medical expenses that were the subject of those proceedings was reasonably necessary for that particular injury” (transcript page 56 line 12) and that Mr Graf had also sustained injury on 3 July 1984, 4 November 1989, July 1992 and 30 May 1993 (transcript page 56 line 19);
·considered the argument put by Eraring that by reason of the findings made by Judge Ashford Mr Graf and Macquarie were estopped from asserting that there were any injuries arising out of or in the course of the Mr Graf’s employment with Eraring;
·referred to the Court of Appeal authorities of Dimovski and Mecha and concluded that those cases establish “that if you have a specific incident that acts upon a disease process, such as here a spondylitic spine, aggravating that or making symptomatic that disease or worsening the symptoms of the disease, then section 16 [of the 1987 Act] has no operation because the date on which the specific incident occurred, that is, the date on which the personal injury occurred, is the date of the personal injury. There is no need to have recourse to section 16” (transcript page 59 line 18);
·referred to the High Court authorities of Blair v Curran (1939) 62 CLR 464 (‘Blair’), Ramsay v Pigram (1968) 118 CLR 271 (‘Ramsay’) and Kuligowski v Metrobus (2004) 220 CLR 363 (‘Kuligowski’) and noted that those cases establish that an estoppel is available to prevent the assertion in subsequent proceedings of a matter of fact or law in a sense contrary to that which the “precise matter” has already been necessarily and directly decided by a competent tribunal (transcript page 61 line 35). The claim determined by Judge Ashford was that the medical expenses claimed in those proceedings were “reasonably necessary for the treatment of an injury consisting of the aggravation of a diseased spine” (transcript page 62 line eight) and the fundamental or cardinal issue to that conclusion was “that there was an injury consisting of a continuing aggravation or exacerbation of a diseased spine” (transcript page 62 line 10) and her Honour did not find that there were no frank injuries in 1984, 1989, 1992 and in 1993. Therefore, Mr Graf and Macquarie were not estopped from alleging that those injuries occurred;
·Mr Graf’s incapacity resulted both from the frank incidents in 1984, 1989, 1992, 1993 with Eraring and also as a result of an injury in the form of an aggravation of his lumbar disease caused over the course of his employment with both Eraring and Macquarie (transcript page 63 line 50);
·the injury consisting of the aggravation was primarily responsible for Mr Graf’s incapacity;
·the injury in 1984 initiated Mr Graf’s problems and the aggravation substantially worsened it (transcript page 64 line 12), therefore, liability for weekly compensation should be apportioned 70% to Macquarie and 30% to Eraring;
·Mr Graf’s claimed section 60 expenses were reasonably necessary treatment as a result of the found injuries;
·liability for the section 60 expenses be apportioned 90% to Macquarie and 10% to Eraring, and
·Mr Graf was entitled to recover his “travelling expenses reasonably necessarily incurred to obtain treatment” (transcript page 65 line 52) which included his parking fees because section 64 of the 1987 Act does not limit travelling expenses to the cost of travel by motor vehicle.
