Israel v Catering Industries (NSW) Pty Ltd - [2017] NSWWCCPD 53

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Israel v Catering Industries (NSW) Pty Ltd [2017] NSWWCCPD 53
APPELLANT:	Karen Israel
RESPONDENT:	Catering Industries (NSW) Pty Ltd
INSURER:	QBE Workers Compensation (NSW) Ltd as agent for icare NSW
FILE NUMBER:	A1-2271/17
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	7 September 2017
DATE OF APPEAL DECISION:	12 December 2017
SUBJECT MATTER OF DECISION:	Anshun estoppel; whether a claim for s 66 entitlements in respect of a consequential low back condition should have been brought with an earlier claim for a low back injury both arising from the same injury; principles of Anshun estoppel: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589; *Habib v Radio 2UE Sydney Pty Ltd* [2009] NSWCA 23; Ling v Commonwealth [1996] FCA 1646; 68 FCR 180; Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; Conference & Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Peninsula Law
Respondent:	Sparke Helmore Lawyers

ORDERS MADE ON APPEAL:

The Certificate of Determination dated 7 September 2017 is set aside and the following orders are made in its place:

(a) The claim for lump sum compensation is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the degree of whole person impairment of the:

(i) right lower extremity (knee) as a result of injury on 3 March 2010, and

(ii) lumbar spine, which condition has resulted from the injury to the right knee on 3 March 2010.

INTRODUCTION

Ms Israel appeals from the decision of the Commission where the Arbitrator found in favour of the respondent, Catering Industries (NSW) Pty Ltd (Catering Industries) in respect of her claim for a lump sum entitlement pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) flowing from symptoms in her lumbar spine.
The Arbitrator determined (at [87]) that Ms Israel was estopped from bringing a claim pursuant to s 66 in respect of the lumbar spine. The lumbar symptoms were said to be a consequence of altered gait from her accepted right knee injury. Catering Industries alleged that Ms Israel was estopped because “it was unreasonable in these circumstances for the applicant not to rely on her claim for consequential condition in her original proceedings”.
The orders made by the Arbitrator included an “award for the respondent in respect of the claim for a consequential condition in the applicant’s lumbar spine”.
The claim pursuant to s 66 in respect of the right lower extremity (knee) was referred to the Approved Medical Specialist (the AMS).

BACKGROUND

In earlier proceedings in 2011, Ms Israel lodged an Application to Resolve a Dispute (matter number 10945/11 (the 2011 proceedings)) claiming weekly payments, s 60 expenses and s 66 lump sum compensation for whole person impairment (WPI) of the right lower extremity (knee) and lumbar spine resulting from injury on 3 March 2010. Ms Israel relied on the assessment of the lumbar spine of 8% WPI, reduced after deductions to 4% as a result of the injury.
In those proceedings, consent orders were entered with respect to a closed period of weekly payments, treatment expenses and an award for the respondent for injury to the lumbar spine. The claim for WPI of the right lower extremity (knee) was referred to the AMS for assessment and was assessed at 3% (after deductions).
Ms Israel underwent a total right knee replacement at the hands of Dr David Bradshaw on 15 February 2016.
The injuries pleaded in the current proceedings at Part 4 of the Application to Resolve a Dispute filed 9 May 2017, were described as “injury to lumbar spine and right knee” and the description alleged the injuries were sustained when Ms Israel slipped and twisted her right knee on 3 March 2010.
By way of an Application to Admit Late Documents received by the Commission on 1 June 2017, Ms Israel filed an Amended Application to Resolve a Dispute (ARD) adding, in the alternative, that she suffered a consequential condition in her lumbar spine because of altered gait arising from her right knee injury.
Ms Israel sought a referral to an AMS for further assessment of WPI with respect to her right knee (which was now assessed as 15% after deductions), and for assessment of her lumbar spine, assessed on this occasion again at 8% of which 4% was attributable to the altered gait and a frank disc injury at the L3/4 level.[1]
[1] Application to Admit Late Documents filed 3 July 2017, report of Professor Ghabrial p 3.
The allegation of frank injury to the lumbar spine in the incident of 3 March 2010 was abandoned at arbitration.
Catering Industries disputed the quantum of the claim and injury to the lumbar spine, but also alleged Ms Israel was estopped from claiming compensation with respect to injury to the lumbar spine.
The teleconference notes disclose that Catering Industries raised a further estoppel issue in the form of an “Anshun estoppel”[2] to answer the amended allegation of the consequential condition in the lumbar spine, asserting that the claim now brought for the lumbar spine ought to have been claimed and dealt with in the 2011 proceedings.
[2] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 (Anshun).
It was not recorded as to whether leave was granted to raise the amended dispute, however it seems implicit in the conduct of the matter that such leave was granted. The matter proceeded to arbitration on 11 July 2017 and both parties made submissions.
The Arbitrator directed both parties to file further written submissions on the point of Anshun estoppel. Catering Industries filed its submissions dated 12 July 2017 and Ms Israel’s legal representatives filed her submissions on 24 July 2017.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”
Ms Israel has requested an oral hearing be held. Catering Industries maintains the matter can be determined ‘on the papers’.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties at arbitration and on appeal, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
Ms Israel submits that the decision appealed against is not interlocutory as it has finally determined her entitlements in respect of the lumbar spine. In the alternative she asserts that if the decision is found to be interlocutory, it would be in the interests of the parties and the Commission for the issue to be determined before the AMS conducts an assessment of the WPI referable to the right lower extremity.[3]
[3] Ms Israel’s Submissions Part A – 6.1.
Catering Industries agrees with the above submissions, relying on Maricic v Medina Services Apartments Pty Ltd.[4]
[4] [2007] NSWWCCPD 196 (Maricic).
Section 352 the 1998 Act provides as follows:

“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a Presidential member against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
…
(3A) There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”

In Maricic,[5] Acting Deputy President Snell (as he then was) said:
“18.I gratefully adopt the analysis by Roche DP, in Hawkins, of sub-section 352(8) and Regulation 200B. The Deputy President, at [44], concluded the Arbitrator’s determination on this point was of an interlocutory nature, saying:
‘The Arbitrator’s determination that the deemed date of injury was 20 July 2005 is more difficult. It amounts to a finding on a preliminary issue that is relevant to deciding if the Respondent Worker’s lump sum compensation is to be calculated under the Table of Disabilities or under the new WorkCover Guides for whole person impairment applicable to injuries sustained after 31 December 2001. The finding has not determined the parties’ rights or whether the Respondent Worker is entitled to compensation, as would be the case if a determination had been made on an issue such as injury, worker or substantial contributing factor.’
19.The Arbitrator’s decision in the current matter, like that in Hawkins, involved the resolution of a matter not actually involving the awarding of compensation, but affecting the nature of the referral to an AMS. On 3 August 2007 I issued a Direction to both parties, inviting them to make submissions on whether, having regard to section 352(8) of the 1998 Act, and the decision in Hawkins, leave to appeal could be granted. The time for making such submissions (after an extension granted at the request of the Appellant Worker) expired on 17 August 2007 for the Appellant Worker, and on 24 August 2007 for the Respondent Employer. The Appellant Worker lodged submissions dealing with the issue on 10 August 2007. The Respondent Employer did not lodge submissions on the topic.
20.The Appellant Worker submits the nature of the Arbitrator’s determination is that ‘the injuries determined to have been suffered as a result of the appellant’s workplace accident have been finally and bindingly determined’. Reference is made to both the decision in Hawkins, and the decision of the High Court in Licul v Corney [1976] HCA 6; (1976) 50 ALJR 439. I accept this submission. It is consistent with the reasoning in Hawkins. It is the nature of the Arbitrator’s decision that the Appellant Worker could no longer succeed in recovering compensation of any description, on the basis of symptoms in his neck and left shoulder, on the basis they resulted from the pleaded incident. This decision on ‘injury’ is final and binding, and should not be characterized as ‘interlocutory’. Thus section 352(8) and Regulation 200B are not an impediment to the granting of leave.”
[5] Maricic at [18]–[20].
Following Maricic, I determine that the decision the subject of this appeal is final and not interlocutory and leave to appeal is not required.

