Marsh v NAZ Pty Limited
[2006] NSWWCCPD 356
•20 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Marsh v NAZ Pty Limited [2006] NSWWCCPD 356
APPELLANT: Cheryl Anne Marsh
RESPONDENT: NAZ Pty Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC18628-05
DATE OF ARBITRATOR’S DECISION: 9 August 2006
DATE OF APPEAL DECISION: 20 December 2006
SUBJECT MATTER OF DECISION: Estoppel; causation; application of Rail Services Australia v Dimovski [2004] NSWCA 267; two injuries and section 67 threshold.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Leitch Hasson Dent
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: Time to appeal extended to 13 September 2006.
The decision of the Arbitrator dated 9 August 2006 is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 6 September 2006 Cheryl Anne Marsh (‘the Appellant Worker/Ms Marsh’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 9 August 2006.
The Respondent to the Appeal is NAZ Pty Limited (‘the Respondent Employer/NAZ’).
Ms Marsh was born on 17 July 1957. She started work for the Respondent Employer on 18 July 2000 at Khan’s IGA store at Lightning Ridge where she worked in the fruit and vegetable department for two years before becoming the manager of the dairy and freezer section. She was the only employee in that section. Her duties required her to load and unload stock, check on stock levels, clean fridges and freezers, and remove stock from freezers if they broke down.
On 28 July 2004 she was cleaning a shelf in the dairy case. As she was replacing the shelf it slipped from its clip fastener and fell striking the top of her right hand causing a lump to immediately develop. She completed her shift and took pain killers that night but was suffering increasing discomfort the following day when she reported the injury to her manager, Pat Adams. She worked for the remainder of the week when she took a one week holiday that had been arranged before her accident. Her hand remained painful during her holiday and she had difficulty using it so spent most of her time resting at home.
On 6 August 2004 Ms Marsh attended on her local general practitioner, Dr Nashed, complaining of pain and swelling over the back of her right hand. Tests were carried out and she was given another week off work and prescribed anti inflammatory medication. She was referred to Dr O’Connor, a specialist at Dubbo’s hand clinic who suggested her condition was synovitis. A bone scan was performed on 27 August 2004 which showed “low level post traumatic changes throughout the right wrist” (report Dr Vu 27 August 2004).
On 2 September 2004 Ms Marsh attended on Dr Nashed complaining that her symptoms were much worse, she was not tolerating wearing a splint, could not sleep at night and that she also had pain in her left wrist (see Dr Nashed’s notes 2 September 2004). Steroids (prednisone) and stronger pain relieving medication (tramal) were prescribed. On 7 September 2004 Ms Marsh was noted to have improved dramatically and on 10 September 2004 she was cleared to return to work.
Upon her return to work she was given work on the checkouts where her symptoms increased significantly. She returned to Dr Nashed who recommended a return to modified duties from Monday 20 September 2004. On her return to work on that day she was required to scrub shelves. Because of the pain in her right hand, she did these duties with her left hand. As a result of these duties her left hand became painful and began to swell. On 27 September 2004 she reported her left hand symptoms to her employer and returned to see Dr Nashed on 28 September 2004 complaining of pain and swelling in her right hand and wrist and, to a lesser degree, in her left hand and wrist.
Ms Marsh ultimately came under the care of Dr Massasso, rheumatology registrar at Royal North Shore Hospital, who saw her on 11 October 2004. He noted the above history and confirmed that Ms Marsh mainly used her left hand in the work she did in the week starting 20 September 2004 and that her symptoms increased on the left side through the week. Since stopping work she noticed prolonged early morning stiffness and had difficulty performing activities of daily living because of wrist and hand pain.
Her claim was initially accepted but declined from 4 July 2005 on the basis that “employment is no longer a substantial contributing factor to your injury” (letter CGU Workers Compensation (NSW) Limited to Ms Marsh, 23 May 2005).
Ms Marsh’s Application to Resolve a Dispute was registered in the Commission on 1 November 2005. In it she stated her date of injury to be 28 July 2004 and described her injury as “injury to the left and right wrists”. Her description of “how the injury occurred” states, “nature and conditions as well as a frank injury on 28 July 2004 when the Applicant was cleaning shelves and she hit hand on an object.”