ERARING’S SUBMISSIONS
Eraring makes the following submissions:
a)the injuries alleged in the third Court claim before Judge Ashford were the same as the injuries alleged in the Application before the Arbitrator in the present matter save that the 3 July 1984 injury is referred to as the 13 July 1984;
b)the judge was required to determine whether the worker had suffered an injury as defined in the 1987 Act and whether his employment was a substantial contributing factor to any injury;
c)the judge was not satisfied that the worker suffered an injury as defined in section 4(a) of the 1987 Act;
d)her Honour referred to her finding in the second Court claim that Mr Graf suffered an “exacerbation of a pre-existing back condition as the result of employment between July 1992 and May 1993” (judgment 8 December 2000 paragraph 33) and held that “since that finding there has been a continuing exacerbation of the disease process, even since April 1998 when the Applicant went on to permanent light duties. I am satisfied that his employment with the second Respondent since March 1996 continues to be a substantial contributing factor to the exacerbation or aggravation and this had continued to the present time including the periods when on restricted duties.” (judgment 8 December 2000, paragraph 34);
e)the decision of 8 December 2000 established that Mr Graf suffered an injury as defined in section 4(b)(ii) of the 1987 Act;
f)as a result of that finding her Honour applied section 16 of the 1987 Act and ordered Macquarie to pay all of Mr Graf’s claimed section 60 expenses;
g)precisely the same issues were in dispute before the Arbitrator and res judicata estoppel applies;
h)reliance is placed on the decision by Dixon J (as he then was) in Blair at 531-2;
i)the 8 December 2000 decision by Judge Ashford was not challenged on appeal;
j)the Arbitrator was wrong to hold that Judge Ashford was considering a different injury to the injuries alleged in the Application before him;
k)the proceedings before the Arbitrator involved the same parties, the same injuries (as against Eraring), and the “same issues arise as to whether compensation is payable, and if so, the employer responsible for making payments of compensation to the worker” (Macquarie’s submissions page five);
l)the same issues were determined by Judge Ashford on 8 December 2000 and Macquarie relies on the Court of Appeal decision of Tiufino v Warland [2000] NSWCA 110;
m)the general principle of issue estoppel also applies to the circumstances of the case;
n)the Arbitrator erred in finding that the question before him had not already been decided by Judge Ashford because the applications in both proceedings involved the same injuries;
o)it does not matter that the claim before Judge Ashford was only for section 60 expenses and the claim before the Arbitrator was for section 60 expenses and weekly compensation as there is no distinction in the Workers Compensation Acts and the case law in regard to the requirements to establish an entitlement to compensation pursuant to the said Acts;
p)Judge Ashford did not make any finding in either the first Court claim or the third Court claim that Mr Graf suffered any injury as defined in section 4(a) of the 1987 Act;
q)the Arbitrator erred in finding that because Judge Ashford did not make a finding that there was no injury or no frank injury in regard to the various incidents pleaded in the first Court claim or the third Court claim this permitted him to make findings of specific injury under section 4(a) contrary findings made by Judge Ashford in the earlier Court claims;
r)the Arbitrator wrongly treated the evidence of Mr Graf in his statement of 15 July 2005 as new material that had not been before Judge Ashford;
s)Dr Bodel’s report of 5 May 2005 is of no value as he was not aware of the findings made by Judge Ashford as to aggravation of disease;
t)Judge Ashford was required to consider an allegation of injury due to a number of specific incidents during the course of Mr Graf’s employment with Eraring and a nature and conditions claim against Macquarie. Her Honour considered the evidence and concluded at [29] of the 8 December 2000 decision that “the medical evidence is supportive of a conclusion of continuing aggravation or exacerbation of that pre-existing condition which is clearly a disease process”;
u)her Honour set out the evidence and her determination of the issues before her, namely, whether Mr Graf suffered injury as a result of a section 4(a) injury or injuries, or as a result of a section 4(b)(ii) injury in the nature of an aggravation of a disease. Her Honour then found that Mr Graf’s injury was a section 4(b)(ii) injury as a result of an aggravation of a disease and therefore Macquarie was liable for the section 60 expenses claim in the third Court claim;
v)it is not necessary for a judge to make an express finding in respect of every fact leading to a final conclusion of fact;
w)it is “clearly implied in the final decision made” (Eraring’s submissions, page 11) by Judge Ashford on 8 December 2000 that Mr Graf did not suffer any section 4(a) injuries on the dates alleged in the pleadings before her;
x)the Arbitrator erred in effectively embarking on a “rehearing reconsideration of the matters previously determined” by Judge Ashford (Eraring’s submissions, page 12);
y)the Commission should not vary an existing order or decision unless there is evidence of a change in circumstances;
z)the Arbitrator may have sought to approach the case on the basis that it was a ‘review’ under section 55 of the 1987 Act;
aa)no question of a review arises and there was no evidence of a change of circumstances after the decision of 8 December 2000 to justify a ‘review’;
bb)the Arbitrator wrongly determined that the treatment undertaken by Mr Graf after liability was declined by Macquarie was different to the treatment that was required up to 8 December 2000. The treatment required and the claim made was of the same kind, namely, attendances on the general practitioner, physiotherapy and travel expenses;
cc)in regard to the claim for weekly compensation the deemed date of injury under section 16 is the date on which Mr Graf ceased work in June 2003 (P & O Berkeley Challenge Pty Ltd v Alfonso (2000) 49 NSWLR 481;
dd)the principles in Rail Services Australia v Dimovski & anor [2004] NSWCA 267 (‘Dimovski’) do not disturb the findings of Judge Ashford because:
(i) in that case (and in Australian Conveyor Engineering Pty Limited v Mecha Engineering Pty Limited (1998) NSWLR 606 (‘Mecha’)) the decisions by the respective trial judges were appealed to the Court of Appeal. Judge Ashford’s decision was not appealed and is therefore final and conclusive;
(ii) Dimovski and Mecha both involved factual findings of injury under section 4(a), not section 4(b)(ii) and, therefore, section 16 had no application;
(iii) Judge Ashford made no finding of a section 4(a) injury but found that Mr Graf suffered from a pre-existing disease which had been aggravated in the course of his employment with both respondents;
(iv) therefore, section 16 applied and the last employer (Macquarie) was liable to pay the claimed section 60 expenses;
ee)in regard to the claim for parking expenses it is submitted that section 64(b) of the 1987 Act provides for the maximum payable in regard to the private use of a motor vehicle and that amount includes all maintenance and other expenses incurred as a consequence of the use of the vehicle.