THE EVIDENCE

All documents annexed to the ARD were relied upon in the amended ARD including two statements from Ms Israel.[6]
[6] 14 September 2011 at p 38 and 4 May 2017 at p 41.
In the first statement dated 14 September 2011, Ms Israel describes the injury and the onset of right knee symptoms. She further records her treatment regime and return to work and at [16] advises that:
“My lower back began to get sore because of the way I was walking. I slipped a disc many years ago, but had no real problems. Now because of having to favour my right knee and the altered way I walked because of this, I am suffering from sciatica and lower back pain.”
Contrary to that assertion, in her later statement dated 4 May 2017 Ms Israel referred to the low back as being injured in the incident on 3 March 2010.
Ms Israel relied upon four medicolegal reports provided by Professor Ghabrial.
The first report dated 6 July 2011 recorded a history of the right knee injury on 3 March 2010 and that “[as] a result of her right knee injury she aggravated her lower back problem …” Professor Ghabrial opined that as well as the right knee injury “she aggravated her previous back problem” and assessed the WPI of the lumbar spine at 8% “as a result of the injury 3 March 2010 aggravation”.[7]
[7] ARD pp 10–12.
In his second report, Professor Ghabrial discussed the report of Dr Glaze (the treating specialist) and confirmed his earlier assessments and deductions for previous pathology in the right knee and lumbar spine. He further confirmed his opinion that the “remaining impairment is work related”.[8]
[8] ARD p 13.
In his third report dated 5 October 2016 the Professor recorded the history that Ms Israel reported that her back symptoms had continued but not progressed since 2011. He noted there was a limp while walking. He opined that the fall aggravated her pre-existing lumbar pathology however “she developed a soft disc bulge … which is probably responsible for her increase in symptoms regarding the back.”[9]
[9] ARD pp 14–15.
A supplementary report dated 26 June 2017 filed under cover of an Application to Admit Late Documents of 3 July 2017 provided further opinion from Professor Ghabrial that Ms Israel had an altered gait since the injury and that he believed the altered gait produced an aggravation of the lumbar spondylolisthesis and that as a result of the fall she probably developed a frank disc injury at L3/4 level.
The Application also included reports from the treating orthopaedic surgeon Dr Glase and Ms Israel’s physiotherapist Scott McDonald, as well as radiological evidence.
The radiologist reported moderately advanced osteoarthritic change in the medial compartment of the right knee. The lumbosacral CT scan disclosed what could broadly be described as bilateral L5 pars defect, L5/S1 spondylolisthesis and degenerative disc pathology with probable compression of the L5 nerve, L2/3 and L3/4 disc protrusions with possible impingement of the L2 and L3 nerves.[10]
[10] ARD pp 18 and 24.
Mr McDonald confirmed Ms Israel attended for treatment to her knee between March and December 2010, describing that her functional gains had plateaued and she had an increase in symptoms with more time on her feet. Mr McDonald further confirmed Ms Israel had also attended for treatment to her low back, recording signs of “discogenic back pain which had been exacerbated following her knee injury.”[11]
[11] Report of Scott MacDonald dated 3 March 2011 ARD p 23.
Dr Glase saw Ms Israel on one occasion only in March 2010, opining that Ms Israel’s right knee symptoms were a temporary aggravation of long standing advanced osteoarthritis and that ongoing symptoms would be the result of the underlying condition. He made no record of any low back symptoms[12].
[12] Report of Dr Glase 15 June 2011 ARD p 20.
Included in the Application is the Medical Assessment Certificate of Dr Higgs dated 7 May 2012[13] who assessed Ms Israel as part of the 2011 proceedings. Dr Higgs takes no history referrable to the low back. On examination, he notes:
“The Worker is observed to walk with a derangement of gait that is associated with right-sided antalgic limp”.[14]
[13] ARD pp 26–35.
[14] ARD p 29.
The only other relevant medical evidence tendered in the proceedings consisted of two reports of Dr Pillemer annexed to the Reply, dated 9 November 2011 and 15 March 2017 respectively[15] and a third report dated 31 March 2017 tendered by consent at the arbitration.
[15] Reply pp 7–18.
In the first report, Dr Pillemer took a history of the injury to the right knee on 3 March 2010 and the continuum of symptoms. The doctor also recorded that Ms Israel had to cease work on 20 October 2010 because of significant discomfort in her low back including referred pain into her left lower limb. Ms Israel denied symptoms in her low back prior to 20 October 2010. On examination Dr Pillemer noted Ms Israel walked with an antalgic gait.[16] On the assumption of a history of no prior knee complaints, the doctor opined that the injury was an aggravation of an underlying osteoarthritic condition and that the effects of the aggravation were continuing. With respect to the low back Dr Pillemer formed the view that he would not relate the low back and left leg symptoms to the injury[17] and that her gait is not the cause of her recurrent low back problems.[18]
[16] Reply pp 8–10.
[17] Reply p 11.
[18] Reply p 13.
Dr Pillemer re-examined Ms Israel on 15 March 2017 for the purposes of assessment of her impairment of the right lower extremity (right knee) post total knee replacement. His examination and findings are recorded in the report of the same date. On this occasion the doctor observed Ms Israel walked without an “obvious limp”. He confirmed his earlier opinion with respect to the knee injury but was silent in respect of complaints and opinion referrable to the low back.[19]
[19] Reply p 17.
In the last report of 31 March 2017, Dr Pillemer responded to further enquiry by the insurer and noted that, in his original report, it was not his opinion that Ms Israel’s back was related to her knee injury. After perusing Ms Israel’s statement of 14 September 2011 at [16] he said:
“In my opinion then the way Ms Israel was walking would be regarded as a relatively minor aggravation of her low back problem and certainly would not be regarded as the main contributing factor to any aggravation”.[20]
[20] Report 31 March 2017 p 2.
Dr Pillemer expressed some qualification, in that he indicated the treating doctor’s notes would be helpful to establish the extent of the lumbar complaints leading up to the injury.
Apart from the medical evidence referred to above, the only documentary evidence before the Commission pertaining to the 2011 proceedings was the Certificate of Determination (consent orders) dated 18 April 2012 and a further Certificate of Determination (orders pursuant to s 66 and costs) dated 27 June 2012.[21]
[21] ARD pp 36 and 37.

THE ARBITRATOR’S REASONS

The Arbitrator reviewed the reports of Professor Ghabrial, noting the report of 6 July 2011 referred to Ms Israel having aggravated her low back as a result of her right knee injury and attributed the soft disc bulge at L3/4 as being responsible for the aggravation. The Arbitrator commented that the doctor appeared to be unaware that Ms Israel had continued to work until 20 October 2010[22]. He further noted that the report of 5 October 2016 included a history from Ms Israel that her symptoms in the low back had continued and had not progressed since 2011 and that Professor Ghabrial confirmed his earlier opinion on causation.[23] The Arbitrator reproduced the whole of the contents of the report of 26 June 2017.
[22] Reasons at [14]–[16].
[23] Reasons at [22]–[23].
The Arbitrator recorded the relevant contents of the two conflicting statements by Ms Israel with respect to the cause of the onset of back pain[24] and also recorded the relevant parts of the reports from Dr Pillemer, including the report of 17 March 2017.[25] The Arbitrator commented that Dr Pillemer:
“expressed some reservations as to this opinion, indicating that the reports of the applicant’s general practitioner would be needed to establish the extent of the applicant’s prior back symptoms and radiculopathy.”[26]
[24] Reasons at [17]–[19].
[25] Reasons at [20], [25]–[27].
[26] Reasons at [28].
The Arbitrator made a detailed summary of both parties’ oral and written submissions, including the authorities upon which they relied. The written submissions detailed the parties’ arguments relevant to the issue of estoppel.[27]
[27] Reasons at [42]–[59].
The Arbitrator formed the view that that he was unable to ascribe any weight to the opinion of Professor Ghabrial as expressed in his report of 4 May 2017 [sic, 26 June 2017]. The basis of the rejection was said to be that the first two reports related the manifestation of lumbar symptoms to be at the time of injury and that the “2017 report added two further causes, namely a disc injury at L3/4 and a further aggravation of the applicant’s pre-existing degenerative changes by virtue of her altered gait”.[28] This was said to be an opinion offered after the consent award in favour of Catering Industries. Further, reference was made by the Arbitrator to there being no mention by Professor Ghabrial in the earlier reports of altered gait and that the second report was undertaken after the knee replacement. The Arbitrator formed the view that an experienced forensic expert such as Professor Ghabrial would have mentioned the effect of the altered gait on the back and gave no explanation as to why he did not.[29]
[28] Reasons at [61].
[29] Reasons at [61]–[63].

With respect to any allegation of injury to the back on 3 March 2010, the Arbitrator noted the contradictory statements, the report of Dr Glase dealing only with the right knee and commented that the contemporaneous physiotherapy reports of Mr MacDonald were directed only to the knee. The Arbitrator rejected any allegation of injury to the lumbar spine in the incident on 3 March 2010 and found that Ms Israel was estopped from making that allegation.[30]
[30] Reasons at [64].
The Arbitrator noted the submission made by Catering Industries that Anshun was authority for the proposition that Ms Israel was estopped from bringing a claim for a consequential back condition.[31]
[31] Reasons at [65].
After reproducing [22], [37] and an extract from [38] of Anshun, the Arbitrator noted Ms Israel’s submission that the objective of the estoppel is the public policy that there be no conflicting judgments on the same set of facts. The Arbitrator determined that the public policy covers a wider area. He said:
“The estoppel is concerned to prevent a party bringing a second action where it could have had the issues raised within it resolved in the first action, to enable all relevant issues to be determined in the one proceeding.”[32]
[32] Reasons at [67].
The Arbitrator referred to the decision in Lambidis v Commissioner of Police[33] as authority establishing that an Anshun estoppel prevents a party from relying on a claim or defence if it unreasonably refrained from including it in the earlier proceedings. That is, the claim or defence was so closely related to the earlier subject matter that it would reasonably have been expected to be raised.
[33] (1995) 37 NSWLR 320 (Lambidis) at 322 and 325.
Reference was made to a number of decisions of the Commission with respect to estoppel and to the decision of Neilson J in Bruce v Grocon Ltd.[34] The Arbitrator reproduced his Honour’s conclusions drawn from the principles set out in the relevant authorities.[35]
[34] (1995) 11 NSWCCR 247 (Bruce).
[35] Bruce at 267A–E
In the light of those authorities, the Arbitrator then considered the facts in the present case, namely that in 2011, Ms Israel brought an action for injury to the lumbar spine and failed to allege in the alternative that she had suffered a consequential condition. He said the necessary facts were available in her statement of 2011 and she could have sought the opinion of Professor Ghabrial on those facts prior to commencing the 2011 proceedings.[36]
[36] Reasons at [75].
The Arbitrator then considered s 22 of the 1998 Act which was described by the Arbitrator as providing that in the exercise of its functions the Commission is to ensure the timely and effective resolution of disputes. Neither party had raised s 22 or addressed on it. The Arbitrator expressed his view that raising a claim six years after proceedings were brought could hardly be argued as effective in resolving a dispute. The Arbitrator further referred to the remedy of a costs penalty suggested by Neilson J in Bruce and noting such a remedy is not available to the Commission, said “the mischief which such an order might have redressed accordingly goes unchecked.”[37]
[37] Reason at [73]–[76].
The Arbitrator further referred to the requirement for the Commission to act according to equity, good conscience and the substantial merits of the case without regard to technicalities in accordance with s 354(1) of the 1998 Act. He concluded that the failure to bring a claim in earlier proceedings is “more than a simple technicality”.[38]
[38] Reasons at [77]–[78].
The Arbitrator found that the facts establishing the ground for relief were available in the 2011 proceedings. Failure to lodge the pleadings in the current proceedings was immaterial. At [81] he said:
“The respondent, by raising this issue, put an evidentiary onus on the applicant to establish that the alternative basis was not available, and it is … insufficient … to allege that the failure by the respondent to lodge the pleadings prevents any determination. The issue is rather whether there existed a state of fact alleged in the present matter that was apparent at the time of the earlier award.”
Further, the Arbitrator determined at [86] that whether the applicant’s condition had deteriorated since 2011 was immaterial and considered the Commission’s resources would unnecessarily be expended if proceedings were pursued.
In conclusion, the Arbitrator rejected Ms Israel’s submission that the “jurisdiction was beneficial” and found there was no explanation as to why the alternative claim had not been pursued when the matter was first litigated. He determined the objectives of the Commission to perform its functions in an efficient and timely manner override the benefit to an injured worker in re-using the Commission’s resources when the claim could have been brought in earlier proceedings. He found it was unreasonable for Ms Israel to fail to rely on her claim for a consequential condition in the earlier proceedings.[39]
[39] Reasons at [87].
The Certificate of Determination issued on 7 September 2017 records:
“1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for an assessment of whole person impairment on the following bases:
Date of Injury: 3 March 2010
Matter for assessment: Right lower extremity (knee)
Evidence: Applicant – Application to Resolve a Dispute and attached documents,
Application to Admit Late Documents dated 1 June 2017
Respondent: Reply and attached documents
I exclude from the referral the Application to Admit Late Documents dated 3 July 2017
2. There is an award in favour of the respondent in respect of the consequential injury to the applicant’s lumbar spine.” (emphasis in original)

GROUNDS OF APPEAL

Ms Israel raises eleven grounds of appeal. They are:
(a)Ground 1: The Arbitrator erred when he failed to consider that a determination of whether there was a consequential injury to the lumbar spine would not result in any judgment that conflicts with the earlier determination;
(b)Ground 2: The Arbitrator erred in failing to consider that there could not be an estoppel in changing circumstances;
(c)Ground 3: The Arbitrator erred when he failed to appreciate that a claim for a resulting condition in 2011 was not the same claim as one for a resulting condition in 2016;
(d)Ground 4: The Arbitrator erred when he reversed the onus by requiring the appellant to establish that there were reasons why the claim for consequential injury was not pursued in the earlier proceedings;
(e)Ground 5: The Arbitrator erred when he concluded that the claim for consequential injury could have been put in the earlier proceedings despite his own finding that there was no such medical evidence in the earlier proceedings;
(f)Ground 6: The Arbitrator erred when he reversed the onus by considering that the appellant could have filed the application and Reply from the earlier proceedings;
(g)Ground 7: The Arbitrator erred when he failed to follow the clear authority from Bouchmouni v Bakhos Matta t/as Western Red Services[40] which held that no estoppel arose in identical circumstances;
(h)Ground 8: The Arbitrator erred when he failed to identify a public policy purpose which justified the finding of an estoppel;
(i)Ground 9: The Arbitrator erred when he considered the fact that a claim could have been brought in earlier proceedings was sufficient to establish an estoppel;
(j)Ground 10: The Arbitrator erred by relying upon s 22 of the 1998 Act when that section had not been relied upon by the respondent and the appellant was not given an opportunity to make submissions concerning the relevance of that section, and
(k)Ground 11: The Arbitrator erred when he failed to consider that these proceedings would have been brought in any event regardless of whether the issue had been raised in the earlier proceedings.
[40] [2013] NSWWCCPD 4 (Bouchmouni).

