Hassan v Spotless Property Cleaning Services Pty Ltd - [2015] NSWWCCPD 19

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWWCCPD 19
Decision Date: 6 March 2015

CaseChat Overview and Summary

In the matter of Hassan v Spotless Property Cleaning Services Pty Ltd, the Supreme Court of New South Wales was called upon to review a decision made by a Senior Arbitrator under the Workers Compensation Act 1987. The dispute arose from an injury claim by the applicant, Hassan, against the respondent, Spotless Property Cleaning Services Pty Ltd. The key issue was whether the findings made by consent in previous proceedings could be considered as issue estoppel and whether the Arbitrator had jurisdiction to make findings implying that no medical dispute existed.

The court examined the nature of the findings made by consent and their potential to be treated as issue estoppel. It was argued that the findings should be treated as conclusive evidence of the facts they determined, barring the parties from re-litigating the same issues. The court also considered the jurisdiction of the Arbitrator to make findings that implied no medical dispute existed, particularly in light of section 65(3) of the Workers Compensation Act 1987. This section mandates that certain findings, such as those regarding medical assessments, must be made by an Approved Medical Specialist.

The court held that the findings made by consent did not constitute issue estoppel as they were not binding on the parties in the context of the current dispute. The court emphasised that such findings were made for the purpose of resolving a specific matter and did not preclude the re-examination of the same facts in a different proceeding. Regarding the jurisdiction of the Arbitrator, the court found that the Arbitrator overstepped their authority by implying that no medical dispute existed, as this was a matter that needed to be determined by an Approved Medical Specialist. Consequently, the court revoked the Arbitrator's determination and remitted the matter to the Registrar for referral to an Approved Medical Specialist for the assessment of whole person impairment.

In light of the court's findings, the final orders included the revocation of the determination made by the Senior Arbitrator and the directive to remit the matter to the Registrar for the purpose of assessing whole person impairment by an Approved Medical Specialist. All relevant documents were to be forwarded to the Approved Medical Specialist upon referral.

Orders

Orders of the court

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.”

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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