Gimis v Tweed Shire Council
[2022] NSWPIC 403
•21 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Gimis v Tweed Shire Council [2022] NSWPIC 403 |
| APPLICANT: | Andrew Gimis |
| RESPONDENT: | Tweed Shire Council |
| MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 21 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Consent Awards given for the respondent regarding “injury” in proceedings concerning weekly benefits; the applicant seeks to bring lump sum compensation proceedings concerning those same body parts where awards were given for respondent; Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine distinguished on facts; Held — claim dismissed. |
| DETERMINATIONS MADE: | The Commission determines: 1. The claim is dismissed pursuant to section 54 of the Personal Injury Commission Act 2020. |
STATEMENT OF REASONS
BACKGROUND
The applicant was employed by the respondent and alleges an injury to his neck, back and left shoulder as a result of operating a ride-on lawnmower during the course of his employment with the respondent on 1 March 2019.
On 22 October 2020 the applicant made a claim for weekly benefits on the respondent.
On 21 January 2021 the insurer issued a s 78 Notice which denied the applicant’s claim pursuant to ss 4 and s 9A of the Workers Compensation Act 1987 (the 1987 Act).
The parties were unable to resolve their differences and an Application to Resolve a Dispute was filed on 23 March 2021 seeking weekly benefits and also medical expenses. The matter number was W562/21.
The parties were able to resolve their differences at a conciliation/arbitration hearing on 25 June 2021. The applicant accepted an offer from the respondent which resulted in his weekly payments being resolved in his favour at the continuing rate of $400 per week from
4 February 2021.6. The precise terms of the resolution were as follows:
“1. The applicant has leave to amend the Application to Resolve a Dispute to claim primary psychological injury as a result of the nature and conditions of employment.
2. Award for the respondent in respect of primary psychological injury.
3. Award for the respondent in respect of allegation of secondary psychological injury.
4. Award for the respondent in respect of allegation of injury to the neck/cervical spine.
5. Award for the respondent in respect of allegation of injury to the left shoulder.
6. The balance of the proceedings be discontinued.
NOTATIONS
1. Respondent to pay voluntary weekly compensation of $400 per week from 4 February 2021 to date and continuing.
2. Respondent to pay voluntary s.60 expenses in respect of treatment to the back/lumbar spine upon production of accounts, receipts or Medicare charge.
3. Upon receipt of above compensation the applicant will have received all his past weekly compensation entitlements and s.60 entitlements to date.”
On 22 October 2021 the applicant submitted a claim for permanent impairment compensation seeking payment for 18% whole person impairment of the cervical spine, 10% whole person impairment of the lumbar spine and a 6% whole person impairment of the left shoulder.
On 9 February 2022 the insurer denied liability to pay compensation on the basis that the lumbar spine was assessed at 7% which was less than the 10% threshold and further that they had no liability to pay compensation to the applicant with respect to cervical spine and left shoulder considering the previous agreement.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) is the applicant able to make a claim with respect to permanent impairment considering the terms of agreement in proceedings?
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and taken into account in making this determination:
(b) Application to Resolve a Dispute and attached documents;
(c) Reply dated 2 May 2022, and
(d) Application to Admit Late Documents dated 6 May 2022.
The parties also both filed short outlines of submissions before the listed hearing.
CONSIDERATION
The respondent’s position is that the orders and determination made in proceedings no. W562/21 contained allegations of injury which were identical, save for a secondary psychological injury allegation, to the allegations in these proceedings. The respondent submits that the orders contained in the Certificate of Determination dated 1 July 2021 estop the applicant from claiming lump sum compensation in respect of any claim in relation to the cervical spine and left shoulder in accordance with the principles of res judicata and/or issue estoppel.
The applicant submits that there is no issue estoppel or res judicata arising from the circumstances for various reasons. The first submission made by the applicant is that the present proceedings do not relate to weekly compensation but instead a different claim and that is lump sum compensation. That is, the issue estoppel does not arise as the Certificate of Determination was directed to weekly payments of compensation and medical expenses and not to the ultimate facts and as such no issue estoppel arises.
Further, the applicant submits that the Commission has exclusive jurisdiction to determine the applicant’s disputed claims for weekly compensation and medical expenses extended to making any findings necessary for it to do so, those findings could not bind the parties (or any Medical Assessor) with respect to the existence or resolution of a medical dispute.[1] The issue of the aetiology of the applicant’s cervical spine and left shoulder injuries is a medical dispute as defined by s 319A of the 1987 Act.
