Fourmeninapub Pty Ltd v Booth
[2019] NSWWCCPD 25
•6 June 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| Status: Appeal to the Court of Appeal dismissed – Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 | ||
| CITATION: | Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25 | |
| APPELLANT: | Fourmeninapub Pty Ltd | |
| RESPONDENT: | Lynette Booth | |
| INSURER: | GIO General Ltd | |
| FILE NUMBER: | A1-4546/18 | |
| ARBITRATOR: | Mr G Edwards | |
| DATE OF ARBITRATOR’S DECISION: | 6 December 2018 | |
| DATE OF APPEAL DECISION: | 6 June 2019 | |
| SUBJECT MATTER OF DECISION: | Whether a claim for compensation pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 should have been brought with an earlier claim pursuant to s 4(a) of the Workers Compensation Act 1987; application of the principles of estoppel - issue estoppel, the doctrine of res judicata, and Anshun estoppel; whether the worker sustained a disease injury; application of Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626; whether the Commission has jurisdiction to enter an award for costs pursuant to s 341 of the Workplace Injury Management and Workers Compensation Act 1998, as amended by the Workers Compensation Legislation Amendment Act 2012 | |
| PRESIDENTIAL MEMBER: | President Judge Phillips | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | BBW Lawyers |
| Respondent: | Somerville Laundry Lomax Solicitors | |
| ORDERS MADE ON APPEAL: | Arbitrator Edwards’ Certificate of Determination, dated 6 December 2018, is revoked and the following is substituted in its place: “An award for the respondent employer.” | |
INTRODUCTION
This appeal concerns the application of the principles of estoppel. In particular it concerns whether the worker’s claim for lump sum compensation for a disease injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) is barred by issue estoppel and/or Anshun estoppel because a claim pursuant to s 4(a) of the 1987 Act had been previously determined. In the alternative, the appeal concerns whether the worker sustained a disease injury pursuant to s 4(b)(ii) in the absence of there being a “disease to be aggravated”.
For the reasons discussed below, the appeal succeeds.
BACKGROUND
In 1997 Lynette Booth, the respondent worker, commenced work for Fourmeninapub Pty Limited, the appellant employer. Ms Booth worked as a bar attendant in the appellant’s Commercial Hotel at Kyogle.
At 10.30 pm on 7 November 2002, Ms Booth was working at the hotel when one of the hotel patrons, who had been in an argument, smashed a glass on his head and tried to slash his throat. Ms Booth attempted to intervene and in doing so some of the patron’s blood got on her body. Ms Booth was concerned that she may have contracted AIDS or hepatitis. She returned to work two days after this incident, and a few days later she witnessed another fight between different patrons at the hotel. Following this incident, she was unable to continue working at the hotel. She ceased working on 19 November 2002.
Ms Booth was diagnosed with Post Traumatic Stress Disorder, and in 2005 was diagnosed with Bipolar Disorder. It is not disputed that Ms Booth suffered a primary psychological injury manifesting itself as Post Traumatic Stress Disorder as a result of the 7 November 2002 workplace incident. The appellant’s insurer accepted liability for that psychological injury. However, the insurer disputes Ms Booth’s bipolar condition was causally related to her employment, and that the employment aggravated, accelerated or exacerbated that condition.
Ms Booth made a series of claims arising from the 2002 incident which were subject to a series of proceedings before the Commission.
In her first set of proceedings (matter no 13094/05), Ms Booth claimed lump sum compensation for her psychological injury. She was subsequently assessed by Dr Maxine Walden, Approved Medical Specialist, who opined that her symptoms were consistent with a diagnosis of PTSD and depression. Dr Walden recorded a history of Ms Booth developing symptoms in December 2004, consistent with hypomania diagnosed as Bipolar Disorder. She found that the Bipolar Disorder caused additional impairment but the condition was not causally related to the injury nor the antidepressant medication prescribed for the treatment of her PTSD and depression caused by the work injury. Dr Walden assessed Ms Booth to suffer 6% whole person impairment as a result of the PTSD and depression.
On 17 June 2008, the appellant’s insurer, CGU, issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for the payment of weekly compensation benefits and medical expenses. The insurer claimed that Ms Booth no longer suffered from PTSD as a result of the injury. As a result, the insurer ceased payment of medical and related treatment expenses. It was not until 29 July 2008, when a notice pursuant to s 54 of the 1987 Act was issued that weekly payments of compensation ceased.
On 15 October 2008, Ms Booth brought a second set of proceedings (matter no 8236/08) for weekly payments of compensation and medical expenses.
Ms Booth made a subsequent further claim for lump sum compensation, on the basis of the report of Dr Huntsman, consultant psychiatrist, dated 4 August 2008 which assessed her with 17% whole person impairment as a result of her psychological injury. Dr Huntsman opined that Ms Booth suffered from PTSD and Bipolar II Mood Disorder, for which employment with the appellant was a substantial contributing factor. He also opined that Ms Booth’s Bipolar Disorder “is related to the traumatic incident, which acted to ‘trigger’ her illness.”
On 10 November 2008, the insurer issued a further s 74 notice declining to make an offer of settlement. The insurer relied on the report of Dr Vickery, consultant psychiatrist, dated 23 May 2008, which records that Ms Booth has no impairment related to the November 2002 injury.
On 23 January 2009, Ms Booth brought a third set of proceedings (matter no 486/09). The matter was referred to Dr Parsonage, Approved Medical Specialist, for assessment of permanent impairment of the psychological injury (PTSD only). Dr Parsonage assessed Ms Booth with 8% whole person impairment due to the PTSD. While the terms of the referral were limited to the condition of PTSD, Dr Parsonage diagnosed Ms Booth to be suffering PTSD and Major Depression, and Bipolar II Disorder, possibly Bipolar III Disorder.
On 5 February 2009 Arbitrator O’Moore determined matter no 8236/08. Arbitrator O’Moore was satisfied on the balance of probabilities that Ms Booth suffered a psychiatric condition of PTSD resulting from the incident on 7 November 2002. Arbitrator O’Moore was not satisfied that the bipolar condition was causally related to the psychological injury found or that employment was a substantial contributing factor to the bipolar condition. Arbitrator O’Moore entered an award for the payment of weekly compensation from 1 August 2008 to date and continuing and medical expenses in respect of the PTSD condition.
On 20 October 2009, the Commission issued an Amended Certificate of Determination in accordance with Dr Parsonage’s Medical Assessment Certificate, certifying that Ms Booth suffers a non-compensable 8% permanent impairment attributable to the November 2002 injury.
On 11 July 2013, the insurer issued Ms Booth with a work capacity decision pursuant to s 43 of the 1987 Act. At the same time, the insurer issued a notice pursuant to s 54 of the 1987 Act, advising that weekly payments of compensation will cease from 18 October 2013 as there was no ongoing entitlement to weekly payments. The insurer confirmed that ongoing medical expenses would be paid until 18 October 2014, pursuant to s 59 of the 1987 Act. On 11 September 2015, the work capacity decision was reviewed by the State Insurance Regulatory Authority who confirmed that Ms Booth had no entitlement to continued weekly payments of compensation pursuant to s 38 of the 1987 Act.
On or about 3 April 2018, Ms Booth made a claim for lump sum compensation in respect of 26% whole person impairment, medical expenses and weekly payments in respect of the bipolar condition. Ms Booth relied on the evidence of Dr Scurrah, consultant psychiatrist, who opined that the bipolar condition was causally related to the November 2002 incident and arose due to the use of anti-depressant medication to treat the PTSD condition.
On 23 April 2018, the appellant’s insurer issued a s 74 notice disputing liability for the claim, amongst other things, relying on the report of Dr Walden dated 9 November 2005.
On or about 16 July 2018, Ms Booth made a further claim for lump sum compensation in respect of 26% whole person impairment, medical expenses and weekly payments in respect of the bipolar condition. Ms Booth again relied on the evidence of Dr Scurrah.
On 27 July 2018, the insurer issued a further notice pursuant to s 74 of the 1998 Act disputing liability. It advised that it had conducted an internal review of the claim for weekly payments of compensation and lump sum compensation for permanent impairment and medical expenses and confirmed that it disputed liability. In particular, the insurer denied that the Bipolar Disorder diagnosed in 2005 was causally related to Ms Booth’s employment and that the employment concerned aggravated, accelerated or exacerbated the disorder.
On 3 September 2018, Ms Booth filed an Application to Resolve a Dispute (the Application). This was the fourth set of proceedings (matter no 4546/18). Ms Booth claimed compensation for permanent impairment of 26%, together with weekly payments of compensation and medical expenses. She claimed that she suffered an aggravation, acceleration and/or exacerbation of an underlying disease condition (Bipolar Disorder) as a result of the effects of the PTSD and depression resulting from the work injury in November 2002. In the alternative, Ms Booth claimed that she suffered psychological sequalae as a result of the incident in November 2002.
On 11 September 2018, the appellant replied to the Application relying on the s 74 notices.
On 13 November 2018, the matter proceeded to conciliation/arbitration before Arbitrator Grahame Edwards. During the conciliation/arbitration proceedings Ms Booth withdrew her claim for weekly payments of compensation and medical expenses, and maintained the claim for lump sum compensation for permanent impairment. Following these proceedings, Arbitrator Edwards reserved his decision.
On 6 December 2018, Arbitrator Edwards issued a Certificate of Determination remitting the matter to the Registrar for referral to an Approved Medical Specialist to assess permanent impairment of Ms Booth’s primary psychological injury (PTSD and Bipolar Disorder) as a result of injury on 7 November 2002. Arbitrator Edwards found that Ms Booth was not estopped from pursing her claim for compensation for a disease injury pursuant to s 4(b)(ii).
The employer appeals Arbitrator Edwards’ Certificate of Determination.
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.
INTERLOCUTORY
An appeal from an interlocutory decision may only proceed with the leave of the Commission. In accordance with s 352(3A) of the 1998 Act, the Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.
I consider that Arbitrator Edwards’ decision is final and binding in respect of the issues in dispute on the appeal, as it finally determines the “rights between the parties”.[1] However, I note that Arbitrator Edwards remitted the matter to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment. To the extent that the decision appealed against is interlocutory, and given the parties have not raised this as an issue in dispute, I grant leave for the appeal to proceed. Leave is necessary for the proper and effective determination of the dispute.
