Olic v Email Limited and Electrolux Home Products Pty Limited
[2006] NSWWCCPD 275
•19 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Olic v Email Limited and Electrolux Home Products Pty Limited [2006] NSWWCCPD 275
APPELLANT: Stosija Olic
FIRST RESPONDENT: Email Limited
SECOND RESPONDENT Electrolux Home Products Pty Limited, Second Respondent
INSURERS:First Respondent - Allianz Workers Compensation (NSW) Limited and First Respondent as Self-Insurer
Second Respondent - GIO Workers Compensation (NSW) Limited and Second Respondent as Self-Insurer
FILE NUMBER: WCC13560-04
DATE OF ARBITRATOR’S DECISION: 18 March 2005
HEARING:21 September 2006
DATE OF APPEAL DECISION: 19 October 2006
SUBJECT MATTER OF DECISION: Review; estoppel following consent order; sections 16 and 22 of the Workers Compensation Act 1987; raising new points on appeal
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
REPRESENTATION: Appellant: Turner Freeman Lawyers
First Respondent:
(i)Hicksons Lawyers (in the interests of Allianz Workers Compensation (NSW) Limited)
(ii)Rankin Nathan Lawyers (in the interests of First Respondent as Self-Insurer)
Second Respondent:
(i)Phillips Fox Solicitors (in the interests of GIO Workers Compensation (NSW) Limited)
(ii)Leitch Hasson Dent Lawyers (in the interests of the Second Respondent as Self-Insurer)
ORDERS MADE ON APPEAL:
1.Paragraphs 1, 2 and 3 of the Arbitrator’s decision dated 18 March 2005 are revoked and the following orders are made in their place:
1.Award in favour of the Applicant (Stosija Olic) pursuant to section 37 of the Workers Compensation Act 1987 as follows:
(i) $310.90 per week from 23 May 2003 to 30 September 2003,
(ii) $317.20 per week from 1 October 2003 to 31 March 2004,
(iii) $323.00 per week from 1 April 2004 to 30 September 2004,
(iv) $328.90 per week from 1 October 2004 to 31 March 2005,
(v) $334.10 per week from 1 April 2005 to 6 July 2005.
2.Award in favour of the Applicant pursuant to section 60 of the Workers Compensation Act 1987.
3.The Respondents pay the Applicant’s costs of this Application as agreed or assessed.
4.Liability to pay the compensation pursuant to the Award is to be borne by the First Respondent as to 80% and by the Second Respondent as to 20% such apportionment is made pursuant to the provisions of section 22 of the 1987 Act.
2.Paragraph 4 of the decision of the Arbitrator is confirmed.
BACKGROUND TO THE APPEAL
On 15 April 2005 Stosija Olic (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 18 March 2005.
The Respondents to the Appeal are Email Limited (‘the First Respondent’) and Electrolux Home Products Pty Limited (‘the Second Respondent’).
The Appellant, who was born on 6 January 1942, was employed by the First Respondent as a process worker on 4 February 1970. The business of the First Respondent was acquired by the Second Respondent on 24 February 2001 and, on that date, the Appellant’s employment was transferred to the Second Respondent however there was no material change to the duties that she had performed since her engagement by the First Respondent in 1970. Her employment with the Second Respondent was terminated by that company on 14 May 2003.
The Appellant sustained injury in a fall in the course of her employment with the First Respondent which occurred on 28 April 1995. As a consequence of the subject fall the Appellant was incapacitated and required medical treatment. The Appellant claimed and was paid compensation benefits by the First Respondent in respect of her absence from work for approximately one week and was reimbursed medical expenses that had been incurred as a result of the fall. The Appellant returned to her pre-injury work and alleges that by early 2001 she, by reason of the consequences of the subject fall and the nature and conditions of her work, was unable to continue performing her duties.
The Appellant underwent surgical treatment of her right knee on 25 May 2001. The Appellant returned to work on a fulltime basis on 27 June 2001 and continued performing those duties required of her until May 2002. Whilst the Appellant remained in the employ of the Second Respondent at that point in time she performed no duties between May 2002 and the date of her termination on 14 May 2003.
Proceedings were commenced in 2001 against each Respondent on behalf of the Appellant in the former Compensation Court of NSW claiming weekly payments, lump sums in respect of alleged permanent loss of use of her right leg and medical expenses. That Application was the subject of settlement agreement (‘Agreement’) between the Appellant and the Respondents, the terms of which Agreement were reduced to writing and filed with the Court. The terms of that Agreement and the orders made as a consequence of the agreement are discussed more fully hereunder.