MACQUARIE’S SUBMISSIONS
Macquarie submits that:
a)the issues that arise in the current Application were not dealt with by Judge Ashford;
b)her Honour’s findings were limited to the section 60 expenses claimed in those proceedings;
c)in the second Court claim an award was made in favour of Mr Graf against Eraring (in its former guise as Electricity Commission of NSW) in respect of a 15% permanent impairment of his back and a 5% loss of efficient use of each leg at or above the knee due to injury suffered by Mr Graf with Eraring;
d)based on Dimovski Eraring is estopped from arguing that as at 3 May 1995 Mr Graf had not suffered an injury during his employment with it which resulted in him sustaining the losses and impairments noted in the 1995 award;
e)there is no evidence supporting an improvement in Mr Graf’s condition since the 1995 award;
f)given the significant percentages set out in the 1995 award the Arbitrator did not err in finding that an apportionment under section 22 of the 1987 Act should apply;
g)given the significant impairments agreed to by Eraring in the 1995 award it is arguable that the Arbitrator’s apportionment of liability under section 22 was not appropriate and that liability should have been apportioned 50% to each employer, and
h)reliance is placed on the submissions made by Macquarie’s counsel at the Arbitrator hearing which were to the following effect:
(i)Judge Neilson held in Bruce v Grocon Ltd (1995) NSWCCR 247 (‘Bruce’) that the operation of estoppel in the Compensation Court is limited;
(ii)the extent of the estoppel resulting from Judge Ashford’s decision is that the treatment expenses then claimed were reasonably necessary on account of injuries found to have occurred in the course of Mr Graf’s employment with Macquarie (transcript page 38 line 19-29);
(iii)that was all her Honour had to find and that is all she found;
(iv)her Honour did not find that Mr Graf had sustained no other injuries in the course of his employment (transcript page 39 line five), and
(v)the estoppel cannot extend beyond the matters that were the subject of the claim (transcript page 40 line three).
RESPONDENT WORKER’S SUBMISSIONS
The Respondent Worker makes no submissions on the estoppel or apportionment issues.
In respect of the claim for parking expenses Mr Graf relies on the submissions made by his counsel at the Arbitration hearing where it was submitted that section 64 does not prevent the recovery of parking fees as those fees were part of Mr Graf’s total travelling expenses (transcript page 17 line 18). In addition it was submitted that in any event the Commission has a discretion to order a greater amount in appropriate circumstances.
DISCUSSION AND FINDINGS
Res Judicata and Issue Estoppel
The principle of res judicata estoppel may be stated as follows: where a final decision has been pronounced on the merits by a court or tribunal with jurisdiction over the parties and the subject matter, any party to such litigation, as against any other party is estopped in any subsequent litigation from disputing such decision on the merits (The Doctrine of Res Judicata by Spencer Bower, Turner and Handley 3rd edition, 1996, paragraph nine (‘Spencer Bower’)).