THE EVIDENCE
[1] Licul v Corney [1976] HCA 6; 50 ALJR 439, [11] (per Gibbs J).
Dr Pearson
In evidence are several reports from Dr Gregory Pearson, treating consultant psychiatrist, qualified by Ms Booth. Dr Pearson treated Ms Booth from 2003, on a regular basis.
In Dr Pearson’s report dated 29 April 2005, there is no mention of a bipolar condition but a reference to an “elevated mood state consistent with Hypomania”. He noted that Ms Booth’s condition failed to respond to a reduction in antidepressants but noted that the condition was coming under control with medication.
In his report of 15 April 2008, Dr Pearson recorded that he treated Ms Booth from 21 March 2003, following a referral by her General Practitioner, Dr Jack Kehoe. Dr Pearson recorded his initial diagnosis of PTSD with a comorbid Major Depressive Disorder. He recorded that this was a result of Ms Booth’s exposure to a traumatic event. He stated that Ms Booth was treated aggressively from a pharmacological and psychological point of view.
Dr Pearson recorded that in February 2005 Ms Booth suffered her first episode of hypomania and subsequently the comorbid diagnosis was changed from a Major Depressive Disorder to Bipolar Mood Disorder Type II. He added that:
“Ms Booth does continue to suffer from the vestiges of Post Traumatic Stress Disorder. These symptoms flare up at times and remain influential in the course of her overall illness. There is no doubt that work factors are substantial in their contribution to this condition.
I agree that her Bipolar Disorder is largely constitutional in nature, though also advise that stress has played a significant role in precipitating episodes of illness and hence her Post Traumatic Stress Disorder remains influential in the course of her Bipolar Disorder. Hence, there is a complex interplay between non work and work related factors that continue to impact upon her.”
In Dr Pearson’s report dated 13 January 2014, he diagnosed Ms Booth to suffer from Bipolar Mood Disorder and PTSD. On balance, he opined that “work was the cause of her Post Traumatic Stress Disorder. Work contributed to the onset of her Bipolar Mood Disorder.”
In Dr Pearson’s report dated 11 August 2016, he recorded that while treating Ms Booth for major depression and PTSD her mood became elevated confirming the presence of a Bipolar Mood Disorder. He observed that Bipolar Mood Disorder can be caused by exposure to trauma. He concluded that employment was a main contributing factor to both the PTSD and Bipolar Mood Disorder.
In his clinical notes of 16 March 2006, Dr Pearson records that “there is a concerning degree of synchronicty in her life suggesting early hypomania.”
In his clinical notes, dated 9 June 2009, Dr Pearson records that Ms Booth had “a further independent assessment in Port Macquarie regarding the issue of Bipolar Disorder and tolerated the whole event fairly well.”
Dr Klaas Akkerman
In evidence is a report of Dr Klaas Akkerman, consultant psychiatrist, qualified by the insurer, dated 14 April 2005. Dr Akkerman took a history of the 2002 incident. He diagnosed Ms Booth to be in a “hypermanic phase of Bipolar Mood Disorder.” He opined that the cause of her condition was constitutional. He observed that Bipolar Mood Disorder is a genetic illness. He added that the disorder was not related to Ms Booth’s work and that her work was not a substantial contributing factor.
Dr Maxine Walden
On 9 November 2005, Dr Maxine Walden, Approved Medical Specialist, issued a Medical Assessment Certificate – Assessment of Degree of Permanent Impairment. Dr Walden took a history of the 2002 incident and diagnoses. She recorded that in December 2004, Ms Booth developed symptoms consistent with hypomania and that her current mood disorder is most accurately diagnosed as a Bipolar Disorder. She added that her current symptoms were consistent with PTSD in partial remission. In response to a question whether there had been any further injury subsequent to the subject work injury, Dr Walden recorded that there “has been the development of a new psychiatric disorder, namely, a Bipolar Disorder.”
Dr Walden concluded that Ms Booth developed psychiatric disorders of PTSD and Major Depression as a result of the work incident on 7 November 2002. Her conditions improved but there was an exacerbation of symptoms of the PTSD. She noted that the level of impairment causally related to the 2002 incident had stabilised by mid-2004. Ms Booth subsequently developed an episode of hypomania and then became depressed again.
Dr Walden described the issue to be “not one of apportionment for a pre-existing condition but rather one of separating out the effects of the work-related impairment from current impairment which is caused by a non-work-related psychiatric diagnosis that has developed subsequently.” She disagrees with Dr Pearson’s opinion that Ms Booth’s “episode of hypomania is secondary to her antidepressant medication.” She added that “[w]hile it is accepted that in people who are vulnerable constitutionally that an antidepressant medication may cause a switch into hypomania, a recent paper by Professor Mitchell … noted that there may have been an overestimate of the risk of emergent mania with antidepressant medication.” She also added:
“Generally, in clinical practice, a manic or hypomanic episode induced by an antidepressant medication tends to come on early, rather than late in the treatment with the antidepressant. I would note that Ms Booth described being on Venlafaxine (Efexor) for more than 12 months prior to the episode of hypomania. It is also common in clinical practice that when the antidepressant medication is withdrawn, the hypomania settles fairly rapidly. I note that in Ms Booth’s case, despite cessation of the antidepressant medication … Ms Booth considered that her hypomanic symptoms went on for about four months …”
Dr Walden concluded that the Bipolar Disorder was not causally related to Ms Booth’s antidepressant medication, which was instituted for the treatment of Depression and PTSD that were caused by the work incident. She assessed Ms Booth’s degree of permanent impairment to be 6%.
Dr Graham Vickery
In evidence is a report of Dr Graham Vickery, consultant psychiatrist, qualified by the insurer, dated 23 May 2008. In that report Dr Vickery records a history of the 2002 incident. Dr Vickery also records that in February 2005 Ms Booth experienced a manic episode of Bipolar Affective Disorder, which was treated with medication. He diagnosed that Ms Booth suffers from Bipolar Disorder. He opined that there was no evidence of PTSD, major depression or clinical anxiety disorder. In response to a question whether work was a substantial contributing factor to the injury, Dr Vickery recorded:
“There is no objective evidence that Mrs Booth’s employment is in any way a substantial contributing factor in her biological and constitutional Bipolar Disorder. This disorder had commenced a year or so after the work related incident and has persisted with hypomanic and depressive episodes in spite of the lack of any incapacitating psychopathology associated with the incident for some time.”
Dr Vickery did not consider that Ms Booth suffered from any whole person impairment.
Dr Stephen Huntsman
In evidence is a report by Dr Stephen Huntsman, consultant psychiatrist, qualified by Ms Booth, dated 4 August 2008. In that report, Dr Huntsman provided a history of the 2002 incident. He diagnosed Ms Booth with PTSD and Bipolar II Mood Disorder. He opined that Ms Booth’s employment was a substantial contributing factor to the onset of her condition. He added that in his opinion, “her condition is directly and causally related to the incident on 7 November 2002.” He observed that it was unusual for Bipolar II Mood Disorder to be present after the age of 40 and for there to be no family history of mood disorder. He added that it may “be possible that Ms Booth has experienced early sub-clinical episodes which have been unrecognised, particularly in relation to depressive symptoms and that there are affected relatives of whom she is unaware.”
Dr Huntsman disagreed with Dr Vickery and Dr Akkerman that Bipolar Mood Disorder is a fundamentally constitutional or genetic condition, and noted that while these conditions have a strong genetic component they are also clearly related to environmental factors. He added that “[i]n the absence of any earlier history, it is likely that Ms Booth’s bipolar disorder is related to the traumatic incident, which acted to ‘trigger’ her illness.”
Dr Huntsman assessed Ms Booth’s whole person impairment to be 17%.
Dr Brian Pasonage
In evidence is the Medical Assessment Certificate – Assessment of Degree of Permanent Impairment issued by Dr Brian Parsonage, Approved Medical Specialist, dated 12 June 2009. Dr Parsonage recorded a history of the 2002 incident and symptoms Ms Booth experienced following that incident. He noted that Ms Booth developed symptoms of Bipolar Disorder from early 2005 and these symptoms had continued. Dr Parsonage diagnosed Ms Booth with PTSD and major depression between the incident in 2002 and the beginning of 2005. He added that Ms Booth’s symptoms of PTSD have persisted and since 2005 she has “been correctly diagnosed as suffering from Bipolar Disorder. She is probably suffering from Bipolar II Disorder although it is possible that she has Bipolar III Disorder (antidepressant induced hypomania)”. He concluded that Ms Booth’s current diagnosis is “Post-traumatic Stress Disorder and Bipolar Disorder.” However, he noted that the referral for assessment was limited to whole person impairment in respect of the PTSD and his assessment was so limited. He assessed, using the then WorkCover Guides for the Evaluation of Permanent Impairment 3rd ed 1 February 2009, Ms Booth’s level of whole person impairment due to PTSD as 8%.
Dr Mark Scurrah
In evidence are several reports by Dr Mark Scurrah, consultant psychiatrist, qualified by Ms Booth. In his report dated 23 November 2017, Dr Scurrah records a history of the 2002 incident. Dr Scurrah diagnosed Ms Booth with a chronic Post Traumatic Stress Disorder and Bipolar Affective Disorder in the depressed phase. Dr Scurrah observed that Ms Booth’s psychiatric state is one of chronicity; cycling between hypomania and depression has been a long-term pattern. He stated that “[t]he Bipolar Affective Disorder was not a pre-existing illness. It developed as a result of the treatment of Depression with an antidepressant.” He assessed Ms Booth to have a whole person impairment of 26%.
In his report dated 2 July 2018, Dr Scurrah provided a supplementary report answering specific questions raised by Ms Booth’s solicitors. In answer to the question, whether Ms Booth “had an underlying susceptibility to bipolar disorder such that the Depression and Post Traumatic Stress Disorder … aggravated, accelerated and/or exacerbated this underlying condition”, Dr Scurrah stated:
“In my opinion, some aspect of the work consequences/treatment led to the ‘aggravated, accelerated and/or exacerbated this underlying disease condition (bipolar)’.