LEGISLATION

Section 22(1) of the 1998 Act provides:

“22 Objectives and general functions of Authority under workers compensation legislation

(1) The principal objectives of the Authority in exercising its functions under the workers compensation legislation are as follows:
…
(d)to ensure the timely and effective resolution of disputes arising under the workers compensation legislation,

…”

Section 263(1) provides:

“263 Lump sum compensation claims to be made at same time

(1) All claims for permanent impairment compensation in respect of an injury must, as far as practicable, be made at the same time.”

Sections 354(1)–(3) provide:

“354 Procedure before Commission

(1)     Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)     The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)     The is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”

SUBMISSIONS ON THE ESTOPPEL

Ms Israel’s submissions

The Appeal alleges 11 grounds upon which the Arbitrator erred but relies on the same submissions with respect to
(a)Grounds 1, 7, 8 and 9;
(b)Grounds 4, 5, 6 and 11;
(c)Ground 10, and
(d)Grounds 2 and 3.
I propose to summarise the submissions in the order in which they were presented.

Grounds 4, 5, 6 and 11

Ms Israel submits that it is a fundamental principle that he or she who asserts must prove, and on that basis, the onus rested on Catering Industries to establish an estoppel was warranted. It was necessary, Ms Israel submits, for Catering Industries to adduce evidence of the pleadings in the 2011 proceedings. To require Ms Israel to tender those documents amounted to a reversal of the onus.
Further, Ms Israel says that it is a matter for Catering Industries to adduce evidence to establish it was unreasonable for Ms Israel to not include the consequential claim for s 66 entitlement in the earlier proceedings.
Ms Israel submits that in order to establish an Anshun estoppel, Catering Industries was required to raise evidence that the failure to bring the claim in the 2011 proceedings was unreasonable, and that there was no valid reason for refraining from doing so. It is asserted that the Arbitrator erred in requiring Ms Israel to offer forensic reasons for not pursuing the claim in 2011.
Ms Israel maintains that for it to be considered unreasonable, the Arbitrator had to be satisfied there were no reasons for the failure to bring the claim. Reference is made to the Arbitrator’s acknowledgement at [73] that to bring the claim, a supplementary report from Professor Ghabrial would be required, which was a reason for deferring the claim.
Ms Israel further maintains she was entitled to defer her claim until such time as she made a further claim for impairment. She alluded to the prospect of deterioration of the knee affecting the gait and worsening of the lumbar impairment.

Grounds 1, 7, 8 and 9

Ms Israel claims that the Arbitrator has erred in that he “has not progressed the matter beyond a consideration as to whether a claim could have been brought in the earlier proceedings.”[41]
[41] Ms Israel’s submissions at [32].
Ms Israel submits that Anshun is authority for the proposition that the mere fact a matter could have been litigated in earlier proceedings does not of itself create an estoppel of that type. In any event, a justifiable reason was the absence of medical evidence required to support the claim.
Referring to Zavodnyik v Alex Constructions Pty Ltd[42] and Bruce, Ms Israel submits that one of the four essential principles set out by Neilson J was the possibility of an inconsistent judgment and that in the present case, no prospect of conflict would arise. Ms Israel says this was a critical factor ignored by the Arbitrator.
[42] [2005] NSWCA 438; 67 NSWLR 457 (Zavodnyik) at [35].
Ms Israel relies upon Conference & Exhibition Organise Pty Ltd v Johnson[43] as authority that a mechanical approach to identifying common facts should be avoided. Also Champerslife Pty Ltd v Manojlovski[44] is authority that the mere fact a matter could have been raised does not mean it should have been raised. It was required to be so relevant as to make it unreasonable not to raise it.
[43] [2016] NSWCA 118 (Johnson).
[44] [2010] NSWCA 33; 75 NSWLR 245 (Manojlovski).
Ms Israel also relies on the passages quoted from the judgment of McColl JA in Habib v Radio 2UE Sydney Pty Ltd[45] at [84]–[85], reproduced below.
[45] [2009] NSWCA 231 (Habib).
She further asserts that the Arbitrator was bound by the decision in Bouchmouni, said to be identical to the circumstances in this matter.
Ms Israel submits the Arbitrator fell into error by not considering whether the matter was so relevant it would be unreasonable not to have pursued it in 2011. She further submits error in that the Arbitrator did not consider why the course adopted by Ms Israel was not reasonable. She asserts the claim for a frank injury is quite separate from a consequential condition.

Ground 10

Ms Israel complains of a lack of procedural fairness in that the Arbitrator’s decision was underpinned by a consideration of s 22 of the 1998 Act. Section 22 was not raised, either by the Arbitrator or the parties at arbitration and neither party was asked to address on its application. Ms Israel submits that s 22(d) is limited to timely and effective resolution of disputes and that the dispute did not arise until 2017 when the claim was made and denied.
Further Ms Israel argues that by not including the claim in the earlier proceedings there was no disadvantage to Catering Industries. There is no entitlement for a worker to claim interest on s 66 entitlements and Catering Industries had the benefit of the compensation funds for a further six years.

Grounds 2 and 3

In respect of these grounds, Ms Israel submits the Arbitrator erred in not regarding the change in circumstances as a bar to the estoppel. She says the claim which could have been brought in 2011, is not identical to the claim brought now because one is for the impairment in 2011 which is different to the impairment in 2017.
Ms Israel submits that the Arbitrator failed to appreciate that consideration of the effect of altered gait over 1 year is a different determination to the consequences of altered gait (with a progressively deteriorating knee) over 6 years.
The relief sought by Ms Israel is that there be an award in her favour in respect of the consequential condition and the matter referred to an Approved Medical Specialist for assessment.
Ms Israel also relies on written submissions made to the Arbitrator. In those submissions, she seeks to distinguish the decisions in Ada v Westmead Centre Parramatta Hospital[46] (discussed in Bruce) and Sydney Institute of Technology v Crawthorne.[47] With respect to Ada, Ms Israel asserts that the authority is of no relevance to this case as in the present case there had been no final determination of Ms Israel’s permanent impairment compensation and there is no prospect of a judgment inconsistent with the previous orders.
[46] (unreported) Compensation Court No 17497/84 (Ada).
[47] [2006] NSWWCCPD 129 (Crawthorne).
Ms Israel says that Crawthorne can also be distinguished on the same basis.
Ms Israel also refers to the decision of Deputy President Roche in Smylie v Uniting Church in Australia (NSW)[48] and submits that as in Smylie, the 2011 proceeding was not a contested hearing that resulted in a judgment identifying the issues and making factual findings. Accordingly it was not possible to establish what actually had been decided.
[48] [2006] NSWWCCPD 322 (Smylie).

Catering Industries’ submissions in reply as to the estoppel

Catering Industries disputes all grounds of appeal raised by Ms Israel.
As to ground 1, Catering Industries submits that the Arbitrator gave reasons at [79] with respect to the “conflicting judgment” argument, finding that the prospect of a conflicting judgment is not the only basis upon which an Anshun estoppel applied.
Catering Industries maintains that the lay evidence supporting the allegation of a consequential condition (Ms Israel’s 2011 statement) “clearly formed part of the earlier proceedings”;[49] the assessment of the lumbar spine by Professor Ghabrial has not changed and for those reasons the claim should have been included in the 2011 proceedings.
[49] Submissions in reply at [10].
As to ground 2, Catering Industries denies error and relies on its submission that Ms Israel did not demonstrate changing circumstances when the statement evidence relied upon in 2017 was the same as in 2011 and the assessment of the loss by Professor Ghabrial at 8% WPI in the 2011 proceedings was the same assessment as in 2017. Further, in his reasons at [73], the Arbitrator made it clear that his decision was in part based on the fact that the evidence in support of the allegations existed at the time of the prior proceedings.
In response to ground 3, Catering Industries submits that reliance on the same evidence as that relied upon in 2011 demonstrates that it is in fact the same claim as could have been made in 2011 and the evidence was identical save the late report of Professor Ghabrial. Catering Industries points out that the Arbitrator gave that report no weight.
As to ground 4, Catering Industries submits that where an Anshun estoppel may apply, it is incumbent upon a party to establish “special circumstances” exist and it is the appellant’s onus to do so, which they did not. It is said that the Arbitrator dealt with this issue in [65] of his reasons.
With respect to ground 5, Catering Industries maintains that the Arbitrator was correct in accepting that the evidence as to consequential condition was identical. Further it is submitted “the appellant made a decision to accept an award for the respondent in relation to the lumbar spine at the time despite the presence of evidence supporting the allegation.”[50]
[50] Submissions in reply at [24].
Catering Industries submits that if there were evidentiary concerns in the 2011 proceedings, Ms Israel could have refrained from pursuing her claim and that she had no requirement to bring the claim at that time.
In response to ground 6, Catering Industries maintains there was no error, and the Arbitrator was correct in finding that whatever was pleaded in 2011 was immaterial where the evidence of the claim existed at the time of the earlier proceedings.
Catering Industries disputes error in respect of ground 7 and refers to [82]–[84] of the Arbitrator’s reasons. It maintains that the decision in Bouchmani is distinguishable on two bases, the first that in Bouchmani a consequential condition was not pleaded and, in addition, the issue of the application of an Anshun estoppel was not raised. Catering Industries submits the Arbitrator was not bound to follow that decision.
As to ground 8, Catering Industries submits that there were good public policy reasons to reduce costs (both of the parties and of the tribunal’s administrative costs) and achieve finality. Catering Industries points to the Arbitrator’s reasons at [67] and [74] as valid reasons for the decision.
With respect to ground 9, it is disputed that the Arbitrator erred in deciding the matter on the basis that the claim could have been brought with the 2011 proceedings. Catering Industries repeats its earlier submissions that the evidence of the consequential condition was the same evidence as in the 2011 proceedings. It submits that Ms Israel was aware (or ought to have been aware) of the evidence of a consequential condition and it was appropriate that all issues be dealt with together. Catering Industries notes the Arbitrator’s reliance on Bruce at [71] of the Arbitrator’s reasons.