The application of the doctrine to proceedings seeking compensation under the 1987 Act has been considered by Judge Neilson in Bruce v Grocon Ltd (1995) 11 NSWCCR 247 at 264 (‘Bruce’) where his Honour said:
“Of course the doctrine of res judicata, meaning cause of action estoppel, and also the doctrine of issue estoppel can have no application in a claim for reconsideration pursuant to section 17(4). It is to overcome such principles that the power of reconsideration exists. That is what Rainbow J was referring to in Humphreys v. Shell Co of Australia Ltd. However, in my view, absent an application under section 17(4) of the Compensation Court Act, any determination made by this Court does create an issue estoppel: see Somodaj v. Australian Iron & Steel (1963) 109 CLR 285. Therefore, there is no reason in principle why a determination of this Court could not in appropriate circumstances create a cause of action estoppel, absent an application under section 17(4).”
In his decision Judge Neilson referred to Salmon Street Ltd (In Liq) v Jorgensen (1991) 56 SASR 158 where King CJ held at 161:
“The Workers Compensation Act does not create a single cause of action for compensation for injury sustained in a particular accident. A worker may under this Act, as was the case under the Commonwealth Employees Compensation Act 1930 (Cth) which was considered in Commonwealth v Matheson (1955) 93 CLR 403, be compensable separately in respect of disparate injuries sustained in the same accident and may pursue separate claims in respect of such injuries. Thus where a worker sustained a leg injury and a back injury in the same accident, it was held that the receipt of a lump sum for the leg injury did not disentitle the worker to subsequent weekly payments in respect of the back injury: see Lee v Commonwealth (1971) 18 FLR 400.”
King CJ continued at 162:
“In my opinion a worker who seeks to have a disputed right to compensation in respect of a particular injury determined by the Industrial Court is not required to raise in the proceedings all injuries or impairments which he has sustained in the accident or even all injuries or impairments of which he is then aware. He may obtain an award in respect of one or more injuries or impairments, and subsequently pursue his claim in respect of other injuries or impairments suffered in the same accident. If, however, a claim in respect of a particular injury or impairment is pleaded in the proceedings and is the subject of a determination either granting compensation or dismissing the claim, the claim in respect of that injury or impairment merges in the determination and subsequent proceedings for the determination of a disputed claim in respect of the same injury or impairment would be barred as res judicata. It is therefore necessary to examine the pleadings in the prior proceedings and the terms of the award in order to determine whether the subsequent claim is barred.”
Judge Neilson also referred to the decision of Thompson v George Western Foods Ltd (1990) 6 NSWCCR 370 where McGrath CJ said at 375:
“It is clear that issue estoppel can arise as a consequence of an adjudication on a particular issue, which would prevent a party bringing, or defending, a claim in relation to a different benefit. I do not consider that there is any 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. In doing this he may in some cases risk being penalised in costs, or risk failing on an issue which would debar the other claim. If he lost on the issue of injury he could not succeed in gaining compensation for a consequential benefit, whether it was included in the original application, or not.”
The compensation payable under the1987 Act is not the same as an action for common law damages where compensation is recovered once and for all. The situation referred to by King CJ is analogous to the situation under the NSW compensation legislation. There is no single ‘cause of action’ in workers compensation cases. A worker will have several different rights that he or she can pursue at different times. The present case is a good example of that. Mr Graf had a right to compensation for his section 60 expenses in 2000. He pursued that right in the third Court claim heard by Judge Ashford. However, at that time he presumably was suffering no economic loss and therefore had no right to claim weekly compensation. That right arose when he ceased work at a later time because his light duties were withdrawn.
Judge Ashford’s decision did not determine all issues relating to Mr Graf’s entitlement to compensation. Therefore, the extent of any res judicata estoppel must be determined in the light of that fact. In determining the parties’ rights and obligations in 2000 Judge Ashford had to determine the primary issue of injury and whether the claimed section 60 expenses were reasonably necessary as a result of that injury and, then, if appropriate, apportion liability between Eraring and Macquarie.
