Gane v Dubbo City Council
[2007] NSWWCCPD 140
•14 June 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Gane v Dubbo City Council [2007] NSWWCCPD 140
APPELLANT: Arthur William Gane
RESPONDENT: Dubbo City Council
INSURER:Gallagher Bassett Services Workers Compensation NSW
FILE NUMBER: WCC9815-06
DATE OF ARBITRATOR’S DECISION: 10 November 2006
DATE OF APPEAL DECISION: 14 June 2007
SUBJECT MATTER OF DECISION: Claim for additional lump sum compensation as a result of a deterioration; weight of evidence; role of Arbitrator in such a claim.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Stacks
Respondent: Edwards Michael Moroney
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 10 November 2006 is revoked and the matter is remitted to a different Arbitrator for referral to an Approved Medical Specialist and determination of the Appellant Worker’s entitlements under section 66 of the Workers Compensation Act 1987 in accordance with the reasons in this decision and, if appropriate, his entitlement to compensation for pain and suffering under section 67.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal and of the arbitration hearing.
BACKGROUND TO THE APPEAL
On 8 December 2006 Arthur William Gane (‘the Appellant Worker/Mr Gane’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 November 2006.
The Respondent to the Appeal is Dubbo City Council (‘the Respondent Employer/the Council’).
On 7 November 1999 Mr Gane was working as a library assistant for the Council at the Dubbo branch of the Macquarie Regional Library when an alarm went off. In response to the alarm he was running towards the fire exit when his left knee gave way and he fell to the ground. He was taken by ambulance to hospital where he was admitted and found to have suffered a ruptured left patella tendon, which required surgical repair. Dr Redgment, orthopaedic surgeon, repaired the tendon and Mr Gane was discharged from hospital seven days later.
After about one month Mr Gane returned to work on light duties and then full duties two months after that. At the time he returned to full duties he had lost some feeling on the left side of his knee and had a “small degree of stiffness” in his knee (see Mr Gane’s statement 18 May 2006).
On 17 August 2000 Dr Cowdery examined Mr Gane on behalf of the Council’s insurer (‘GIO’). Dr Cowdery assessed Mr Gane to have a 10% “permanent impairment of the left knee” with no “pre-injury component”.
On 5 September 2000 Mr Gane made a claim for lump sum compensation in respect of a 25% permanent impairment (loss of efficient use) of the left leg at or above the knee plus $20,000.00 for pain and suffering (‘the first claim’). The claim was based on reports from Dr Bentivoglio dated 2 August 2000 and Dr Berry dated 3 April 2000.
The first claim was settled for $7,500.00 in respect of a 10% “loss of [use] of [the] left leg at or above the knee”. An “Application for Registration of Agreement” (‘the 66A Agreement’) was prepared and signed by Mr Gane on 11 December 2000. The documents do not disclose if the 66A Agreement was in fact registered with the Compensation Court, but it is agreed that the parties settled the first claim in the sum set out in that document.
For reasons unrelated to his knee injury, Mr Gane left Dubbo in 2002 and moved to Forster. He states that his knee gradually became “quite a lot worse over the years since” his settlement and in 2004 he instructed his current solicitors (‘Stacks’) to bring a claim for additional lump sum compensation. On 27 October 2004 Stacks wrote to GIO advising that Mr Gane’s left knee had deteriorated since the 2000 injury.
On 23 November 2005 Stacks wrote to GIO claiming compensation for a further 15% loss of efficient use of Mr Gane’s left leg at or above the knee plus $25,000.00 for pain and suffering. The claim was supported by a report from Dr Davis dated 25 October 2005, which was served with the letter of claim.
On 29 June 2006 Mr Gane’s Application to Resolve a Dispute (‘the Application’) was registered in the Commission claiming compensation as per the letter of claim dated 23 November 2005. By its Amended Reply filed on 8 September 2006 the Respondent Employer identified the following issues as being in dispute:
a) that Mr Gane did not contract a disease process or suffer any aggravation, acceleration, exacerbation or deterioration of any such disease in the course of his employment with the Council;
b) Mr Gane’s employment with the Council was not a substantial contributing factor to any disease of gradual process or any acceleration, exacerbation of such disease;
c) the nature and extent of Mr Gane’s injury;
d) Mr Gane had recovered from any injury as alleged;
e) Mr Gane did not suffer from any permanent disability giving an entitlement to compensation under section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’);
f) in the alternative, any such loss or impairment (which is not admitted) is due to a pre-existing injury, condition or abnormality and therefore subject to deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), and
g) Mr Gane claimed 25% permanent loss of efficient use of the left leg at or above the knee in relation to the incident on 7 November 1999 on 5 September 2000. A compromise offer was submitted and accepted by Mr Gane on 16 November 2000. Mr Gane is estopped from making a further claim for 25% loss of efficient use of the left leg at or above the knee.
The Amended Reply also challenged whether Dr Davis was a ‘medical assessor’, but that issue was not pressed (T3.27).
The matter was heard before a Commission Arbitrator on 19 September and 13 October 2006 when the parties made lengthy submissions but no oral evidence was given.
In a reserved decision the Arbitrator did not determine the ‘estoppel’ issue but made an award for the Respondent Employer on the ground that he did not accept there had been any deterioration in Mr Gane’s condition.
The Appellant Worker seeks leave to appeal that decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 10 November 2006, records the Arbitrator’s orders as follows:
“1.There will be an award for the Respondent.
2.There will be no order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to give proper weight to the medical evidence (‘weight of evidence’);
(b)failing to give proper weight to the evidence in the Appellant Worker’s statement dated 18 May 2006 (‘weight of evidence’);
(c)failing to refer the Appellant Worker for re-assessment of permanent impairment by an Approved Medical Specialist (‘AMS’) (‘failing to refer to AMS’), and
(d)misdirecting himself in not addressing the essential question for the resolution of the dispute between the parties (‘misdirection’).
