Etherton v ISS Property Services Pty Limited
[2019] NSWWCCPD 53
•28 October 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Etherton v ISS Property Services Pty Limited [2019] NSWWCCPD 53 |
| APPELLANT: | Wayne Ronald Etherton |
| RESPONDENT: | ISS Property Services Pty Limited |
| INSURER: | Self-insured |
| FILE NUMBER: | A1-6255/18 |
| ARBITRATOR: | Mr J Wynyard |
| DATE OF ARBITRATOR’S DECISION: | 18 March 2019 |
| DATE OF APPEAL DECISION: | 28 October 2019 |
| SUBJECT MATTER OF DECISION: | Estoppel; Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 considered; Workers Compensation Legislation Amendment Act 2018; Pt 19L of Sch 6 of the Workers Compensation Act 1987 considered |
| PRESIDENTIAL MEMBER: | President Judge Phillips |
| HEARING: | On the papers |
| REPRESENTATION: | Counsel: |
| L D Robison (Appellant) | |
| Solicitors: | |
| Turner Freeman (Appellant) | |
| Astridge & Murray (Respondent) | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s Certificate of Determination dated 18 March 2019 is confirmed. |
INTRODUCTION
This appeal challenges the Arbitrator’s finding that the worker, Mr Wayne Etherton, is estopped from pursuing his claim for permanent impairment compensation due to the entering of consent orders in an earlier matter. This appeal further challenges the Arbitrator’s decision to proceed to determine a medical dispute relying upon the Workers Compensation Legislation Amendment Act 2018 (the 2018 amending Act) effective 1 January 2019.
BACKGROUND
On 15 April 2015, Wayne Ronald Etherton injured himself when he lost his footing and fell forward on his right leg whilst working as a cleaner for ISS Property Services Pty Limited (the respondent/employer).
On 24 April 2015 Mr Etherton completed a worker’s injury claim form. On 15 May 2015, the employer issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing Mr Etherton’s claim on the following bases:
“1. DECISION AND MATTER(S) IN DISPUTE
·The circumstances and mechanism of injury occurring on 15 April 2015 are inconsistent and in dispute. Reliance is placed on Section 4 of the Workers Compensation Act 1987.
·The nature and extent of the injuries sustained on 15 April 2015 is in dispute. Reliance is placed on Section 4 of the Workers Compensation Act 1987.
·Your employment was not a substantial contributing factor to any injury sustained on 15 April 2015 within the meaning of Section 9A of the Workers Compensation Act 1987.
·You have fully recovered from the effects of any injury sustained on 15 April 2015.
·Any disability, incapacity or requirement for treatment is due to non-work related conditions or events.
·The degree of incapacity suffered by you is in dispute.
·You have no entitlement to weekly payments of compensation. Reliance is placed generally on Section 33 of the Workers Compensation Act 1987.
·It is disputed that you have any entitlement to payment of medical and related treatment expenses under Section 60 of the Workers Compensation Act 1987.”
On 9 February 2016, Mr Etherton filed an Application to Resolve a Dispute (ARD) (Matter Number 658/16) for weekly compensation and the cost of proposed right total knee replacement surgery. Part 4 of the ARD pleaded the occurrence of an injury to Mr Etherton’s right knee on 15 April 2015. The injury was described as:
“Aggravation of osteoarthritis in the right knee with partial tear of the medical [sic, medial] meniscus and medical [sic, medial] collateral ligament of the right knee.”
It was alleged that:
“The worker sustained an injury when descended a series of steps at Camden South Public School and fell in the course of doing so, striking the right knee.”
On 3 March 2016, Mr Etherton underwent a right total knee replacement under the care of Dr Martin Laird, Orthopaedic Surgeon.
On 5 May 2016, Consent Orders were entered into by the parties in Matter Number 658/2016. On 17 May 2016 amended Consent Orders were entered into by an Amended Certificate of Determination which, amongst other things, resulted in payments of weekly compensation and s 60 expenses to Mr Etherton. The amended Consent Orders provided as follows:
“AMENDED CERTIFICATE OF DETERMINATION – CONSENT ORDERS
This certificate is issued pursuant to section 294 of the Workplace Injury Management and Workers Compensation Act 1998
Matter Number: 658/16
Applicant: Wayne Ronald Etherton
Respondent: ISS Property Services Australia Limited
Date of Determination: 5 May 2016
Date of Amendment: 17 May 2016
In this matter a conciliation/arbitration was held where the parties came to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2011, the determination of the Commission in this matter is as follows:
1. The name of the respondent is amended as per the Reply.
2. The Application to Resolve a Dispute is amended at part 4 to add an allegation of injury to the right knee sustained as a result of the nature and conditions of employment over the entire period of the applicant's employment with the respondent up to 15 April 2015.
3. There is an Award for the respondent in respect of allegation of injury to the right knee due to the nature and condition of employment.
4. The respondent is to pay to the applicant weekly payments of compensation as follows:
(a)$731.50 per week from 18 May 2015 to 16 August 2015 pursuant to section 36 of the Act, and
(b) $614.65 per week from 17 August 2015 to 15 November 2015 pursuant to section 37 of the Act.
The above is agreed to total $17,500. Otherwise and thereafter there is an award for the respondent for all claims for weekly payments.
5. The respondent is to meet the cost of reasonably necessary medical and related treatment expenses up to the sum of $3,871.25 for expenses incurred up to 4 March 2016 upon production of accounts, receipts and/or Notice of Charge. Otherwise and thereafter there is an award for the respondent for section 60 expenses, including an award for the respondent for the claim for the cost of a right total knee replacement on the grounds that the right total knee replacement is not reasonably necessary as a result of the right knee injury on 15 April 2015.
Consent findings:
6. The parties have agreed to the following consent findings:
a. That since 15 November 2015 the applicant suffers no incapacity for his pre-injury employment as a result of the subject work injury.
b. That since 4 March 2016 the applicant requires no medical hospital or related treatment as a result of the subject injury.
c. That since 4 March 2016 the applicant has recovered from the effects of the subject work injury.
The following is not a determination of the Commission, however, I note that the parties have agreed the following:
7. The applicant admits and the parties agree that upon payment of the above compensation he has received all compensation entitlements in respect of the subject work injury.
Josephine Snell
Arbitrator”
On 21 March 2018 Mr Etherton made a claim seeking lump sum compensation for 18% whole person impairment (WPI) on the basis of a report by Dr Giblin dated 8 February 2018. This claim was resisted by the respondent.
On 17 December 2018, a s 74 notice was issued in response to Mr Etherton’s claim for s 66 lump sum compensation. The notice disputed Mr Etherton’s claim on several bases:
“DECISION AND MATTER(S) IN DISPUTE
· Your claim for lump sum compensation has not been duly made in accordance with the Workers Compensation Legislation and SIRA Guidelines.
· The nature (type/pathology) of injury sustained on 15 April 2015 is in dispute. Specifically, we dispute any diagnosis of soft tissue injury as diagnosed by Dr Giblin. Reliance is placed on Section 4 of the Workers Compensation Act 1987.
· We dispute that you are entitled to pursue or maintain any claim premised on an assertion that the right knee replacement surgery undertaken in 2016 was reasonably necessary as a result of the work injury. An issue estoppel is applicable, pursuant to the findings entered by the Workers Compensation Commission in matter number 658-2016.
· It is disputed that you are entitled to rely upon the reports of Dr Giblin dated 8 February 2018 in support of your claim.
· You suffer no permanent impairment referable to the work injury.