The simplest way, from a medical specialist point of view of looking at Ms Booth's
bipolar illness is one of:
• She possibly had a genetic predisposition to it. Then, following the trauma of the assault, she developed Depression (an early phase of the Bipolar illness) and then with the emergence of a Post Traumatic Stress Disorder and the treatment with antidepressant, a manic episode emerged. Progressing through these various phases of Depression to Mania can often take many months to years. If it were not for the trauma/development of Depression, and then treatment with an antidepressant, despite being genetically predisposed, Ms Booth would have been unlikely to have developed a Bipolar illness of Depression switching to mania.
• To put this another way, simply having a genetic predisposition to Bipolar illness does not necessarily mean it is going to emerge. There are well documented genetic studies supporting this. It is generally considered for a Bipolar illness to emerge, requires a degree of genetic predisposition and then significant biological/psychological/ environmental stressor to occur. In this case, the stressor could have been the assault and/or the development of the Post Traumatic Stress Disorder and the biological factor could have been the commencement of the antidepressants. Supporting the fact that if it were not for the trauma of the assault and/or the development of PTSD and/or treatment with an antidepressant, she would have been unlikely to have developed bipolar, is the late onset in life of her Bipolar illness. It did not develop in her teens/early 20's, rather, it developed in her fourth decade of life.”
Lynette Booth
In evidence is a statement prepared by Ms Booth dated 2 March 2018. She states that she “never had any psychological issues prior to this injury [the 2002 incident] and I had never been to a psychiatrist or psychologist.” There is no reference to the condition of Bipolar Disorder.
ARBITRATOR O’MOORE’S REASONS (THE FIRST DECISION)
In his statement of reasons, Arbitrator O’Moore set out the issues for determination. Under the heading “ISSUES FOR DETERMINATION” and subheading “Matters Previously Notified As Disputed” Arbitrator O’Moore recorded:
“Issues that remain in dispute are as follows;
(a) What injury or injuries arose out of the employment incident on 7 November 2002
(b) What if any incapacity continues as at denial of liability post 1 August 2008
(c) What is the capacity for suitable employment reasonably accessible to her
(d) What entitlement to weekly compensation does the worker have
(e) What entitlement to medical expenses does the worker have, and what should the treatment be.”
Arbitrator O’Moore recorded that there was a considerable contest from a number of the medical experts on whether Ms Booth’s bipolar condition, which arose some two years after the injury in November 2002, is causally related to that injury.[2] He added that Ms Booth’s medical conditions of PTSD and Bipolar Disorder must be distinguished on the medical evidence as to the causal connection to employment.[3] Arbitrator O’Moore considered Dr Walden’s evidence and finding of a causal connection of the development of the bipolar condition with employment. Arbitrator O’Moore also considers Dr Pearson’s evidence, and notes the change in diagnosis in August 2005 to Bipolar Mood Disorder and some continuing treatment for PTSD. Arbitrator O’Moore records Dr Pearson’s opinion, in his report of August 2005, that there was “a causal connection to the onset of the bipolar condition due to her major depressive condition and the aggressive medication for her work related medical condition.”[4] Arbitrator O’Moore also considers the medical evidence of Dr Huntsman, Dr Vickery and Dr Akkerman regarding the emergence of the bipolar condition.
[2] Booth v Fourmeninapub Pty Ltd, 8236/08, 19 February 2019 (Arbitrator O’Moore’s Reasons), [22].
[3] Arbitrator O’Moore’s Reasons, [23].
[4] Arbitrator O’Moore’s Reasons, [28].
Arbitrator O’Moore was satisfied on the evidence of Drs Walden, Pearson, Delaforce, Danesi and Huntsman that the PTSD condition was directly related to employment.[5] He added that there is “consistent history taken of a proximate onset of PTSD symptoms, and clear and cogent reasoning on the causative relationship of injury in November 2002 causing that condition.”[6]
[5] Arbitrator O’Moore’s Reasons, [47].
[6] Arbitrator O’Moore’s Reasons, [47].
Arbitrator O’Moore added:
“[48] I am not satisfied on the evidence that the bipolar condition is causally related to injury because the rationale provided by Drs Huntsman and Pearson are in conflict, Dr Huntsman suggesting causation due to environmental stressors in Mrs Booth’s life, including no doubt the work incident in November 2002. However the remoteness of the onset of the bipolar condition some 2 years after incident, when one looks at the improvement of her domestic, social, study and work life on the evidence of her treating doctors contradicts that suggestion.
[49] Dr Pearson links the onset of the bipolar condition to the major depressive condition and the aggressive medication. This is a substantial divergence with Dr Huntsman’s causative factors on the same environmental evidence.
[50] That evidence is also against the opinions of Drs [Akkerman] and Vickery on that topic. They are of the view that the bipolar condition is constitutional and cannot be work related. In the circumstances of the lapse of time since the incident in November 2002 and the onset of the bipolar condition some 2 years later I cannot be satisfied that the bipolar condition arises from the injury incident nor that employment was a substantial contributing factor to that injury or medical condition.
[51] Dr Walden does not support the causation rationale of [Dr] Huntsman or Dr Pearson.
[52] There is in my view no cogent, logical and probative evidence to establish the connection of the bipolar condition with employment.”
Arbitrator O’Moore, having considered the evidence, was satisfied that Ms Booth was “not totally incapacitated but partially incapacitated due to her PTSD condition on the medical evidence of her qualified and treating doctors.”[7] The PTSD condition was caused by the work injury in November 2002 and Ms Booth’s employment was a substantial contributing factor to that injury.[8] He was satisfied that Ms Booth could find work for 10 hours per week on an ongoing basis.[9] He was also satisfied on the evidence that medical treatment for PTSD was reasonably necessary.[10]
[7] Arbitrator O’Moore’s Reasons, [64].
[8] Arbitrator O’Moore’s Reasons, [64].
[9] Arbitrator O’Moore’s Reasons, [91].
[10] Arbitrator O’Moore’s Reasons, [107].
On 19 February 2009, Arbitrator O’Moore issued a Certificate of Determination in the following terms:
“The determination of the Commission in this matter is as follows:
1. Proceedings 486-2009 are not consolidated with these proceedings.
2. Respondent pay the Applicant pursuant to section 40 of the Act, weekly compensation in the sum of $314 per week from 1 August 2008 to date and continuing in accordance with the Act.
3. Respondent pay the Applicant's medical expenses in relation to reasonably necessary medical treatment in relation to her PTSD condition.
4. Respondent pay the Applicant's costs as agreed or addressed.
Costs are awarded on a complex basis given the nature of the proceedings (psychological injury), complex medical issues, and numerous medical reports.
An uplift of 20% is justified for both parties.
A brief statement of reasons for determination, in accordance with Rule 73 of the Workers Compensation Commission Rules 2003, is attached.”
ARBITRATOR EDWARDS’ REASONS (THE SECOND DECISION)
Arbitrator Edwards identified two issues for determination. Those issues are as follows:
“(a) whether Ms Booth is estopped on the basis of the doctrine of res judicata and the principle of Port Melbourne Authority v Anshun Pty Ltd[11] (the Anshun estoppel principle) from maintaining her cause of action that the psychiatric condition of Bipolar Disorder arises out of or in the course of employment as a result of the injurious event or incident on 7 November 2002 within the meaning of s 4(b)(ii) of the 1987 Act.
(b) whether the psychiatric condition of Bipolar Disorder arises out of or in the course of employment as a result of the injurious event or incident on 7 November 2002 within the meaning of s 4(b)(ii) of the 1987 Act.”[12]
[11] (1981) 147 CLR 489.
[12] Booth v Fourmeninapub Pty Ltd, 4546/18, 6 December 2018 (Arbitrator Edwards’ Reasons), [3].
It was not disputed that Ms Booth suffered a primary psychological injury of PTSD, within the meaning of s 65A(5) of the 1987 Act, as a result of the incident on 7 November 2002.
Arbitrator Edwards set out a detailed history of the proceedings in this matter. He identified that there were four sets of proceedings, prior to the present proceedings. He then turned his mind to the principles of estoppel, res judicata and Anshun referring to the leading authorities.
Arbitrator Edwards firstly dealt with the question of res judicata. He stated that when a question has been decided by a tribunal or court in proceedings between particular parties (the earlier proceedings), one of those parties will only be able to assert res judicata estoppel in subsequent proceedings if a question to be decided in those subsequent proceedings is identical to that decided in the prior proceedings. He added that, it is for the party who seeks to rely on the estoppels to establish the relevant identity of the question previously decided, and to be decided in the subsequent proceedings.[13] Arbitrator Edwards stated that, in essence, a party is not permitted to agitate issues which have already been the subject of prior proceedings and which have been explicitly determined.[14]
[13] Arbitrator Edwards’ Reasons, [71] citing Turner v London Transport [1977] ICR 952.
[14] Arbitrator Edwards’ Reasons, [72].
Arbitrator Edwards summarised the relevant constituent element of res judicata estoppel as “whether the arbitrator in the earlier proceedings determined the same question as that raised in the current proceedings.”[15]
[15] Arbitrator Edwards’ Reasons, [74].
Arbitrator Edwards said that it was “not easy to discern” Arbitrator O’Moore’s findings and determination of the causal link between the bipolar condition and accepted primary psychological injury of PTSD. Arbitrator Edwards stated that Arbitrator O’Moore referred to Dr Huntsman’s evidence regarding the causation of the bipolar condition due to environmental stressors.[16] However, Arbitrator Edwards stated that Arbitrator O’Moore determined the question of causation on the issue of the onset of the bipolar condition as caused by “the ingestion of medication prescribed for treatment of the PTSD and depression as a result of the injury.”[17]
[16] Arbitrator Edwards’ Reasons, [76].
[17] Arbitrator Edwards’ Reasons, [76].
Arbitrator Edwards held that Arbitrator O’Moore determined that Ms Booth suffered a personal injury within the meaning of s 4(a) of the 1987 Act, in that the incident caused a primary psychological injury manifesting as PTSD and depression.[18] He then described the “actual decision” as to causation of the bipolar condition:
“was whether it was a consequential condition resulting from the injury by ingestion of medication for treatment of PTSD and depression and not whether the injurious event or incident aggravated, accelerated, exacerbated or deteriorated the bipolar condition within the meaning of s 4(b)(ii) of the 1987 Act.”[19]
[18] Arbitrator Edwards’ Reasons, [77].
[19] Arbitrator Edwards’ Reasons, [78].
