Hassan v Spotless Property Cleaning Services Pty Ltd
[2015] NSWWCCPD 19
•6 March 2015
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Hassan v Spotless Property Cleaning Services Pty Ltd [2015] NSWWCCPD 19 | ||
| APPELLANT: | Sami Hassan | ||
| RESPONDENT: | Spotless Property Cleaning Services Pty Ltd | ||
| INSURER: | QBE Workers Compensation Ltd | ||
| FILE NUMBER: | A1-2926/14 | ||
| ARBITRATOR: | Ms D Moore | ||
| DATE OF ARBITRATOR’S DECISION: | 23 October 2014 | ||
| DATE OF APPEAL HEARING: | 27 February 2015 | ||
| DATE OF APPEAL DECISION: | 6 March 2015 | ||
| SUBJECT MATTER OF DECISION: | Factual findings made by consent in previous proceedings; whether issue estoppel arises from such finding; jurisdiction of Arbitrator to make findings which imply that no medical dispute exists; s 65(3) of the Workers Compensation Act 1987 | ||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||
| HEARING: | Oral | ||
| REPRESENTATION: | Appellant: | Law Partners | |
| Respondent: | Astridge & Murray Solicitors | ||
| ORDERS MADE ON APPEAL: | 1. The finding and determination made by the Senior Arbitrator as found in Certificate of Determination dated 23 October 2014 are revoked and the following order of remitter is made in its place: “1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for the purpose of assessing any whole person impairment resulting from injury. All documents attached to the Application to Resolve a Dispute, Mr Hassan’s Application to Admit Late Documents dated 21 July 2014 and the Reply filed on behalf of the respondent are to be forwarded to the Approved Medical Specialist upon referral.” | ||
INTRODUCTION
The question raised in this matter is whether Mr Sami Hassan is, by reason of the making of a consent finding in earlier proceedings in the Commission, estopped from asserting in these proceedings that he suffers whole person impairment as a result of injury received by him whilst employed by Spotless Property Cleaning Services Pty Ltd (the respondent).
BACKGROUND
There is no dispute that Mr Hassan suffered a back injury in the course of his employment with the respondent on 27 August 2007. Mr Hassan was absent from work by reason of incapacity for two weeks following which he returned to suitable duties which he performed until a return to full duties in January 2008.
It seems that Mr Hassan was paid workers compensation benefits until, in November 2007, the insurer gave notice that it denied liability. Mr Hassan stated in evidence that he experienced ongoing pain and discomfort following his return to normal duties. In June 2012 he suffered, what he described as, “a recurrence of lower back pain” and was certified unfit for work.
A dispute arose concerning Mr Hassan’s entitlement to workers compensation. Proceedings claiming weekly compensation were commenced in the Commission against the respondent. Those proceedings, being matter number 14791 of 2012 (the earlier proceedings), came before Arbitrator Kerry Haddock (the original Arbitrator) for conciliation at which time agreement was reached by the parties concerning settlement of the matters in dispute. On 18 November 2013 a Certificate of Determination - Consent Order issued from the Commission which recorded the following:
“In this matter a conciliation conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2011, the determination of the Commission in this matter is as follows:
1. That Part 4 of the Application to Resolve a Dispute is amended to add ‘injury to the lumbar spine as a result of the nature and conditions of employment, including by way of disease process under section 15 of the Workers Compensation Act 1987 or the aggravation, exacerbation, acceleration or deterioration of a disease process under section 16 of the Workers Compensation Act 1987 for the entire period of employment up to June 2012, including any specific aggravation/injury occurring in or about June 2012.’
2. That there is an award for the respondent in respect of the allegation of injury occurring due to the nature and conditions of employment/disease for the period of employment up to and including June 2012 (including aggravation of a disease process).
3. That the respondent is to pay to the applicant weekly payments of compensation as follows:
(a) $288.46 per week pursuant to section 40 of the Workers Compensation Act 1987 from 1 October 2012 to 28 December 2012; and
(b) $288.46 per week pursuant to section 37 of the Workers Compensation Act 1987 (as amended) from 1 January 2013 to 27 September 2013
Agreedto total $15,000.