· You have no entitlement to compensation under Section 66 of the Workers Compensation Act 1987.”
On 28 November 2018, Mr Etherton filed a further ARD (Matter Number 6255/18) and the respondent filed its Reply on 19 December 2018. Part 4 of the ARD in Matter Number 6255/18 pleaded that Mr Etherton had injured his right lower extremity on 15 April 2015. The description of the injury said:
“The Applicant sustained injury due to the nature and conditions of his employment, including walking down stairs and lost his footing, fell forward on his right leg causing injury to his right knee, resulting in total knee replacement surgery.”[1]
[1] Etherton v ISS Property Services Pty Limited [2019] NSWWCC 107 (Reasons), [12].
On 12 February 2019, a hearing was held before Arbitrator Mr J Wynyard. At the outset of the proceedings before Arbitrator Wynyard, counsel for Mr Etherton amended by consent Part 4 of the ARD to delete from the description of the injury the words “the nature and conditions of his employment, including” so that the description of injury under consideration was:
“The applicant sustained injury due to walking down stairs and lost his footing, fell forward on his right leg causing injury to his right knee, resulting in total knee replacement surgery.”[2]
[2] Reasons, [13].
The respondent relied upon paragraph 5 of the Consent Orders in 658/16 to defend the allegation that the injury of 15 April 2015 had resulted in right total knee replacement surgery. Mr Etherton however relied upon the two reports of Dr Peter Giblin dated 8 February 2018.
On 18 March 2019, Arbitrator Wynyard issued a Certificate of Determination in favour of the respondent employer.
ON THE PAPERS
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 Nos 1 and 6; the documents that are before me, and the submissions 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
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
Statement of Mr Etherton
Mr Etherton provided a written statement dated 30 April 2015. At paragraph 2 of his statement, Mr Etherton states “I have had Osteoarthritis in my left knee. I have never had any issues with my right knee prior to this incident.” Mr Etherton refers to his left knee replacement in September 2014 and his Injury Management and Assessment Centre (IMAC) assessment of 24 December 2014 which assessed him as being able to return to work on 20 January 2015. At paragraph 9, Mr Etherton states “at this time I had not had any issues with my right knee.”
Mr Etherton’s return to work was postponed due to the death of his mother. His first day back at work was 15 April 2015, the date of his incident. He explains that he lost his footing whilst walking down a series of cement steps whilst holding a bucket. As he slipped, he grabbed the railing with both hands to try and catch himself but in that time his right knee banged on the cement step and then on the railing and he landed on his buttocks. Mr Etherton explains that he felt a sharp pain on the outside of his right knee and ache in his lower back as he crashed down on the step.
Mr Etherton reported the incident to his employer and drove to Campbelltown Medical Centre for treatment. He experienced severe pain in his right knee in the days following. Mr Etherton attended work on 17 April and worked split shifts on 20, 21 and 24 April on reduced duties. He notes his treating GP, Dr Jessa “was very angry as he told me that I had been aggravating my right knee pain by driving to and from work everyday, sometimes twice a day”. Mr Etherton stated that Dr Jessa told him that he had a tear in the ligament in the right knee and a ligament sprain and that this was consistent with the fall he had. Mr Etherton filed a worker’s injury claim form on 24 April 2015 which stated “I was walking down steps of school building block when I lost my balance and my right knee gave way causing me to fall on my back and knee. I tried to brace myself on railing.”.
Mr Etherton provided a supplementary statement dated 22 January 2018, signed 5 February 2018, which he states should be read in conjunction with his statement of 30 April 2015. At paragraph 4, Mr Etherton states “Since my previous Workers Compensation Commission proceedings, matter number 658/2016, I have undergone the reasonable and necessary rehabilitation for my right total knee replacement surgery that occurred in March 2016.”
Patient Medical History – PHC Campbelltown
Mr Etherton’s clinical records dated 19 October 2009 indicate “degenerative osteoarthritis … with medial joint space narrowing bilaterally, most marked on the right where there is advanced medial tibio-femoral compartment joint space narrowing.” The clinical notes further describe “early patello-femoral degenerative change is noted with early osteophytes of the patellae more marked on the right but no significant patello-femoral joint space narrowing at this stage.”
On 9 February 2013 “painful R knee” and “X-ray shows OA both knees, R > L”. On 1 May 2013 the clinical records note “knees worse”.
On 10 February 2015, “bilateral OA” is noted. On 1 April 2015 “knee pain nothinh [sic] helping” is noted.
On 7 April 2014 “had surgery on L knee R knee awaited discussed option” is noted.
Dr Peter Grinbergs – treating doctor
In a letter dated 31 July 2013, addressed to ‘Heal Program – Sth West Syd Medicare Local’ Mr Etherton’s treating doctor, Dr Grinbergs states “Wayne has morbid obesity. He has metabolic syndrome and insulin resistance as a consequence. He has severe osteoarthritis of both knees and needs to lose weight before knee replacement can be considered. Would you please assist?”
On 10 February 2014, Dr Grinbergs refers Mr Etherton to orthopaedic surgeon Dr Davé, stating “Wayne has severe OA of both knees. He is trying to lose weight – with some difficulty. Would you please assess re suitability for T.K.R?”
Dr Chandra Davé – orthopaedic surgeon
In a letter dated 4 March 2014, Dr Davé diagnosed Mr Etherton with “osteoarthritis – knees (young age)” and given his relatively young age recommended a treatment optimisation program which included “weight loss, physiotherapy, optimisation of analgesics; if he fails this then total knee replacement.” Dr Davé notes the following history of Mr Etherton: “Wayne is 55. He works as a cleaner in a school. His general health is fair. He suffers hypertension, high body mass index, insulin resistance and hypertension. He has got pain in both his knees with a walking distance now of about 100 m. Clinically he has varus knees.”
Chris Methven – IMAC physiotherapist
Mr Etherton was referred to IMAC for assessment on 16 June 2014. The functional evaluation report of the same date notes Mr Etherton stated “he can perform all of his work duties currently but conceded that he has to work at a slower pace due to his bilateral knee pain caused by Osteoarthritis” (emphasis in original). Under ‘Injury History’ Mr Methven notes “Mr Etherton reported that he first experienced an aching pain in his knees many years ago and prior to starting work as a Cleaner at Woodlands Road Primary School, Campbelltown NSW (approximately 13 years ago).” The report further states:
“Mr Etherton stated that recently the pain to his left knee has worsened, and he has been referred for some x rays and an assessment by Orthopaedic Surgeon Dr Natandra. Dr Natandra has reportedly recommended a total knee replacement for the left knee followed by the right knee ‘later down the track’.”
Mr Etherton exhibited 0 to 90 degrees range of movement for both knees and “strong pain was reported at the end of range for both knees with the left being reported as worse than the right.” Mild global bilateral swelling was noted in the knees.
On 2 December 2014, two and a half months after his left knee surgery, Mr Etherton was again assessed by IMAC. He reported a long history of bilateral knee pain but reports having no pain in either knee following the surgery. The report indicated Mr Etherton was physically capable of performing full-time “medium work”.
Dr Emmanuel Jessa
In respect of a right knee x-ray from 15 April 2015 (the date of the incident), Dr Jessa provides the following clinical details: “rt knee gave way whilst walking down stairs at work and fell with truama to the back and rt knee, Rt knee have given way in the past. has It knee replacement, Probable menisceal damage [sic]”.