In determining those issues her Honour found:
·that Mr Graf was suffering from an underlying degenerative condition which was aggravated or exacerbated in the course of his employment from time to time (judgment 8 December 2000, paragraphs 22 and 27);
·that Mr Graf’s physiotherapy, attendances on his general practitioner and attendance at the nautilus program were reasonably necessary treatment within the terms of section 60 of the 1987 Act (judgment 8 December 2000, paragraph 23);
·Mr Graf’s employment with Macquarie commenced in March 1996 where he performed the same duties he previously performed with Eraring until he was placed on permanent light duties in about March 1998 (judgment 8 December 2000, paragraph 28);
·the medical evidence supported a conclusion of continuing aggravation or exacerbation of a pre existing condition which was “clearly a disease process” (Judgment paragraph 29);
·since the judge’s finding in May 1994 that Mr Graf suffered exacerbation of a pre existing back condition there had been “continuing exacerbation of the disease process, even since April 1998 when the applicant went onto permanent light duties” (judgment 8 December 2000, paragraph 34);
·her Honour was satisfied that Mr Graf’s employment with Macquarie since March 1996 was a substantial contributing factor to the exacerbation or aggravation and continued to the time of her decision including the periods when Mr Graf was on restricted duties (judgment 8 December 2000, paragraph 34), and
·noting the decisions of P & O Berkeley Challenge Pty Ltd v Alfonso (2000) 48 NSWLR 481 and Collier v Bulley & anor (2000) 19 NSWCCR 303 (‘Collier’) and by the operation of section 16 of the 1987 Act the section 60 expenses were payable by Macquarie as the last employer (judgment 8 December 2000, paragraph 35).
As a result of the above findings her Honour ordered Macquarie to pay all of Mr Graf’s claimed section 60 expenses and made an award in favour of Eraring. No appeal was lodged from this decision and it is therefore taken to be binding and conclusive. No application was made for this decision to be reconsidered in the light of the later Court of Appeal decision of Dimovski, which declined to follow Collier.
In my opinion Judge Ashford’s decision does create a res judicata estoppel but only in respect of the limited issues it decided as at 8 December 2000, namely, Mr Graf’s entitlement to section 60 compensation up to 8 December 2000. That entitlement has merged in the judgment of that date. It would not be permissible for Mr Graf to now claim for section 60 expenses incurred before the 8 December 2000 judgment. However, the question of his entitlement to section 60 compensation and or weekly compensation after that date was not and could not have been decided as it was not claimed and there was no adjudication on those potential future claims. Those rights were still to be determined. There is no res judicata flowing from the judgment in respect of future claims.
However, the above conclusion does not end of the matter as Eraring also argues that there is an issue estoppel arising from Judge Ashford’s decision. The distinction between res judicata and issue estoppel 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).”
The distinction was also discussed by the Federal Court in Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (recs and mgrs apptd – in liq) and others (1993) 115 ALR 377 at 381 where Northrop and Lee JJ said:
“In the first place, if A sues B to judgment and in subsequent
proceedings between them a plea of res judicata is raised, the
primary question will be whether the cause of action in the later
proceedings is the same as that which was litigated in the former
proceedings. This was the question which arose in the well-known
case of Brunsden v. Humphrey (1884) 14 QBD 141. It was held
there that the causes of action were not the same. The injuria
was the same but the damnum was different, and, since damage was
‘of the gist’ of the particular action, the causes of action were
not the same. The plea therefore failed. On the other hand, if
A sues B to judgment and in subsequent proceedings between them a
plea of issue estoppel is raised, the plea may succeed although
the causes of action in the two cases are entirely different.
The question will be whether an issue of fact or law which is
raised in the later proceedings was an issue of fact or law which
was also raised in the earlier proceedings and therein
determined.In the second place, it follows from the very nature of the
difference between the plea of res judicata and the plea of issue
estoppel that different materials are relevant in each case.
Where the plea is of res judicata, only the actual record is
relevant. Where the plea is of issue estoppel, any material may
be looked at which will show what issues were raised and decided.
Reasons given for the judgment pronounced are likely to be
particularly important for this purpose: see Ord v. Ord (1923) 2
KB, at p 440 and Marginson v. Blackburn Borough Council (1939)
2 KB, at p 437. Both those cases were cases of issue estoppel
and were clearly treated as such, though I think, with great
respect, that both illustrate the unfortunate absence of a clear
legal terminology, to which I have already referred.