In response to ground 10, Catering Industries submits that although s 22 of the 1998 Act was not raised at arbitration, those matters were addressed in the context of submissions on public policy, which included costs considerations and effective dispute resolution. On that basis it is submitted that Ms Israel has had the opportunity to address on the issue and has not been surprised.
As to ground 11, Catering Industries submits that as there was no issue with respect to the right knee the matter would have been referred to an Approved Medical Specialist for assessment rather than proceed to arbitration. It says that the need for a telephone conference and arbitration are additional costs that are borne by the respondent and the public generally. Further, as the injuries were linked and the evidence overlapped, it should have been appropriate to deal with all issues with respect to the injury together.
Catering Industries seeks to have the decision of the Arbitrator confirmed.

SUBMISSIONS AS TO THE CONSEQUENTIAL CONDITION

Ms Israel submits that the Arbitrator failed to determine the primary issue, that is whether her low back symptoms are a consequence of the right knee injury. A ground of appeal to which this submission relates was not identified.[51]
[51] Ms Israel’s submissions at [38].
Catering Industries submits that the Commission should enter an award in their favour in respect of the allegation of a consequential condition. It relies on Ms Israel’s inconsistent statements and the “inconsistent” opinions of Professor Ghabrial who fails to explain his opinion and makes no changes to his assessment.
On 14 November 2017, I issued a direction to the parties as follows:
a)The appellant is to file and serve written submissions addressing the Ground of Appeal upon which she seeks to rely with respect to her submission at [38] and the relief sought at [39] of the appeal submissions on or before 4.30 pm Tuesday 21 November 2017.
b)The respondent is to file and serve any response to those submissions on or before 4.30 pm Tuesday 28 November 2017.
c)The appellant has the opportunity to file and serve any submissions in response in their substantive submissions in reply due on Thursday 30 November 2017.
In subsequent written submissions provided in answer to the direction of the Commission, Ms Israel says:
(a)Her right knee worsened to the extent that it was necessary to undergo a total knee replacement. That worsening would have affected her gait.
(b)Professor Ghabrial recorded in July 2011 that on examination there was a limp while walking and opined that “as a result of her right knee injury she aggravated her low back problem” and that the fall aggravated her back problem. It is said the opinion in October 2016 that the right knee injury aggravated Ms Israel’s low back problem “explains” the earlier opinion. A limp is also noted in that report.
(c)The AMS in May 2012 further refers to the observation of derangement of gait and the report of the physiotherapist in March 2011 noted her low back pain “has been exacerbated following her knee injury”.
(d)She relies on the concession by Dr Pillemer that the way she was walking would be regarded as a relatively minor aggravation of her low back problem. The evidence of both medicolegal experts is sufficient, it is said to satisfy the causal nexus.[52]
[52] Ms Israel’s further written submissions dated 24 November 2017.
In response, Catering Industries submits that:
(a)On a fair reading of Professor Ghabrial’s early reports, his opinion was that Ms Israel suffered an injury to her back when she fell, injuring her right knee, and that no weight should be accorded to his later opinion.
(b)Dr Pillemer’s opinion is conditional upon the need to access the general practitioner’s medical evidence as to the extent of the back and referred leg symptoms prior to the injury. No records were produced and the only inference is that they would not assist Ms Israel’s case.[53]
[53] Catering Industries further written submissions dated 24 November 2017 at [3]–[5].
Catering Industries says that it is “appropriate to uphold the Arbitrator’s award for the Respondent in relation to the alleged injury to the lumbar spine.”[54]

DISCUSSION

[54] Catering Industries further written submissions dated 24 November 2017 at [6].

The Estoppel issue

A number of authorities are relied upon by both parties.
In Anshun, both the Port of Melbourne Authority (the Authority) and Anshun Pty Ltd (Anshun) were found negligent and ordered to pay damages to a third party in respect of injuries received by the third party. The injury was result of the use of a crane operated by Anshun, The crane was owned by the Authority. Following orders as to contribution, the Authority paid 90% of the damages and Anshun paid the remaining 10%.
Subsequently, the Authority brought proceedings in the Supreme Court for indemnity against Anshun in accordance with the written agreement between the parties. The indemnity was not claimed in the earlier proceedings, but could have been relied upon.
Anshun claimed that the Authority was estopped on the basis it should have been brought in the earlier proceedings.
The judge at first instance, relying on Henderson v Henderson[55] granted a perpetual stay on the basis that the claim was a matter which should have been raised in earlier litigation. The Full Court on appeal agreed that, although it was not a case of issue estoppel, it was a case in which the Henderson principle applied. The Full Court determined that the indemnity ought to have been claimed in the earlier proceedings and that no “special circumstances” existed for not pursuing the indemnity. The appeal was dismissed.
[55] (1843) 3 Hare 100; 67 ER 313 (Henderson).
The Authority appealed to the High Court. It claimed an estoppel did not arise because the indemnity issue was not part of the subject matter of the earlier action. It was not determined in that litigation and accordingly, the Authority could not be prevented from litigating the issue by any form of estoppel. The Authority contended that as a matter of discretion the action should not have been estopped.
In dismissing the appeal, Gibbs CJ, Mason and Aickin JJ said:
“In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. See the illustrations given in Cromwell v. County of Sac.
It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment ...
The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.
It is for this reason that we regard the judgment that the Authority seeks to obtain as one which would conflict with the existing judgment, though the new judgment would be based on a different cause of action, a contractual indemnity.
Taking into consideration the relevant factors we conclude that the Full Court was right in holding that there was an estoppel. The matter now sought to be raised by the Authority was a defence toAnshun’s claim in the first action. It was so closely connected with the subject matter of that action that it was to be expected that it would be relied upon as a defence to that claim and as a basis for recovery by the Authority from Anshun. The third party procedures were introduced to enable this to be done. If successful, the indemnity case would have obviated an inquiry into contribution. If reserved for assertion in a later action, it would increase costs and give rise to a conflicting judgment.”[56] (footnote omitted)
[56] Anshun at 602–604.
The concept of an Anshun estoppel and its availability as a defence in the context of the New South Wales Workers Compensation Scheme has been considered in a number of authorities. It is convenient to first consider some of the authorities from the Compensation Court of New South Wales.
In Ada v Westmead Centre Parramatta Hospital,[57] Burke J considered the defence of estoppel raised by the respondent. The applicant had brought previous proceedings for incapacity in 1984 resulting from injury to various body parts including his left arm and anxiety state when he fell off a chair. O’Meally J gave an award for the respondent. In the subsequent (1985) proceedings he claimed incapacity from an alleged Injury as a result of repetitive movement and the strenuous use of the left arm required of the applicant in the course of his employment with the same respondent.
[57] [1985] NSWCC 3; 1 NSWCCR 101 (Ada).
In the second proceedings, Burke J found that the applicant was estopped because he was claiming a different cause for the same incapacity and was in effect “splitting his case”. His Honour said:
“Where the subject of the earlier litigation was whether the applicant had an incapacity because of injury to his left arm and a consequent anxiety state that was alleged to be compensable because it arose out of or in the course of his employment and the applicant alleged one only of apparently two limbs or incidents of his employment upon which he might rely, then certainly it was in essence the applicant splitting his case seeking, in two separate proceedings, ultimately to allege two different causes of the same consequence, each being allegedly compensable within the meaning of this Act. It seems to me that, with any reasonable diligence, the applicant could have, and indeed should have, litigated that issue concurrently with the actual allegation which he did in fact choose to litigate in the earlier proceedings.”[58]
[58] Ada at 106B–D.
In Thompson v George Weston Foods,[59] McGrath CJ observed:
“The overall impact of this decision seems to be to test any set of circumstances on the basis of the reasonability of the decision.
In the area of workers compensation, the basic framework is the statute itself. Under the Act disputes of various kinds can occur. They may relate to the whole question of liability for all and every benefit provided by the Act. They may relate only to some of them. In certain cases, a tribunal different from the Court, namely, a medical panel, can be invoked to resolve issues, such as the condition of an injured worker, or the worker’s fitness for employment.
It is clear that issue estoppel can arise as a consequence of an adjudication on a particular issue, which would prevent a party bringing, or defending, a claim in relation to a different benefit. I do not consider that there is any rule which would prevent a worker bringing an action claiming one type of benefit, and leaving another type of benefit for later, or other, adjudication. In doing this he may in some cases risk being penalised in costs, or risk failing on an issue which would debar the other claim. If he lost on the issue of injury he could not succeed in gaining compensation for a consequential benefit, whether it was included in the original application, or not”.[60]
[59] [1990] NSWCC 18; 6 NSWCCR 370 (Thompson).
[60] Thompson at 375C–F.
In Kerr v Hunter District Water Board,[61] a notice of motion before the Compensation Court, Moroney J considered the application of an Anshun estoppel. He determined that the Compensation Court does not create a single cause of action in respect of all claims for compensation arising out of injuries sustained in a particular accident. A Worker is not required to raise in proceedings before the Compensation Court all injuries sustained in an accident or even all injuries or impairments of which he is then aware.[62]
[61] (1991) 7 NSWCCR 289 (Kerr).
[62] Kerr at 293G–295B.
A helpful summary of the early cases with respect to estoppel and its scope in the workers compensation jurisdiction was provided by Neilson J in Bruce. In that decision, after consideration of the relevant cases, Neilson J distilled the following principles:
“(a)    the principle in the Port of Melbourne Authority v. Anshun Pty Ltd extends to claims as well as to defences: O’Brien’s case[[63]] in the Court of Appeal and Boles’ case[[64]];
(b)     estoppel will arise if in second or further proceedings there would be a judgment inconsistent with a judgment in the first proceeding or the granting of remedies inconsistent with the remedy originally granted or the declaration of rights of parties inconsistently with the determination of those rights made in the earlier proceedings;
(c)     the matter being agitated in the second or further proceedings must be relevant to the original proceeding; and
(d)     it was unreasonable not to rely on that matter in the original proceedings; such unreasonableness would depend on the facts of each particular case: Boles' case.”[65]
and
“(a)    There is no ‘cause of action’ for workers compensation. The Act creates a number of rights which a worker is entitled to pursue independently of other rights: Jorgensen’s case[[66]], Thompson’s case.
(b)     Estoppel will arise if the relief claimed in second or subsequent proceedings was claimed in original proceedings: Jorgensen’s case.
(c)     Estoppel of the type referred to in the Port of Melbourne Authority v. Anshun Pty Ltd will apply if there were alternative bases to ground the relief claimed but one of those bases was not pursued: Ada’s case. An analogous situation to Ada’s case is one where a person claimed to be a ‘worker’ and failed in that allegation. Subsequently he brought second proceedings seeking to allege that he was a ‘deemed worker’ for the purposes of the Act. In such cases the claimant's remedy is pursuant to section 17(4) of the Compensation Court Act 1984.
(d)     Where a claim could have been litigated in earlier proceedings but was not, there may be a cost penalty: Thompson’s case, Jorgensen’s case per Cox J at 164, Kerr’s case at 295”.[67]
[63] Tanning Research Laboratories Inc vO’Brien (1990) 169 CLR 332.
[64] Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666.
[65] Bruce at 261F–262C.
[66] Salmon Street Ltd v Jorgensen (1991) 56 SASR 158.
[67] Bruce at 267A–E.
More recently, the superior courts considered and extended the concept of the principles applicable to an Anshun estoppel.
The prospect of inconsistent judgments has been described as an “obviously important” and a critical factor in any assessment of whether an Anshun estoppel arises.[68]
[68] Anshun at [596], [603]; Zavodnyik at [35].
The concept of “unreasonableness” is also a critical aspect for determination.
In Ling v Commonwealth[69] the Federal Court found the plaintiff’s failure to plead his claim as a cross-claim in the earlier proceedings was held to have been reasonable and there was no Anshun estoppel. Wilcox J said:
“In considering reasonableness ... consideration must be given to all aspects of the case. They include the extent of the overlap between the facts underlying each claim; the greater the overlap, the easier it is to argue that it was unreasonable not to raise the matter in the first case. They also include any difficulties that existed, or might reasonably have been perceived, in raising the matter earlier ...
In assessing the reasonableness of Mr Ling’s failure to raise his claim against the Commonwealth when he was sued by it in the earlier action, it is necessary to look at the whole of the circumstances that he then confronted. His claim involved facts that overlapped the Commonwealth’s case to some extent but were substantially extraneous to that case.”
[69] [1996] FCA 1646; 68 FCR 180 at 184.
In the further decision of the Court of Appeal, in Manojlovski,[70] Allsop P (as his Honour then was) observed that the concept of unreasonableness requires two assessments to be made. He said:
“The question of unreasonableness is derived significantly from the matter being so relevant to the subject matter of the first proceeding. There are at least two related assessments that have to be made: was the matter so relevant that it can be said to have been unreasonable not to rely upon it in the first proceeding? ...
One fundamental error in the approach of the respondent was to build on the proposition that because the matter could have been raised in the first proceeding to draw a conclusion, it should have been. That mechanistic approach was what Lord Bingham was rejecting in the above passage from Johnson v Gore Wood. It is also what Gibbs CJ, Mason J and Aickin J found objectionable in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581. In that case at 590, Lord Kilbrandon spoke of the principle as ‘an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings’ (emphasis added). This way of putting it overstated the principle. The mere fact that the matter could have been raised does not mean it should have been raised (for the operation of the principle). Rather, it has to be so relevant as to make it unreasonable not to raise it.” (emphasis in original)
[70] Manojlovski at [3] and [4].
It is also necessary to examine the relevance to the earlier proceedings.
In Habib,[71] McColl JA said:
“Thus Anshun estoppelintroduces ‘an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings’.
A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form: see Bazos and Anor v Doman and Ors [2001] NSWCA 347 (at [44]) per Stein JA (Priestley and Beazley JJA agreeing) and the authorities to which his Honour refers. In determining whether an Anshun estoppel has been established, the Court inquires into realities and not mere technicalities: R v Humphrys [1977] AC 1 (at 41) per Lord Hailsham; cited with approval by Handley JA (Young CJ in Eq agreeing) in Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355 (at [19]). The Court can look at ‘any material that shows what issues were raised and decided’: Rogers v R (at 263) per Brennan J.
In considering whether an Anshun estoppel has been established it is necessary to bear in mind that ‘shut[ting] out a claim... a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation...is a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’: Ling v Commonwealth [1996] FCA 1646; (1996) 68 FCR 180 (at 182) per Wilcox J, approved in Bazos (at [45]) per Stein JA (Priestley and Beazley JJA agreeing); see also Brisbane City Council v Attorney-General (Qld) [1979] AC 411 (at 425) per Lord Wilberforce.”
[71] Habib at [82] and [84]–[85].