By its Reply the Respondent Employer denied injury, incapacity and raised issues under sections 9A and 60 of the Workers Compensation Act 1987 (‘the 1987 Act’)
The claim was listed for conciliation and arbitration hearing on 27 February 2006 (‘the first hearing’) when it could not be resolved and proceeded to Arbitration. In a reserved decision delivered on 14 March 2006 the Arbitrator found in favour of Ms Marsh and determined that “Cheryl March received an injury to her left and right hands and wrists arising out of or in the course of her employment with NAZ Pty Ltd” (Certificate of Determination 14 March 2006). In her Statement of Reasons for Decision dated 14 March 2006 (‘the first decision’) the Arbitrator expressed her findings in more detail at paragraphs 49 and 50 where she said:
“…On the evidence I find that the injury to the Applicant’s right hand and wrist falls within the scope of section 16 of the 1987 Act as it amounted to an aggravation, acceleration, exacerbation or deterioration of a condition which was either pre-existing but asymptomatic or to which the Applicant was predisposed. I therefore find that the date of injury in relation to the right hand and wrist is 28 July 2004.
In relation to the injury to the left hand and wrist I also find that the 4 days of scrubbing amounted to an aggravation, acceleration, exacerbation or deterioration of a condition which was either pre-existing but asymptomatic or to which the Applicant was predisposed and therefore within the scope of section 16 of the Act. I find that the date of injury in relation to the left hand and wrist is 24 September 2004.”
As a result of the above determination the Appellant Worker’s claim for lump sum compensation was referred to an Approved Medical Specialist (‘AMS’) for assessment of the degree of permanent impairment suffered by Ms Marsh as a result of injury to her “right upper extremity” on 28 July 2004 and to her “left upper extremity” on 24 September 2004.
A Medical assessment Certificate was issued by the AMS (Dr J Stephenson) on 25 May 2006 certifying Ms Marsh to have a 7% whole person impairment as a result of the injury to her right upper extremity on 28 July 2004 and a 7% whole person impairment as a result of the injury to her left upper extremity on 24 September 2004.
The matter was listed for a teleconference on 28 June 2006 when it was listed for a second conciliation and arbitration hearing on 25 July 2006 (‘the second hearing’) to determine the Appellant Worker’s entitlements under section 67 of the 1987 Act. The matter proceeded to Arbitration hearing and in a reserved decision dated 9 August 2006 (‘the second decision’) the Arbitrator determined that as Ms Marsh sustained two separate injuries, neither of which exceeded the threshold in section 67(1), she had no entitlement to compensation under that section.
The Appellant Worker seeks leave to appeal the Arbitrator’s second decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made under section 67 and the Arbitrator’s finding will, if it stands, result in the Respondent Worker receiving no compensation for pain and suffering. Therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was initially lodged on 6 September 2006 but was rejected by the Registrar by letter dated 8 September 2006 because it failed to attach submissions on threshold issues relating to the granting of leave.
The appeal was lodged again on 13 September 2006 when it was outside the 28 day time limit in which to appeal set out in section 352(4) of the 1998 Act.
An extension of time in which to appeal can be granted in certain limited circumstances. Rule 77(8) of the Workers Compensation Commission Rules 2003 (‘the Rules’) (see now Part 16 Rule 16.2(11) of the Workers Compensation Commission Rules 2006 which is in identical terms) provides that:
“(8) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
The Appellant Worker has not made any proper submissions in respect of extending the time in which to appeal. However, the Respondent Employer has made no submissions in opposition to the time to appeal being extended. In determining whether to extend the time to appeal in the present case I take into account the following matters:
(a)there is no prejudice to the Respondent Employer;
(b)the appeal was initially filed in time, and
(c)the solicitor for the Appellant Worker acted reasonably promptly to remedy the situation when the appeal was initially rejected.
In all the circumstances I extend the time to appeal to 13 September 2006.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 9 August 2006, records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant lump sum compensation pursuant to section 66 of the Act in respect of 14% whole person impairment in the sum of $18,500.