On 3 September 2004 the Appellant commenced proceedings against the Respondents by way of an Application to Resolve a Dispute filed with the Commission. That Application alleged incapacity resulting from the fall in 1995 and as a result of the nature and conditions of the Appellant’s work between 28 April 1995 and May 2002. The claim was in respect of weekly benefits compensation, expressed in the Application as dating from 26 February 2003, but subsequently amended to claim from 23 May 2003. The Application also sought orders with respect to payment of medical, hospital and related expenses. The injuries alleged were to both legs, back and hips.
The Application was heard by an Arbitrator on 15 March 2005 and a Certificate of Determination issued on 18 March 2005.
Of prime significance in this Application is the manner in which the Arbitrator purported to adjudicate the dispute before him. A transcript of the proceedings before the Arbitrator conducted on 15 March 2005 records that the Determination above noted was made following consideration of and findings in respect of, what was described by the Arbitrator as “a threshold issue”. That “issue” was confirmed by the Arbitrator as concerning the question as to whether there had been “a material change in the Applicant’s circumstances since awards for weeklies [sic] were entered into with both the First and Second Respondents”. (Transcript page 2, lines 4-14 where this statement of Ms Ryan, representing the Appellant, was confirmed by the Arbitrator).
None of the documents before the Commission including the transcript of proceedings reveals the Arbitrator’s process of reasoning nor the basis in law as to the apparent direction or ruling that the Appellant’s claim be determined with regard to the “threshold issue” above noted. Given that circumstance, a teleconference in this Appeal was convened on 23 August 2006 at which time submissions were invited from the parties with respect to the questions raised as to the manner in which the Arbitrator conducted his adjudication of the dispute. Represented at that teleconference were the Appellant and each of the Insurers/Self-Insurers of the Respondents. The parties were unable to inform the Commission as to whether any specific ruling was made by the Arbitrator with respect to the manner in which he proceeded to deal with the matter before him for determination.
The settlement Agreement reached among the parties is recorded in two documents, firstly Terms of Settlement and secondly Short Minutes of Order, each document bearing date 26 February 2003. Those documents are before the Commission and it is recorded that the parties consented to certain awards with respect to lump sum entitlement of the Appellant and an award in favour of each of the Respondents to that Application in respect of the Appellant’s claim for weekly benefits and section 60 expenses.
In the proceedings before the Arbitrator, Replies were filed on behalf of the Insurers/Self-Insurers, three of which raised, inter alia, a defence founded upon the principles of estoppel given the existence of the Consent Awards that were entered by the former Compensation Court in 2003.
Following the teleconference convened by the Commission referred to in paragraph 10 above, a Direction issued to the parties noting, inter alia:
“3.The hearing of the Appeal is to be listed for a hearing on a date to be fixed at which hearing submissions may include any issues raised as to the question of res judicata and the principles of estoppel.”
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 18 March 2005 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.There is an award for the Respondent, in relation to the Applicant’s claim for weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 for the period from 14/5/2003 to date and continuing (until 6/7/2005).
2.There is an award for the Respondents, in relation to the Applicant’s claim for medical expenses pursuant to section 60 of the Workers Compensation Act 1987 arising from injuries received during that period.
3. There is no order as to costs.
4.I determine that this matter, which went directly to arbitration, was a complex matter as provided for by Regulation 129 of the Workers Compensation (General) Amendment (Costs) Regulation 2001.”
The Certificate of Determination included the following:
“A brief statement of reasons for determination, in accordance with Rule 73 of the Workers Compensation Commission Rules 2003, is attached.”
The document attached to the Certificate made reference to the arbitration hearing which was held on 15 March 2005, appearances of the parties’ representatives were noted and the following statement was made before a notation of the orders made:
“To ensure the parties received a timely determination of their dispute the reasons for the orders set out below were given orally. A sound recording of the reasons given is available to the parties.”
The transcript of proceedings which is available to the Commission includes transcript of “the reasons for the orders” (‘Reasons’) as stated at the hearing by the Arbitrator.
ISSUES IN DISPUTE
The issues in dispute raised in the Appellant’s submissions are:
(i)Whether, in determining the issue of “change of circumstances”, the Arbitrator erred in finding that there had been no such change since the date of the Consent Awards.
(ii)Whether the Arbitrator erred in failing to determine the Appellant’s entitlements to weekly compensation and payment of section 60 expenses “as a whole” by which it may be implied that the Appellant submits that the Arbitrator failed to determine the Application on its merits.