Otherwise and thereafter, there is an award for the respondent for all periods of incapacity and claims for weekly payments.
4. That the respondent agrees to meet the cost of reasonably necessary medical and related treatment expenses up to the sum of $2,000 for expenses incurred prior to 27 September 2013 on production of accounts, receipts or Medicare Notice of Charge. Otherwise and thereafter there is an award for the respondent for all claims for section 60 expenses.
5. That the respondent is to pay the applicant’s costs as agreed or assessed.
Certification of Complexity
The matter is certified complex pursuant to Workers Compensation Regulation 2010 due to the legal and medical issues involved, including lapse of time between injury and claimed incapacity and issues of causation raised thereby; and each party is entitled to a 10 per cent uplift of costs.
Consent Finding
1. That from 27 September 2013 the applicant has fully recovered from the effects of the injury the subject of this claim
The following is not a determination of the Commission. However, I note that the parties have agreed the following:
Admission
A. That other than the injuries the subject of this claim, the applicant has received no other injury in the course of his employment with the respondent.”
On 12 March 2014 a claim was made by Mr Hassan’s solicitors against the respondent and its insurer in respect of lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). Mr Hassan placed reliance upon a report of Dr Denise Tong, musculoskeletal consultant, dated 21 February 2014 in support of the claim which alleged an 11 per cent whole person impairment as a result of the injury received on 27 August 2007.
The claim was declined by the respondent’s insurer, notice of which was given to Mr Hassan by letter dated 24 April 2014 in accordance with the requirements of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). That correspondence included the following:
“STATEMENT OF MATTER IN DISPUTE
· In previous Workers Compensation Commission proceedings in matter number 14791-2012 instituted in respect of this injury, a Consent Finding was made that you had recovered from the effects of this injury by 27 September 2013, and you are now estopped (precluded) from denying this fact.
· As you had fully recovered from the effects of the back [injury] sustained with the employer by 27 September 2013, you have no entitlement to compensation in respect of your injury, including compensation under section 66 and 67 of the Act, as
· You have no entitlement to the payment of lump sum compensation in respect of your back injury sustained on 27 August 2007 under Section 66 and/or Section 67 of the Workers Compensation Act 1987 (NSW) (as amended).”
Mr Hassan commenced these proceedings by filing an Application to Resolve a Dispute with the Commission on 11 June 2014. That Application sought orders with respect to lump sum compensation, the date of injury particularised as being 27 August 2007. The documentary evidence upon which Mr Hassan relied was all the evidence relied upon in the earlier proceedings and the evidence of Dr Tong. A Reply was filed with the Commission on behalf of the respondent which raised the matters in dispute as particularised in the s 74 notice in defence of the claim.
The matter came before Senior Arbitrator Deborah Moore on 12 September 2014. Following submissions put on behalf of the parties the Senior Arbitrator reserved her determination of the dispute. On 23 October 2014 a Certificate of Determination was issued by the Commission accompanied by a statement of the Senior Arbitrator’s reasons which recorded the following:
“The Commission determines:
1. The applicant is estopped from pursuing a claim for lump sum compensation.
2. Award for the respondent.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
Mr Hassan challenges, on this appeal, the Senior Arbitrator’s finding made in [1] of her determination.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
HEARING
Each party submits that it would be appropriate to conduct a hearing of the appeal rather than to have the matter determined “on the papers” as is permitted by s 354(6) of the 1998 Act. Having regard to all the circumstances, a hearing was conducted on 27 February 2015 at which time each party was represented by counsel.
ISSUE IN DISPUTE
It is Mr Hassan’s contention that the Senior Arbitrator erred in concluding that, by reason of the existence of the consent finding noted in the Certificate of Determination dated 13 November 2013, he was estopped from pursuing a claim for lump sum compensation.