THE ARBITRATOR’S REASONS
The Arbitrator made the following observations and findings in his Statement of Reasons for Decision (‘Reasons’):
a) the basis of Mr Gane’s claim was that he suffered a further loss of use of his left leg at or above the knee for which non-economic loss compensation was payable (Reasons, paragraph two);
b) the matter had not been referred to an AMS because the Respondent Employer submitted that Mr Gane was estopped from bring the claim or had not established that there had been a deterioration in his condition (Reasons, paragraph eight);
c) the issue in dispute was whether Mr Gane’s entitlement was affected by the previous award for permanent impairment (the 66A settlement) (Reasons, paragraph nine);
d) the injury on 7 November 1999 was the ‘original injury’ when Mr Gane ruptured his left patella tendon (Reasons, paragraph 14);
e) further compensation may be payable where a further injury, namely a deterioration, or aggravation, or exacerbation, or acceleration of an original injury has occurred (Reasons, paragraph 41);
f) Mr Gane had to prove his case by satisfying the onus of proof “which lies upon him” (Reasons, paragraph 43);
g) it was essential for Mr Gane to prove on the balance of probabilities that he suffered an injury as defined in section 4 of the 1998 Act. In this case that injury was defined by Dr Davis as the development of traumatic arthritis as a result of the original injury (Reasons, paragraph 44);
h) an alternative injury was that the condition of Mr Gane’s knee deteriorated in any event, regardless of whether there has been an onset of traumatic arthritis (Reasons, paragraph 45);
i) Mr Gane’s statement of 18 May 2006 raised a prima facie inference in his favour (Reasons paragraph 53);
j) he agreed with the Respondent Employer’s submission that a comparison of the complaints made by Mr Gane to the doctors he saw in 2000, with the complaints he made to the doctors he saw for the purpose of the present claim, demonstrates no appreciable difference (Reasons, paragraph 61);
k) he did not necessarily accept that an assessment of a 25% loss of use in 2000 by Dr Bentivoglio and an assessment of the same percentage loss in 2005 by Dr Davis meant that there was no further loss of use. It had to be borne in mind “that the assessment was by two different specialists, in respect of two difference injuries” (Reasons, paragraph 63);
l) he found it difficult to accept that the finding of crepitus in 2000 and in 2005 constituted evidence of a further loss of use of the left leg (Reasons, paragraph 77);
m) whilst there was some support for Mr Gane’s claim that he suffered a “fresh injury by way of a further loss of use to his left leg…upon an analysis of the contemporaneous reports of the specialists in 2000 when compared to the complaints now made, there does not appear to have been any lasting deterioration” (Reasons, paragraph 81);
n) he was not persuaded that the necessity for medical treatment in September 2004 lasted longer than one consultation “with perhaps an ultrasound attendance and an acupuncture treatment around that time” (Reasons, paragraph 82);
o) the only inference was that Mr Gane only visited Dr Allen on one occasion (Reasons, paragraph 83);
p) he discounted to some extent the opinion of Dr Redgment (Reasons, paragraph 84);
q) Dr Cowdery’s opinion as to prognosis was “somewhat remiss as to future expectations, but in view of the similar limitations in movement described to him by the Applicant I am satisfied that Dr Bentivoglio’s opinion as to prognosis was accurate, and described the nature and degree of the loss of use known to all parties at the time of the 2000 settlement” (Reasons, paragraph 84);
r) the restrictions predicted by Dr Bentivoglio and the complaints noted by Dr Cowdery in August 2000 reflect the same nature and degree as Mr Gane’s present complaints as to the loss of use of his leg at or above the knee (Reasons, paragraph 85);
s) Mr Gane’s symptoms have continued but he was not satisfied that any deterioration had been demonstrated (Reasons, paragraph 87);
t) Dr Davis’ diagnosis was not supported by Dr Anderson and was based upon a history that had sufficient contradictions to prevent the Commission accepting it as probable without further material. Dr Redgment and Dr Bentivoglio expressed opinions in 2000 that the development of arthritis was unlikely (Reasons, paragraph 93);
u) Dr Anderson’s view was that there were psychological overtones. Whether they were as significant as Dr Anderson thought the Commission did not have to decide (Reasons, paragraph 96);
v) in light of the inconsistencies thrown up on a consideration of the evidence, he found that the prima facie case created by Mr Gane’s statement had been rebutted (Reasons, paragraph 96);
w) no application was made for oral evidence to be given (Reasons, paragraph 99), and
x) he was not satisfied that Mr Gane had made out his case (Reasons, paragraph 100).