An MRI scan dated 21 April 2015 from Dr Mayat at Campbelltown MRI indicates “significant degeneration within the knee joint. Medial and lateral joint margin osteophytosis. Medial meniscal tear.” A further report of the same date from Macarthur Diagnostic Imaging notes “Advanced degenerative changes, predominantly in the medial compartment of the knee.”
On 24 April 2015, Dr Emmanuel Jessa refers Mr Etherton to Dr Nouh, orthopaedic surgeon. Following the operation in March 2016, Dr Jessa treated Mr Etherton for cellulitis over underlying right knee prosthesis.
Dr Nouh – orthopaedic surgeon
In a report dated 30 April 2015, Dr Nouh notes he has seen “Wayne, a 56 year old gentleman presenting with acute pain in his right knee secondary to exacerbation of his osteoarthritis after a slip at work where he fell onto his right knee.” Dr Nouh provides a conservative management plan but notes “Wayne is very likely to require a knee replacement procedure on his right knee in the future.”
Dr Martin Laird – orthopaedic surgeon
In a report dated 9 June 2015, Dr Laird notes Mr Etherton is doing well in respect of his left knee replacement which occurred 9 months prior, however he states “I think that Wayne has had an acute exacerbation of his arthritis due to his fall. It has only been three weeks since this has occurred and he does not report any significant knee problems prior to this though obviously the focus was on his left knee.” He goes on to recommend non-operative management for now including weight loss.
On 21 July 2015 Dr Laird noted Mr Etherton’s right knee has not improved and offers to proceed with total knee replacement.
In a letter addressed to the employer dated 15 December 2015, Dr Laird notes that he first saw Mr Etherton on 1 July 2014 regarding bilateral knee arthritis. He noted that at this point in time, the left knee was worse than the right and they decided to proceed with knee replacement on the left side. He states as follows:
“In my opinion, Wayne has longstanding bilateral knee arthritis obviously treated now with a knee replacement on the left but I think that predated his first presentation to me in 2014. It has gradually deteriorated as arthritis tends to do with time and was no doubt exacerbated in some fashion by his fall in mid 2015 but I do not think that has made a significant difference to his prognosis which was always likely to lead to knee replacement.
Having said that l have no record that we discussed right knee replacement at his first presentation in 2014. At that point, the symptoms were worse on the left and that was the main thing limiting his activity and I do not think we discussed right knee replacement at that stage.
It is possible that his arthritis in the right knee may have led to his knee feeling unstable and even giving way but again we did not discuss this in any detail at that visit.”
On 3 March 2016 Dr Laird conducted Mr Etherton’s elective primary total knee arthroplasty. On 16 March 2016, Mr Etherton was treated by Dr Hussain Ahmed for post-surgery right knee wound infection. On 17 May 2016, two and a half months post-operation, Dr Laird noted Mr Etherton was doing well but that it was unlikely he would be able to return to work. He noted the best thing he could do for himself was to try and lose weight by diet and low impact exercise.
Dr John Watson – orthopaedic surgeon
Dr Watson provided a medico-legal report for the employer dated 6 May 2015. He states his report is “based on the history provided by Wayne Etherton, the appropriate clinical examination and the documentation provided.” These documents are not specified.
Dr Watson notes that “As a result of the incident on 16/04/2015 [sic] the patient denied any symptoms prior to the right knee prior to this and attributes his ongoing pain which are on the outside of the knee to the knee hitting the cement. He then fell backwards onto his backside and said he has had ongoing pain which he directly attributes to this incident.” Dr Watson opines as follows:
“The patient continues to have ongoing pain following this incident on 16/04/2015 [sic] and his clinical presentation is consistent with marked degenerative changes with the knee which have been confirmed on an X-ray of 21/04/2015. This is pre-existing and pre-dated the incident and if he had an incident as described on 16/04/2015 [sic] it was a temporary aggravation of the pre-existing pathology and his ongoing symptoms are directly related to his constitutional pathology. I believe he does warrant a total knee replacement but this is directly related to his pre-existing constitutional pathology and is not related to this incident.
…
This patient has constitutional pre-existing pathology and if he had an aggravation it was temporary and certainly has ceased.”
Dr Watson states that the medial meniscal tear demonstrated in the MRI scan was directly related to a degenerative tear which pre-dated the incident. He does not believe employment was initially or remains the major contributing factor to Mr Etherton’s ongoing symptoms in his right knee.
Following Mr Etherton’s right knee surgery, Dr Watson provided a further report dated 20 April 2016. Dr Watson helpfully lists the documents reviewed in making his report, including Mr Etherton’s statements, medical history and various medical reports and scans. Dr Watson again states that he “believe[s] he had pre-existing degenerative changes when he had the fall. It was associated with a temporary aggravation of his pre-existing pathology. The pain has continued in the right knee from his constitutional pathology necessitating a total knee replacement undertaken on 5 March 2016.”
Dr Watson opines that Mr Etherton’s pre-existing pathology could have a “giving way” sensation whether he had been employed or not and that on the balance of probabilities this was likely to have occurred in any event. Dr Watson notes:
“the patient was on a waiting list for a right total knee replacement and I note that this has subsequently been undertaken as a public patient, and I believe the incident he describes when his knee gave way whilst undertaking his duties at Camden School on 15 April 2015, when he is alleged to have slipped on the steps could have occurred whether he had been employed or not employed and I believe the reason for his total knee replacement that was subsequently undertaken on 5 March 2016 to the right knee is directly related to his pre-existing pathology and I do not believe the incident on or about 15 April 2015 was a substantial contributing reason for this total knee replacement.”
Dr Paul Hitchen – orthopaedic surgeon
Dr Hitchen provided a medico-legal report for the employer dated 12 July 2018. His report “is based on the history provided by Mr Etherton, the appropriate clinical examination, relevant investigations and the documentation provided.” The precise documents have not been specified.
Dr Hitchen notes that “Mr Etherton states he could not recall any previous problems whatsoever with his right knee” but recalls being referred to orthopaedic surgeon Dr Davé in 2014 in respect of his left knee. Dr Hitchen notes correspondence from Dr Davé dated 4 March 2014 that diagnoses Mr Etherton with osteoarthritis affecting both knees. He further notes an x-ray of the right knee from 19 October 2009 reporting advanced medial compartment osteoarthritis of the joint. Dr Hitchen also notes Mr Etherton’s medical records which indicate he experienced knee pain on 1 April 2015 and was on a wait list for a right knee replacement on 7 April 2015. Dr Hitchen states that “presumably this was as originally he had been referred to Dr Davé regarding bilateral joint replacement therapy.”
Dr Hitchen opined that the osteoarthritis in Mr Etherton’s right knee was not consistent with the effects of injury or aggravation. He states that his knee arthritis is “substantially constitutional” and that Mr Etherton has already had his opposite arthritic knee replaced only about a year prior to the incident.
Dr Hitchen assessed Mr Etherton’s WPI as 20%, with a deductable portion of 100% on the basis that “it is inevitable that he would have come to a knee replacement at or around the same time in his life. Prior to the workplace event he had already been referred to Dr Davé with a history of bilateral knee arthritis for consideration of knee replacement.” Dr Hitchen therefore opined that Mr Etherton had 0% WPI secondary to injury.
Dr Peter E Giblin
Dr Giblin provided a medico-legal report for Mr Etherton dated 8 February 2018. Dr Giblin’s report provides the basis of Mr Etherton’s claim, that is, his WPI assessment of 20% before deduction. The report states “I acknowledge receipt of the documents provided, the contents of which have been noted. This report is based upon the history given to me, appropriate clinical examination and review of the investigations brought to the consultation.” Dr Giblin did not specify the documents that had been provided to him.