THE EVIDENCE
Mr Hassan relied upon medical reports prepared by his general practitioner Dr Survery and medical certificates issued by that practitioner. Dr Survery’s evidence records the history of the undisputed injury to Mr Hassan’s lower back and, in the first of those reports dated 22 January 2008, expressed the view that Mr Hassan should be placed on full duties “gradually”. In that report Dr Survery stated:
“Whether [Mr Hassan] will experience further aggravation of symptoms in the future the opinion is guarded.”
In a subsequent report dated 25 January 2013 Dr Survery records that Mr Hassan had complained of low back pain in January 2012 and that referral to Dr Casikar, neurosurgeon, was arranged. A repeat MRI in April 2012 was conducted which demonstrated a “disc prolapse, annular tear, moderate to severe stenosis of neural foramaini [sic] bilaterally”. Dr Survery expressed the view that Mr Hassan’s “incapacity to [sic] work is related to the injury of 27 August 2007”.
Mr Hassan relied upon a report of Dr Tong dated 21 February 2014. Dr Tong recorded the history of injury in 2007 and the recurrence of pain which occurred in 2012. Radiological studies are summarised in that report and a diagnosis is expressed as follows:
“As a consequence of the work injury, the client has chronic low back pain, associated with a herniated disc at L4/5 and L5/S1, that fluctuates in intensity. In addition, there is still radicular symptoms in the right leg with numbness in the right foot. The client has difficulty bending and getting up from a sitting position. The client has difficulty sleeping in a supine position. The symptoms have been present for more than 6 ½ years, and are likely to persist in the foreseeable future.”
Dr Tong stated that Mr Hassan’s condition is “causally related to the work injury described. This condition is a frank injury caused by the client’s employment on 27 August 2007”.
Dr Tong proceeded to assess whole person impairment as a result of the subject injury as being 11 per cent.
Mr Hassan also relied upon written statements made by him in November 2012 and September 2013, and a copy of the s 74 notices received by him in 2007 and 2014. These documents, where relevant, are referred to in the course of discussion below.
The respondent relied upon a report by Dr Paul Hitchen, orthopaedic surgeon, dated 30 October 2007. Dr Hitchen had been qualified to provide that report for the purposes of assessing the claim made by Mr Hassan in that year. Dr Hitchen expressed the view that Mr Hassan had suffered a musculoligamentous strain which, at the time of assessment in October 2007 had “resolved”. The view was expressed that “any aggravation of a pre-existing condition has also resolved.” Dr Hitchen was of the opinion that Mr Hassan “has no whole person impairment secondary to the workplace injury”.
The respondent also relied upon a report by Dr David Wilcox, consultant surgeon – trauma specialist, dated April 2013. Dr Wilcox examined Mr Hassan at the request of the respondent’s solicitors and provided the report for the purposes of this litigation. Dr Wilcox expressed the opinion that “Mr Hassan’s current condition has received no substantial contribution from his employment but is a product of constitutional degenerative disease”. He further expressed the view that the “symptomatic aggravation of 27 August 2007 did completely resolve by early 2008”.
THE ARBITRAL PROCEEDINGS
Submissions before the Senior Arbitrator
Submissions put to the Senior Arbitrator on behalf of Mr Hassan may be summarised as follows:
(a) an Arbitrator has no jurisdiction to determine “whether or not there is a whole person impairment deriving from [the subject injury] and that the only course open to the Commission is to refer the matter to an AMS for assessment”: Haroun v Rail Corporation (NSW) [2008] NSWCA 192; 7 DDCR 139 (Haroun); Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 (Bindah);
(b) the decisions of the Commission in Total Steel of Australia Pty Ltd v Waretini [2007] NSWWCCPD 33 (Waretini) and WorkCover (NSW) v Evans [2009] NSWWCCPD 95; 7 DDCR 231 (Evans) are distinguishable from the present case and are, in any event, wrongly decided;
(c) Arbitrator Haddock had no “power to make a determination as to” whole person impairment;
(d) consent orders “only give rise to estoppel to [sic] those matters which would have to be necessarily decided to arrive at the orders…”, and
(e) the meaning of a consent finding is determined by reference to the “background in which the consent orders were made”. The present circumstances concerned “a claim for weekly compensation … only”. The finding relates to “incapacitating effects” of injury.