SUBMISSIONS
The Appellant Worker made the following submissions on appeal:
a)the Arbitrator failed to take into account the Council’s refusal to provide consent for a comparative re-assessment of the degree of permanent impairment to be conducted by Dr Cowdery;
b)the Arbitrator failed to take into account the Council’s refusal or failure to provide Mr Gane with a copy of Dr Cowdery’s reports as requested in his solicitor’s letter dated 27 October 2004;
c)the Arbitrator failed to give proper weight to the x-ray report of Dr David Herbert dated 14 March 2006 (x-ray taken on 13 March 2006) and the report of Mr Gane’s GP, Dr Peter Allen, dated 14 September 2006, which confirm the presence of a post-injury osteoarthritis of the left knee;
d)the Arbitrator failed to give proper consideration to the obvious and significant physical signs found in the x-ray taken on 13 March 2006, which pathology was not the subject of discovery or commentary in 1999, 2000 or 2001. It is submitted that the Arbitrator accordingly has misconceived the evidence by placing undue weight upon the similarity of complex symptoms when seen by Dr Bentivoglio in 2000 and the complex symptoms later in time as set out in Mr Gane’s statement and the history given to Dr Davis;
e)Mr Gane’s statement of 18 May 2006 refers to the increasing loss of left knee function and associated pain since his injury in 1999. It is submitted that the Arbitrator failed to give proper weight to this evidence;
f)the Arbitrator failed to give proper weight to the opinion given by Dr Davis in his report of 25 October 2005;
g)the Arbitrator failed to give proper weight to Dr Anderson’s opinion on causation in his report of 20 December 2005;
h)the Arbitrator failed to give proper weight to Mr Gane’s condition as it was on or about 12 January 2000;
i)the Arbitrator placed undue weight on the symptoms as observed or recorded by Dr Bentivoglio in his report of 2 August 2000 when that doctor did not have the benefit of any x-ray report when he saw Mr Gane;
j)the Arbitrator placed undue weight on an analysis of contemporaneous reports of medical specialists in 2000 when comparing complaints made “now”, in making his determination that there did not appear to have been any lasting deterioration of Mr Gane’s left leg. There was no reason not to accept the complaints of deterioration of his left knee as made by Mr Gane in his statement of 18 May 2006 and the recent histories given to Dr Davis and Dr Anderson. In addition, Dr Redgment’s determination of Mr Gane’s “excellent post operative condition” and his subsequent return to light duties then full duties for a time gives credence to Mr Gane’s position of deterioration of the left leg from 2000 and up to 2004 and 2006;
k)there were no adverse findings against Mr Gane’s credit;
l)the Arbitrator placed undue weight on the absence of medical treatment from Dr Allen when it was open for him to accept that Mr Gane’s complaints of deterioration of his left leg condition over time since 2000 were genuine;
m)the Arbitrator misdirected himself in not addressing the essential issue for the resolution of the dispute, namely, has the condition of Mr Gane’s left leg deteriorated since December 2000 due to the effect of the injury and, if so, what is the additional percentage loss of efficient use of the left leg resulting from the injury. This was an issue to be resolved by an examination and opinion in certificate form from an AMS. On the evidence before the Arbitrator there was no reason not to refer the worker together with medical reports to an AMS for assessment, and
n)the issue of the further deterioration of Mr Gane’s left leg should be referred for assessment by an AMS.
The Respondent made the following submissions on appeal:
a)the letter from the Appellant Worker’s solicitors to the GIO dated 27 October 2004 and the GIO’s letter in response dated 7 January 2005, were before the Arbitrator;
b)at the arbitration hearing, Counsel for Mr Gane advised that he would make reference to the issue of these letters in submissions (T5.48 and T8.9). Ultimately no submissions were made on this point. Mr Gane cannot now rely on this ground having not made submissions on it before the Arbitrator and, even if he could, the submission is of no weight;
c)the Arbitrator noted in his Reasons that both parties relied upon the opinions of different qualified medico-legal experts to those relied upon in the first claim. Mr Gane had previously relied upon the opinion of Dr Bentivoglio in his report dated 2 August 2000, and did not rely upon that report in these proceedings but relied on the opinion of Dr Davis in his report dated 25 October 2005;
d)due to the use by both parties of different medico-legal specialists, the Arbitrator applied himself diligently and with great care in considering the medical evidence;
e)the letter dated 27 October 2004 from Mr Gane’s solicitors to GIO refers to assessments provided by “Dr Bentivoglio and Dr Berry” however they did not seek to rely upon the opinion of either of these doctors whereas the Council did rely upon the opinion of Dr Bentivoglio;
f)the two reports of Dr Cowdery dated 17 August 2000 were attached to the Council’s Reply and both parties made submissions in relation to them. With regard to the earlier report of Dr Cowdery (1999), Counsel for Mr Gane indicated at the arbitration that he did not seek to rely upon that report (T17.4);
g)it is noted that at the time Dr Cowdery initially examined Mr Gane he was recovering from surgery and on crutches and accordingly both parties adopted the attitude that that report was not probative of any issue before the Arbitrator;
h)the x-ray report was not before the Arbitrator and was initially withdrawn by Mr Gane’s Counsel (T10.46-49) and then tendered again (T21.39) and subsequently rejected by the Arbitrator (T23.6-30) (see also paragraph 56 of the Arbitrator’s Reasons). Therefore, Mr Gane is not entitled to rely on the x-ray report on appeal;
i)the Arbitrator gave detailed consideration in his Reasons to the evidence contained in Mr Gane’s statement dated 18 May 2006 and to all the histories provided by Mr Gane as recorded by various medical practitioners. He gave appropriate weight to the evidence;
j)the Arbitrator expressed reservations about the opinion of Dr Redgment at paragraphs 71 and 84 of his Reasons, including the basis on which he declined to attribute greater weight to that doctor’s opinion;
k)the Arbitrator undertook a very detailed consideration of the evidence and comparison between the earlier and more recent medical evidence and attributed the weight that he did following such consideration. As noted by the Arbitrator, Dr Cowdery reached similar conclusions to Dr Bentivoglio;
l)that in the absence of other evidence (a matter that the Arbitrator frequently commented on in his Reasons) the Arbitrator was entitled to place the weight he did upon the analysis of the contemporaneous reports of the medical specialists, and
m)the Arbitrator did not misdirect himself in relation to this issue and as evidenced by his detailed Reasons appropriately formulated and concluded that, on balance, there was no evidence which he could find in favour of Mr Gane. Further, he correctly found that any prima facie case had been rebutted, particularly in the absence of other evidence including, inter alia, the oral or further evidence of Mr Gane and more detailed reports or clinical notes of Dr Allen.
In view of the issues raised in this matter I caused the following direction to be issued to the parties on 18 April 2007:
“1. The parties are invited to make written submissions on the following issues:
- whether the Appellant Worker is estopped from bringing the present claim by reason of the section 66A agreement entered between the parties on 11 December 2000 (or for any other reason), and
- whether, in light of the fact that the occurrence of the original injury on 7 November 1999 is not disputed, the Arbitrator was bound by the terms of the legislation to refer the question of the loss of efficient use of the Appellant Worker’s left leg at or above the knee to an Approved Medical Specialist for assessment.
2. The Appellant Worker is to file and serve his submissions on or before 4.30pm on 1 May 2007 and the Respondent Employer is to file and serve its submissions on or before 4.30pm on 15 May 2007.”