[1] Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 2013 at [39]
Consideration
The applicant relied upon Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA (Hine).
The dispute in Hine concerned consent findings had been made in earlier proceedings such that the worker had “fully recovered” from the effects of a psychological injury. The worker then filed a claim for lump sum compensation.
The dispute then arose as the employer contended that they had the benefit of an issue estoppel precluding the worker from denying that she had fully recovered and maintaining that there was a dispute that she was permanently impaired.
The decision refers to medical disputes. Section 319(a) provides a definition of what is a medical dispute as follows:
“‘medical dispute’ means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim--
(a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker's fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury,
(d)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
Hine provides authority that determination of the degree of impairment that results from an injury is a matter wholly within the jurisdiction of the approved medical specialist, or on Appeal the Appeal Panel. That is if there is a medical dispute, the matter must be referred for assessment. In eth factual matrix of Hine, an issue Estoppel did not arise.
The decision of Hine is not directly relevant to this dispute. In the present factual matrix, there is no referral as there has an agreement or Consent Order that there is no “injury”. It must be observed that the consent orders use the words “injury”. The ordinary meaning of this must refer to an injury pursuant to s4 of the 1987 Act.
Having considered that definition, a finding of injury, in the sense of s 4 of the 1987 Act, is not one which is covered by the definition of a medical dispute as provided by s 319 A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
This is also confirmed by s 65 of the 1987 Act which provides:
“(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.”
I therefore cannot agree with the applicant’s submission. Whilst the Commission has exclusive jurisdiction to determine the applicant’s disputed claims, the question of primary injury is one which is reserved for Members of the Commission to make determination. Once a Member has made a finding that there has been in fact an injury pursuant to s4 (or there has been agreement) then the matter is referred to a Medical Assessor for assessment. Unless a finding or agreement is made that an injury has occurred there is no referral to a Medical Assessor.
It is quite clear by the language used in s 65 of the 1987 Act, that the degree permanent impairment is to be assessed is one that ‘results from an injury”. That is, it is the domain of the Medical Assessor to assess impairment, once it has been established that an injury has occurred. Simply put, the determination of “injury” pursuant to s 4, is the domain of the Member not a Medical Assessor.
The applicant also submits that it was entirely reasonable for them to resolve their claim in the previous proceedings for the most financially advantageous amount possible. The applicant says that it was not unreasonable for him to act in that way at that time.
The position the applicant was in is outlined at paragraph 1.9 of the applicant’s submissions when they said they were faced with a complex paradox which was:
(a)in the event that the applicant succeeded on hearing and established liability for any of his various injuries, the offer of $400 per week backdated to 4 February 2021 was in the likely range of weekly payments to be awarded by the Commission irrespective of which of his various injuries was determined to be work-related, and
(b)in the event that the applicant succeeded on hearing and establish liability for all his various injuries, he could have been awarded less than the offer of $400 per week backdated to 4 February 2021.
It is then said that the applicant understandably accepted the insurer’s offer rather than proceed to hearing because even if he succeeded on the issue of liability with respect to the neck, left shoulder and secondary psychological injuries at the hearing, he could have been awarded less than the amount offered for weekly payments, leaving the applicant worse off financially.
This is a conundrum that workers find themselves in the Commission frequently. One would have to ask, such an attractive offer of $400 per week must have had some benefit to the respondent. The ‘devil’ in the offer to my mind, is the Awards that were offered for the respondent to offset the attractive financial offer of $400 per week.
In those circumstances, I cannot see the real merit or relevance in relation to how the applicant is said to have acted reasonably. It seems to me that it is a compromise position that he has found himself in on the basis of giving Awards in favour of the respondent.
Conclusion
The applicant relies on the report of Dr Poplawski dated 14 October 2021[2] relating to the claim for lump sum compensation for the lumbar spine. Dr Poplawski assessed the applicant’s lumbar spine whole person impairment at 10% and then makes a deduction pursuant to s 323 leaving a final assessment of 9% whole person impairment. In those circumstances the applicant has failed to reach the threshold required by s 66(1) of the 1987 Act as the assessment does not result in permanent impairment of greater than 10%.
[2] Application 429
It was agreed at the hearing of this matter that if the applicant’s arguments regarding estoppel were not successful then there was no jurisdiction to refer this claim to a Medical Assessor.
In the circumstances where the lump sum compensation is the only relief claimed in the application, there is no work for the Commission to do based on the findings I have made and accordingly the Application to Resolve a Dispute is dismissed.
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