The Court of Appeal again considered the principles to be applied with respect to an Anshun estoppel in Johnson where McColl JA said:[72]
“In undertaking the evaluative exercise, it is relevant to bear in mind that Anshun estoppel, like res judicata and issue estoppel, finds its roots in the policy of the common law favouring the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The ‘underlying public interest is ... that there should be finality in litigation and that a party should not be twice vexed in the same matter.’ Nevertheless, a ‘strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form’.” (footnotes omitted)
[72] Johnson at [6].
The Workers Compensation Commission at the Presidential level has considered the above authorities and the concept of the application of an Anshun Estoppel in the context of the workers compensation jurisdiction. A number of authorities were briefly referred to in the submissions and in the Arbitrator’s reasons, but in my view are distinguishable on the facts and, in this case, do not assist further than the authorities above.

The allegations of error

The numerous grounds of appeal relied upon by Ms Israel detail various allegations of error on the part of the Arbitrator in arriving at his determination. I will deal with each in turn.

Ground 1: The Arbitrator erred when he failed to consider that a determination of whether there was a consequential injury to the lumbar spine would not result in any judgment that conflicts with the earlier determination.

It is clear from the Certificate of Determination that the Arbitrator did not turn his mind to the question of whether a conflict or contradiction between a determination of this issue and the consent orders issued in the 2011 proceedings would result. Ms Israel says that this is a critical factor ignored by the Arbitrator. The argument put forward by Ms Israel is that Bruce is authority for the proposition that “[Neilson J] identified the possibility of an inconsistent judgment as being an essential element of estoppel”. Where there is a potential for a conflicting judgment, issue estoppel and res judicata estoppel will arise, but I do not understand the decision in Bruce (or any other authority) to be authority that it is also an essential element of an Anshun estoppel.
A proper consideration of the principles to be addressed with respect to the application of an Anshun estoppel requires an evaluation of the likely judgment outcome to be included. In the circumstances of this case the answer to that consideration must be that there would be no conflict or contradictory outcome. While it may very well be a matter required for consideration, the absence of such a conflict does not prevent an Anshun estoppel applying.
Ms Israel’s assertion that such a conflict is an essential element of an Anshun estoppel is misconceived. As submitted by Catering Industries,[73] the Arbitrator reasoned that “Anshun extended that definition to include a situation where alternative bases were available to ground the relief sought.”[74]
[73] Submissions in Response at [9].
[74] Karen Israel v Catering Industries Pty Ltd [2017] NSWWCC 217 (reasons) at [79].
Ground 1 of the appeal is not made out.

Ground 2: The Arbitrator erred in failing to consider that there could not be an estoppel in changing circumstances.

Ms Israel maintains that the claim available in 2011 is not the same claim as the claim available in 2017. The change is said to have arisen out of the effect of altered gait over one year and how the continued and increasing altered gait and worsening of the knee condition over the ensuing six years acted upon the lumbar spine.
Catering Industries counters that the claim in 2011 is the same as the claim now brought because the assessment is the same assessment of 8%. It refers to the Arbitrator’s reasons at [73] where it is said the Arbitrator took into account the evidence supporting the claim existed in the previous proceedings (bar the supplementary report of Professor Ghabrial).
Estoppel will not arise where it is established that there are changing circumstances.[75]
[75] Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 at [58]; Roche v Australian Prestressing Services [2013] NSWWCCPD 7 at [32].
There is no evidence that the altered gait which existed in 2011 worsened thereafter. With respect to the low back symptoms the evidence from Ms Israel in her 2017 statement says that her back pain had “deteriorated significantly”.[76] On the other hand, the history provided to Professor Ghabrial in 2016 was that “[s]he reported continuing symptoms as well in her back which ha[ve] not progressed since I saw her last in 2011.”[77] The evidence as to a progression of the symptoms in the low back is equivocal.
[76] ARD p 41 at [6].
[77] ARD p 14.
Catering Industries relies on the WPI assessment of 8% as evidence that it was the same claim. An assessment of the lumbar spine for the purposes of a s 66 claim is made pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed, 2000, Chapter 15.4. An injured worker will be assessed to be in one of five DRE categories on the basis of clinical signs and radiological investigations. Ms Israel was assessed by Professor Ghabrial at 8%, the maximum assessment for DRE category II. Any increase of pain symptoms will not of itself qualify her for an assessment in a higher category.
Overall however, whether Ms Israel can or cannot make out a claim that there were changing circumstances, both parties made submissions on point at the Arbitration and the Arbitrator has failed to determine the issue.
At [86], the Arbitrator said “whether the applicant’s condition has deteriorated since 2011 is neither here nor there”. Whether the claim can be categorised as a claim in changing circumstances was a matter raised in the proceedings and needed to be considered in a determination of whether an estoppel arises. The Arbitrator has erred in disregarding the issue. The effect of this will be discussed below.

Ground 3: The Arbitrator erred when he failed to appreciate that a claim for a resulting condition in 2011 was not the same claim as one for a resulting condition in 2016.

This ground was dealt with by both parties as an extension of Ground 2 above. For those reasons and for the reasons and determination set out in answer to Ground 2, I do not consider it necessary to deal separately with this allegation.

Ground 4: The Arbitrator erred when he reversed the onus by requiring the appellant to establish that there were reasons why the claim for consequential injury was not pursued in the earlier proceedings.