In response to this direction the Appellant Worker has made the following further submissions:
a) no estoppel arises from settlement effected by the section 66A agreement and Mr Gane is entitled to claim additional compensation if his loss has increased since his settlement (section 66A(7), as saved by Schedule 6 Part 18J Clause 10 of the 1987 Act);
b) the fact that Mr Gane relied on a medical report assessing a 25% loss of use in his first claim does not estop or limit him pursuing a further claim within that ambit range. The section 66A agreement was merely an agreement between the parties and not the result of any findings or deliberations on issues of fact by a court or tribunal. No estoppel arises from such an agreement (Anderson v Charles Sturt University (2002) 25 NSWCCR 407);
c) section 319 of the 1998 Act defines a ‘medical dispute’ to include, among other things, a dispute about “the degree of permanent impairment of the worker as a result of an injury” (section 319(c)). Implicit in that definition is scope for assessment of the extent of any further loss;
d) section 321 of the 1998 Act provides:
“321 Referral of medical dispute for assessment
(1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.
(2) The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.
(3) The Commission may not refer for assessment under this Part a medical dispute concerning permanent impairment (including hearing loss) of an injured worker.
(4) The Registrar may not refer for assessment under this Part:(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).” (emphasis added)
e) the Respondent Employer’s Reply did not put ‘injury’ in issue but did put in issue the question of the extent of injury in respect of quantum of permanent loss and whether Mr Gane was estopped from making a further claim having previously agreed to compromise his claim as per the section 66A settlement;
f) section 293, as amended by Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005, provides:
“293 Medical assessment
(1) When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may, in accordance with this section, refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment.
(2) If the dispute concerns the degree of permanent impairment (including hearing loss) of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Part 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment.
(3) The Registrar may not refer for assessment:(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”
g) if it is accepted that there was no dispute on injury and the dispute was properly limited to quantum and the ‘estoppel’ issue it was incumbent upon the Commission by its Registrar to refer ‘the dispute concerning the degree of permanent impairment of the injured worker for medical assessment under Part 7 and defer any determination of the dispute by the Commission pending the outcome of that medical assessment’, in accordance with section 293(2), and
h) the Arbitrator ought to have referred the matter to the Registrar for the purpose of referring that aspect of the dispute to an AMS. That purpose as a mandatory step in the proceedings proscribed by the word ‘must’ in section 293(2).
The Respondent Employer made the following further submissions:
a) it does not argue that the principles of res judicata or estoppel apply;
b) Mr Gane is required to demonstrate that there has been a deterioration in his physical condition caused by the injury on 7 November 1999 and he has failed to do that;
c) the issue to be determined on appeal is whether the Appellant Worker has satisfied the burden of proof by demonstrating that his condition has deteriorated and that the deterioration related to the work injury;
d) the Arbitrator had to decide as a threshold issue, whether Mr Gane satisfied the burden of demonstrating that his condition had deteriorated in order to have an entitlement to obtain an assessment from an AMS;
e) Mr Gane was required to demonstrate an increase in his symptomatology, a change in his physical condition or some other change in his presentation that warranted a further assessment of his alleged loss of efficient use of the left leg at or above the knee;
f) one way of measuring such a change is to compare the assessments provided by the specialists at the time of the first claim with the assessments now provided. A comparison of those assessments demonstrates no increase in the loss of efficient use of Mr Gane’s left leg at or above the knee;
g) it was necessary for the Arbitrator to determine the Respondent Employer’s liability to pay additional compensation under section 66 prior to obtaining an assessment from an AMS;
h) under section 66 of the 1998 Act the Arbitrator was required to determine whether Mr Gane had made a claim for compensation, being a further claim, as defined by the 1998 Act. Mr Gane had not made a ‘further claim’ in accordance with section 66;
i) under section 321 of the 1998 Act the Registrar may not refer for an assessment by an AMS a medical dispute concerning permanent impairment of an injured worker where liability is in issue and has not been determined by the Commission;
j) the Registrar does not have the power to refer to an AMS a dispute “on whether the worker has a further loss as it is [not] a matter which comes within the definition of a medical dispute pursuant to section 319 of the 1998 Act” (Respondent Employer’s submissions, page three);
k) given that a Medical Assessment Certificate (‘MAC’) is conclusively presumed to be correct, any issues that impact upon it ought be discussed and be the subject of a binding determination prior to any referral to an AMS. The failure to do so could prejudice the parties in the event an application to appeal the MAC is found to be wanting on the basis the Registrar may not be satisfied that at least one of the grounds for appeal specified in section 327 of the 1998 Act has been made out, and
l) it is in the interests of both parties that any liability issues be determined prior to a referral to an AMS.
DISCUSSION AND FINDINGS
Preliminary Matters
The refusal to consent to a comparative re-assessment by Dr Cowdery was not an issue argued by Mr Gane at the arbitration. A party is generally bound by the conduct of his or her case at arbitration (see Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 (‘Metwally’) and Department of Corrective Services v Evans [2005] NSWWCCPD 58). Not having argued this issue before the Arbitrator it is not open to raise it on appeal. In any event that refusal had no bearing on the Arbitrator’s decision and has no relevance on appeal.
Similarly, the Respondent Employer’s argument in its further submissions that Mr Gane had not complied with section 66 of the 1998 Act was not raised before the Arbitrator (either in submissions or in its Reply) and cannot be raised on appeal. The Arbitrator expressly noted at paragraphs four and five of his Reasons that notice was not in issue and that the claim had been duly made. That finding was open on the evidence and was never contested by counsel for the Respondent Employer at the arbitration.
The x-ray report from Dr Herbert dated 14 March 2006 was not admitted into evidence (T23.6-30). No argument has been advanced on appeal that the Arbitrator was in error in rejecting that report. The argument that the Arbitrator was in error in failing to give proper weight to the x-ray report has no merit.
Weight of the Evidence
To determine the merit of this ground of appeal it is necessary to review the evidence in some detail.
Mr Gane’s injury was a ruptured left patella tendon that required surgical repair. He came under the care of Dr Redgment who operated on Mr Gane’s injured knee on 8 November 1999. At surgery he found a large blood clot and a “very untidy patellar tendon rupture” and rupture of the medial and lateral retinaculum (see Dr Redgment’s operation report, 10 November 1999). The clot was drained and the ruptures repaired.