2.That the Respondent pay the Applicant’s costs as agreed or as assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that the injury to the left hand was a consequence of the scrubbing and could not be described as a “sequelae of the injury to the right wrist” (the second decision paragraph 28);
(b)failing to apply the law set out in Rail Services Australia v Dimovski [2004] NSWCA 267 (‘Dimovski’);
(c)failing to find that the assessable loss of use of the left upper extremity (left hand) arose out of the original injury to the right hand;
(d)not aggregating the two losses found by the AMS in order to determine if the threshold for compensation under section 67 had been satisfied, and
(e)treating the two injuries as mutually exclusive of each other which finding was inconsistent with the evidence and the substance of her factual findings.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 79; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
THE ARBITRATOR’S DECISIONS
The Arbitrator’s relevant factual findings in her first decision have been set out at paragraph [12] above. She made clear and unequivocal findings that Ms Marsh sustained two separate injuries arising out of or in the course of her employment with the Respondent Employer. It was never put to the Arbitrator at the first hearing that she should find that the condition of the left hand resulted from the injury to the right hand. What was put was that there were two causes of the problem: the “trauma” on 28 July 2004 and then “the overuse” in September 2004 (transcript 27 February 2006, page seven line 12). The Arbitrator accepted those submissions and found two separate injuries in her first decision.
At the second hearing it was put, for the first time, that if the left hand was “overused consequent upon the restriction that existed in her right hand…you must find that it all results from…the original injury” (transcript 25 July 2006, page five line 28).
In her second decision the Arbitrator referred to the provisions of section 67(1). That subsection provides:
“67 Compensation for pain and suffering
(1) A worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000. Pain and suffering compensation is in addition to any other compensation under this Act.” (emphasis added)
She then referred to the Court of Appeal decision in Dimovski where Handley JA considered the meaning of the phrase “the same injury” in the section 67 as it was immediately before 1 January 2002. She noted that it was held that those words “refer to injury in the sense of the injurious event” (per Handley JA at [31]).
The Arbitrator found that the injury to the left hand and wrist “was a consequence of the scrubbing and could not be described as a sequelae of the injury to the right wrist” (the second decision, paragraph 28).
Therefore, the Arbitrator found that the situation was not one where there had been the cumulative effect of two injuries resulting in one loss. Nor was it the situation where one injurious event resulted in pathology in both the left and right upper extremities. She added at paragraph 30:
“The facts of this matter are that there was one injurious event which gave rise to impairment in the right upper extremity and a subsequent injurious event which gave rise to impairment in the left upper extremity. I therefore find that the impairment cannot be aggregated. As both the impairment for the left upper extremity and also the right upper extremity are below the threshold of 10% there is no entitlement to compensation pursuant to section 67 of the Act.”
APPELLANT WORKER’S SUBMISSIONS
The Appellant Worker submits:
(a)the assessable loss of use of the left upper extremity arose out of the original injury to the right hand and the Arbitrator should have aggregated the losses suffered to each hand in order to determine whether the section 67 threshold was satisfied;
(b)the Arbitrator did not observe the factual similarities between Dimovski and the present case;
(c)the relevant facts in Dimovski were that the worker injured his left knee and back at work on 28 May 1998 and ceased work on 20 August 1998. As a result of his left knee injury he began to favour his left leg and suffered an overuse injury to his right leg on and after March 1999. He was awarded lump sum compensation for his back and right leg as a result of the May 1998 injury. Those two awards were aggregated by the trial judge to meet the section 67 threshold. On appeal the employer argued that the section 66 compensation for the back and right leg should not have been aggregated because the right leg loss had not resulted from the ‘same injury’ (the injury on 28 May 1998) as the impairment of the back. The Court of Appeal rejected that argument confirming the trial judge’s finding that the loss of use of the right leg had resulted from the 28 May 1998 injury to the left leg and back. The facts in the present case are very similar to Dimovski and the principles discussed in that case should apply to the present claim. Applying the test formulated by Handley JA the ‘injurious event’ should be regarded as the event on 28 July 2004 when Ms Marsh’s right hand was struck by the shelf and the injury to the left hand occurred as a ‘result of’ the injury to the right hand;
(d)the amendment to section 67 to use the words ‘an injury’ in place of ‘same injury’ makes no difference to the interpretation or application of the section in the present case, therefore, the Arbitrator was obliged to follow but did not follow the principles in Dimovski, and
(e)Glebe Rowing Club Pty Ltd v Pride NSW Court of Appeal 6 December 1995, unreported, (‘Pride’) can be distinguished because in that case the worker suffered two distinct losses not a single loss resulting from multiple injuries.