The respondent’s submissions before the Senior Arbitrator were summarised by her (at [28] of Reasons) as follows:
“(a) The earlier proceedings were identical to the current proceedings (including all the medical evidence) with the only addition being the report of Dr Tong;
(b) The comments of Dr Hitchen encapsulated the dispute, it was in this context that the Consent Finding was made;
(c) The evidence then was predominantly that the applicant had aggravated a prior condition and there was evidence that any such aggravation was of limited duration;
(d) Dr Tong’s report only three months later (February 2014) opined that the effects were persisting without explanation or comment upon the earlier Consent Finding;
(e) The determination as to whether an injury has caused ongoing disability or not is a question of causation which remains for an arbitrator to decide: Peric v Lee& Ran t/as Pure and Delicious Healthy [2009] NSWWCCPD 47 (Peric) cited;
(f) Both Evans and Waretini should be relied upon and are correct;
(g) The Commission has jurisdiction to determine the issue of injury and whether the effects of it have ceased: in the present case the Consent Finding is binding and creates an estoppel;
(h) The contract or agreement between the parties must be read in light of all the surrounding circumstances: [Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4];
(i) The Consent Finding is an accepted statement of fact. In the absence of any explanation from the applicant, he is bound by the agreement he and his lawyer entered into on 18 November 2013 and is estopped from proceeding with a claim for lump sum compensation.”
The Senior Arbitrator’s decision
The Senior Arbitrator, following a summary of the evidence and submissions, identified the question before her as being (at [30] of Reasons):
“… for the purpose of the lump sum claim, was the finding that [Mr Hassan] had recovered from the effects of the injury a matter necessarily decided by that determination? Was it legally indispensable to the conclusion of those proceedings?”
Reference had been made by the Senior Arbitrator to the decision of Dixon J in Blair v Curran [1939] HCA 23; 62 CLR 464 (at 531–532).
As to the “evidentiary force” of the consent finding, the Senior Arbitrator said as follows (at [34]):
“I do not accept [Mr Hassan’s] submission that the Consent Finding has no evidentiary force in this claim for lump sum compensation. In my view there can be no clearer statement, relevant to a claim either for weekly benefits, medical expenses or lump sum compensation than ‘That from 27 September 2013 the applicant has fully recovered from the effects of the injury the subject of this claim.’ It cannot be ignored. It reflected the intention of the parties.” (emphasis in original)
The Senior Arbitrator further found that once an Arbitrator makes a finding that the effects of a work injury have ceased, such finding “creates an issue estoppel that binds the parties” (at [35]).
The Senior Arbitrator acknowledged argument advanced by Mr Hassan founded upon the decisions of Haroun and Bindah but appears to have distinguished the present facts stating (at [54]):
“… there is a clear finding that [Mr Hassan] has ‘fully recovered’ from the effects of his injury. To find otherwise would be to produce, as [Snell ADP] said in Waretini ‘two competing factual findings, blatantly inconsistent with each other, on the same issue’.”
The Senior Arbitrator proceeded to find that Mr Hassan was estopped from pursuing his claim for lump sum compensation (at [55]). An award was entered in favour of the respondent.
DISPOSITION OF THE APPEAL
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
Mr Hassan relies upon three grounds, each of which allege error of law on the part of the Arbitrator. It is asserted that the Senior Arbitrator failed to consider the question of whether the original Arbitrator had jurisdiction to make a finding which determined the claim for permanent impairment benefits (ground one). It is also alleged that the Arbitrator erred in determining that the consent finding was one legally indispensable to the award made (ground two). It is further asserted that the Arbitrator erred in determining that the consent finding could create an issue estoppel (ground three).
It is convenient to note at this point that it was faintly argued on behalf of the appellant that an estoppel may not be created by a consent finding. Reliance had been placed upon the observations made by Neilson J in Anderson v Charles Sturt University (2002) 25 NSWCCR 407 (at [30]). That submission must, in my opinion, be rejected given the views expressed by Handley JA in Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 (at [9]) concerning the consequences of the entry of a consent award.