At review in mid December 1999 Mr Gane had good quadriceps function in his left leg. In early January 2000 Mr Gane was walking well without a brace. Dr Redgment thought that the prognosis was excellent and certified him fit to return to work on full duties as of 10 February 2000. He expected Mr Gane to have no long term problems apart from thickening of the tendon with discomfort from time to time though that discomfort was not expected to interfere with normal function of the knee but would make it difficult to kneel and squat. The doctor thought there was “little likelihood of recurrence of long term arthritis or of significant pain” (report Dr Redgment 3 January 2001). Given that there is no evidence that Mr Gane had previously experienced symptoms of arthritis, it is possible (but not certain) that the word ‘recurrence’ should read ‘occurrence’.
On 29 July 2000 Dr Bentiviglio examined Mr Gane (report 2 August 2000). Under ‘current symptoms’ the following were noted in respect of Mr Gane’s left knee:
a) decreased movement;
b) decreased strength;
c) some pain;
d) inability to walk as far as previously;
e) the knee still tends to give way, and
f) disability in attempting to walk up and down stairs or up and down slopes.
On examination Dr Bentivoglio found:
a) some degree of wasting in the left thigh;
b) Mr Gane lacked a few degrees of full flexion present in his left knee;
c) a minor effusion in the left knee, and
d) some crepitus from the retropatellar region of the left knee.
Dr Bentivoglio assessed Mr Gane to have a 25% permanent loss of efficient use of his left lower limb at or above the knee as a result of his injury. He did not think Mr Gane was “particularly prone to developing degenerative osteoarthrosis present in his knee region at a later stage”. There is no evidence that Mr Gane had osteoarthritis ‘present’ in his left knee before the injury on 7 November 1999.
Dr Cowdery examined Mr Gane on behalf of the Respondent Employer on 17 August 2000 and noted the following under ‘present complaints’:
“The claimant said that, since last seen, he has improved markedly. He has gained considerable movement in the left knee. He said the knee is still painful every day.
He said he cannot walk up steps without support. He has difficulty negotiating inclines, either rising or descending. He has difficulty rising after a period of prolonged sitting. He is unable to kneel.
He said that sometimes the knee ‘gives out’, although he has not fallen completely. He said that the knee cramps in cold conditions.”
Dr Cowdery also recorded that Mr Gane had a little difficulty kneeling at a low library shelf and could not engage in prolonged standing or walking.
The crutches and knee guard Mr Gane was using at Dr Cowdery’s examination in December 1999 were not present at the August 2000 examination. No report was tendered in respect of the 1999 examination and no inference is drawn about the absence of that report.
On examination in August 2000 Dr Cowdery found no wasting of the left thigh and a full range of movement of the left knee but that was accompanied by two pronounced clicks. A 15 cm vertical scar was apparent over the knee. The doctor assessed Mr Gane to have a “permanent impairment of the left knee at 10%”. He made no specific comment about Mr Gane’s prognosis but did state that his current condition was “a direct result of the accident sustained on 7 November 1999”.
The first claim was settled in December 2000 for $7,500.00 in respect of a 10% permanent loss of use of the left leg at or above the knee.
The first suggestion of a change in the condition of Mr Gane’s left knee was in 2004 when he attended Dr Allen, general practitioner, in September 2004 complaining that his knee “was becoming tender over the scar line and was bothering him when he walked” (report Dr Allen, 14 September 2006). On examination Mr Gane was tender over the scar area and x-rays were requested. The x-ray report dated 14 September 2004 revealed early degenerative changes in the left knee with early osteophytic lipping at the articular margins and on the tibial spines with slight narrowing of the medial joint space.
On 27 October 2004 Mr Gane’s solicitors wrote to GIO advising that their client’s condition had deteriorated since the settlement in 2000 and that a further claim should be made. A request was made that Mr Gane be re-examined by Dr Cowdery. GIO declined that request by letter dated 7 January 2005.
On 19 October 2005 Dr Davis examined Mr Gane for medico-legal purposes at the request of his solicitors. He was told that Mr Gane’s symptoms had increased over time and had markedly increased a couple of years ago when he developed swelling and sharp pains. Under ‘present complaints’ he recorded:
a) pain in the knee;
b) difficulty with walking and considerable limitation of his ambulatory tolerance;
c) difficulty with stairs;
d) he cannot run;
e) static posturing results in increasing pain and stiffness in the knee;
f) exacerbation of symptoms with prolonged standing;
g) he requires breaks from driving;
h) disturbed sleep patterns, and
i) when he was domiciled in a freestanding dwelling he required assistance with yard work, mowing etc. He moved into a unit to avoid such aggravation.
The complaints noted in paragraphs (e), (f), (g), (h), and (i) in paragraph [45] above were all new or additional complaints that had not been noted in the 2000 medical reports.
On examination Dr Davis found Mr Gane:
a) ambulated with a slight left sided antalgic gait;
b) had a range of movement of the left knee of 0-120 degrees with palpable crepitus compared with 140 degrees on the right side;
c) had good ligament stability;
d) had tenderness over the medial joint space with positive apprehension tests for patellofemoral dysfunction, and
e) had no significant atrophy in the left lower leg.
The doctor’s observation of a left sided antalgic gait and his finding of a positive apprehension test for patellofemoral dysfunction were not noted at any of the 2000 examinations. The finding of a decreased range of movement is to be contrasted with Dr Bentivoglio’s finding in 2000 that Mr Gane lacked only a few degrees of full flexion and Dr Cowdery’s finding of a full range of movement. These three findings by Dr Davis provided relevant and significant evidence of deterioration in the condition of Mr Gane’s knee between 2000 and 2006. The Arbitrator failed to consider or properly consider this evidence. His statement that the “similarity of the Applicant’s restrictions of movement in August 2000 to those related by Dr Davis in his report of 25 October 2005 is striking” (Reasons, paragraph 88) was incorrect. The findings were quite different.