Arbitrator Edwards noted the employer’s concession that Arbitrator O’Moore determined the causation issue of the bipolar condition as a result of the medication prescribed for treatment of PTSD and depression.[20] Arbitrator Edwards then posed the current causation question in the current proceedings to be “whether the bipolar condition was aggravated, accelerated, exacerbated or deteriorated by the injurious event or incident on 2 November 2002 within the meaning of s 4(b)(ii)” which he found was not determined in the earlier proceedings.[21] It followed that Arbitrator Edwards found that Ms Booth was not estopped from maintaining her cause of action by the doctrine of res judicata.
[20] Arbitrator Edwards’ Reasons, [79].
[21] Arbitrator Edwards’ Reasons, [80].
Arbitrator Edwards then turned his mind to Anshun estoppel. Arbitrator Edwards stated that the test is one of “reasonableness”, that a party cannot raise an issue in subsequent proceedings in circumstances in which it is unreasonable not to have raised it in the first action.[22] Arbitrator Edwards then referred to the several sets of proceedings regarding the incident in November 2002.
[22] Arbitrator Edwards’ Reasons, [84].
Arbitrator Edwards stated that Ms Booth and her legal representatives would have been aware on receipt of the MAC that the bipolar condition was not causally related to the injury by the ingestion of medication and that the bipolar condition was excluded from the assessment of the degree of permanent impairment resulting from injury.[23]
[23] Arbitrator Edwards’ Reasons, [92].
Arbitrator Edwards observed that it was common ground by the parties that Ms Booth did not rely on or plead s 4(b)(ii) in the proceedings before Arbitrator O’Moore. Arbitrator Edwards said that the question to be determined was “whether it was unreasonable of Ms Booth not to have raised ‘disease injury’ in the context of s 4(b)(ii) of the 1987 Act in the proceedings before Arbitrator O’Moore.”[24] He observed that “Arbitrator O’Moore was not satisfied that the bipolar condition was [causally] related to the injury ‘because the rationale provided by Drs Huntsman and Pearson are in conflict.’”[25] Arbitrator Edwards observed that the doctors were providing opinions on two separate and distinct issues:
“(a) causation of the bipolar condition by ingestion of prescription antidepressant medication (Dr Pearson), and
(b) causation of the bipolar condition by exposure to stressful life events which can ‘trigger’ the bipolar condition (Dr Huntsman).”[26]
[24] Arbitrator Edwards’ Reasons, [113].
[25] Arbitrator Edwards’ Reasons, [115].
[26] Arbitrator Edwards’ Reasons, [116].
Arbitrator Edwards then stated that Dr Huntsman “did not provide sufficient reasons or explain why the bipolar condition was related to the ‘traumatic incident, which acted to ‘trigger’ her illness’.”[27] He concluded that the remoteness of the causal link provided by Dr Huntsman “on the basis the traumatic incident ‘acted to ‘trigger’ her illness’, would not have been, in my view, sufficient for Ms Booth to be aware that she suffered a disease injury in the context of s 4(b)(ii) of the 1987 Act.”[28] He found that the expression “‘acted to ‘trigger’ her illness’ used by Dr Huntsman did not make Ms Booth aware that she suffered a disease injury within the meaning of s 4(b)(ii)”.[29]
[27] Arbitrator Edwards’ Reasons, [118].
[28] Arbitrator Edwards’ Reasons, [119].
[29] Arbitrator Edwards’ Reasons, [120].
Arbitrator Edwards then found that Ms Booth did not act unreasonably by not claiming she suffered a “disease injury” within the meaning of s 4(b)(ii) of the 1987 Act in the second and third sets of proceedings before the Commission.[30] It followed that Ms Booth was not estopped by the doctrine of Anshun estoppel from maintaining her cause of action that she suffered a disease injury within the meaning of s 4(b)(ii) of the 1987 Act and that employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of her bipolar condition.[31]
[30] Arbitrator Edwards’ Reasons, [121].
[31] Arbitrator Edwards’ Reasons, [122].
Arbitrator Edwards found the diagnosable psychiatric conditions of PTSD, Major Depression and Bipolar Disorder are a “disease” within the meaning of s 4(b) of the 1987 Act.[32] He held that the medical and factual evidence established on the balance that Ms Booth suffered a personal injury within the meaning of s 4(a) in that the injurious event or incident resulted in a “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” manifesting itself in the diagnosable psychiatric conditions of PTSD and depression.[33] Arbitrator Edwards observed that this finding accorded with the finding of Arbitrator O’Moore that Ms Booth suffered PTSD as a result of the primary psychological injury in 2002.[34]
[32] Arbitrator Edwards’ Reasons, [141].
[33] Arbitrator Edwards’ Reasons, [144]-[146], citing Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 per Gleeson CJ and Kirby J, [39] and Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310.
[34] Arbitrator Edwards’ Reasons, [147].
Arbitrator Edwards considered the forensic medical opinions of Dr Walden and Dr Scurrah. He noted that Dr Walden’s evidence addressed the issue of whether Ms Booth suffered a personal injury within the meaning of s 4(a), but not if she suffered a disease injury within the meaning of s 4(b)(ii).[35] He also referred to Dr Scurrah’s evidence that the injury aggravated, accelerated and/or exacerbated the underlying bipolar condition.[36] Arbitrator Edwards observed Dr Scurrah’s opinion that it would have been unlikely for the bipolar condition to develop in the fourth decade of Ms Booth’s life if the traumatic event had not occurred.[37] Arbitrator Edwards relied on Dr Scurrah’s evidence to find that the incident made the symptoms of Ms Booth’s “… disease more grave and more serious in its effects resulting in the manic episode and emergence of the Bipolar Disorder.”[38]
[35] Arbitrator Edwards’ Reasons, [150].
[36] Arbitrator Edwards’ Reasons, [151].
[37] Arbitrator Edwards’ Reasons, [153].
[38] Arbitrator Edwards’ Reasons, [158].
Arbitrator Edwards found that the Bipolar Disorder was a “disease and that the employment was the substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease within the meaning of s 4(b)(ii) of the 1987 Act.”[39]
[39] Arbitrator Edwards’ Reasons, [160].
Arbitrator Edwards issued a Certificate of Determination, on 6 December 2018, in the following terms:
“The Commission determines:
1. Matter remitted to the Registrar for referral to an Approved Medical Specialist to assess permanent impairment of the applicant’s primary psychological injury (Post Traumatic Stress Disorder and Bipolar Disorder) as a result of injury on 7 November 2002. The following documentary evidence is to be forwarded to the Approved Medical Specialist:
(a)Application to Resolve a Dispute and attached documents, and
(b)Reply and attached documents.
A brief statement is attached setting out the Commission’s reasons for the determination.”
GROUNDS OF APPEAL
The appellant submits that Arbitrator Edwards erred:
(a) in not treating the s 4(b)(ii) claim as barred by issue estoppel (ground one);
(b) in not treating the s 4(b)(ii) claim as barred by Anshun estoppel (ground two), and
(c) in construing s 4 of the 1987 Act as including aggravation to a predisposition to injury (ground three).
LEGISLATION
A disease injury received before 19 June 2012, like in the present matter, is not affected by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act).[40] Therefore, the definition of injury in s 4 of the 1987 Act as it stood before the 2012 amending Act is to be applied. That definition is as follows:
[40] 1987 Act, cl 20 of Pt 19H or Sch 6.
“injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
GROUND ONE
Appellant’s submissions
The appellant recites the leading authorities on issue estoppel and res judicata. It submits that issue estoppel will apply where an issue decided in the earlier proceedings was essential or a prerequisite to that earlier decision.[41] It also submits that the issue of fact or law which had been disposed of was the question that the parties asked Arbitrator O’Moore to determine. Arbitrator Edwards “does not correctly reflect the ambit of the matter before Arbitrator O’Moore (which was a broader question of determining what psychiatric injuries had been suffered)”.
[41] Appellant’s submissions citing, Blair v Curran (1939) 62 CLR 464.
The appellant submits that Arbitrator Edwards misapplied the concept of issue estoppel, when he concluded:
“The causation issue in the current proceedings is whether the bipolar condition was aggravated, accelerated, exacerbated or deteriorated by the injurious event or incident on 2 November 2002 within the meaning of s 4(b)(ii), which, in my view, was not determined by Arbitrator O’Moore in the earlier proceedings.”[42]
[42] Arbitrator Edwards’ Reasons, [80].
The appellant also submits that a “defence of issue estoppel is not evaded simply by casting the claim again in a nuanced way in circumstances where the fundamental question of injury has been resolved conclusively.”
The appellant further submits that Arbitrator O’Moore was not called upon to directly decide the disease question because that is not how it was framed at the time. There has been a direct finding on the nexus of the bipolar condition to employment and this is “binding on a final basis”.
Respondent’s submissions
Ms Booth submits that Arbitrator O’Moore predominantly dealt with the issues of her claim for weekly benefits and medical expenses as a result of ongoing incapacity as a result of her work injury. Arbitrator O’Moore did not deal with the issue of disease and aggravation, acceleration and/or exacerbation of a disease condition.
Ms Booth also submits that there was no evidence available at the time of the proceedings before Arbitrator O’Moore for him to consider disease. Disease was never pleaded. Ms Booth adds that most of Arbitrator O’Moore’s reasons dealt with her ongoing incapacity as a result of PTSD and her entitlements to weekly benefits and medical expenses. Arbitrator O’Moore simply determined that the bipolar condition was not an injury arising out of the employment incident. He dealt with the condition on the basis it was pleaded as a frank injury.
Ms Booth now pleads an entirely different claim to that determined in 2009, before Arbitrator O’Moore. Further, Ms Booth submits that “the evidence available in this claim was not available and is quite distinct to the evidence that was available in the earlier claim.”
Ms Booth further submits that the appellant misrepresents Arbitrator O’Moore’s reasons. The issue of Bipolar Disorder as an injury resulting from the incident was dealt with by Arbitrator O’Moore but there was no discussion about whether it was an aggravation of a disease condition.
Ms Booth also submits that the appellant’s counsel, during the hearing before Arbitrator Edwards, conceded that the issue of whether the injurious event aggravated, accelerated and/or exacerbated Ms Booth’s predisposition to the bipolar condition had not been determined by Arbitrator O’Moore.