The defence relied upon by the respondent in the proceedings before the Senior Arbitrator asserted that, by reason of the consent finding, Mr Hassan was estopped from asserting in these proceedings that he was entitled to whole person impairment compensation. Whilst it is apparent that the respondent asserted the existence of issue estoppel, a difficulty existed before the Senior Arbitrator, which difficulty persisted on this appeal. That difficulty was that the “issue” which the respondent asserted was being agitated in these proceedings, and which he is said to be estopped from pursuing, had not been plainly identified.
An examination of the transcript (T) of proceedings before the Senior Arbitrator reveals that the respondent’s counsel characterised the issue finally determined by the original Arbitrator as being that “any effects of the workplace injury have resolved” (at T29.5). It was later asserted in submissions before the Senior Arbitrator, in reply to argument advanced on behalf of Mr Hassan, that it was “open for an Arbitrator and the Commission to make a determination that the effects of an incident or an injury have ceased” (T37.5–7).
At the hearing of the appeal the attention of the respondent’s counsel was drawn to [6] of written submissions furnished in support of the appeal which is as follows:
“It is submitted [that the consent finding] constituted a finding on a matter of causation within the Arbitrator’s jurisdiction, resolving the issue of whether permanent impairment was caused by the alleged injury and thereafter there could be no dispute to be referred to an AMS (Total Steel of Australia Pty Ltd v Waretini [2007] NSWWCCPD 33, [42]).” (emphasis in original)
It was made clear by the respondent’s counsel at the hearing of the appeal that reliance was placed upon the drawing of an inference from the terms of the consent finding that “there has been a finding made that there can be no medical dispute between the parties”(TA2.24–25). There can be no doubt that counsel was there adopting the expression “medical dispute” as that term is defined in s 319 of the 1998 Act, which definition incudes a dispute as to “the degree of permanent impairment of the worker as the result of an injury” (item (c) of the definition of medical dispute).
The Senior Arbitrator’s ultimate conclusion, as noted at [26] above, was that Mr Hassan “was estopped from pursuing his claim for lump sum compensation.” That conclusion appears to have been founded upon the Senior Arbitrator’s view that Mr Hassan, by reason of the consent finding, could not in these proceedings deny that he had “fully recovered” from the effects of the subject injury.
The Senior Arbitrator’s reasoning and conclusion reflects, generally, the manner in which the “estoppel” defence had been argued before her on behalf of the respondent. As is emphasised in submissions put on behalf of Mr Hassan, the Senior Arbitrator placed reliance upon the decisions of the Commission in Evans and Waretini.
Both Evans and Waretini concerned the question as to whether a previous finding by an Arbitrator, that the pathological consequences of a proven injury had ceased, gave rise to issue estoppel, which estoppel would prevent, in subsequent proceedings, the making of an inconsistent finding that the worker suffered whole person impairment as a result of that injury. In the course of his reasoning in Evans, Snell ADP reached the following conclusion (at [59]):
“… Having decided, as part of this fact finding exercise, that the effects of injury subsisted for a closed period only, such finding also disposed of the dispute between the parties regarding whether there was a permanent impairment resulting from the injury. There could not be, consistent with the finding on causation. The finding created an issue estoppel that bound the parties. The result was that there could no longer be a dispute, about the degree of permanent impairment resulting from the injury, to be referred to an AMS.”
It is argued on behalf of Mr Hassan that, having regard to more recent authority, the decisions in Evans and Waretini were incorrectly decided.