Under ‘History’, Dr Giblin describes the injurious event as follows:
“In the course of his cleaning duties at 1:50pm on 15 April 2015 he was coming down some stairs when he lost his footing. He fell forward and in order to protect his left knee, he took his full body weight onto the front of a bent right knee. At that stage he was about 140 kilos. He recalls sharp incapacitating pain.”
Dr Giblin notes that following the incident, Mr Etherton continued to seek medical advice, which culminated in a right total knee replacement on 3 March 2016 at Fairfield Hospital. He has had no post-surgical complications but has remained off-work ever since and has been treated with medication and physiotherapy. Importantly, Dr Giblin notes:
“When asked closely, he said he has never had any issues in terms of loss of function or pain in his right knee.”
Dr Giblin conducted a physical examination and review of MRI and x-ray scans of Mr Etherton’s right knee dated 21 April 2015, 8 May 2015 and 3 March 2016. Dr Giblin’s diagnosis was “based upon his history and examination, he has the provisional diagnosis of a soft tissue injury to his right knee, reasonably causally related to the subject injury 15 April 2015.” Dr Giblin further opines:
“It would be reasonable to acknowledge pre-existing age related changes which, in the absence of injury, would have progressed to the extent where knee replacement surgery became necessary.
In general, I would have assessed his subsequent knee replacement surgery as having occurred within about 7 years following the first total knee replacement.
I view the work related injury as causing a material aggravation to produce sufficient symptom complex formation to bring forth the necessity for the surgery.”
In his assessment report dated 8 February 2018, Dr Giblin states “[i]t would be reasonable to acknowledge some tension between the medical and legal interpretation of Section 323.” He states:
“The medical interpretation would be to make a deduction of at least 50% under Section 323. However, from a legal perspective, noting the history of no impairments, symptoms or treatments to his right knee, and assuming he was using his right leg normally for work and domestic environments, then I would make a deduction of one tenth under Section 323. This would leave him a total of 18% Whole Person Impairment.”
THE ARBITRATOR’S REASONS
The matters for determination before Arbitrator Wynyard were as follows:
(a) The matters raised in Part 3 of the Reply were expressed as follows:
“1.The respondent disputes that the applicant is entitled to pursue a claim for injury due to the nature and conditions of employment as is presently pleaded at Part 4 of the Application. An Award for the respondent has previously been entered by the WCC in respect of that allegation of injury;
2.The respondent disputes that the applicant is entitled to maintain the current pleading at Part 4 of the Application, that the work injury resulted in total knee replacement surgery. An Award for the respondent for that claimed surgery has previously been entered by the WCC.”
(b) The s 74 notice disputed the type of injury sustained on 15 April 2015 and in particular disputed the diagnosis of soft tissue injury given by Dr Giblin.
(c) The s 74 notice also claimed an issue estoppel as a result of the Consent Orders referred to above.
(d) It was further disputed that the applicant could rely upon the reports of Dr Giblin dated 8 February 2018.
Arbitrator Wynyard did not accept that Dr Giblin’s opinion was inadmissible on the basis that it offends the provisions of rules 15.1 or 15.2 of the Workers Compensation Commission Rules 2011 (2011 Rules). The Arbitrator noted the difficulty in Dr Giblin’s evidence was that he either ignored or was not aware of the Consent Orders. The Arbitrator notes that whilst there may be some force in the argument in respect of Rule 15.2(3), it could not be said that the opinion as to injury was based on speculation, as Dr Giblin had taken a full medical history and conducted a full examination.
In respect of the estoppel issue, Arbitrator Wynyard noted as follows:
“49. The subject injury is clearly that of 15 April 2015 and the effect of Order 3 of the Consent Orders is that Mr Etherton’s injury can only be viewed as a personal injury as defined in s 4(a) of the 1987 Act. Order 3 provided an award for the respondent in relation to the claim of injury due to the nature and conditions of employment.
…
51. The evidence regarding injury to which I have adverted, that is to say the histories taken by the various medical practitioners, and indeed that given by Mr Etherton himself, is consistent with the description given in Part 4 of both ARDs. Whilst the term ‘nature and conditions’ has no formal definition, it is commonly used as a shorthand method of describing a ‘disease injury’ as defined in s 4(b). Although the ARD in matter 658/2016 referred to the aggravation of osteoarthritis, the effect of Order 3 was to make the claim a personal injury (or ‘frank’ injury, as such an injury is commonly called). The effect of Mr Robison’s amendment to Part 4 in the present ARD to delete the allegation regarding the nature and conditions of employment has the same effect, that is to say, the injury relied on is a personal injury which occurred on 15 April 2015.
52. No argument was made that the effect of Order 3 had any different effect.
53. Accordingly, the evidence relied upon by the parties to reach the agreement recorded in the Consent Orders of 17 May 2016 was that which was before the Commission in that matter. The fact that the pagination is different in the evidence presented before me is simply a reflection of the preparation of the documentation in these pleadings.
54. The effect of Order 5 of the Consent Orders is that Mr Etherton is unable to claim that the right total knee replacement surgery resulted from the injury of 15 April 2015. This is however precisely what Dr Peter Giblin alleged in his opinion. Dr Giblin made a provisional diagnosis of soft tissue injury to the right knee ‘reasonably causally related to the subject injury 15 April 2015.’ Whilst he acknowledged the presence of pre-existing age-related changes within the right knee he nonetheless found that the injury caused ‘a material aggravation’ which produced a ‘symptom complex formation’ which necessitated the right total knee replacement.”
Arbitrator Wynyard did not accept Mr Etherton’s submission that there is a distinction between the question as to whether the surgery was reasonably necessary and Mr Etherton’s entitlement to lump sum compensation. Arbitrator Wynyard noted Order 5 went to causation, and no subsequent evolution of a worker’s condition could alter the finality of such an order, neither could any alternative diagnosis affect that curial break in the chain of causation. The order stated unequivocally that there was an award in favour of the respondent on the grounds that Mr Etherton’s right total knee replacement was not as a result of the injury of 15 April 2015. Mr Etherton’s argument that the right total knee replacement surgery was not an issue before Arbitrator Wynyard was therefore rejected both as to the effect of Order 5 and to Mr Etherton’s right to claim lump sum compensation.
Arbitrator Wynyard found Mr Etherton was estopped from alleging that he has any entitlement to compensation upon the basis that injury to the right knee was caused by the fall of 15 April 2015.
In respect of the s 323 of the 1998 Act deduction issue, the Arbitrator noted Dr Giblin based his opinion on a false assumption that there had been no symptoms or treatment regarding Mr Etherton’s right knee, which in turn affects his opinion regarding the application of s 323 of the 1998 Act. Notwithstanding, the Arbitrator accepted Dr Giblin’s opinion that a 50% deduction was appropriate. This finding had the effect that in any event, Mr Etherton was unable to establish that he was entitled to be assessed by an AMS, as a 10% assessment is insufficient to cross the relevant threshold for entitlement to lump sum payment.
The Arbitrator accepted the respondent’s submissions in respect of the application (or lack thereof) of the rule in Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine,[3] finding Hine was no longer good law.
[3] [2016] NSWCA 213 (Hine).
The Certificate of Determination issued on 18 March 2019 records:
“1. Award in favour of the respondent.”