RESPONDENT EMPLOYER’S SUBMISSIONS
The Respondent Employer submits that:
(a)as a consequence of the Arbitrator’s findings and reasons in her first decision the Appellant Worker is estopped from arguing that the injury to the left hand resulted from the injury to the right hand;
(b)in the first hearing the Appellant Worker’s counsel argued that the condition in the left wrist was “very consistent with the kind of work that would cause the development of a problem” (transcript 27 February 2004, page six line 56). The reference to ‘the kind of work’ was a reference to the scrubbing work done in September 2004;
(c)if the left hand injury was a result of the right hand injury then there should only have been one date of injury, namely, 28 July 2004. The Arbitrator found two separate injuries;
(d)in light of the Appellant Worker’s submissions at the first hearing and the Arbitrator’s unchallenged findings on causation in her first decision, the only issue to be decided at the second hearing was whether the Arbitrator was entitled to aggregate the effect of the two separate injuries in order to meet the section 67 threshold;
(e)the question of whether the left hand injury resulted from the right hand injury is a medical question to be decided on the available evidence and there was insufficient evidence to support that assertion;
(f)Dr Bentivoglio is the only doctor who alludes to the question of the injury to the left hand being consequent upon the injury to the right hand. In his report of 24 June 2005 he said at page two:
“I am unsure as to the exact aetiology of the swelling but she could have developed the tenosynovitis secondary to the injury and subsequently developed it in the left upper limb as a result of overusing the left one.” (emphasis added)
(g)the doctor’s use of ‘could’ makes his assertion speculative at best and insufficient to discharge the onus of proof the Appellant Worker carries. In the absence of any other medical evidence addressing the issue the Appellant Worker has failed to establish that the injury to the left wrist was consequent upon the injury to the right hand;
(h)the Arbitrator considered the relevant legislation and authorities appropriately and gave adequate reasons in support of her determination;
(i)given the findings in the Arbitrator’s first decision that the Appellant Worker suffered two separate injuries Dimovski is not relevant or, if it is, can be distinguished, and the Arbitrator was bound to follow Pride, and
(j)if the Arbitrator failed to adequately analyse the principles in Pride, that failure has not affected the result.
DISCUSSION AND FINDINGS
In addition to considering the provisions of section 67 quoted above, it is necessary to consider section 65 of the 1987 Act which provides:
“65 Determination of degree of permanent impairment
(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.Note: The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.
(3) …
(4) …” (emphasis added)
Section 66(1) provides:
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in permanent impairment is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.” (emphasis added)
The above provisions make it clear that lump sum compensation is payable for the degree of permanent impairment that results from “an injury”. If a worker has received “more than one injury” arising out of the same incident those injuries are to be treated as one injury for the purposes of lump sum compensation. The reference to “more than one injury” in subsection 65(2) is a reference to a situation where a worker suffers multiple medical or physical problems as a result of the one injurious event.
The Arbitrator found in her first decision that the Appellant Worker suffered two injuries to two different parts of her body. That finding was open on the evidence. No contrary submission was made by counsel for Ms Marsh at the first hearing. No appeal was lodged from that decision. To the extent that the issue of causation was argued and determined by the Arbitrator in that decision the parties are, in the absence of an appeal or application for a reconsideration, bound by it.
In Blair v Curran (1939) CLR 462 at 532 (‘Blair’) Dixon J (as he then was) said:
“A judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.”
His Honour also said:
“The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.”
In Pond v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Wunda Joinery) [2001] SAWCT 69 the Full Bench of the South Australian Workers Compensation Tribunal said at [19]:
“19 The principles of res judicata and issue estoppel are both based on the premise that a party cannot re-litigate that which has already been decided. In the case of res judicata, one need go no further than the formal judgment or order of the relevant adjudicating authority. It speaks for itself. In the case of issue estoppel, one can go further to the sub-stratum of findings upon which the formal judgment or order is based, although there are limitations. These are sometimes described as ‘facts fundamental to the decision arrived at’: Hoystead v Commission of Taxation [1926] AC 155; Blair v Curran (1939) 62 CLR 464 at 531 - 533 per Dixon J (as he then was).”