The more recent authorities referred to above are the decisions of the Court of Appeal in Zanardo & Rodrigues Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449 (Tolevski) and Bindah and the decision of Campbell J in Greater Western Area Health Service v Austin [2014] NSWSC 604 (Austin). The decision of the Court of Appeal in Haroun, delivered at a time between publication of Waretini and Evans, was also raised by Mr Hassan in argument before the Senior Arbitrator. The relevance of those decisions was the subject of careful attention in the course of reasoning by Roche DP in Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie) where the following conclusions were reached (at [249]–[250]):
“249. Notwithstanding the different approach by Emmett JA and Meagher JA [in Bindah], it is my view that the following principles apply to proceedings in the Commission:
(a) questions of causation are not foreign to medical disputes within the meaning of that term when used in the 1998 Act. Assessing the degree of permanent impairment ‘as a result of an injury’, and whether any proportion of permanent impairment is ‘due’ to any previous injury or pre-existing condition or abnormality, both call for a determination of a causal connection (Bindah at [110]);
(b) it is for the Commission to determine whether a worker has received an injury within the meaning of s 4 of the 1987 Act and whether there are any disentitling provisions, such that compensation is not payable for that injury (Bindah at [111] and s 105 of the 1998 Act);
(c) the Commission’s jurisdiction is restricted by s 65(3) of the 1987 Act, which precludes the Commission (an Arbitrator or a Presidential member) from awarding permanent impairment compensation if there is a dispute about the degree of permanent impairment, unless the degree of impairment has been assessed by an AMS (Bindah at [111]);
(d) the determination of the degree of permanent impairment that results from an injury is a matter wholly within the jurisdiction of the AMS or, on appeal, the Appeal Panel and is not a matter for determination by an Arbitrator (Bindah at [112]);
(e) a finding made by a person without jurisdiction cannot bind a person or persons who have jurisdiction (Haroun at [16] and [19]–[21]), and
(f) it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues (Bindah at [110]; Tolevski at [35]).
250. This means that, to the extent that it held that all matters of causation are exclusively within the jurisdiction of the Commission, Peric cannot stand with Bindah, Tolevksi and Austin. It follows that Mr Malouf’s submissions cannot be accepted. That is because, in a claim for lump sum compensation, the physical consequences of the injury (in relation to the assessment of whole person impairment as a result of the injury) are not within the exclusive jurisdiction of the Commission. They are within the exclusive jurisdiction of the AMS. That is so even if the matter also involves a disputed claim for weekly compensation and disputes about causation, which the Commission has determined.”
I respectfully agree with the summary which appears in Jaffarie and with the Deputy President’s conclusion expressed at [250]. The decision of Peric there referred to is my decision of Peric, a decision which was followed by the Acting Deputy President in Evans.
Grounds one and three
The primary submission relied upon by the respondent is that noted at [33] above, in which the consent finding is characterised as “a finding of causation” and in which it is asserted that there could be no referral to an AMS. The respondent, further, seeks to distinguish the decision in Jaffarie upon the ground that, in Jaffarie, unlike the present case, the worker brought claims in respect of both weekly compensation and permanent impairment lump sum compensation. It is argued (at [12]) that:
“The prohibition contained in s 65(3) of the 1987 Act [If there is a dispute about the degree of permanent impairment compensation of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist] does not extend to requiring an AMS referral to be made in circumstances where a prior finding, made within jurisdiction and that does not infringe s 65(3), has the effect of precluding any right to claim compensation under s 66 in subsequent proceedings.”
The respondent’s submissions in my opinion cannot be accepted. The recent decisions discussed in Jaffarie, in particular the decision of the Court of Appeal in Bindah, must be taken to have established that any pronouncement by an Arbitrator that purports, expressly or otherwise, to determine the question as to whether whole person impairment results from an injury is made without jurisdiction. As was stated by Handley AJA in Haroun (at [21]):
“Since the Arbitrator had no jurisdiction to decide the medical dispute he had no jurisdiction to make findings which were binding on the AMS or the Appeal Panel. The finding of a person without jurisdiction cannot bind the person or persons with jurisdiction, and cannot even be persuasive.”