Ms Israel submits that the respondent needed to establish what happened in the 2011 proceedings. She says the respondent bore the onus of establishing that the failure to bring the claim in 2011 was unreasonable. She further submits that the Arbitrator fell into error by requiring Ms Israel to provide “forensic reasons” as to why she did not pursue the consequential claim.
Catering Industries says that there has not been a reversal of the onus of proof. It maintains that it is a matter for Ms Israel to establish by evidence “special circumstances” existed to avoid the estoppel.
The consideration of “special circumstances” was said by Catering Industries to be the only exception to prevent the operation of an estoppel in cases where a point which properly belonged to the subject litigation might have been brought by exercising reasonable diligence.[78]
[78] Henderson at 115.
The principles enunciated in Ling, Habib, Manojlovski and Johnson (extracts of which are quoted above) now adopt a broader approach than exemption only in special circumstances.
The first step is to establish the requisite identity of the issue with the issue in the previous proceedings. If that is established then only after a consideration of all of the facts and circumstances, a determination can be made as to whether the failure was unreasonable and an estoppel can be order made.
In the circumstances of this case, the only documents that could be clearly identified as being before the Commission were the consent orders and the Certificate of Determination. By inference, it could be reasonable to assume that Ms Israel’s 2011 statement was likely to have been included, which appears to be the position adopted by both parties. Potentially the early reports of Professor Ghabrial and Dr Pillemer, those being forensic medicolegal reports obtained for the purposes of proving or disproving a case would be more than likely to have been included.
In my view, it could not be assumed that the balance of the material relied upon in these proceedings was before the Commission in the 2011 proceedings, particularly the report of Scott MacDonald, physiotherapist, directed to Ms Israel’s treating general practitioner. It may have been, however, the only way to identify what was before the Commission in the form of pleadings and evidence in the 2011 proceedings would be to examine the Application to Resolve a Dispute, the Reply and any Application to Admit documents. None of those documents were in evidence.[79]
[79] Habib at [186].
It is fundamentally necessary to examine the earlier pleadings and the terms of the award in order to determine whether the subsequent claim is barred.[80]
[80] Lee v Commonwealth (1971) 18 FLR 400 per King CJ at [162].
Catering Industries sought to have Ms Israel estopped from claiming s 66 entitlements. In order for the Arbitrator to determine whether the estoppel was warranted, he was required to identify what claims were made in the 2011 proceedings and whether the consequential lumbar claim was closely identified with any claim in the earlier proceedings. If the answer to that was in the positive, he was then required to examine all of the facts and circumstances to establish whether the failure to bring the claim was unreasonable. It is difficult to see how those principles could be applied without the documents referred to at [148] above when the matter resolved by consent orders, rather than by judgment.
It is not a matter for Ms Israel to establish she could not have brought her claim in the earlier proceedings or that she acted reasonably in refraining to do so. It is a matter for Catering Industries to show that she should have brought the claim, and her failure to do so was unreasonable. It was a matter for Catering Industries to adduce the evidence required to establish those matters.
I am satisfied that this ground is made out.

Ground 5: The Arbitrator erred when he concluded that the claim for consequential injury could have been put in the earlier proceedings despite his own finding that there was no such medical evidence in the earlier proceedings.

Ms Israel’s position is that she could not pursue her current claim in the 2011 proceedings because she did not have sufficient medical evidence.
Catering Industries submits that the evidence relied upon (save the 2017 report of Professor Ghabrial, to which the Arbitrator ascribed no weight) was identical to the evidence that existed in the prior proceedings. It is further submitted that if Ms Israel had evidentiary concerns Ms Israel could have refrained from prosecuting her (presumably entire) s 66 entitlements until the lacuna in the evidence was addressed.
While it might or might not be said that the evidence in the 2011 proceedings fell short of sufficient evidence to discharge the onus of proof, that is not to say that Ms Israel could not, with due diligence on the part of her legal representatives, have prosecuted her claim in 2011.
The Arbitrator did not err in this conclusion. This ground is not made out.

Ground 6: The Arbitrator erred when he reversed the onus by considering that the appellant could have filed the Application and Reply from the earlier proceedings.

The Arbitrator dealt with the absence of the 2011 pleadings in his reasons at [81]. It is necessary to reproduce the whole of that paragraph in order to deal with this ground, as follows:
“As I have earlier observed, neither party lodged the pleadings, that is to say the Application to Resolve a Dispute and the Reply, upon which matter 1094 of 2011 was decided. The respondent, by raising this this issue, put an evidentiary onus on the applicant to establish that the alternative base was not available, and it is an insufficient answer by the applicant to allege that the failure by the respondent to lodge the pleadings prevents any determination. The issue is rather whether there existed a state of fact alleged in the present matter that was apparent at the time of the earlier award. Whether the applicant had actually pleaded a consequential condition is immaterial when the evidence demonstrates that the facts were available in the earlier action to ground the relief then sought – that is to say an award of compensation for impairment and incapacity caused by the applicant’s back condition.”
The Arbitrator has clearly fallen into error. The task before the Arbitrator was to apply the analysis in [146] above. To regard what was pleaded as “immaterial” is to ignore the steps identified by the Court of Appeal in Ling, Habib, Manojlovski and Johnson. It is not sufficient to say that the issue is one of whether there was a state of fact relied upon that was available in the 2011 proceedings. Identifying the common fact or issue is but one step in assessing whether the issue is so relevant to the issue in the previous proceedings that it was unreasonable not to pursue it.
For these reasons set out in at [144]–[146] above, the Arbitrator has reversed the onus of proof and this ground has been made out.

Ground 7: The Arbitrator erred when he failed to follow the clear authority from Bouchmouni which held that no estoppel arose in identical circumstances.

The only reference to Bouchmani made in Ms Israel’s submissions is at [32] of her written submissions filed in the appeal. Ms Israel refers to the decision by Deputy President Roche with respect to the difference between the concept of a frank injury and a consequential condition and that the two are entirely different claims. Ms Israel submits that a claim for compensation for a frank injury is “quite separate” from a claim for a consequential condition.
Catering Industries submits that the Arbitrator dealt with the decision in Bouchmouni at [82]–[84] of his reasons. It further says that Bouchmouni can be distinguished on the basis that no statement alleging a consequential condition was made in that matter and that the concept of an Anshun type estoppel was not considered by the Deputy President.
Neither party referred to the decision in their oral or written submissions to the Arbitrator.
The Arbitrator did address the matters raised in Bouchmouni in his reasons at [82]–[85]. He correctly identified that the facts were similar to the present case, but that the argument was that an award for the respondent in respect of “injury to the lumbar spine” included any consequential condition in the lumbar spine. Further, while an estoppel was raised, it was on that basis and not on the basis of an Anshun estoppel.
The ground relied upon by Ms Israel is that Bouchmani is clear authority that an estoppel does not arise in identical circumstances. The decision is not authority with respect to whether an Anshun estoppel arises as it was not argued or considered by Deputy President Roche.
If Ms Israel is relying on her submissions on Appeal made at [32], those submissions really go to the relevance of the current claim to that which was pleaded in the 2011 proceedings.
For the reasons set out in [160]–[163] above, Ms Israel has not made out this ground of appeal.

Ground 8: The Arbitrator erred when he failed to identify a public policy purpose which justified the finding of an estoppel.

Ms Israel submits at [29] that the Arbitrator, in considering the notion of conflicting judgments, said there could be other public policy reasons for imposing an estoppel. At no time, it is said, did the Arbitrator identify what matters could be relevant to “finding such a public policy.”
Catering Industries disputes the assertion and refers to the Arbitrator’s reasons at [67] and [74] as a proper basis for considering a wider approach to considerations of public policy.
It submits that there are good public policy reasons to ensure finality in litigation and to reduce legal and administrative costs.
At [67] of his reasons, the Arbitrator notes Ms Israel’s submission that the public policy behind the application of an Anshun estoppel is that there should be no risk of conflicting judgments. The Arbitrator formed the view that the concept of public policy encompasses a wider scope than that proposed by Ms Israel. The Arbitrator at [37] and [38] referred to the passage in Anshun reproduced at [113] above.
He further referred to the objectives of the “Acts” being concerned with the “timely and effective resolution of disputes” and in particular s 22 and s 354 of the 1998 Act.[81]
[81] Reasons at [74] and [77].
While the Arbitrator referred to the objectives of the “Acts”, it should properly be expressed as the objectives of the State Insurance Regulatory Authority.
Section 22 of the 1998 Act is expressed as follows:

“22 Objectives and general functions of Authority under workers compensation legislation

(1)The principal objectives of the Authority in exercising its functions under the workers compensation legislation are as follows:
(a)    to promote the prevention of injuries and diseases at the workplace and the development of healthy and safe workplaces,
(b)     to promote the prompt, efficient and effective management of injuries to persons at work,
(c)     to ensure the efficient operation of workers compensation insurance arrangements,
(d)     to ensure the timely and effective resolution of disputes arising under the workers compensation legislation,
(e)     to ensure the appropriate co-ordination of arrangements for the administration of the schemes to which the workers compensation legislation relates.
(2)The general functions of the Authority under the workers compensation legislation are as follows:
(a)     to be responsible for ensuring compliance with the workers compensation legislation,
(b)     to be responsible for the day to day operational matters relating to the workers compensation scheme,
(c)     to establish procedures for dealing with complaints made by employers and by injured workers in relation to matters arising under the workers compensation scheme,
(d)     to monitor and report to the Minister on the operation and effectiveness of the workers compensation legislation and on the performance of the workers compensation scheme,
(e)    to undertake such consultation as it thinks fit in connection with current or proposed legislation relating to the workers compensation scheme,
(f)      to monitor and review key indicators of financial viability and other aspects of the workers compensation scheme,
(g)    to report and make recommendations to the Minister on such matters as the Minister requests or the Authority considers appropriate.

The “Authority” is defined in s 4 as:
“Authority means the State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015.”
I cannot see that the functions of the State Insurance Regulatory Authority to ensure the timely and effective resolution of disputes as provided for in s 1(d) extends to a public policy consideration that might or ought to be taken into account for the purposes of a determination as to whether an Anshun estoppel should be imposed by the Commission.
Section 354(1)–(3) of the 1998 Act, however, is relevant to how proceedings in the Commission should be dealt with. That section is set out above at [63].

The Arbitrator considered the above section at [78] of his reasons, and found that “the failure by a party to litigate a claim in earlier proceedings becomes more than a simple technicality”.
That finding is not the subject of an appeal, nor has the finding that “[t]he proper administration of the Commission’s business as expressed in the objectives set out above, is inimical to permitting its resources to being unnecessarily expended in the present case”.[82]
[82] Reasons at [86].
The passages above do, however, establish that the Arbitrator did turn his mind to the question of public policy, and accepted the submission from Catering Industries that reduction of administrative costs was a good public policy.
This ground of appeal therefore fails.

Ground 9: The Arbitrator erred when he considered the fact that a claim could have been brought in earlier proceedings was sufficient to establish an estoppel.