GROUNDS OF APPEAL
The appellant submits that Arbitrator Wynyard erred in:
(a) the finding that the worker was estopped from proceeding with the claim;
(b) acting ultra vires in purporting to determine a medical dispute, and
(c) constructing 2018 amending Act so as to have retrospective effect.
LEGISLATION
Section 4 of the Workers Compensation Act 1987 (the 1987 Act) provides, relevantly, that “injury”:
“(a) means personal injury arising out of or in the course of employment,
(b) includes a "disease injury", which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease,..” (emphasis added)
Section 65(3) of the 1987 Act (now repealed) provided:
“65 Determination of degree of permanent impairment
(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
Section 322A of the 1998 Act provides:
“322A One assessment only of degree of permanent impairment
(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of:
(a) assessment and a medical assessment certificate under this Part, or
(b) a determination by the Commission under Part 4.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by Arbitrator).”
Rules 15.2 and 15.3 of the 2011 Rules provide as follows:
“15.2 Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:
(1) evidence should be logical and probative,
(2) evidence should be relevant to the facts in issue and the issues in dispute,
(3) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(4) unqualified opinions are unacceptable.
15.3 Measures to assist parties
The Commission is to take such measures as are reasonably practicable to:
(1) assist the parties to any proceedings to understand the nature of the proceedings and the legal implications of any assertion made in any documents or otherwise in the proceedings, and
(2) explain to the parties any aspect of the procedure or any decision or ruling made by the Commission in relation to the proceedings, and
(3) ensure that the parties have the fullest opportunity practicable to have their case in the proceedings considered without compromising the objectives of the Commission, and
(4) ensure that the parties have the opportunity to explore settlement in the proceedings.”
Part 19L(2) of Schedule 6 of the 1987 Act provides:
“2 Application of amendments generally
(1) Except as provided by this Part or the regulations, an amendment made by the 2018 amending Act extends to—
(a)an injury received before the commencement of the amendment, and
(b)a claim for compensation made before the commencement of the amendment, and
(c)proceedings pending in the Commission or a court immediately before the commencement of the amendment.
(2)An amendment made by the 2018 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.”
SUBMISSIONS
GROUND ONE
Appellant’s submissions
Mr Etherton refers to the Consent Orders made in Matter Number 658/16 (set out above at [7]). He notes that in the ARD for Matter Number 6255/18, his injury details were amended to remove the reference to “nature and conditions” leaving an allegation of frank injury (namely the fall on 15 April 2015) which resulted in a knee injury. Mr Etherton submits the amendment to the ARD meant that the alleged knee injury was not the same injury the subject of the previous proceedings and in any event, there could be no inconsistency between the present claim and the Consent Orders in 658/16 because he did not seek compensation for medical expenses associated with the surgery under s 60 of the 1987 Act.
Mr Etherton submits that it was not appropriate for the Arbitrator to entertain a medical dispute, as defined in s 319 of the 1998 Act. Mr Etherton submits that whilst the issue of whether the right knee surgery was compensable has been conclusively determined (the issue estoppel), the decision of Meagher JA in Hine states that “the issue estoppel relied upon … could not deprive the dispute of its character as a medical dispute.” As such, Mr Etherton submits that it was incumbent on the Arbitrator to remit the matter to the Registrar for the question of his impairment to be assessed by an AMS.
Respondent’s submissions
The respondent submits that it was open to the Arbitrator to determine that based on the manner in which the claim was presented, an estoppel operated to permit an award for the respondent. The respondent submits Mr Etherton’s current claim for lump sum compensation proceeded on assessment/evidence from Dr Giblin that was contrary to earlier findings in Matter 658/16 - that is, the assessment of impairment relied upon by the worker, was derived on the basis that (a) the knee replacement surgery was reasonably necessary as a result of the injury, and (b) the worker had not recovered from the effects of the injury.
The respondent submits the Arbitrator was correct to conclude that the Consent Orders in Matter Number 658/16 acted as a bar to recovery of compensation - or at least a bar to the claim in so far as it relied on the assessment method (knee replacement) adopted by Dr Giblin.
The respondent further submits that the Arbitrator was correct to conclude that Hine is no longer good law, due to the repeal of s 65(3) of the 1987 Act. In Hine, the Court held that an earlier finding that a worker had recovered from the effects of an injury could not prevent a medical dispute concerning the degree of permanent impairment arising, and that s 65(3) meant that such a dispute could not be determined by the Commission and must be referred to the AMS.
The respondent submits that in the present matter however, the Arbitrator did not find that no ‘medical dispute’ arose. The issue was how that medical dispute was to be determined. The respondent submits that since Hine, s 65(3) has been repealed and that the Arbitrator was seized of jurisdiction to determine the current claim. Given Mr Etherton’s current claim was based on a claim that the right knee replacement surgery was causally related to the work injury (as per Dr Giblin’s report) it was open to the Arbitrator to determine that the current claim contravened an estoppel on those matters that had arisen based on the earlier consent findings.
The respondent submits that Mr Etherton did not raise any dispute in respect of the Commission’s jurisdiction to enter its findings in Matter Number 658/16, nor does he challenge that an order made by the Commission within jurisdiction is capable of giving rise to an estoppel on matters decided.
Appellant’s submissions in reply
Mr Etherton refutes the employer’s submission that he does not dispute that the Commission had jurisdiction to enter the findings made or that an estoppel finding could apply. Mr Etherton submits that whilst the doctrine of estoppel does apply in the Commission, “this does not change the proposition that the matter in question was a ‘medical dispute’ and thus outside an arbitrator’s jurisdiction pursuant to the legislation as it then applied.”
GROUNDS TWO & THREE
Appellant’s submissions
In respect of Ground Two, Mr Etherton submits that Arbitrator Wynyard erred in “[bypassing] the proper medical assessment procedures in the 1998 Act simply because the Arbitrator has formed [his] own view about how that should be determined.” Mr Etherton noted that an AMS may significantly reduce his impairment rating by excluding any impairment related to the surgical procedure, but that this is not a matter that can be pre-empted by an arbitrator.
Mr Etherton refers to the case of Guzman v Trade West Pty Ltd[4] as a recent example of an arbitrator exceeding jurisdiction by resolving a medical dispute and submits that like in Guzman, this matter should be remitted to the Registrar for referral to an AMS to dispose of this appeal.
[4] [2017] NSWWCCPD 44 (Guzman).
In respect of Ground Three, Mr Etherton submits that s 65(3) of the 1987 Act, which imposed a bar on arbitrators determining medical disputes, was present at all material times, noting s 65(3) was repealed as of 1 January 2019.
Mr Etherton refers to the decision of Sir Owen Dixon in Maxwell v Murphy[5] in his submission that the common law principle of statutory interpretation where a statute is silent on the question of retrospectivity is that it should be construed in futuro. Mr Etherton submits that all relevant “events” occurred before 1 January 2019, including the incident and lodgment of proceedings. Mr Etherton submits that his rights and obligations flow from the date of injury and perhaps, the date of the alleged estoppel. He submits that as such the 2018 amending Act must be construed such that the commencement date applies to the date of injury, not the date of arbitration or determination. Mr Etherton relied on Australian Education Union v General Manager of Fair Work Australia[6] in support of this argument.
[5] (1957) 96 CLR 261 (Maxwell).
[6] [2012] HCA 19; 246 CLR 117, [30], per French CJ, Crennan and Kiefel JJ.
Respondent’s submissions
The respondent submits that Grounds Two and Three essentially relate to the same asserted error, being whether the repeal of s 65(3) of the 1987 Act applied to this claim, and therefore whether the Arbitrator held jurisdiction to determine the claim for lump sum compensation or whether it was mandatory to refer the matter to an AMS. The respondent submits neither ground is made out.