Under ‘comment’ Dr Davis noted the large blood clot found at surgery and stated, “the presence of haemarthrosis into the joint of course does predispose to arthritic change” (report 25 October 2005, page four). He added:
“Indeed over the years Mr Gane has developed traumatic arthritic changes in his left knee particularly involving the medial joint space where there is already some early narrowing.
Over the last three or four years there has been a significant reduction in his exercise tolerance particularly with regards to ambulation and he has been forced to reduce his walking from 10km to around 2-3km as a result of increased intensity of symptoms.
I also note that Dr Bentivoglio, an orthopaedic surgeon, assessed Mr Gane on 29 July 2000 and did report some retropatellar crepitus on examination.
There was again crepitus palpable at today’s assessment which was quite obvious and represents increasing changes in the patellofemoral joint also.
Overall therefore I believe that over time Mr Gane has developed an increased degree of impairment with respect to his left lower limb which relates to the work accident of 7 November 1999 such that work is deemed to be a substantial contributing factor.”
Dr Davis assessed Mr Gane to have a 25% permanent loss of efficient use of his left lower limb at or above the knee.
On 19 December 2005 Dr Anderson examined Mr Gane at the request of GIO (report 20 December 2005). Mr Gane presented for assessment with a “very stiff knee” that Dr Anderson thought was “artificial”. He recorded that, for reasons that were not clear, Mr Gane felt his knee had deteriorated in 2004 with “pain, swelling and dysfunction” (report 20 December 2005, page three). Dr Anderson’s statement that Mr Gane “does not seem to have seen anybody about this” was incorrect. Mr Gane saw Dr Allen about an increase in knee symptoms in September 2004. Under ‘present complaints’ Dr Anderson recorded:
“Pain in the left knee. Occasionally there is a sharp component on the lateral side of the knee. The condition is worse on steps and ramps. Occasionally he experiences ‘shaking’ of the left leg.”
On examination Dr Anderson initially found flexion of the left knee to be “just about zero then gradually improved to 45° and at the end of the assessment he could manage a flexion of the left knee of 80°”. He found no swelling and minimal crepitus bilaterally. Dr Anderson felt that the “reason for his current more recent left knee dysfunction seems to be more psychological” (report, page four). However, he added, “it would be almost impossible to separate his current circumstances from the event of November 1999” (short report 20 December 2005, paragraph seven page seven).
In his statement of 18 May 2006 Mr Gane explained the reason for the stiffness in his knee when he saw Dr Anderson. He experienced severe pain in his left knee as a result of driving for periods over one hour. He drove from Foster to Port Macquarie (a trip of about an hour) to see Dr Anderson and he could barely stand by the time he arrived. The doctor’s note that the drive “seems to have been quite a comfortable trip for him” (Dr Anderson 20 December 2005, page two) is at odds with Mr Gane’s statement. In my view, Mr Gane’s explanation was reasonable and plausible and is to be preferred over the doctor’s record. Whilst the Arbitrator referred to Dr Anderson’s comment that Mr Gane’s presentation was ‘artificial’ (Reasons, paragraph 27) he did not consider Mr Gane’s explanation for the significant stiffness initially noted by Dr Anderson. The Arbitrator was in error in not considering this important evidence in circumstances where he placed considerable weight on Dr Anderson’s conclusions.
Under ‘prognosis’ Dr Anderson felt that if Mr Gane remained inactive his overall circumstances would “grumble on, deteriorating with time” and the rate of deterioration would probably be quite rapid (report, page five).
Dr Anderson did not properly assess whether Mr Gane’s condition had deteriorated since the settlement in 2000. It seems he was not aware of the previous settlement or assessments. Therefore, his opinion Mr Gane did not “reasonably have an impairment associated with the knee” is of reduced weight.
In his statement dated 18 May 2006 Mr Gane said that at the time he returned to his full duties in 2000 he had some loss of feeling in the left side of his knee and a small degree of stiffness. He said that his knee gradually became quite a lot worse over the years since his settlement and by 2004 it started to swell and show signs of deterioration in its function, prompting him to see Dr Allen who wished to start a program of ultrasound and acupuncture. According to Mr Gane the insurer declined to cover the cost of this treatment after two treatments.
Mr Gane listed his left knee restrictions and disabilities in his statement of 18 May 2006 as follows:
a) constant or near constant swelling of the knee;
b) constant pain in the knee area;
c) severe pain in the left knee following driving for periods over one hour as occurred on the visit to Dr Anderson such that he could barely stand by the time he got to the doctor’s surgery;
d) difficulty in negotiating stairs and ramps;
e) pain increasing after periods standing still longer than three or four minutes;
f) pain increasing after sitting with knee bent for periods of more than 30 minutes;
g) inability to walk more than four or five hundred metres without extreme soreness;
h) inability to sleep due to constant irritating pain in the left knee;
i) inability to kneel;
j) inability to put pressure on the knee by way of carrying loads, and
k) inability to crouch.
The Arbitrator appears to have found that there was no increase in the loss of efficient use of Mr Gane’s left leg because “upon an analysis of the contemporaneous reports of the specialists in 2000 when compared to the complaints now made, there does not appear to have been any lasting deterioration” (Reasons paragraph, 81). At paragraph 85 of his Reasons he added that “the restrictions that were predicted by Dr Bentivoglio and the complaints noted by Dr Cowdery in August 2000 reflect the same nature and degree as [the] Applicant’s present complaints as to the loss of use of his leg at or above the knee”. This conclusion is challenged on appeal on the basis that the Arbitrator failed to give proper weight to the following evidence:
a) Mr Gane’s evidence in his statement of 18 May 2006;
b) the evidence of Dr Davis;
c) Dr Anderson’s opinion that it would be impossible to separate his current circumstances from the event on 7 November 1999, and
d) Dr Redgment’s observation that by January 2000 Mr Gane was walking well out of the brace and had excellent quads function;
It is also argued that the Arbitrator placed undue weight on the following:
a) the symptoms observed or recorded by Dr Bentivoglio;
b) the analysis of contemporaneous medical reports in 2000 compared to complaints made in 2006, and
c) the absence of treatment from Dr Allen.