Ms Israel submits that the Arbitrator, having found she could have brought her claim in 2011, failed to consider whether it was unreasonable for her not to have done so.
Catering Industries maintains that “it was appropriate that all issues be determined together”.[83] It relies on acceptance by the Arbitrator that Ms Israel was aware, or should have been aware, of the evidence with respect to the consequential condition in 2011. It further maintains that the “key consideration” is that the evidence did not change to any “significant degree” between the two sets of proceedings.[84]
[83] Submissions on appeal at [39].
[84] Submissions on appeal at [37] and [38].
That evidence is not only evidence as to whether the claim could have been pursued. It is relevant to the question of unreasonableness. It is also relevant to the question of unreasonableness that it is appropriate to hear all related issues together. Armed with the evidence (which Catering Industries says is the lay evidence contained in the 2011 statement) it is a matter for consideration in assessing why the claim was not brought at the time, as is the appropriateness of hearing related matters together. They are not however “a key consideration”. They are but one of any number of considerations that would flow from a scrupulous examination of all the circumstances.”[85]
[85] Habib at [85].
The Arbitrator determined that as:
“[There was] no explanation … made as to why the alternative claim was not pursued when the matter was first litigated, the objectives of the legislation and the efficient and timely performance of its functions by the Commission override any consideration that an injured worker should have the benefit of re-using the Commission procedures when he/she had the opportunity to litigate an issue in earlier proceedings and failed to do so”
and he was satisfied
“it was unreasonable in these circumstances for the applicant not to rely on her claim for consequential condition in her original proceedings.”[86]
[86] Reasons at [87].
The above reasons are sufficient to say that the Arbitrator turned his mind to more than the question of whether Ms Israel could have brought her claim in 2011. The fact that she did not offer a reason for refraining to do so, his view on the Commission’s functions (however inaccurately based on s 22 of the 1998 Act), together with the public policy that all claims should be brought together were all matters that were appropriate for him to consider in assessing whether she should have brought her claim in 2011.
This ground of appeal has not been made out.

Ground 10: The Arbitrator erred by relying upon s 22 of the 1998 Act when that section had not been relied upon by the respondent and the appellant was not given an opportunity to make submissions concerning the relevance of that section.

Ms Israel claims that there has been a denial of procedural fairness in that neither party raised s 22 of the 1998 Act and that the Arbitrator’s reasons “heavily depended on the interpretation and application of section 22 of the 1998 Act”. She maintains that the section ought to have been drawn to the parties’ attention.
In any event she maintains that s 22(1) (b) is constrained in its context to disputes and that a dispute in this matter did not arise until 2017 after the claim had been made.
Catering Industries refers to its submissions[87] with respect to ensuring finality in litigation and reducing legal and administrative costs even though it did not refer to s 22. It says those concepts are embodied in s 22 and therefore Ms Israel had the opportunity make submissions on point.
[87] Transcript of Arbitration Proceedings of 11 July 2017 (T), T27.13.
It is apparent from his reasons that the Arbitrator’s decision was underpinned by such obligations the Authority (rather than the Commission) has that are encompassed by s 22. Given such reliance, the proper course ought to have been to invite both parties to make submissions.
I do not accept that Ms Israel had the opportunity to properly submit on the relevance and application of s 22 and this ground is made out.

Ground 11: The Arbitrator erred when he failed to consider that these proceedings would have been brought in any event regardless of whether the issue had been raised in the earlier proceedings.

The submissions which might support this ground are to be found in the oral submissions made at the arbitration hearing.[88] Ms Israel says that because she has an increased impairment in her right lower extremity (knee) brought in these proceedings, the proceedings would have been on foot in any event.
[88] T25.15–25.
Catering Industries says that because liability for the right knee was accepted the matter would not have proceeded to arbitration but would have been referred to an AMS for assessment but for the lumbar claim.
In the absence of agreement as to the WPI for the right lower extremity (knee) the process to recover compensation still requires the commencement of proceedings. The matter would not however have required arbitration. The costs of arbitration will be incurred because Ms Israel has pursued her claim for the unaccepted consequential condition.
I do not consider the point raised needs to be determined. I have already found that some of the grounds of appeal have been made out and the Arbitrator’s decision is set aside. In any event, the public policy needs to be carefully weighed against the rights of the party to have the intrinsic merit of her claim determined (Ling, Habib). In the circumstances of this case, I do not consider
(a)the costs of the parties’ attendance at arbitration (and its sequelae), or
(b)in the context of the workers compensation scheme, Catering Industries’ right to finality of litigation,
to be so significant as to outweigh the Ms Israel’s right to pursue her statutory entitlement.

The issue of estoppel

The authorities above establish an Anshun estoppel can apply in a claim for workers compensation.
Further, it is essential to consider whether a determination of the matter will result in a conflict with or contradict the previous determination. If it would, then an estoppel will apply. If it would not, then an Anshun estoppel can apply in certain circumstances.
It is not sufficient to establish that the claim could have been raised in the earlier claim and therefore should have been. The issue to be determined must be whether there is the “requisite identity” with the first proceedings. If it overlaps in some respects but not in others, it is less likely to be “closely relevant.”
If it has the requisite identity, was it unreasonable not to pursue it in the earlier proceedings? The test of unreasonableness requires a thorough examination of all the facts and circumstances of the case.
The Workers Compensation claim system is not a “once and for all” claim. The legislation provides for a number of statutory entitlements that are triggered by making any claim for compensation (be it weekly compensation, treatment expenses or s 66 entitlement) within the time limits imposed in the 1998 Act, that is s 254 (notice of injury) and s 261 (time within which to make a claim). Putting aside the prohibition on more than one s 66 claim in s 66(1A) of the 1997 Act (which was not in force in 2011), any further claim for compensation is otherwise not barred by the legislation[89].
[89] Thompson at 375; Ingham’s Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29 at [105].
The evolution of the concept of estoppel was borne out of the underlying public interest that there should be finality in litigation.[90] In the workers compensation scheme, where different rights and entitlements may manifest at different stages, finality of litigation is to some extent a foreign notion.[91] In this context, and embracing the passage from McColl JA in Habib at [85] it is my view that in this scheme which is largely beneficial in nature public policy considerations ought to be more carefully weighed than otherwise as against the rights of a party to retain his or her entitlements.
[90] Johnson per McColl JA at [6].
[91] Eraring Energy v Graf [2007] NSWWCCPD 6 at [32].
It is clear that with due diligence on the part of the legal representatives, Ms Israel could have brought her claim for lump sum benefits for the low back symptoms consequent on altered gait when she brought her s 66 claim in 2011. It is common practice in the Commission for injured workers to plead an injury and in the alternative a consequential condition in relation to the same body part.
Ms Israel’s position is that she could not because she did not have sufficient medical evidence. I disagree. With proper attention to the matter, a further clarifying report from Professor Ghabrial could have been obtained prior to the commencement of proceedings or otherwise filed under cover of an Application to Admit Late Documents in accordance with the Workers Compensation Commission Rules 2011.
In line with the authorities referred to above the next question is whether the claim should have been made at that time. That involves a consideration of the requisite identity of the claim with the claim in the 2011 proceedings. As observed it is difficult to determine what was claimed in the earlier proceedings given the absence of the pleadings and evidence of what was before the Commission in the form of documentary evidence.
The consent orders disclose that there was a claim pursuant to s 66 in respect of injury to the right knee. The entry of an award for the respondent for injury to the lumbar spine is strong evidence that such a claim was also pleaded.
Apart from the fact that the right knee claim was for benefits under the umbrella of s 66 and the accepted right knee was alleged to be the cause of altered gait aggravating the back, there is no overlap, relevance or identity between the claim for the right knee and the current claim for the low back. It cannot be said that the consequential back claim is so relevant to the right knee claim that it was unreasonable for Ms Israel to have refrained from bringing those claims together.
There is more relevance to the current claim with respect to the claim for s 66 entitlements for injury to the low back, notably because it involves the same body part and both are referrable to the same complaint of symptoms.
However had the 2011 matter proceeded to arbitration on both ‘injury’ and ‘consequential condition’ each would have required a different factual analysis of the evidence. The factual basis for establishing an injury requires investigation of contemporaneous complaints in the medical evidence at the time of the injury and documentary evidence such as the claim form to ascertain what was reported at the time of or soon after the injury.
In assessing the evidence of the consequential condition, a different consideration of the evidence would be required, such as evidence of altered gait following the injury, record of complaints of back pain, not at the time of injury but subsequent to it, and medical evidence that supports the causal connection.
It is also relevant that the onset of a consequential condition does not require a temporal connection to the injury, and may develop some years post injury, but still have an unbroken causal chain of connection.[92]
[92] Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang) per Kirby P at 461G.
The Commission has considered and explained the difference between an “injury” and a condition that has resulted from an injury in a number of decisions. As Ms Israel submits, Bouchmouni is one authority for the distinction between ‘injury’ and a ‘consequential condition’.
In Bouchmouni, Deputy President Roche explained:
“The same principles apply in the present case. It was no part of Mr Bouchmouni’s duties to have surgery on his knee or to walk with an altered gait. Those things arose because he suffered an injury to his knee in the course of his employment. If a further medical condition has resulted from the treatment of the knee injury (or from an altered gait because of knee symptoms), as has happened in this case, that condition (the back condition) has resulted from the injury but is not itself an ‘injury’.
[The respondent’s] submission that the evidence was overwhelmingly that Mr Bouchmouni’s alleged injury to his lumbar spine ‘resulted from the pleaded injury as a result of the physiotherapy undertaken post the surgery to the knee’ misunderstands the basic principles involved and has failed to distinguish between an ‘injury’ arising out of or in the course of employment under s 4, on the one hand, and a medical condition that has resulted from an injury, in the sense discussed in Kooragang, on the other. The two situations are quite separate and distinct (Sydney South West Area Health Service v Dyer [2012] NSWWCCPD 46 from [23]).”[93] (emphasis in original)
[93] Bouchmouni at [73] and [74].
To maintain that the overlap between the allegation of injury and the consequential condition is sufficient to establish Ms Israel should be estopped is, in my view, taking a too technical approach and amounts to an assessment on the basis of form rather than substance.
I find therefore that the issue for determination in these proceedings is not of the requisite identity with the issue in the 2011 proceedings so as to establish Catering Industries’ case that an estoppel arises.
With regard to the authorities of Kerr, Thompson and Habib and the obligations of the Commission set out in s 354(3) of the 1998 Act, an assessment of whether it was unreasonable for Ms Israel not to pursue her claim in the 2011 proceedings, must have regard to the statutory scheme providing for various benefits available that are not time barred once any claim arising out of the injury has been made. It must also have regard to the right to have the claim determined on its substantial merits.
Having made the determination in [214] above, it is not necessary for me to determine whether Ms Israel’s failure to pursue the whole person impairment of her lumbar spine resulting from her consequential condition was unreasonable. I am, however, not persuaded that on balance her failure to do so was unreasonable.