Ms Booth submits that the appellant’s submission that the “worker did not suffer from bipolar disorder when it was allegedly aggravated by the PTSD” presupposes that Ms Booth either did not have an underlying susceptibility to Bipolar Disorder and/or the disease was already present at the time of the incident.
Arbitrator O’Moore did not directly or indirectly deal with the issue of disease and aggravation, acceleration, exacerbation and deterioration of an underlying disease condition. Ms Booth submits that Arbitrator Edwards was asked a completely different question to that before Arbitrator O’Moore. Arbitrator O’Moore’s reasons only dealt with the issue of the bipolar condition being pleaded as a frank injury. The only evidence available of any possible reference to s 4(b)(ii) was Dr Huntsman’s evidence, “seemingly suggesting that the bipolar condition was triggered by medication.”
Ms Booth further submits that the disease provision “requires [that the s 4(b)(ii) claim] be pleaded as a separate cause of action.”
Discussion
The appellant appears to have conflated the principle of issue estoppel and the doctrine of res judicata, the latter of which Arbitrator Edwards considered and applied in determining the issues in dispute. Arbitrator Edwards did not determine the application of issue estoppel to the issues in dispute. Accordingly, it is necessary to first set out the principles of issue estoppel and the doctrine of res judicata, and second to set out how the case of estoppel was pleaded.
Issue estoppel may arise as a consequence of a state or fact of law being determined, which would prevent a party from bringing, or defending, a claim in relation to a different benefit. In Thompson v George Weston Foods,[43] Chief Judge McGrath observed:
“It is clear that issue estoppelcan 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.”[44]
[43] [1990] NSWCC 18; 6 NSWCCR 370 (Thompson).
[44] Thompson, 375C–F.
In Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2],[45] Lord Guest stated that issue estoppel does not arise in respect of a judicial decision unless the following three components are satisfied:
“(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”[46]
[45] [1967] 1 AC 853 (Carl Zeiss Stiftung).
[46] Carl Zeiss Stiftung, 935 (cited in Forster v Legal Services Board (ABN 82 518 945 610) [2013] VSCA 73, [100].
The doctrine of res judicata provides that a cause of action which has been determined by a court of competent jurisdiction or by a tribunal may not be re-litigated. In Blair v Curran,[47] the High Court highlighted the distinction between res judicata and issue estoppel as follows:
“The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state or fact of law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.”[48]
[47] [1939] HCA 23; 62 CLR 464 (Blair).
[48] Blair, 532.
In Habib v Radio 2UE Sydney Pty Ltd,[49] McColl JA (Giles and Campbell JJA agreeing) said:
“The doctrine of res judicata properly so-called (the first principle referred to in Dow Jones) applies where a plaintiff establishes his cause of action so that, upon judgment, the cause of action and any matters which were necessarily established as its legal foundation or as the justification for its conclusion, or were legally indispensable to the conclusion merge in the judgment, and no longer have an independent existence and cannot be re-litigated in subsequent proceedings between the parties of their privies: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 (at 531 – 532) per Dixon J; Anshun (at 597) per Gibbs CJ, Mason and Aickin JJ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; (1988) 164 CLR 502 (at 508) per Deane, Toohey and Gaudron JJ; James Hardie and Co v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53 (at [40]) per Gaudron and Gummow JJ.”[50]
[49] [2009] NSWCA 231 (Habib).
[50] Habib, [73].
As Arbitrator Edwards set out in his reasons, the constituent elements of a res judicata estoppel are:
“(1) The decision was judicial in the relevant sense;
(2) It was in fact pronounced;
(3) The tribunal had jurisdiction over the parties and the subject matter;
(4) The decision was:
(a)final, and
(b)on the merits:
(5) It determined the same question as that raised in the later litigation; and
(6) The parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.”[51]
[51] “The Doctrine of Res Judicata” by Spencer Bower, Turner and Handley, 3rd edition, 1996 (Spencer Bower).
The confusion between issue estoppel and the doctrine of res judicata has arisen in part because both these legal principles, together with Anshun estoppel, were raised in a general sense as issues for determination in the proceedings before Arbitrator Edwards. In the arbitration proceedings before Arbitrator Edwards, the following submissions took place:
“MR ROBISON: Thank you. Firstly, on the estoppel issue, it would be an error to conflate Anshun estoppel which is a consideration of the way in which an applicant frames his or her case in one litigation versus another on the one hand, with - - -
MR WILLIS: Sorry.
MR ROBISON: - - - with issue estoppel which looks at the way in which a judicial officer or an arbitrator has determined a piece of litigation and both have to be considered in my submission in relation to the proceedings before you, Arbitrator.”[52]
[52] Transcript of Proceedings, Booth v Fourmeninapub Pty Ltd, 4546/18, Arbitrator Edwards, 13 November 2018 (T), T20.13–25.
The following exchange between the parties then took place during the arbitration proceeding:
“MR ROBISON: In terms of the res judicata issues as to what’s been determined, if one construes the decision of Arbitrator O’Moore which was at page 163 in totality, and one gives it a fair reading, the Commission in that decision determined the applicant’s rights both in relation to Section [4(a)] and in relation to Section[4(b)(ii)]. In paragraph 52 of the decision, it’s stated by the arbitrator - - -
MR WILLIS: Sorry, which paragraph again?
MR ROBISON: 52 on page 168:
‘In my view - - -‘
Sorry:
‘There is, in my view, no cogent, logical and prohibitive [probative] evidence to establish the connection of the bipolar condition with employment.’
So that, in my submission is Section [4(a)], that is to say arising out of the course of employment. But that paragraph, the conclusion can’t be looked at in isolation. It has to be looked at in conjunction with paragraph 49 in which the arbitrator considered the, what’s described as the aggressive medication taken in relation to the major depressive condition and its link with the onset of the bipolar condition. So insofar as there’s an aggravation caused by use of medication, that has been determined. What hasn’t been determined, I will accept, is the argument that the predisposition to bipolar was a factor that wasn’t considered by the arbitrator there, so, that doesn’t fall within the res judicata estoppel but it still falls within Anshun estoppel.”[53]
[53] T24.1–25.3.
Arbitrator Edwards makes several references to the terms “issue estoppel”, “res judicata” and “Anshun estoppel” during the arbitration proceeding, suggesting that he intended to deal with those principles separately.[54] Arbitrator Edwards determined the application of the doctrine of res judicata and Anshun estoppel separately in his decision, but failed to determine the application of issue estoppel. Having said that, the submissions before Arbitrator Edwards on the principle of issue estoppel were not fully articulated or developed. While it is not an error for an Arbitrator not to deal with an argument never properly articulated,[55] to the extent that Arbitrator Edwards failed to determine the application of the principle of issue estoppel on the basis of the submissions before him it was a constructive failure to give reasons.[56]
[54] Arbitrator Edwards’ Reasons; T22.20; T23.6; T38.33.
[55] Brambles Industries Ltd v Bell [2010] NSWCA 162, [22]; [30]; Sarac v Itxcel Pty Ltd [2015] NSWWCCPD 32, [38].
[56] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, [88] (per Kirby J (as he then was); LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166 (North, Logan and Robertson JJ), [5].
Having considered the submissions on appeal, the parties do not seek to dispute Arbitrator Edwards’ findings on the doctrine of res judicata. The only issue in respect of this ground of appeal appears to concern issue estoppel. As the issue of “issue estoppel” was before Arbitrator Edwards in the proceedings below and because the application of this principle to the facts in this case has been argued in the proceedings below and on appeal, it is appropriate that I determine the application of issue estoppel to the facts in this case.
It is not disputed that the judicial decision which is said to create the estoppel, Arbitrator O’Moore’s decision of 19 February 2009, was final and binding on the parties in dispute on the present appeal. It is also not disputed that the parties to Arbitrator O’Moore’s decision are the same parties to the proceedings in which the estoppel is raised. It follows that what needs to be determined is whether the same question before Arbitrator Edwards was decided in proceedings before Arbitrator O’Moore.[57] In other words, whether a state or fact of law in the current proceedings was a matter that was necessarily decided by Arbitrator O’Moore.[58] That is, in the circumstances of the present matter whether the bipolar condition was an aggravation, acceleration, exacerbation or deterioration of an underlying disease condition for the purposes of s 4(b)(ii).
[57] Carl Zeiss Stiftung.
[58] Blair, 532.
In the proceedings before Arbitrator O’Moore (matter no 8236/08), Ms Booth claimed weekly benefits and medical expenses in respect of the November 2002 injury. While the actual application to resolve a dispute in that matter is not before me, having considered the material available and Arbitrator O’Moore’s decision, for the reasons that follow, Ms Booth claimed a personal injury (PTSD) and a consequential condition (Bipolar Disorder) pursuant to s 4(a).
In his statement of reasons, under the heading “BACKGROUND”, Arbitrator O’Moore records:
“[2] The worker claims psychological injury arising out of that event [the November 2002 event], including her perceived risk of blood borne diseases.
…
[5] The worker developed bipolar disorder at the end of 2004 or early 2005, and the worker claims that this condition is causally related to the employment injury in addition to her post traumatic stress disorder (PTSD). This is denied by the Respondent/Insurer.”[59]
[59] Arbitrator O’Moore’s Reasons, [2]–[5].
Arbitrator O’Moore then set out the issues for determination in his decision. I accept that those issues broadly deal with determining what psychiatric injuries had been suffered by Ms Booth and the causal connection with employment. However, those issues did not precisely identify a disease injury. Having considered Arbitrator O’Moore’s reasons it is clear that he determined, as Arbitrator Edwards found, the question of whether the bipolar condition was a consequential condition caused by the ingestion of antidepressant medication prescribed for treatment of the PTSD and depression. That is a consequential condition as opposed to a disease condition. This is made clear by Arbitrator O’Moore’s finding that he was “not satisfied on the evidence that the bipolar condition is causally related to injury because the rationale provided by Drs Huntsman and Pearson are in conflict, Dr Huntsman suggesting causation due to environmental stressors … including no doubt the work incident in November 2002 … [and Dr Pearson’s evidence linking] the onset of the bipolar condition to the major depressive condition and the aggressive medication.”[60] Arbitrator O’Moore observed that the evidence of Dr Hunstman and Dr Pearson was against the opinions of Drs Akkerman and Vickery, the latter of which viewed the bipolar condition to be constitutional and not work related.[61] It followed that Arbitrator O’Moore found:
“In the circumstances of the lapse of time since the incident in November 2002 and the onset of the bipolar condition some 2 years later I cannot be satisfied that the bipolar condition arises from the injury incident nor that employment was a substantial contributing factor to that injury or medical condition.”[62]
[60] Arbitrator O’Moore’s Reasons, [48]–[49].