It should perhaps be added that, as Dixon J pointed out in Blair
v. Curran (1939) 62 CLR, at p 532, the estoppel, so far is it
applies to facts, is confined to ultimate facts. It does not
extend to mere evidentiary facts.” (emphasis added)
Eraring relies on the judgment of Dixon J in Blair at 531-3 where his Honour said:
“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter [53], the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
In the phraseology of Lord Shaw, ‘a fact fundamental to the decision arrived at’ in the former proceedings and ‘the legal quality of the fact’ must be taken as finally and conclusively established (Hoystead v. Commissioner of Taxation[54]). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.
The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order.” (emphasis added)
Thus it is argued that there were essential or fundamental matters of fact and law that Judge Ashford had to decide and did decide in order to determine the case before her on 8 December 2000 that are, in the absence of an appeal or application for a reconsideration, binding on the same parties in the Application before the Arbitrator in the present matter. Macquarie argues that there were no such findings because the ‘issues’ before the Arbitrator (section 60 expenses after 8 December 2000 and weekly compensation from 24 June 2005) were different to the ‘issue’ before Judge Ashford (section 60 expenses up to 8 December 2000).
The case of Tiufino v Warland [2000] NSWCA 110 is instructive. In that case the appellant and respondent were drivers involved in a motor vehicle collision. The respondent sued the appellant for property damage to her vehicle in the Local Court. The appellant then commenced proceedings against the respondent in the Supreme Court claiming damages for her personal injuries. The proceedings in the local court were heard first and the magistrate made findings as to negligence and contributory negligence. Following that decision the respondent argued in the Supreme Court that there was a res judicata or issue estoppel as a result of the magistrate’s decision. That argument succeeded before Dowd J. The Court of Appeal rejected the appellant’s argument that separate issues where involved because one claim was for personal injury and the other for property damage. Handley JA, with whom Mason P and Powell JA agreed, delivered the Court’s decision. It was held that though the causes of action in the Local Court and the Supreme Court were different that did not exclude an issue estoppel because the duty of care was the same. In highway cases there is a single duty of care owed to a person in respect of his or her property and bodily safety.
In compensation cases under the 1987 Act there may be several different causes of action but the entitlement to compensation always requires as a starting point that the same test of causation be satisfied. This issue was considered in Sidiropoulos v Able Placements Pty Ltd (1998) 16 NSWCCR 123 where Judge Neilson held that there is no difference between the causation tests under sections 25 and 33 and the tests under sections 66 and 67. Section 66 talks about “the loss of a thing” mentioned in the Table “as the result of an injury”. Section 25 says “if death results from an injury”. Section 33 says, “if total or partial incapacity for work results from an injury”. In Dimovski at [35] Handley JA considered and approved Judges Neilson’s reasoning. Similarly, section 60 is expressed in terms of expenses “as a result of an injury”. I see no reason why a different approach should be taken to the issue of causation in respect of section 60 expenses compared to weekly compensation, subject of course to the fact that with any claim for section 60 expenses the worker has to prove not only the relevant treatment has result from the alleged injury but also that the treatment is “reasonably necessary” as a result of that injury.
The causation issue was an essential ingredient in Mr Graf’s claim that Judge Ashford had to determine before Mr Graf was entitled to recover compensation. That issue was decided by her Honour finding that Mr Graf’s injury was an injury in the nature of an aggravation of a disease under section 4(b)(ii). That was a fundamental finding that had to be made regardless of the kind of compensation sought by Mr Graf. Having made that finding her Honour then had to consider the question of apportionment and the application of section 16 of the 1987 Act. Her Honour does not refer to apportionment in terms but her factual findings and application of Collier meant that the whole of the compensation Mr Graf was found to be entitled to recover had to be paid by Macquarie with an award in favour of Eraring. Given the factual and legal findings made by her Honour, that conclusion would have followed no matter what compensation had been claimed by Mr Graf in the third Court claim.
It is true that a claim for weekly compensation is a separate cause of action to a claim for section 60 expenses and that additional matters must be established before a worker is entitled to an award of weekly compensation, but the findings made by her Honour as to ‘injury’ and her application of Collier were essential issues that had to be determined in the third Court claim regardless of the kind of relief sought by Mr Graf. Those findings established the nature of Mr Graf’s injury and the issue of apportionment of liability between Eraring and Macquarie. Therefore, they are findings that are binding on the same parties in subsequent litigation.