The issue of a consequential condition

Both parties made submissions at arbitration and on appeal with respect to whether Ms Israel’s low back symptoms are referrable to the altered gait caused by her accepted right knee injury such that it constitutes a compensable consequential condition. Ms Israel submits on appeal at [38] that the Arbitrator has not determined the “primary issue of whether there was a consequential condition”. At [39], she seeks to have the issue determined on appeal.
Catering Industries submits on appeal that on the basis of Ms Israel’s inconsistent statements and the inconsistent opinions of Professor Ghabrial the award for the respondent for the consequential condition ought to be confirmed. In the alternative, it requests the issue to be referred to an Arbitrator for determination.[94]
[94] Catering Industries’ Appeal submissions at [48] and [52].
Ms Israel has not identified any formal ground of appeal upon which she seeks to challenge the Arbitrator’s reasons on the consequential low back condition, presumably on the basis that she alleges the point was never decided.
She has however made relevant submissions as to why the allegation of the consequential condition ought to be accepted.
Catering Industries also made submissions as to why the consequential condition ought not to be accepted.
It appears from the transcript, submissions, and the reasons for determination that the opinion of Professor Ghabrial in his first report was not referred to or examined in any detail. The doctor recorded a history that “as a result of the knee injury she aggravated her lower back problem.”[95] The doctor then opined that Ms Israel suffered a knee injury and discussed the ongoing symptoms as well as the likely future total knee replacement. He then gave his opinion that “[a]s well she aggravated her previous back problem.”[96]
[95] ARD p 10.
[96] ARD p 11.
Neither party made submissions to the Arbitrator in relation to the doctor’s conclusions when read with the history taken.
In his reasons at [27] the Arbitrator reviewed the report of Dr Pillemer dated 17 March 2017 and noted that the doctor confirmed that in his earlier report he opined that the back symptoms were not related to the right knee injury. He quoted from the 2017 report of Dr Pillemer wherein Dr Pillemer’s attention had been drawn to Ms Israel’s statement of 2011. The quote from that was as follows:
“In my opinion then, the way Ms Israel was walking would be regarded as a relatively minor aggravation of her lower back problem and certainly would not be a main contributing factor to the aggravation.”
The Arbitrator then noted that the doctor “expressed some reservations as to his opinion”.[97]
[97] Reasons at [28].
At [29] of his reasons, the Arbitrator said that “[c]ontemporaneous reports were also lodged from physiotherapist Mr Scott MacDonald … but these reports were only concerned with the knee.”
The parties at arbitration did not make submissions on Scott MacDonald’s report of 3 March 2011, which was in evidence. It appears from the statement above the Arbitrator was not aware that in that report the physiotherapist recorded “Karen also attended physiotherapy for her lower back injury. Karen showed signs of discogenic lower back pain, which had been exacerbated following her knee injury.”[98]
[98] ARD p 23.
Neither party at Arbitration addressed any of the matters raised at [222]–[227] above.
I directed Ms Israel to file further written submissions as to any Ground of Appeal relied upon and any further submissions in respect of the consequential condition. I gave the Respondent the opportunity to Reply.
Both parties’ further submissions are summarised at [104]–[106] above.
It is not apparent from the Arbitrator’s reasons as to whether the award for the respondent “in respect of the claim for consequential injury to the applicant’s lumbar spine” was intended to be on the basis that Ms Israel was estopped from making that claim or whether there was insufficient evidence to found such a claim, or both.
Having found that no estoppel arises in this matter, and taking into account the parties’ submissions that the issue of the consequential condition in that event should be either re-determined, confirmed, or remitted to an Arbitrator for determination, I will proceed to consider those submissions and make a determination.
The Arbitrator’s Reasons for Determination with respect to the evidence before the Commission relevant to the consequential condition are summarised above at [44]–[48].
Ms Israel provides two conflicting statements as to the causation of her lumbar symptoms. In her statement of 14 September 2011, she relevantly states:
“My lower back began to get sore because of the way I was walking. I slipped a disc many years ago, but had no real problems. Now, because of having to favour my right knee and the altered way I walked because of this, I am suffering from sciatica and low back pain.”[99]
[99] ARD p 40 at [16].

In comparison, the statement dated 4 May 2017 records:
“On this day [3 March 2010] I tripped whilst at work twisting my right knee and my torso sharply causing me to sustain an injury to my right knee and lower back.
…
In the approximately five years since my original claim for lump sum compensation my right knee in particular, as well as my back, has deteriorated significantly.”[100]
[100] ARD p 41 at [4] and [6].
In an assessment of the weight to be given to Ms Israel’s evidence, her inconsistent later statement made some 7 years post injury must be considered as less reliable than the more contemporaneous statement of 2011.[101]
[101] Onassis and Calogeropoulos v Vergattis [1968] 2 Lloyd’s Rep 403 at 431.
Even so, it is necessary to consider any corroborative material and the medical opinions that might support Ms Israel’s allegation made in her 2011 statement.
Of significance, while referring to the reports of the physiotherapist Scott MacDonald, the Arbitrator described those reports as concerning only the injury to the right knee, which is clearly incorrect.
In his report of 3 March 2011 (referred to above), Mr MacDonald clearly records the history that Ms Israel attended for treatment of her low back in 2010 which had been exacerbated following the right knee injury. This is contemporaneous evidence from a treatment provider that accords with Ms Israel’s 2011 statement and was not considered by the Arbitrator. The Arbitrator has fallen into error.
Professor Ghabrial’s report of 6 July 2011 is also a reasonably contemporaneous account of not only the presence of altered gait but also of low back pain.
The Arbitrator formed the view that he could not afford any weight to the opinion of Professor Ghabrial in the report of 4 May 2017 because “his earlier two reports related the lumbar spine injury to the aggravation of pre-existing degenerative changes which occurred at the time of the applicant’s fall on 3 March 2010”.
Catering Industries also considers that is a fair reading of the earlier reports.
I am not of the view that is a fair reading of Professor Ghabrial’s report or that his opinion in the 2011 report was as interpreted by both the Arbitrator and Catering Industries.
It is useful to reproduce the relevant history recorded in the report as follows:
“Mrs Israel gave me the history of an injury to her right knee as the result of a fall and she twisted her right knee on the 3rd March 2010 when she tripped on some object. She developed pain and swelling in her right knee and she was unable to go back to work the next day. She saw her local medical officer who diagnosed a medial meniscal tear and exacerbation of her pre-existing osteoarthritis although she had no symptoms regarding the right knee.
I understood that she saw a physiotherapist and she had intensive treatment and ultimately she was referred to Dr Malcolm Glase who discussed with her the pros and cons of knee replacement surgery.
She has not had any surgery as yet and she is trying to linger with it as long as she can before she rushed towards that procedure.
She had no previous symptoms or previous injuries in her right knee.
As a result of her right knee injury she aggravated her lower back problem (she had previous back symptoms and back pain prior to that injury.”[102]
[102] ARD p 10.
His opinion was that:
“Ms Israel sustained an injury to her right knee on 3 March 2010.
…
As well she aggravated her previous back problem …
I believe she had a frank injury to the right as she tripped over as the knee became painful. … Hence I would classify this as a frank injury.”
The history was expressed as “[a]s a result of the knee injury she aggravated her lower back problem”. That does not say the low back symptoms were aggravated in the incident, but rather that the low back “results from” the right knee injury, which of course is the true test of causation.
His opinion at the conclusion of the report that “[a]s well she aggravated her previous back problem” does not raise any inconsistency with Ms Israel’s claim or the history provided to him.
The Arbitrator has erred in the conclusions he has reached with respect to that report.
Professor Ghabrial’s report of 5 October 2016 is inconsistent in that his opinion is that Ms Israel aggravated her back condition in the fall. The professor qualifies that opinion in his most recent report of 26 June 2017, where he attributes part of the back impairment to the fall and part to the altered gait.
The appellant submits that the most recent report “explains” his prior two reports.
With respect to the report of Dr Pillemer dated 17 March 2017, it is true to say that the doctor did express some qualification of his opinion. It is also clear that he changed his opinion from that contained in the report dated 1 November 2011 and the change of opinion was initiated by having Ms Israel’s 2011 statement brought to his attention.
The qualification expressed by Dr Pillemer is somewhat ambiguous.
He said:
“In my opinion then, the way Ms Israel was walking would be regarded as a relatively minor aggravation of her low back problem and certainly would not be regarded as the main contributing factor to any aggravation.
I would suggest the only way one could be certain of this would to see her general practitioner’s reports on her prior to her injury on 3 March 2010, to note the extent of back symptoms and referred pain into her left lower limb, prior to this injury.”[103]
[103] Report 31 March 2017 p 2.
It is not clear whether the doctor was seeking those notes for the purposes of confirming his opinion on causation, assessing the degree of the aggravation, whether employment was the main contributing factor or for the purposes of calculating the s 323 deduction in respect of the s 66 assessment he was asked to provide.
Catering Industries maintains that as the pre-injury reports were not relied upon by Ms Israel, an inference arises that they would not have assisted. I do not accept that such an inference can be drawn. The rule only applies where the party is required to explain or contradict something.[104] The rule does not apply where the evidence could have been called by either party. The inference should not be made unless the absent evidence is not available to the party seeking the inference.[105]
[104] Forest NSW v Hancock (No 2) [2007] NSWWCCPD 191.
[105] Payne v Parker [1976] 1 NSWLR 191 per Hutley JA at 197.
Relevantly, nothing further was provided to Dr Pillemer to cause him to alter the opinion he expressed in his last report.
It is also relevant that in his first report Dr Pillemer recorded that Ms Israel had to cease work on 20 October 2010 because of significant discomfort in her low back including referred pain into her left lower limb. Also, that on examination he noted Ms Israel walked with an antalgic gait.
The Arbitrator also did not address the relevant finding on examination recorded by the AMS that Ms Israel had a derangement of gait that was associated with a right sided antalgic limp. While that does not assist with respect to any opinion in relation to the onset of back symptoms, it is evidence that the factual matrix upon which the claim is based can be accepted, namely that as a result of the right knee pain she walked with a limp.
The totality of the medical evidence establishes the following:
(a)Following the knee injury, Ms Israel walked with a limp/antalgic gait (Professor Ghabrial, Dr Pillemer, Dr Higgs, AMS);
(b)Ms Israel had worsening low back pain (Scott MacDonald, Professor Ghabrial, Dr Pillemer);
(c)The worsening of the back pain was exacerbated following her knee injury (Scott MacDonald), and
(d)The aggravation of her lumbar symptoms was at least in part attributable to her altered gait (Professor Ghabrial and Dr Pillemer).
As Ms Israel submits, it is well known that altered gait may cause or aggravate low back symptoms.
Given the totality of the evidence (including the concession made by Dr Pillemer), and the absence of any competing opinion, I am satisfied that evidence provides a fair climate[106] to support the opinion expressed by Professor Ghabrial in his reports of 6 July 2011 and 26 June 2017.
[106] Paricv John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844.
I find that Ms Israel suffers from a consequential condition in her lumbar spine as a result of the altered gait caused by her right knee injury on 3 March 2010.

DECISION

The Certificate of Determination dated 7 September 2017 is set aside and the following orders are made in its place:
(a)The claim for lump sum compensation is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the degree of whole person impairment of the:
(i) right lower extremity (knee) as a result of injury on 3 March 2010, and
(ii) lumbar spine, which condition has resulted from the injury to her right knee on 3 March 2010.

Elizabeth Wood

Deputy President

12 December 2017