[61] Arbitrator O’Moore’s Reasons, [50].
[62] Arbitrator O’Moore’s Reasons, [50].
Arbitrator O’Moore’s reference to “substantial contributing factor” is a reference to s 9A of the 1987 Act which provides that no compensation is payable under the 1987 Act in respect of any injury unless the employment concerned was “a substantial contributing factor to the injury”. Section 9A continues to apply to injuries received prior to 19 June 2012, that is, prior to the introduction of the 2012 amending Act. Arbitrator O’Moore’s finding is consistent with the way in which the case was pleaded -, that is, on the basis of a personal injury pursuant to s 4(a).
In respect of pre-2012 disease injuries; to establish a disease injury under s 4(b)(ii)the claimant must first establish that employment was “a contributing factor” to either the contraction of the disease (s 4(b)(i)) or to the aggravation, acceleration, exacerbation or deterioration of the disease (s 4(b)(ii)).Like a finding of a personal injury arising out of or in the course of employment pursuant to s 4(a), a finding under s 4(b)(ii) is a finding of fact. Arbitrator O’Moore did not make a factual finding on the application of s 4(b)(ii) to the issues in the present matter. This is because of the way the matter was pleaded. Indeed, the appellant implicitly accepts that a claim specifically under s 4(b)(ii) was not advanced in proceedings before Arbitrator O’Moore.
It follows that I accept Ms Booth’s submissions that the issue of Bipolar Disorder as a personal injury resulting from the November 2002 incident was dealt with by Arbitrator O’Moore but there was no discussion or determination as to whether it was an aggravation of a disease condition for the purposes of s 4(b)(ii).
In the proceedings before Arbitrator Edwards (matter no 4546/18), Ms Booth claimed lump sum compensation for permanent impairment in respect of a disease injury pursuant to s 4(b)(ii). In the Application, the injury is described as a psychological injury dated 17 November 2002 (sic, 7 November 2002), having occurred in the following terms:
“The Applicant suffered an aggravation, acceleration and/or exacerbation of an underlying disease condition (bipolar disorder) as a result of the [e]ffects of PTSD and depression resulting from her work injury on 7 November 2002.
In the alternative, the Applicant suffered psychological sequalae as a result of being assaulted on 7 November 2002.”
At the commencement of the arbitration proceedings before Arbitrator Edwards, the Arbitrator set out the description of injury and how it occurred as set out in the Application. In response, Ms Booth’s counsel stated: “[t]his case is now pleaded as a Section 4bII case”[63] and added “Roman numeral II”[64]. Ms Booth’s counsel later submitted: “So, the applicant’s case now is relying upon aggravation, acceleration, exacerbation or deterioration of a disease process and that is available to the applicant as an alternate injury mechanism and it’s on that basis that this matter proceeds…”[65] and “our aiming is not 4bI, Roman numeral I, it’s 4bII”[66].
[63] T5.8.
[64] T5.14.
[65] T6.29.
[66] T8.6.
For the purposes of the present claim for lump sum compensation, the state or fact of law giving rise to the entitlement for compensation, namely, whether Ms Booth suffered a disease injury within the meaning of s 4(b)(ii), was not decided by Arbitrator O’Moore. It follows that the principle of issue estoppel does not apply. Accordingly, Ms Booth is not estopped by the principle of issue estoppel from pursuing her claim for a different type of benefit in the present proceedings.
Given that the principles of res judicata and issue estoppel were argued interchangeably before Arbitrator Edwards, to the extent the appellant seeks to cavil with Arbitrator Edwards’ findings in respect of the application of res judicata, and for completeness, I make the following additional observations.
I accept the following matters:
(a) that the decision of Arbitrator O’Moore was judicial in the relevant sense;
(b) that the decision of Arbitrator O’Moore was in fact pronounced, in that there is a formal record of the decision;
(c) that Arbitrator O’Moore had jurisdiction over the parties and the subject matter in dispute;
(d) that Arbitrator O’Moore’s decision was final and a decision on the merits, which determined the facts in dispute, and
(e) that the parties in the current proceeding were the same parties to the proceedings before Arbitrator O’Moore.
However, for the reasons discussed above, I am not satisfied that the question of disease injury under s 4(b)(ii) was raised or determined in proceedings before Arbitrator O’Moore. The cause of action claimed and determined in the proceedings before Arbitrator O’Moore, being compensation in respect of a personal injury pursuant to s 4(a), is separate and has an independent existence to the current cause of action for compensation under s 4(b)(ii). Therefore, the fundamental elements of res judicata are absent as the very right or cause of action claimed in proceedings before Arbitrator Edwards was not passed into judgment in the proceedings before Arbitrator O’Moore.[67] It follows that, in any event, Arbitrator Edwards did not err in finding that Ms Booth was not barred from bringing her cause of action for compensation for a disease injury pursuant to s 4(b)(ii).
[67] Blair, 532.
It follows that ground one is not made out.
GROUND TWO
Appellant’s submissions
The appellant submits, in the alternative to ground one, that Ms Booth’s claim is barred by Anshun estoppel because the application of s 4 has already been determined. At the time of the hearing before Arbitrator O’Moore, the bipolar condition had materialised and was diagnosed. It submits that:
“Whether this was an injury simpliciter arising from the melee in the pub or the result of an aggravation, or otherwise, all such arguments were within the arsenal of the worker as of the date of the lodgement of the ARD leading to that arbitration.”
The appellant relies on the High Court decision in Anshun, which said the test was whether “the parties, exercising reasonable diligence, might have brought forward [the claim] at the time”. Ms Booth was legally represented in four sets of proceedings in the Commission. Ms Booth had “contracted Bipolar and was aware of this diagnosis and its potential work-nexus (seeing as she contended for its compensability in the earlier proceedings).”
The appellant also submits that Anshun estoppel is not a matter of discretion. The “bar is raised upon a determination that it would have been reasonable to litigate the claim earlier”. The appellant further submits that Ms Booth “cannot say that when she was before Arbitrator O’Moore she could not have run her s 4(b)(ii) argument”. The appellant adds that there is no reason, for example, as to why Ms Booth could not have obtained a medico-legal report dealing with s 4(b)(ii) to deploy at that time. The appellant concludes by submitting that the “alternative case” was plainly available but not utilised.
Following my direction of 6 May 2019, the appellant filed further submissions on the application of the decision in Anshun and the principles of Anshun estoppel. The appellant submits that the principles of Anshun estoppel were confirmed recently in the High Court decision in Tomlinson v Ramsey Food Processing Pty Ltd.[68] The appellant also submits that that case confirmed that the test in Anshun is essentially one of “reasonableness in barring a party from raising a claim or issue in subsequent proceedings where it was connected to the subject matter of the first proceedings and that party ought reasonably to have included the claim in the first proceedings.” It submits that the Court there indicated that “even if the strictures of the content of formal estoppels are not made out, the administration of justice might nevertheless be impaired by improper subsequent litigation.”
[68] [2015] HCA 28; 256 CLR 507.
The appellant submits that in Anshun the Court noted that there will be an estoppel where “the matter relied upon … in the second action was so relevant to the subject matter of the first action it would have been unreasonable not to rely on it.”[69] The appellant further submits that the Court noted the circumstances where it would be unreasonable not to plead matters such as where to plead all matters would have “enable[d] the relevant issues to be determined in the one proceeding.”
[69] Appellant’s submissions, citing Anshun, [37].
The appellant submits that in the present matter, the issue of whether Ms Booth had a compensable bipolar condition featured at the heart of both sets of proceedings in the Commission. Arbitrator O’Moore found that there was no link on the evidence between employment and disease. The appellant submits that the Court in Anshun also identified some circumstances in which it may not be reasonable for a party to agitate all matters in one proceedings such as “… expense, importance of the particular issue, motives extraneous to the actual litigation.” The appellant submits that, as for expense, workers are not obliged to pay for litigation in the jurisdiction. As for the importance of the particular issue, the appellant submits that “the compensability of bipolar was centrally important in both proceedings.” As for extraneous motivations, the appellant submits “there is simply no evidence this was the case.”
The appellant further submits that to “succeed on the bipolar claim under one iteration of the concept ‘injury’ in the second proceeding, having failed in the first, is an affront to the administration of justice given that the two decisions are ‘inconsistent in respect of the same transaction’ (the ‘transaction’ on the facts of the instant case being the course of employment)”. The appellant adds, to find in favour of the respondent on Bipolar Disorder in the first case and then for Ms Booth on the second would offend the prohibition of inconsistent judgments
Ms Booth seeks the “same ultimate outcome”, that is compensation for the bipolar condition, but on “a different legal basis in circumstances where, as in Anshun, the relevant party was in a position to agitate for both alternative case theories in the original litigation.” The appellant adds that Ms Booth appears to concede, in her submissions dated 21 February 2019 at [9]–[10], that Arbitrator O’Moore did not deal with the disease argument because it was not pleaded.
Respondent’s submissions
Ms Booth submits that there is no evidence available either at the time of the preparation or during the previous proceedings, of the disease provisions of the Act being “able to be relied upon.” The appellant has not provided any evidence of “what evidence was available at the time” to bring a disease claim.
Ms Booth adds that the Court has a wide discretion as to whether it is “reasonable” not to have raised an issue in earlier proceedings. However, the appellant has not provided any evidence in this regard. Arbitrator Edwards’ determination cannot be overturned by reference to a “simple assertion … without any reference as to what was reasonable or not.”
Ms Booth filed further submissions, following my Direction. In those submissions, Ms Booth submits that the facts and legislation in this appeal do not establish a basis for the finding of an Anshun estoppel. It submits that there are two distinct alternatives available to a worker alleging a compensable injury. The claim for compensation before Arbitrator O’Moore was based on s 4(a) and the claim for compensation before Arbitrator Edwards was based on s 4(b)(ii), which are separate distinct causes of action available to Ms Booth.