(iii)Whether the Arbitrator erred in failing to give sufficient reasons for entering an award in favour of the Respondents in respect of the Appellant’s claim pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’).
(iv)Whether the Arbitrator erred in failing to determine “the facts that are necessary to reach a proper conclusion concerning the Appellant’s entitlements”.
(v)Whether the Arbitrator erred in “approaching the issues to be determined in the dispute between the Appellant and the Respondent [sic] on the basis that a threshold issue needed to be determined”.
(vi)Whether the Arbitrator “totally misconceived the task required of him”.
(vii)Whether the Arbitrator erred in conducting a “review” to determine “if there had been a change in circumstances since 23 February 2003 [sic]”.
(viii)Whether the Arbitrator erred when, by inference, he concluded that the Appellant’s rights “had been finally determined”. That is, that by inference the Arbitrator determined that the Appellant was estopped by reason of the existence of the previous Consent Awards from bringing the claims which were before him for determination.
The matters above summarised have been the subject of submissions in response by representatives of each of the Respondents and their Insurers in written submissions.
The Respondents and their Insurers’ written submissions were supplemented by oral submissions delivered at the hearing that was conducted on 21 September 2006. The undermentioned matters for determination were raised in the course of such submissions:
(i)Whether the Appellant’s acquiescence in the procedure adopted by the Arbitrator at the hearing is a bar to raising arguments with respect to erroneous application of principle by the Arbitrator in the course of that hearing.
(ii)Whether the Appellant is entitled to raise an argument on this Appeal, specifically with respect to misapprehension and misapplication of principles concerning res judicata and estoppel.
(iii)It was specifically raised in submissions that the decisions of Kaibau v Gillespie’s Produce and Packing Pty Ltd [2006] NSWWCCPD 168 (‘Kaibau’) and De Witte v Tawnay Pty Ltd t/as Country Coast Real Estate [2006] NSWWCCPD 109 (‘De Witte’) were wrongly decided.
(iv)Whether, if the Appellant succeeds in establishing an entitlement to weekly benefits, her capacity is total or partial.
(v) Whether, on the facts, the “disease” provisions of the 1987 Act apply.
(vi)Whether, in the event that the Appellant makes out a case of entitlement to benefits, liability should be apportioned among the Insurers/Self-Insurers of each of the Respondents.
(vii)Issues were raised by the parties with respect to entitlement to costs. These matters are addressed more fully hereunder.
(viii)Whether, in the absence of evidence, the Appellant is entitled to rely in this appeal upon an argument as to misdirection by the Arbitrator at the hearing.
HEARING
As above noted, a teleconference with all parties in attendance was conducted on 23 August 2006. Following consideration of the parties’ submissions made at that conference a direction was subsequently issued providing, inter alia, that the hearing of the appeal was to be listed for hearing on a date to be fixed. That hearing date was fixed for 21 September 2006 at Sydney.
At the hearing the Appellant provided supplementary written submissions and each of the parties supplemented earlier written submissions by way of oral argument. A transcript of those proceedings is available on the Commission file.
LEAVE
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 amount of compensation at issue on the appeal exceeds the sum of $5,000 and is at least 20% of the amount awarded in the decision appealed against and thereby the subject matter of the appeal meets the threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of sections 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
Evidence
The Appellant and each of the respective Insurers/Self-Insurers sought to rely upon a large body of documentation which was attached to the original Application, Replies filed by the parties and annexed to Applications to Admit Late Documents. The Arbitrator heard submissions from the parties at the arbitration conducted on 15 March 2005. Following those submissions the Arbitrator delivered his ‘Reasons’ and Orders ex tempore.
There is no record before the Commission as to what material was received in evidence in the course of the hearing before the Arbitrator. The Reasons delivered by the Arbitrator make reference to particular documentary material however the Arbitrator has failed to record detail of the evidence before him.
A Schedule of all evidentiary material which appeared on the Commission file was prepared and annexed to the Direction issued to the parties following the aforementioned teleconference. At the hearing conducted on 21 September 2006 the parties agreed that the documents appearing in that Schedule constituted the totality of the evidence adduced by the parties at the hearing conducted by the Arbitrator.