The consent order made by the original Arbitrator has plainly been construed by the Senior Arbitrator as negativing the existence of whole person impairment and indeed as negativing the existence of a medical dispute with respect to such impairment. I accept the appellant’s submission that the Senior Arbitrator has failed to address the question as to whether the original Arbitrator had jurisdiction to make a finding, whether by consent or otherwise, which, by inference, purports to determine the existence or otherwise of whole person impairment in the absence of compliance with the provisions of s 65(3) of the 1987 Act. In that respect the Arbitrator has erred and such error has relevantly affected her determination of the dispute. In the circumstances the Arbitrator’s finding concerning estoppel and the award appearing in the Certificate of Determination must be revoked.
Ground two
Having upheld the appellant’s arguments advanced in respect of grounds one and three, it is unnecessary to address those matters raised by ground two. I should, however, record my views concerning argument raised by the appellant which asserts that the consent finding was not one “legally indispensable to the award made”.
The subject matter of the dispute before the original Arbitrator concerned Mr Hassan’s entitlement to weekly compensation. It is emphasised by Mr Hassan in submissions that there was at that time no claim for, nor dispute with respect to, whole person impairment compensation. He argues that, having regard to the relevant provisions of the 1987 Act which regulate entitlement to weekly compensation following the amendments to the legislation which occurred in 2012 (Workers Compensation Legislation Amendment Act 2012), a finding that Mr Hassan had “fully recovered” from the effects of the subject injury was not one “legally indispensable to the award made” (submissions at [13]).
The respondent in submissions on this appeal makes reference, properly in my opinion, to the decision of McColl JA (Giles and Campbell JJA agreeing) in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 where her Honour, when dealing with suggested res judicata stated that (at [186]):
“Orders made by consent may create an estoppel as between parties, (and, no doubt may be considered for the purpose of determining whether subsequent proceedings would lead to conflicting judgments), however they do so ‘only as to those matters which are necessarily decided’, to ascertain which ‘the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to’: Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 (at 75), per Street CJ and Roper CJ in Eq.”
An argument is developed by the respondent which pays attention to the context (the evidence) of the dispute before the original Arbitrator and it is argued (at [56]) that:
“So long as the issue in the subsequent proceedings is precisely the same as that decided in the earlier proceedings (namely the permanency of the appellant’s injuries) the plea of issue estoppel may succeed, although the causes of action in the two cases are entirely different.” (emphasis included in original, omitting references)
The submission noted immediately above demonstrates that the respondent appears to have misapprehended the point raised in ground two which concerns, not the subsequent proceedings, but the matters raised in the earlier litigation. As was stated by the learned author in the text The Doctrine of Res Judicata, Spencer Bower, Turner and Handley, Butterworths, 3rd edition at [39]:
“Though consent judgments and orders are decisions and their operative parts binding, it may not be clear what questions were concluded. The court will examine the available evidence to ascertain the matters in dispute. Any issue which the parties recognised was the subject of the litigation and was fundamental to the judgment or order will be conclusively determined. Where, however, there are no such materials neither party is estopped from disputing anything but the actual judgment or order.” (omitting footnotes)
Mr Hassan’s arguments raised in respect of ground two must be accepted. Leaving aside questions of jurisdiction, whilst an inference may be drawn from the consent finding that no whole person impairment exists, and indeed that no medical dispute exists, such matters were not in dispute before the original Arbitrator and were thus not “indispensable” to her finding with respect to that dispute.
CONCLUSION
Each of the grounds raised by the appellant have been upheld and the Senior Arbitrator’s determination must be revoked. It is appropriate on this appeal that orders be made in place of that made by the Senior Arbitrator. In the circumstances an order of remitter to the Registrar for the purpose of referral to an AMS should be made. Appropriate orders appear below.
DECISION
The finding and determination made by the Senior Arbitrator as found in Certificate of Determination dated 23 October 2014 are revoked and the following order of remitter is made in its place:
“1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for the purpose of assessing any whole person impairment resulting from injury. All documents attached to the Application to Resolve a Dispute, Mr Hassan’s Application to Admit Late Documents dated 21 July 2014 and the Reply filed on behalf of the respondent are to be forwarded to the Approved Medical Specialist upon referral.”
Kevin O'Grady
Deputy President
6 March 2015
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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