It may well be that in light of Dimovski the decision of Collier was wrongly decided. However, Macquarie never challenged her Honour’s decision on appeal and in these circumstances the findings by Judge Ashford on liability as between the two relevant employers is binding.
The essential difference between ‘res judicata estoppel’ and the ‘doctrine of judicial precedent’ is discussed in Spencer Bower at paragraph 16 where the authors note:
“Under the former [res judicata estoppel] a final decision in fact or law by any court having jurisdiction precludes either party (except on appeal) from again raising the same issue against the other in any court. The doctrine of judicial precedent, on the other hand, is not concerned with issues between parties. Its effect is to declare a decision on law to be binding upon all persons, whether parties or not, in all courts of inferior, and in some cases of co-ordinate, jurisdiction.”
Therefore, even if it is accepted that Collier is no longer correct, in the absence of an appeal, Judge Ashford’s decision of 8 December 2000 is binding on the parties on the essential issue of causation and apportionment between Eraring and Macquarie.
It follows that the Arbitrator was in error when he held that the issue before him was different to the issue decided by her Honour. The fundamental or threshold issues of causation and liability were, in the circumstances of this case, identical to those decided by Judge Ashford and her Honour’s findings bound the parties in the claim before the Arbitrator. Therefore, I find that the Arbitrator was in error in failing to uphold Eraring’s argument on issue estoppel and in apportioning liability contrary to the findings made by her Honour.
Parking Expenses
Mr Graf’s claim for section 60 expenses included a claim for the parking expenses incurred by him when he used his private motor vehicle to attend for physiotherapy treatment the Arbitrator found to be reasonably necessary.
Section 60(2)(a) provides:
“(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are:
(a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and
(b) …” (emphasis added)
Section 64 provides:
“64 Rates applicable for car travel associated with treatment
(cf former s 10 (1B))
If the cost referred to in section 60 (2) (a) or the amount referred to in section 60 (2) (b) includes the cost of, or an amount for, travel by private motor vehicle, that cost or amount shall be calculated at:(a) the rate of 28 cents per kilometre, or
(b) where some other rate has been fixed by the Authority by order published in the Gazette—that other rate.”
The above rate per kilometre has been adjusted over time and for the period from 1 July 2000 to 30 September 2005 was 42 cents and from 1 October 2005 was 55 cents.
In my view a worker is entitled to recover his necessary and reasonable travelling expenses incurred in obtaining treatment. If that cost includes the cost of travel by private motor vehicle, the cost is calculated at the rate set out from time to time in the Gazette. The cost of parking is part of the overall travelling expenses incurred just as the cost of a meal would be recoverable if a person drove from the country to a doctor’s appointment in the city. The kilometre allowance is not intended to cover the cost of meals reasonably necessary in the course of such a journey. Similarly, the cost of parking is not covered by the allowance. If it is otherwise a reasonable and necessary expense under section 60(2)(a) it is recoverable. The Arbitrator made no error of fact, discretion or law in allowing the cost of parking in the present case.
DECISION
Paragraphs one and two of the Arbitrator’s decision of 24 August 2006 are revoked and the following orders made in there place:
“1.That the First Respondent is to make weekly payments to the Applicant under section 40 of the Workers Compensation Act 1987 for the period from 24 June 2005 to date and continuing in accordance with the provisions of the Act at the rate prescribed under sections 37(1)(a) for a worker and 37(1)(c)(i) for 1 dependent child, as adjusted;
2That the First Respondent pay the Applicant up to $23,413.24 under section 60 of the Act for the Applicant’s medical and related expenses incurred to date for:
a. physiotherapy treatment from Stephen Armstrong
Physiotherapy Pty Ltd;
b. treatment from Dr Nanda of the Greta Medical Centre;
c. related travel expenses for his attendances at Stephen Armstrong Physiotherapy Pty Ltd and Greta Medical Centre consisting of his costs of travel by private motor vehicle calculated in accordance with the rate set under s64(b) and his parking fees,
upon production of accounts and receipts and other documents to verify these expenses being incurred;
3.That there be an award for the Second Respondent.
4.That the First Respondent pay the Applicant’s costs as agreed or assessed.
5.The matter is certified complex.”
COSTS
The Second Respondent (Macquarie) is to pay the Appellant Employer’s (Eraring) and Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
9 January 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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