The respondent submits that the Arbitrator clearly had jurisdiction to determine the claim for lump sum compensation, and to enter an award for the respondent. The respondent submits that the current matter fell for determination on 12 February 2019. As at that date s 65(3) had been repealed. The appellant has pointed to no transitional provision or Regulation limiting the application of that amendment or supporting any argument that the repeal of s 65(3) does not apply to this claim.
The respondent refutes Mr Etherton’s argument that the Arbitrator’s determination of the matter was based on ‘retrospective’ modification of his rights. This is because this was not an issue of workers’ rights to compensation or to make a claim. Rather, it involved the jurisdiction of the Commission to determine a claim for lump sum compensation. The respondent submits that the Arbitrator clearly had jurisdiction to determine the claim due to the repeal of s 65(3) and the operation of s 322A(1A) of the 1998 Act, which applied at the date of the determination.
The respondent submits that Guzman has no application in this case due to the repeal of s 65(3).
Appellant’s submissions in reply
Mr Etherton again submits that if the removal of s 65(3) of the 1987 Act was not in effect at the time material to his claim, then Hine remained applicable, and the Arbitrator erred by (i) acting ultra vires in finding an estoppel on a matter within the jurisdiction of an AMS, and (ii) in construing the legislation retrospectively.
Mr Etherton submits that given no transitional or savings provisions were found in respect of s 65(3), the usual rules of statutory interpretation apply as to retroactive intent. He submits that the arbitration date is a red herring and that “to treat the legislative change as attaching to the date of determination of the parties’ rights, as opposed to the period when those rights accrued, would be to impermissibly interpret the amending legislation as having retrospective effect.”
DISCUSSION
As to Ground One
The respondent below and on appeal relies on the Consent Orders (5 and 17 May 2016) as creating relevant estoppels to the worker’s claims in these proceedings. The appellant contends that the estoppel is limited to the claim pertaining to injury to the right knee of Mr Etherton as a result of the nature and conditions of his employment. Mr Etherton states that the estoppel does not extend or apply to his claim for having suffered a frank injury to his right knee on 15 April 2015.
Roche DP considered at length the principles relating to whether consent orders can give rise to res judicata estoppels in Bouchmouni v Bakhos Matta t/as Western Red Services.[7] After referring to relevant authorities, he made the following observations:
“I draw the following conclusions from the above authorities:
(a) consent orders create res judicata estoppels, but only to the extent of what was ‘necessarily decided’ (Habib[8] at [186]);
(b) to determine what was ‘necessarily decided’, the Commission will closely examine the pleadings and particulars, the s 74 notice, and the legislation, because that material forms part of the mutually known facts and assists in objectively determining the ‘genesis’ and ‘aim’ of the orders (Isaacs[9] at 75; Spencer Bower[10] at [39]; DTR Nominees[11] at 429);
(c) consent orders should be construed by reference to what a reasonable person would understand by the language the parties have used in the orders, having regard to the context in which the words appear and the purpose and object of the transaction (Cordon Investments[12] at [52]);
(d) where the words in the consent orders are ambiguous, or susceptible of more than one meaning, extrinsic evidence is admissible to show the facts which the negotiating parties had in their minds (Codelfa[13] at 350), but such evidence is not admissible to contradict the language of the orders when it has a plain meaning and is not ambiguous or susceptible of more than one meaning (Codelfa at 352);
(e) prior negotiations that tend to establish objective background facts which were known to both parties and the subject matter of the consent orders will be admissible (Codelfa at 352);
(f) evidence of prior negotiations that are reflective of the parties’ actual (subjective) intentions is not receivable (Codelfa at 352), and
(g) the interpretation of consent orders is not governed by the parties’ subjective beliefs or understandings about their rights and liabilities. It is an objective test of what a reasonable person would understand by the language in which the parties have expressed their agreement (Toll[14] at [40]; Cordon Investments at [52]).”
[7] [2013] NSWWCCPD 4, [33]–[47].
[8] Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (Habib).
[9] Isaacs v Ocean Accident & Guarantee Corporation Ltd & Winslette (1958) SR (NSW) 69; (1957) 75 WN (NSW) 48.
[10] The Doctrine of Res Judicata by Spencer Bower, Turner and Handley, 3rd ed, 1996.
[11] DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423.
[12] Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 (Cordon Investments).
[13] Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 (Codelfa).
[14] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165.
Consequently, in order to consider the issue of estoppel in this case, it is necessary to examine the pleadings, the evidence and the s 74 notices of 15 May 2015 and 17 December 2018 to ascertain exactly what was “necessarily decided” by the Consent Orders of 5 and 17 May 2016. It is also necessary to consider the text of the Consent Order itself.
In the proceedings constituted by ARD 658/16, Mr Etherton pleaded a frank injury to his right knee on 15 April 2015. Mr Etherton’s written statement of 30 April 2015 supports this allegation in two ways. Firstly, he states that he injured his right knee at work on 15 April 2015. Secondly, he states that prior to that time he had never had any issues with his right knee. Apart from the issue regarding various doctors who stated that prior to the 15 April 2015 incident that Mr Etherton suffered from osteoarthritis in both knees, none of these medical practitioners opined upon any injury to Mr Etherton’s right knee prior to 15 April 2015 which was allegedly due to the nature and conditions of his employment with his employer. The relevant medical evidence which formed part of the proceedings constituted by ARD 658/16 is that of Dr Jessa (see [30]–[33] above) and Dr Laird (see [35]–[38]). One further medico-legal report was provided for Mr Etherton by Dr J.C. Beer, dated 8 September 2015. Dr Beer’s report set out the history of Mr Etherton’s fall at work on 15 April 2015, finding Mr Etherton “sustained aggravation of pre-existing degenerative change of his right knee joint. There is a partial tear of the medial meniscus and medial collateral ligament of the right knee sustained in the fall and there is also a degree of aggravation of patellar femoral arthritis in the same knee joint.”[15]
[15] ARD 658/16, p 5.
Dr Beer further found “liability of surgery for right knee joint replacement if surgery is necessary in the near future is that of the client's employment at time of knee injury as I find that this was a most significant injury to the right knee – resulting in aggravation, acceleration and deterioration of the right knee condition. Normally if no injury had occurred I would assess 70% of the impairment is due to pre-existing degeneration – noting 30% contribution by the work he was doing for 8 years.”[16]
[16] ARD 658/16, p 7.
A review of the s 74 notice dated 15 May 2015 reveals issue being taken by the employer regarding the injury itself on 15 April 2015. There is no traversing of any nature and conditions claim with respect to Mr Etherton’s right knee because no such claim had been pleaded in ARD 658/16.
In terms of the Consent Orders of 17 May 2016, which is the formal determination of the Commission, it is to be noted that ARD 658/16 was amended (by consent) to insert an allegation of injury to the right knee sustained as a result of the nature and conditions of the entirety of Mr Etherton’s employment with the employer up to the date of injury on 15 April 2015. An award for the employer is then entered in respect of that amended allegation. This amendment and consequent award can be found in Orders 2 and 3.
In Orders 4 and 5 there is agreement regarding the payment of weekly compensation to Mr Etherton, a sum of $17,500 for two identified periods. There is additionally in Order 5 an agreement to pay medical treatment expenses up to the sum of $3,871.25 for medical expenses incurred up until 4 March 2016.