The Arbitrator noted that the matter had not been referred to an AMS because the Respondent Employer submitted that Mr Gane was estopped from bringing the action or he had not established there had been any deterioration. He identified the issue in dispute as being: “is the Applicant’s entitlement affected by the previous award for permanent impairment mentioned above?” (Reasons, paragraph nine). The Arbitrator did not determine that issue but found that Mr Gane had not made out his case (Reasons paragraph 100) in respect of deterioration in his condition.
In my opinion, whilst the complaints listed in 2006 were “similar as to nature and degree” (Reasons, paragraph 72) to those recorded by the doctors in 2000, the current complaints (see paragraphs [45] and [57] above) are both more extensive and more severe than those noted in 2000. Mr Gane was not cross-examined and no attack was made on his credit. The weight of the evidence strongly favours the conclusion that there has been an increase in the symptoms experienced by Mr Gane as a result of his injury in November 1999. The lack of treatment from Dr Allen was not determinative of the issue of deterioration. Exactly when and how often Mr Gane attended on Dr Allen was also of little relevance in determining the issue before the Arbitrator. Similarly the suggestion that Mr Gane suffered from depression was not conclusive on this issue, especially in the absence of any evidence from a psychiatrist or psychologist. The question is not whether his symptoms are similar to the symptoms he had in 2000 but whether, as a result of his November 1999 injury, he now suffers a greater loss of use of his left leg at or above the knee. That had to be decided by an AMS not by the Arbitrator. On the question of whether Mr Gane experienced an increase in symptoms between 2000 and 2006, I do not believe there was any valid reason for the Arbitrator to reject Mr Gane’s evidence of deterioration and he was in error in doing so. The Arbitrator was also in error in his assessment of the evidence of Mr Gane’s “restrictions of movement” (see paragraph [48] above). These errors require that his decision be revoked and the matter be re-determined.
The Arbitrator’s task was to determine injury and any other liability issues. Once that was done, the question of the extent of any loss of use was, subject to what I say below about causation, a medical issue for an AMS to determine. The medical evidence on that issue was in conflict. Even if the Arbitrator was of the view that there had been an increase in the loss of efficient use of the left leg at or above the knee, he was not entitled to determine that loss but was required to refer it to an AMS for assessment.
The Arbitrator’s characterisation of the “the injury the subject of this Application – the further loss of efficient use caused by either the onset of traumatic arthritis, or as the result of a more general deterioration resulting from the original injury.” (emphasis added) (Reasons paragraph 35) was not consistent with relevant authority on ‘injury’. Further, at paragraph 44 of his Reasons the Arbitrator stated, “It was essential for the Applicant to prove on the balance of probabilities that he has suffered an injury as defined in s.4 of the 1998 legislation. In this case, that injury was defined by Dr John Davis as the development of traumatic arthritis as a result of the original injury” (emphasis added). The Arbitrator’s statement at paragraph 81 of his Reasons that there was some support for Mr Gane’s claim that he “suffered a fresh injury by way of further loss of use of his left leg” (emphasis added) was also an incorrect characterisation of the claim and issues.
In Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 (‘Lyons’) it was held that ‘injury’ refers to both the injurious event and the pathology arising from it. Where a worker receives a frank injury that initiates a degenerative disease process, the injury is an injury under section 4(a) of the 1987 Act and there is no need to have recourse to the disease provisions (Lyons at 428 and 429). In the present matter the injury was received in the incident on 7 November 1999. Dr Davis did not define the injury as being “the development of traumatic arthritis as a result of the original injury”. He concluded that Mr Gane suffered “initial injury to his left knee by patellar tendon rupture on 7 November 1999”. The development of arthritis in the left knee was not a separate ‘injury’ but is alleged to have resulted from the frank injury. To the extent that the Arbitrator determined that the question to be decided was whether Mr Gane had suffered a “fresh injury”, he was in error. The proper question was: did the arthritis result from the 7 November 1999 injury?
The test of causation for the purposes of the 1987 Act was discussed in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (‘Kooragang’).
In that case Kirby P (as he then was) noted that there had been a number of authorities, including Pickersgill v Freightbases Pty Ltd (1983) 3 NSWLR 117 (‘Pickersgill’), in which the view was expounded that the phrase “results from” is limited to the immediate or proximate cause of incapacity or death.
His Honour considered the authorities in Kooragang and stated at 463-4:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury...is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
The same test of causation applies to a claim for lump sum compensation as applies to a claim for weekly compensation.
It is accepted that issues of injury and causation are matters for Arbitrators to determine (see Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124). In the present matter it is my view that the evidence strongly supports a finding that the arthritis in Mr Gane’s left knee resulted from the injury on 7 November 1999 and that is the finding I make. That conclusion is supported by the following evidence:
a) Mr Gane’s evidence of an increase in symptoms over time;
b) the finding of crepitus in the left knee;
c) the x-ray report of 14 September 2004 showing early degenerative changes in the left knee and slight narrowing of the medial joint space, and
d) Dr Davis’ opinion that the presence of haemarthrosis in the knee joint predisposes to arthritic change.
It is accepted that the crepitus was noted to be present at the medical examinations in 2000 and the finding of crepitus on its own may not have been sufficient to justify a finding that the arthritis resulted from the November 1999 injury. However, Dr Davis’ conclusion was not based solely on the presence of crepitus but on his ‘overall’ assessment. That assessment took into account Mr Gane’s history of increasing symptoms over time, the x-ray report of 2004, the findings on examination and the presence of a large blood clot in the knee joint at operation. If Dr Davis’ history as to when Mr Gane saw Dr Allen was inaccurate, that was not a matter of crucial importance to his overall assessment and did not justify the Arbitrator rejecting his conclusion as to the cause of the arthritis. Whether the arthritis has resulted in an increased loss of use of the left leg at or above the knee is another question that must be determined by an AMS.