The question of estoppel in the former Compensation Court of NSW was considered by Judge Neilson in Bruce v Grocon Ltd (1995) 11 NSWCCR 247 (‘Bruce’). His Honour reviewed the relevant authorities and held at 264 that:
“However, in my view, absent an application under section 17(4) of the Compensation Court Act 1984, any determination made by this Court does create an issue estoppel: see Somodaj v Australian Iron & Steel Ltd (1963) 119 CLR 285. Therefore, there was no reason in principle why a determination of this Court could not in appropriate circumstances create a cause of action estoppel, absent an application under section 17(4).”
Section 17(4) of the Compensation Court Act 1984 was in substantially the same terms as the current section 350(3) of the 1998 Act.
Neilson J quoted with approval McGrath C.J. in Thompson v George Western Foods Ltd (1990) 6 NSWCCR 370 (‘Thompson’). In Thompson McGrath C.J. stated:
“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.”
There is no reason why the reasoning of Neilson J in Bruce would not apply to determinations by the Commission. The fact that the Commission is not a court (Orelland-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146) does not prevent its decisions creating estoppels in appropriate cases. In Lambidis v Commissioner of Police (1995) 12 NSWCCR 225 (‘Lambidis’) it was held that where tribunals, even though called administrative tribunals, are legislatively empowered to decide the competing claims of parties in a way which has legal effect and where, in making such decisions, it is necessary for them to decide identifiable disputed issues, such issues once decided should be treated as having been set to rest between the disputants (see head note (1) in Lambidis at 226). Lambidis held that the Government and Related Employees Appeal Tribunal is empowered to finally and conclusively determine issues in dispute between parties so as to affect the rights of the parties. In my view a similar conclusion can be expressed about the Commission. This conclusion is supported by a reading of section 350 of the 1998 Act which provides:
“350 Decisions of Commission
(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.”
In the present case the cause of Ms Marsh’s condition was determined in the first hearing. No submission was made at that hearing that the left hand condition resulted from the injury to the right hand. Such a submission was certainly open to be made and would have been consistent with Dimovski and Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (‘Kooragang’). It may well have found favour with the Arbitrator. However, since that submission was not made the Arbitrator was entitled to find, and did find, that Ms Marsh sustained two separate and distinct injuries. Under section 350(1) that finding is “final and binding” and creates an estoppel on the issue of the cause of Ms Marsh’s condition. In light of that finding the AMS was asked to assess the loss resulting from two separate injuries: the injury to the right upper extremity on 28 July 2004 and the injury to the left upper extremity on 24 September 2004. He did that and issued a valid MAC in exactly that form (see paragraph [14] above). That being the case the application of sections 65, 66 and 67 of the 1987 Act mean that at the second hearing the Arbitrator was not determining section 67 compensation in respect of ‘an injury’ but was assessing an entitlement to that compensation for two separate injuries that gave rise to two separate and distinct losses. Those losses could not be aggregated in order to meet the section 67 threshold.
The Appellant Worker’s arguments on appeal are all arguments that could and should have been raised at the first hearing before the Arbitrator. The appeal before me is restricted to the issues determined at the second hearing. By then the relevant factual findings on causation had been made and had not been challenged. I believe, applying the above authorities on estoppel, that the Appellant Worker is now estopped from arguing the issue of causation. For these reasons the appeal must fail.
The end result is unfortunate because in most cases where a worker injures one limb and, because of that injury suffers an overuse injury to the other limb, the overuse injury will be treated as having resulted from the original injury (per Dimovski). To the extent that the Arbitrator’s second decision is thought to have held otherwise, it involves an incorrect statement of the principles in Dimovski and in Kooragang. However, given the history of this case and the unchallenged factual findings in the Arbitrator’s first decision, it was open to the Arbitrator to hold that the effects of two separate injuries cannot be aggregated for the purpose of meeting the section 67 threshold. Therefore, in the usual circumstances of this matter, the Arbitrator’s decision must be confirmed.
DECISION
The Arbitrator’s decision dated 9 August 2006 is confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
20 December 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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