Ms Booth submits that “[w]ith respect to paragraph [34] of Anshun the phrase ‘so relevant to the subject matter of the first action that it would have been unreasonable not to rely upon it’, is factually and legally different to the current appeal. In Anshun, the defence was part of the contractual relationship between the parties and known to the Authority.”
Ms Booth also submits that there could be no conflict in a judgment by an Arbitrator dealing with a frank injury and then, a subsequent Arbitrator dealing with a worker’s claim for injury, arising out of a separate available cause of action, being based on the disease provisions. In the present appeal, Ms Booth relied on an alternate basis for claiming compensation. She relied on a separate cause of action with medical evidence to support that cause of action, from Dr Scurrah. While the facts are closely connected, the cause of action was different in the first action compared to the second action. In respect to reasonableness, Ms Booth submits it was unreasonable for the Authority in Anshun to refrain from raising its case of indemnity for disposition in the first action.
Ms Booth finally submits that she was entitled to pursue the claim based on the disease provisions. The medical evidence was not available at the time the matter proceeded before Arbitrator O’Moore.
Discussion
Anshun estoppel prevents a party from relying on a claim or defence if it unreasonably refrained from including it in the earlier proceedings. In Anshun, Gibbs CJ, Mason and Aickin JJ said:
“In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.”[70]
[70] Anshun, [37].
Their Honours also said:
“The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.”[71]
[71] Anshun, [40].
In Habib, McColl JA said:
“A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form: see Bazos and Anor v Doman and Ors[2001] NSWCA 347 (at [44]) per Stein JA (Priestley and Beazley JJA agreeing) and the authorities to which his Honour refers.”[72]
[72] Habib, [84].
It is clear that the objective of Anshun estoppel is the public policy that there are no conflicting judgments on the same set of facts. Applying the relevant principles, it must be determined whether the claim or defence was so closely related to the earlier subject matter that it would reasonably have been expected to have been raised. To answer this question the onus lies on the appellant to demonstrate that the failure to bring a claim in the earlier proceedings was unreasonable, and that there was no valid reason for refraining from doing so. In determining the Anshun estoppel question it is necessary to undertake an analysis of the medical evidence available in the proceedings below, to determine whether Ms Booth failed to bring the claim under s 4(b)(ii) in the proceedings before Arbitrator O’Moore. In particular it is necessary to consider whether, in the proceedings before Arbitrator O’Moore, there was an absence of medical evidence required to support the s 4(b)(ii) claim (which was determined in proceedings before Arbitrator Edwards). I accept Ms Booth’s submissions that the appellant has not taken me to any particular evidence to support its claim that the “alternative case” was plainly available but not utilised in the previous proceedings. This is despite the appellant having filed supplementary submissions on the principle of Anshun estoppel, following my Direction.
It is accepted that Ms Booth did not specifically bring a claim for a disease injury pursuant to s 4(b)(ii) in proceedings that were determined by Arbitrator O’Moore. For the reasons discussed above, under ground one, I am not satisfied that Arbitrator O’Moore determined whether a compensable disease condition had been sustained pursuant to s 4(b)(ii). That is because what was in issue was whether Ms Booth sustained a personal injury under s 4(a) arising out of or in the course of employment. As Ms Booth submits, s 4(a) and s 4(b)(ii) are separate and distinct causes of action which materialised when the evidence was available to pursue those claims. For the reasons discussed below, it was not until the report of Dr Scurrah in November 2017 that Ms Booth and her legal representatives were in a position to bring a claim for compensation pursuant to s 4(b)(ii). That is because Dr Scurrah’s evidence was the only evidence that specifically dealt with a disease injury.
I accept the appellant’s submission that at the time of proceedings before Arbitrator O’Moore, the bipolar condition had materialised and was diagnosed. However, the only evidence before Arbitrator O’Moore concerning a causal connection between the bipolar condition and employment was that of Dr Huntsman.
In determining the issue of Anshun estoppel Arbitrator Edwards considered the medical evidence available during the proceedings before Arbitrator O’Moore. Arbitrator Edwards observed that Dr Walden disagreed with the opinion of Dr Pearson that Ms Booth’s episode of hypomania was secondary to her antidepressant medication prescribed for treatment of her PTSD and depression, and that Dr Walden opined that the Bipolar Disorder was a “new psychiatric disorder” not causally related to the antidepressant medication. I observe that the report of Dr Pearson, of August 2005, wherein he opines “a causal connection to the onset of the bipolar condition due to [Ms Booth’s] major depressive condition and the aggressive medication for her work related medical condition” is not in evidence before me nor was it before Arbitrator Edwards. However, I accept Arbitrator Edwards’ finding that Ms Booth and her legal representatives:
“would have learnt upon the issuing of the MAC by Dr Walden that she was of the opinion the bipolar condition was not [causally] related to the injury by the ingestion of prescribed antidepressant medication; and that the bipolar condition was excluded from the assessment of the degree of permanent impairment resulting from the injury.”[73]
[73] Arbitrator Edwards’ Reasons, [92].
Arbitrator Edwards considered Dr Huntsman’s medical evidence. In particular, Arbitrator Edwards noted that Dr Huntsman opined that employment was a substantial contributing factor to the onset of Ms Booth’s PTSD and Bipolar II Mood Disorder and that her psychological condition was directly and causally related to the November 2002 incident. Arbitrator Edwards also observed that Dr Huntsman agreed with Dr Walden’s opinion that Ms Booth’s hypomanic symptoms were precipitated by antidepressant medication and resolved quickly on cessation of that medication. Dr Huntsman concluded that, in the absence of any earlier history, it was likely that Ms Booth’s Bipolar Disorder was related to the November 2002 incident which “acted to ‘trigger’ her illness”. However, as Arbitrator Edwards found, Dr Huntsman did not explain how the November 2002 incident acted to trigger the bipolar condition.[74] There was no further evidence on the causal connection between the bipolar condition and employment, that was available in the proceedings before Arbitrator O’Moore.
[74] Arbitrator Edwards’ Reasons, [118].
I accept that Ms Booth was legally represented in all the proceedings before the Commission. However, I am not satisfied that the evidence available at the time of proceedings before Arbitrator O’Moore was sufficient for Ms Booth or her legal representatives to be alerted to the fact that she suffered or could have suffered from a disease injury under s 4(b)(ii). That evidence, as Ms Booth submits, was not directed to the application of s 4(b)(ii), it was directed to the application of s 4(a). Further, the avilable evidence was not sufficient to warrant Ms Booth or her legal representatives to obtain a further medico-legal report directed to s 4(b)(ii).
I do not accept the appellant’s submissions that to succeed on the bipolar condition claim under one iteration of the concept of injury in the second proceedings (before Arbitrator Edwards), having failed in the first (before Arbitrator O’Moore), is an affront to the administration of justice. Firstly, that is because, for the reasons discussed above, there was no evidence available at that time to support a s 4(b)(ii) claim and because Arbitrator O’Moore did not make factual findings pursuant to s 4(b)(ii). Secondly, it is because Arbitrator Edwards’ decision on s 4(b)(ii) and Arbitrator O’Moore’s decision are not inconsistent in respect of the same transaction. Thirdly, the mere fact that the two proceedings are closely related is insufficient to find Anshun estoppel. Accordingly, having regard to the subject matter of the earlier proceedings and the evidence available at that point in time, it was not unreasonable for Ms Booth not to bring a claim for s 4(b)(ii) in the earlier proceedings.[75] The appellant has not discharged the legal onus of proof that the evidence establishes, on the balance of probabilities, that it would have been unreasonable for Ms Booth not to rely on s 4(b)(ii) in the earlier proceedings.
[75] Anshun, [37].
For the reasons discussed above, Arbitrator Edwards did not err in finding that Ms Booth did not act unreasonably by not claiming that she suffered a disease injury within the meaning of s 4(b)(ii) and by not pursuing that cause of action in the earlier proceedings. Nor did Arbitrator Edwards err in finding that Ms Booth was not estopped by the principle in Anshun from maintaining her cause of action that she suffered a disease injury pursuant to s 4(b)(ii). Arbitrator Edwards’ factual findings in this regard were open on the evidence and disclosed no error.
In any event, it would have been improper for Ms Booth’s legal representatives to bring a disease claim in the 2009 proceedings. That is because on the available medical evidence, there was no case for a disease injury pursuant to s 4(b)(ii). I would remark that if a claim is misconceived or lacking in substance it is liable to be dismissed pursuant to s 345(7A) of the 1998 Act.
It follows that ground two is not made out.
GROUND THREE
Appellant’s submissions
The appellant refers to Arbitrator Edwards’ finding that Ms Booth’s Bipolar Disorder is a disease and that employment was the substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease within the meaning of s 4(b)(ii) of the 1987 Act. In the alternative to grounds one and two, the appellant submits that for Ms Booth’s Bipolar Disorder claim to succeed there must be “a disease to be aggravated in order to engage with the definition.”
The appellant relies on the decision of the High Court in Federal Broom Co Pty Ltd v Semlitch.[76] Ms Booth failed at the first hurdle, as she was not suffering from a disease when the aggravation was said to have occurred. The appellant submits that there “must in fact be, present at the time the aggravation occurs, a morbidity of body before one proceeds to the next question of whether it has been aggravated”. It further submits that “[w]hatever a ‘disease’ is construed to be, a worker must be suffering from it before the question of aggravation logically, and consistently with Semlitch arises.”
[76] [1964] HCA 34; 110 CLR 626 (Semlitch).
Respondent’s submissions
Ms Booth submits that Arbitrator Edwards found that the incident triggered an underlying susceptibility to the bipolar condition. Arbitrator Edwards accepted that mental illness can be a disease condition and there was sufficient medical evidence available to accept that the bipolar condition was a disease and that the work incident “triggered a series of physiological events which ultimately manifest in symptoms of the bipolar condition.”
Ms Booth seeks to distinguish the decision in Semlitch and states that the facts were very different, as the mental condition (in that case of schizophrenia) had already manifested well before the work incident which triggered the aggravation of the disease. It adds that the “physiological change that may well have been present at the time of the incident did not manifest in actual symptoms that could be observed however nonetheless, [were] present and continuing to change up until the Respondent noticed symptoms which were ultimately diagnosed as bipolar.”