The optimistic prognoses given by Dr Bentivoglio and Dr Redgment have not been borne out by the subsequent facts, as demonstrated by Mr Gane’s evidence and the 2004 x-ray. Only Dr Anderson suggested another possible cause for the condition of Mr Gane’s knee, namely, his weight. Considering the whole of the evidence, I do not accept that to be a plausible reason. Therefore, the Arbitrator was in error in finding that the arthritis in Mr Gane’s left knee had not resulted from the injury on 7 November 1999.
Failing to Refer to AMS
An Arbitrator should always deal with issues of liability before referring a matter to an AMS to prepare a binding MAC. In the present matter the liability issues were the estoppel point and the causation issue with respect to the arthritis. The Arbitrator did not deal with the estoppel point and was in error in his finding on the arthritis issue. For the reasons noted above at [64] the injury in this matter was the event that occurred on 7 November 1999 that caused a patellar tendon rupture and rupture of the medial and lateral retinaculum. The Respondent Employer’s doctors conceded that the event on 7 November 1999 caused the ruptures and that the condition of Mr Gane’s knee was related to or “impossible to separate” (Dr Anderson) from that event. Therefore, Mr Gane is clearly entitled to succeed on the issue of injury. The question of causation of the current loss of use of his left leg at or above the knee was a legitimate issue to be argued before an Arbitrator prior to the referral to the AMS. That issue has now been determined on review in favour of Mr Gane. Because of the terms of section 65(3) of the 1987 Act the question of the extent of any loss of use is a matter exclusively for an AMS to determine. So far as it is relevant, section 65 provides:
“65 Determination of degree of permanent impairment
(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2) …
(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
As indicated at paragraph [63] above the Arbitrator posed the wrong question. Mr Gane does not have to establish a ‘fresh injury’ to be entitled to additional lump sum compensation, but merely that there has been an increase in the loss of efficient use of his left leg at or above the knee since the previous settlement and that that increased loss of efficient use has resulted from the injury on 7 November 1999. Whilst the Arbitrator did consider that question he did so on the assumption that Mr Gane had to prove a ‘fresh injury’. For the reasons set out at paragraphs [63] and [64] above the Arbitrator was in error in adopting that approach.
Once the issues of injury and causation are determined the only course open in a claim for lump sum compensation where there is a dispute as to the degree of permanent impairment (section 319(c) of the 1998 Act) is to refer the claim to an AMS for assessment. That is the course that should now be followed. That there is such a dispute in the present matter cannot be doubted. The fact that the claim is for an additional loss is of no consequence. At paragraph 94 of his Reasons the Arbitrator stated that he did “not accept that there is any further disability arising from the Applicant’s injury”. To the extent that the Arbitrator felt that it was for him to determine whether Mr Gane had suffered any further disability, he was in error.
The parties are entitled to make further submissions on the question to be posed for the AMS and to this end the matter will be remitted to a different Arbitrator for that to happen. Without wishing to bind that Arbitrator, or the parties, as to the appropriate question to be put to the AMS, it seems to me that the question is a simple one: ‘assessing the loss under the Table of Disabilities, what is the loss of efficient use of Mr Gane’s left leg at or above the knee as a result of his injury on 7 November 1999?’ If that loss is equal to or less than 10%, Mr Gane has no entitlement to further lump sum compensation. If it is greater than 10%, he is entitled to the excess provided there is no pre-existing condition or abnormality (other than the 10% loss noted in the 66A agreement) under section 323 of the 1998 Act.
Estoppel
The Respondent Employer’s submission on appeal that no estoppel is argued is contrary to the clear submissions made by its counsel at the arbitration (T21.5). I can only assume that the estoppel argument has been abandoned. If I am wrong in that regard it is appropriate that I make the following observation. The first claim did not result in any findings or orders by the Compensation Court and no estoppel of the kind suggested by the Respondent Employer at the arbitration arises. However, the settlement of a claim can, in certain circumstances, give rise to an estoppel. In Rail Services Australia v Dimovski (2004) 1 DDCR 648) the Court of Appeal held that consent judgments can create res judicata estoppels. In that case the parties settled a claim by consent for 25% loss of use of a leg and an award was entered in those terms. In later proceedings the worker sought an additional payment under section 66 of the 1987 Act as a result of an alleged increased loss of use of the same leg due to further injuries. Handley JA held at [9] and [10]:
“9 Mr King submitted that the Judge erred in law in failing to give effect to the estoppel created by the consent award by finding that although the worker had suffered further injuries to his left leg his current loss of use was still only 25 per cent. A consent judgment can create res judicata estoppels: Spencer Bower, Turner & Handley ‘Res Judicata’ 1996 at 21-22. The estoppels flowing from the consent award bound the second respondent as a party and the appellant as a privy in interest, as the second respondent’s statutory successor: Spencer Bower & Ors (above) at 119-122.
10 The argument based on issue estoppel involved two propositions. The first was that the consent award conclusively determined that as at 16 October 1996 the worker had a permanent impairment of his left leg at or above the knee of 25 per cent which was the result of an injury or injuries sustained in the employment of the second respondent. This is correct.”(emphasis added)
Therefore, it is arguable that the section 66A agreement in the present matter gives rise to an estoppel similar to that discussed in Dimovski, namely, that as at 11 December 2000 Mr Gane had a 10% permanent loss of efficient use of his left leg at or above the knee as a result of injury to his knee in the course of his employment with the Respondent Employer on 7 November 1999. However, as it is not necessary for the determination of the appeal, I express no concluded view on this issue save that it seems to me to be arguable that such an estoppel does arise from a section 66A agreement.
DECISION
The decision of the Arbitrator dated 10 November 2006 is revoked and the matter is remitted to different Arbitrator for referral to an Approved Medical Specialist and determination of the Appellant Worker’s entitlements under section 66 of the Workers Compensation Act 1987 in accordance with the reasons in this decision and, if appropriate, his entitlement to compensation for pain and suffering under section 67.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal and of the arbitration hearing.
Bill Roche
Deputy President
14 June 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
4
6
0