Pausing here, it can be seen that the payments that were agreed to and which are reflected in Orders 4 and 5 cannot as a matter of a textual consideration of the Orders be payments in respect of the nature and conditions claim, in respect of which an award for the respondent employer had been entered in Order 3. As this is a determination of the Commission, the power or jurisdiction to make an order depends upon the worker suffering an injury.[17] Consequently at the time that this determination was made by the Commission there was a pleading and a body of evidence filed on behalf of Mr Etherton alleging a frank injury having occurred to his right knee on 15 April 2015, which injury was not adverted to in terms in Order 2 and which thus cannot be subject to the award in favour of the employer in Order 3.
[17] Section 9 of the 1987 Act.
Reliance is placed upon the terms of Order 5 which relevantly is in the following terms:
“5. The respondent is to meet the cost of reasonably necessary medical and related treatment expenses up to the sum of $3,871.25 for expenses incurred up to 4 March 2016 upon production of accounts, receipts and/or Notice of Charge. Otherwise and thereafter there is an award for the respondent for section 60 expenses, including an award for the respondent for the claim for the cost of a right total knee replacement on the grounds that the right total knee replacement is not reasonably necessary as a result of the right knee injury on 15 April 2015. (emphasis added)
There are a number of things to remark about Order 5. It is conceding that medical and related expenses in the sum of $3,871.25 were reasonably necessary but then goes on to say that “otherwise” there is thereafter an award for the respondent for s 60 expenses and it goes further to provide an award in favour of the respondent employer for the claim of a right total knee replacement as a result of the right knee injury on 15 April 2015.
Properly construed, this order is limited to the cost of a total knee replacement in relation to the 15 April 2015 knee injury as not being reasonably necessary, which is of course a separate head of claim under s 60. This award in favour of the respondent in relation to the total right knee replacement does cause problems, as has been identified, with the ultimate opinion provided by Dr Peter Giblin. The problem arises because Dr Giblin was not instructed with this fact and thus did not take it into account in arriving at his opinion. However this is a different issue from whether or not Order 5 creates an issue estoppel as is ultimately found by the learned Arbitrator.
In my opinion, and consistent with what was found in Habib, what was “necessarily decided” by the Consent Orders can be distilled into the following issues:
(a) That the respondent employer in proceedings ARD 658/16 obtained an award in its favour with respect to the allegation that Mr Etherton had suffered injury to his right knee sustained as a result of the nature and conditions of his employment over the entire period of that employment, up to and including 15 April 2015.
(b) That there was an award for the respondent employer with regards to s 60 expenses after 4 March 2016, including an award for the respondent employer with respect to the cost of a right total knee replacement on the grounds that that was not reasonably necessary as a result of the right knee injury suffered on 15 April 2015.
What was not necessarily decided one way or the other was whether Mr Etherton had suffered a frank injury to his right knee on 15 April 2015, although the orders in his favour in Orders 4 and 5 by definition can only apply to that injury.
I therefore find that the learned Arbitrator was in error to find that Mr Etherton was estopped from seeking further compensation. I find that no relevant estoppel arises with respect to these proceedings arising from the consent orders of 5 and 17 May 2016.
Ground One is thus made out.
As to Grounds Two and Three
It is convenient to deal with Grounds Two and Three together. I accept the respondent’s submission that Grounds Two and Three relate to the same asserted error, namely whether the repeal of s 65(3) of the 1987 Act, which commenced on 1 January 2019, applied to Mr Etherton’s claim. Pausing here, I note that all of the facts pertaining to Mr Etherton’s claim occurred prior to 1 January 2019, including the filing of the claim in the Commission.
Prior to the commencement of the amendments on 1 January 2019, s 65(3) of the 1987 Act provided as follows:
“If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
This provision was repealed with effect from 1 January 2019.
A new provision was inserted into the 1998 Act, s 322A(1A) which provides as follows:
“A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.”
As can be seen, the relevant alteration is that prior to 1 January 2019 the Commission was prohibited, by virtue of the terms of s 65(3) of the 1987 Act, from awarding permanent impairment compensation absent an assessment by an Approved Medical Specialist. That prohibition was removed and the Commission was then empowered to determine such matters itself.
Mr Etherton relies upon Guzman in support of Ground Two, in that in Guzman the Arbitrator exceeded jurisdiction by resolving a medical dispute. It is to be noted that Guzman was decided prior to the 2018 amending Act which commenced on 1 January 2019. Further, Mr Etherton has relied upon the decision of Sir Owen Dixon in Maxwell regarding the common law principles of statutory interpretation that if a statute is silent on the question of retrospectivity then it should be considered to be operating in futuro.
The High Court decision in Maxwell went further than has been relied upon by Mr Etherton. Fullagar J in Maxwell described that there was a distinction between procedural statutes and statutes which create or modify or abolish substantive rights and liabilities.[18] The distinction being referred to by Fullagar J here was further discussed by the High Court in Victrawl Pty Ltd v Telstra Corporation Ltd.[19] The High Court in Victrawl said the question was:
“… whether the provision’s operation is merely procedural in the sense that it would not, if given unconfined operation, affect pre-existing substantive rights or liabilities. It is only if a statutory provision is merely procedural in that narrow sense that the ordinary presumption against retrospective operation is inapplicable.”
[18] Maxwell, 286.
[19] [1995] HCA 51; 183 CLR 595, 615 (Victrawl).
Subsequent cases have assessed whether a provision should be treated as procedural in the sense referred to and this has largely been conducted on a case by case basis.
Neither before the Arbitrator nor in these appeal proceedings had the parties addressed on the topic as to whether or not the 2018 amending Act as it applies to this case was a procedural amendment or a substantive amendment. I consequently invited submissions on this issue. The parties filed their further submissions on this question on 11 October 2019.
Mr Etherton’s supplementary submissions
Mr Etherton submits the repeal of s 65(3) of the 1987 Act is not merely procedural nor simply substantive. He submits that rather, it is a jurisdictional provision, referring to Guzman and Haroun v Rail Corporation New South Wales & Ors.[20] Mr Etherton submits that s 65(3) did not regulate the practice of the Commission, as AMSs are not part of the Commission. Rather, it prohibited the Commission from hearing medical disputes whatsoever. Mr Etherton argued that the changes resultant upon the repeal of s 65(3) do not affect the procedure by which a medical dispute is resolved (which remains unchanged), rather there is a fundamental jurisdictional shift as to by whom such disputes may be determined.
[20] [2008] NSWCA 192.
Mr Etherton submits the distinction between substantive and procedural law does not arise because the dichotomy in this respect presupposes that the Arbitrator’s exercise of power was intra vires. In the alternative, Mr Etherton submits to the extent the distinction is determinative, as the procedure for determining a medical dispute has not changed, the provision in question cannot be described as procedural and is substantive in its terms. Mr Etherton refers to the decision of Barton J in Worrall v Commercial Banking Co of Sydney Ltd[21] and in the context of tribunals, Esber v Commonwealth[22] and Repatriation Commission v Keeley,[23] in further submitting that a statute which confers upon a tribunal a new power to entertain a dispute is a substantive provision.
[21] [1917] HCA 67; 24 CLR 28.
[22] [1992] HCA 20; 174 CLR 430.
[23] [2000] FCA 532.