Ms Booth submits that when symptoms might become manifest is obviously not an indication as to when the physiological changes actually commence. The physiological changes may have been present for a number of years. The question is whether “it is reasonable to accept that this particular work incident … was sufficient to aggravate, accelerate and/or exacerbate an underlying disease condition.” Arbitrator Edwards said that it was and there is no evidence to suggest the decision should be overturned.
Discussion
The parties accept that Ms Booth had an underlying genetic predisposition to Bipolar Disorder. However, the appellant submits that Ms Booth’s claim should not succeed on the basis that she was not suffering from a disease when the aggravation was said to have occurred.
It has long been established that there is an aggravation, acceleration, exacerbation or deterioration of a disease if it is made more grave or more serious in its effects on the patient. Justice Windeyer in Semlitch stated:
“The question whether there has been an aggravation, acceleration, exacerbation or deterioration of a mental disorder is, I think, essentially one of fact. It is a question on which the opinion of psychiatrists may obviously be helpful. But the answer depends upon whether for the sufferer the consequences of his affliction have become more serious.”[77]
[77] Semlitch, 637.
Justice Windeyer added that in determining if a worker has suffered an aggravation of injury within the meaning of s 4(b)(ii) it is necessary to ask the following questions.[78] If there is evidence which would enable the questions to be answered in the affirmative, the appeal should be dismissed. The relevant questions are as follows:
(a) Was Ms Booth suffering from a disease?
(b) If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c) If so, was her employment a contributing factor to the aggravation, acceleration, exacerbation or deterioration?
(d) If so, did incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?
[78] Semlitch, 638.
It is clear that it is appropriate to classify psychological conditions as diseases. Justice Kitto in Semlitch stated:
“[i]n its ordinary meaning ‘disease’ is a word of very wide import, comprehending any form of illness; and there is no reason that I can see for reading it in the present context as not extending to mental illness.”[79]
[79] Semlitch, 633.
The Full Court of the Federal Court in Commonwealth of Australia v Beattie[80] stated that there may be an aggravation or exacerbation notwithstanding that there is no change in the underlying pathology. It is a question of fact whether there is such an aggravation or exacerbation, which is to be determined on the unique facts of each case.[81]
[80] [1981] FCA 88; 35 ALR 369, 377-378.
[81] Mellor v Australian Postal Corporation [2009] FCA 504, [23].
Arbitrator Edwards considered and sought to apply the decision in Semlitch. Arbitrator Edwards also considered the whole of the lay and medical evidence before him. He found that the forensic medical opinions relied on by the appellant and Dr Walden did not address if Ms Booth suffered a disease injury within the meaning of s 4(b)(ii).[82] Arbitrator Edwards then considered the medical evidence of Dr Scurrah, that the 2002 incident aggravated, accelerated and/or exacerbated the “underlying disease condition” of bipolar disorder, within the meaning of s 4(b)(ii). Arbitrator Edwards found that there was a proper foundation and fair climate on which Dr Scurrah’s opinion was based. Arbitrator Edwards accepted the evidence of Dr Scurrah, over the other medical evidence because that other evidence did not address whether Ms Booth suffered a disease injury within the meaning of s 4(b)(ii). Accordingly, Arbitrator Edwards found that Ms Booth’s Bipolar Disorder is a disease and that employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease within the meaning of s 4(b)(ii) of the 1987 Act.
[82] Reasons, [150].
Dr Scurrah’s evidence was the only medical evidence that considered the Bipolar Disorder in the context of a disease injury under s 4(b)(ii). Dr Scurrah, in his report of 2 July 2018, opined that Ms Booth “possibly had a genetic predisposition to [bipolar]” and that if it were not for the November 2002 incident and subsequent treatment with an antidepressant Ms Booth would have been unlikely to have developed the bipolar condition. The evidence of Dr Scurrah demonstrates that Ms Booth had a “genetic predisposition” to Bipolar Disorder, which was rendered symptomatic by the medication taken for the accepted work injury of PTSD. The evidence of Dr Scurrah does not suggest that Ms Booth had an “underlying disease condition” that had been aggravated, accelerated or deteriorated as a consequence of the 2002 incident and development of PTSD. Indeed, in his report of 23 November 2017, Dr Scurrah states that Ms Booth’s Bipolar Disorder was “not a pre-existing illness” and that it developed as a result of the treatment of depression with medication.
In response to the specific question raised by Ms Booth’s solicitors, Dr Scurrah stated, in his report of 2 July 2018:
“In my opinion, some aspect of the work consequences/treatment led to the ‘aggravated, accelerated and/or exacerbated this underlying disease condition (bipolar)’.”
Read in context, Dr Scurrah’s comment that employment aggravated “this underlying disease condition (bipolar)” is merely a reproduction of the question posed by Ms Booth’s solicitors. This is demonstrated by Dr Scurrah’s use of quotation marks and use of the exact words used in the question posed. It is also demonstrated by the detailed commentary provided by Dr Scurrah that followed, which explains Ms Booth had a “genetic predisposition to Bipolar Disorder”. That detailed commentary does not demonstrate that Ms Booth had an underlying disease condition of Bipolar Disorder.
As Deputy President Roche said in State of New South Wales v Rattenbury[83] being predisposed to a disease is “quite different to having a disease that is later aggravated.”[84] It means no more than “a tendency in a person to react in a certain way” and “a physical condition which makes a person susceptible to a disease.”[85] Indeed, Dr Scurrah stated “simply having a genetic predisposition to Bipolar illness does not necessarily mean it is going to emerge”.
[83] [2015] NSWWCCPD 46 (Rattenbury).
[84] Rattenbury, [41], [94]; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; (2000) 21 NSWCCR 34, [37] (per Giles JA (Mason P and Powell JA agreeing)).
[85] Rattenbury, [39] [94] (citing Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, 463–4 and Shorter Oxford English Dictionary, 6th ed, Oxford University Press).
I have not been taken to any evidence to suggest that Ms Booth had an underlying disease condition of Bipolar Disorder, prior to its aggravation by the November 2002 incident and development of PTSD. The only evidence I have been taken to indicates that Ms Booth had a genetic predisposition to Bipolar Disorder. That Ms Booth had a genetic predisposition to Bipolar Disorder merely meant that she was more vulnerable to developing that condition than another person. It did not demonstrate that there was an underlying disease condition of Bipolar Disorder. Once the medical evidence of Dr Scurrah is properly understood, it is clear that Arbitrator Edwards’ finding that Ms Booth suffered from an underlying disease condition of Bipolar Disorder was wrong.
I am fortified in this view, having regard to Ms Booth’s evidence. Ms Booth stated that she “never had any psychological issues prior to this injury” and that she had never been to a psychiatrist or psychologist.
It follows that it was not open to Arbitrator Edwards to make a factual finding on the evidence that Ms Booth suffered a s 4(b)(ii) disease. That is because the evidence did not demonstrate that Ms Booth suffered an aggravation of the underlying condition of Bipolar Disorder which was rendered symptomatic by taking medication for the accepted work-related PTSD and that employment was a contributing factor to that aggravation. The evidence merely demonstrated that Ms Booth had a genetic predisposition to Bipolar Disorder and that is not enough to satisfy the requirements of a s 4(b)(ii) disease injury.
Whether Ms Booth’s claim would have succeeded under s 4(b)(i) is a moot point. That is because the matter proceeded as a claim under s 4(b)(ii), and, for the reasons discussed above, that claim failed (see also [107] above).[86]
[86] University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483.
It follows that ground three is made out.
COSTS
Ms Booth seeks an order for costs on the appeal. The appellant submits that the Commission does not have jurisdiction to award costs in this matter, following the 2012 amendment to the 1987 Act. No further submissions were developed.
The subject of costs is governed by the provisions of Div 3 of Pt 8 of Ch 7 of the 1998 Act. Section 341 of the 1998 Act was amended by the Workers Compensation Legislation Amendment Act 2012 (2012 amending Act). The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by an exempt worker within of cl 21 of Pt 19H of Sch 6 to the 1987 Act. Ms Booth is not an exempt worker.
Section 341 of the 1998 Act, as it appeared prior to introduction of the 2012 amending Act, provided the Commission with very broad power to award costs in respect of proceedings conducted before it. Section 341(2) provided that: “[t]he Commission has full power to determine by whom, to whom and to what extent costsare to be paid”. That section (unamended) continues to have force pursuant to the savings and transitional provisions found in cls 5 and 21 of Pt 19H of Sch 6 to the 1987 Act and cl 8 of Sch 8 to the Workers Compensation Regulation 2016.
Clause 21 of Pt 19H of Sch 6 to the 1987 Act provides:
“An amendment made by the 2012 amending Act to section 341 (Costs to be determined by Commission) of the 1998 Act does not apply in respect of proceedings commenced in the Commission before the commencement of the amendment.”
Clause 5 of Pt 19H provides that the power in Pt 20 of Sch 6 to make regulations that contain provisions of a saving or transitional nature consequent on the enactment of the 2012 amending Act extends to authorise the making of regulations whereby the provisions of the Workers Compensation Acts are deemed to be amended in the manner specified in the regulations. One such regulation is cl 8 of the 2016 Regulation which provides:
“Division 3 (Special provisions for costs in compensation and damages assessment matters) of Part 8 of the 1998 Act continues to apply (as in force immediately before the amendment of that Division by the 2012 amending Act) to costs in relation to a claim for compensation made before 1 October 2012 if proceedings on the claim are commenced in the Commission before 31 March 2013.”
Having regard to the relevant savings and transitional provisions, and the passage of the subsequent regulation, Div 3 of Pt 8 of the 1998 Act continues to apply to costsin relation to a claim for compensation made before 1 October 2012 if proceedings in respect of the claim are commenced in the Commission before 31 March 2013.
In the present matter, the claim for compensation the subject of dispute was made on or about 3 April 2018 and proceedings in respect of that claim were filed in the Commission on 3 September 2018. While this was not argued, the current proceeding and disputed claim cannot be attached to the prior claims for compensation and associated proceedings to enliven an entitlement to costs pursuant to the repealed s 341 of the 1998 Act. It follows that the Commission has no jurisdiction to determine by whom, to whom and to what extent costs are to be paid in the present proceedings.
DECISION
Arbitrator Edwards’ Certificate of Determination, dated 6 December 2018, is revoked and the following is substituted in its place:
“An award for the respondent employer.”
Judge Phillips
PRESIDENT
6 June 2019
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