Respondent’s supplementary submissions
The respondent submits the amendment, viewed in context, was procedural. The amendment simply removed s 65(3), leaving the Commission unrestricted as to how it elected to deal with a claim under s 66, with the effect that the Commission could either determine/assess permanent impairment itself, or refer to an AMS. The respondent submits the amendment did not affect the substantive rights of the worker. It did not affect his right to make a claim for lump sum compensation under s 66 nor the quantum that could be recovered for the impairment assessed (if any). It was not a substantive right to be assessed by an AMS, and in any event the respondent noted that the availability of an AMS referral/assessment still existed if deemed necessary or appropriate by the arbitrator. The respondent referred to Fullagar J in Maxwell at [5] and Rodway v The Queen[24] to support its position.
[24] [1990] HCA 19; 169 CLR 515, p 518, pars [4],[8].
On 15 October 2019, the respondent sought leave to provide further submissions in the matter. I granted the respondent leave to provide further submissions, and for Mr Etherton to provide further submissions in reply.
On 16 October 2019, the respondent filed its further supplementary submissions. In these submissions, the respondent drew my attention to Part 19L of Sch 6 of the 1987 Act (which were added by the 2018 amending Act) titled “Provisions consequent on enactment of Workers Compensation Legislation Amendment Act 2018”. Clause 2 of Pt 19L provides:
“2 Application of amendments generally
(1) Except as provided by this Part or the regulations, an amendment made by the 2018 amending Act extends to—
(a)an injury received before the commencement of the amendment, and
(b)a claim for compensation made before the commencement of the amendment, and
(c)proceedings pending in the Commission or a court immediately before the commencement of the amendment.
(2)An amendment made by the 2018 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.”
The respondent submits the above transitional provision established that the repeal of s 65(3) (pursuant to the 2018 amending Act) applies to injuries received, claims made and proceedings pending in the Commission, before the commencement date of the 2018 amending Act. As such, the repeal of s 65(3) did apply to the current case and no general presumption against retrospective operation applies. The respondent submits that notwithstanding whether the amendment is procedural or substantive, the express intention of the transitional provision meant the Arbitrator had power to determine the claim.
I note that no relevant applicable transitional provisions were referred to by either party before the Arbitrator, nor in their primary submissions on appeal.
Mr Etherton’s additional submissions
Mr Etherton responded to the respondent’s submissions with respect to cl 2 of Pt 19L of Sch 6 of the 1987 Act. Mr Etherton asserted that subcl 2(1)(a) had to be read with subcl 2(2) which provided as follows:
“An amendment made by the 2018 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.” (emphasis added)
Mr Etherton asserted that as he was entitled to compensation from the date of the injury, 15 April 2015 onwards, that period is clearly before the 2018 amendments and he is therefore not subject to the amendments.
Consideration
It is therefore necessary to consider two aspects regarding the 2018 amendments and their application to Mr Etherton or not. The first matter to be considered is whether or not the amendments are procedural or substantive, secondly it is necessary to consider the application or not of cl 2 of Pt 19L of Sch 6 of the 1987 Act to this case.
In this case, it is to be noted that the repeal of s 65(3) did not impair or repeal Mr Etherton’s capacity to bring a claim seeking permanent impairment compensation. That right remained unaffected by the amending legislation.
Mr Etherton has submitted that s 65(3) did not regulate the practice of the Commission as AMSs are not part of the Commission.[25] This was in support of a submission that the legislative amendment represented fundamental jurisdictional change and by definition could not be procedural. Approved Medical Specialists are appointed by the President of the Commission pursuant to s 320 of the 1998 Act. Division 5, Pt 7 of the 1998 Act, which includes s 320, then goes on to set out the various provisions pertaining to medical assessments. Once the medical assessment under Pt 7 has taken place, a Certificate is issued pursuant to s 325 which is then conclusively presumed to be correct, subject to an appeal to a Medical Appeal Panel (s 327). This is the scheme provided for under Pt 7.[26] This change in procedure however does have the effect of vesting jurisdiction in an Arbitrator, which jurisdiction did not exist prior to 1 January 2019. The conferral (or withdrawal) of jurisdiction from either a decision maker or a commission is a matter of substance rather than procedure. However, in this case, this consideration is not the end of the matter. When this Application was argued before the learned Arbitrator, both parties stated that there were no transitional provisions dealing with this situation. These submissions were not correct, as on this appeal I have now received submissions which deal with the provisions of Pt 19L of Sch 6 of the 1987 Act.
[25] Mr Etherton’s supplementary submissions dated 10 October 2019.
[26] See Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; 13 DDCR 156, [110] (per Ward JA).
I would additionally remark that in Arbitrator Wynyard’s reasons, Mr Etherton has had his claim for permanent impairment benefits assessed at 10%, which is insufficient to surmount the threshold for an entitlement to lump sum compensation.[27]
[27] Reasons, [68]–[71].
Mr Etherton does not take any issue or claim any error in respect of the Arbitrator’s reasoning process in terms of his reliance on Dr Giblin’s report (see [54] and [58] above in respect of the Arbitrator’s reasons). Mr Etherton’s concern appears to lie solely in the Arbitrator acting ultra vires by virtue of the statutory bar in s 65(3) of the 1987 Act, as opposed to the merits of the Arbitrator’s determination.
It is common ground that Pt 19L applies to this matter. The respondent asserts that cl 2(1) of Pt 19L has the effect of making the 2018 amendments to how permanent impairment might be assessed applicable to Mr Etherton. Mr Etherton relies upon cl 2(2) of Pt 19L to assert the opposite.
Dealing with Mr Etherton’s submission, it is noteworthy to consider the section of cl 2(2) which Mr Etherton has drawn attention to, namely the phrase which says “the 2018 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment”.
The claim which Mr Etherton seeks to bring now is not a claim in relation to compensation paid or payable in respect of any period prior to 1 January 2019. Rather, Mr Etherton is seeking the referral of his claim for permanent impairment to an Approved Medical Specialist so as to have his claim for lump sum compensation assessed. It is to be noted that this claim for lump sum compensation is not “compensation paid or payable in respect of any period”. Section 66(1) of the 1987 Act states that this “[p]ermanent impairment compensation is in addition to any other compensation under this Act.” I find that Pt 19L(2)(2) has no application to Mr Etherton’s claim as the compensation he is claiming is not paid or payable in respect of any period prior to 1 January 2019. Nothing is “payable” in a formal sense until either the AMS assesses permanent impairment above the threshold or the parties consent to an assessment amount. Further, any amount paid or payable under s 66 of the 1987 Act is not a payment “in respect of any period” as a payment for weekly compensation, for example, would be. Consequently, I find that the effect of Pt 19L(2)(1) with respect to Mr Etherton’s claim is to make the amendments from the 2018 amending Act applicable to his claim. That being the case, the Arbitrator was acting within power when he proceeded to determine Mr Etherton’s claim for lump sum compensation, consistently with the 2018 amending Act.
Grounds Two and Three are thus not made out.
DECISION
As described above, I have upheld the first appeal ground. Meaning that the 5 and 17 May 2016 Consent Orders do not serve to estop Mr Etherton from pursuing his claim for lump sum compensation. However, as I have found that Appeal Grounds Two and Three are not made out and the learned Arbitrator has assessed, properly in my view, Mr Etherton’s entitlement to lump sum compensation in the amount of 10%, by virtue of the provisions of s 66(1) of the 1987 Act, Mr Etherton does not meet the threshold for entitlement to lump sum compensation provided for by that provision. The result of this finding is that the learned Arbitrator’s award in favour of the respondent will stand.
The Arbitrator’s Certificate of Determination dated 18 March 2019 is confirmed.
Judge Phillips
PRESIDENT
28 October 2019
18