Included among the documents adduced by the Appellant was a Statement by the Appellant (undated) which outlined her employment history and details of injury, incapacity and medical treatment. Her employment with the First Respondent commenced on 4 February 1970, her duties being that of a Process Worker involved in standing or sitting at conveyor belts, sometimes operating machinery and generally performing manual, repetitive tasks. The Appellant continued performing those duties following the transfer of her employment to the Second Respondent on 24 February 2001 at which time the Second Respondent assumed conduct of the business of the First Respondent. The Appellant described an injury to both her knees which occurred in the course of her employment on 28 April 1995. The Appellant suffered a fall on that date and felt immediate pain in both knees and also pain in her back. The Appellant was absent from work for approximately one week by reason of incapacity resulting from the fall. The Appellant claimed and was paid workers compensation benefits. The Appellant states that she continued to work but suffered persistent pain in both knees. The Appellant found in early 2001 that she was unable to work given the level of pain that she was suffering. The Appellant consulted Dr Waller, which practitioner carried out surgery to the Appellant’s right knee on 25 May 2001. The Appellant returned to work on 27 June 2001 at which time arrangements were made whereby the Appellant could be relieved of her duties when pain precluded her from performing normal duties.
The Appellant further states that by May of 2002 she was unable to work “due to the extreme pain in both the left and right leg”. The Appellant ceased performing her duties in that month but remained employed by the Second Respondent. The Appellant stated that she was hopeful of a return to work after medical treatment. That treatment included surgical total knee replacement on 26 May 2003 conducted by Dr Waller. The Appellant’s employment with the Second Respondent was terminated in May 2003.
The Appellant placed before the Arbitrator copies of the Terms of Settlement and Short Minutes of Order referred to in paragraph 11 above. Notation upon the Terms of Settlement relate to agreement as between the Insurers/Self Insurers on the question of contribution to the said lump sums and costs.
The medical material relied upon by the Appellant includes a number of reports of the Appellant’s treating surgeon Dr Waller. There are two reports dated 22 October 2001 in which Dr Waller noted a history of “increasing symptoms in her right knee over a period of approximately 12 months”. Dr Waller’s consultation took place on 7 May 2001. Dr Waller noted the history of the fall which he noted “occurred at work on 29 April 1995”. Dr Waller notes the findings of investigative studies including x-rays and an MRI scan. The x-rays showed signs of early medial compartment osteoarthritis. The MRI scan of the right knee demonstrated a complex tear of the medial meniscus and chondral damage with medial compartment osteoarthritis. Dr Waller noted that surgery was conducted on 21 May 2001 and he sets forth the findings on arthroscopic assessment. Dr Waller’s diagnosis was that the Appellant had osteoarthritis of the right knee and had a degenerative tear of the medial meniscus. Dr Waller proceeded to state that the arthritis of the right knee was most likely “multi-factorial in aetiology”. Dr Waller proceeded to state that the Appellant’s injury in 1995:
“has very likely aggravated and exacerbated her tendency to develop osteoarthritis in the right knee.
In my opinion her employment has been a substantial contributing factor to the condition of her right knee.”
Dr Waller in his report of 13 December 2003 noted that the Appellant’s symptoms in her right knee had increased and the function of the knee joint had deteriorated since conduct of the arthroscopic assessment. Dr Waller proceeds to note that the Appellant underwent total right knee replacement on 26 May 2003 at which time she was found to have advanced medial and patellofemoral osteoarthritis. Dr Waller expressed the view that the Appellant was not fit to return to her pre-injury employment but would be fit for work of a sedentary nature. Dr Waller proceeded to confirm his earlier views as to the role of the 1995 injury as expressed in his earlier report.
The Appellant also relied upon a number of reports of Dr Ian S Collins, specialist physician. In one of two reports bearing date 6 November 2001, Dr Collins notes his diagnosis that the Appellant had advanced osteoarthritis of the right knee. He further noted that there had been a tear of the medial meniscus and that this had been treated with partial medial meniscectomy. Dr Collins proceeded to note the existence of evidence of osteoarthritis of the left knee. Dr Collins expressed the opinion that the condition of her knees is the direct result of the accident as described and proceeded to state that she was not fit for any form of work at the time of that consultation. Dr Collins reached this view notwithstanding the fact, as he noted, that the Appellant was then “able to manage with difficulty her present job as a Process Worker subject to provision of a chair”.
Dr Collins re-examined the Appellant on 18 November 2003 and a report by Dr Collins of that date was before the Arbitrator. The knee replacement surgery was noted and Dr Collins expressed the view that the Appellant was unfit for any form of work. Dr Collins proceeded to note that the state of the Appellant’s right knee and also of her left knee is the result of the injury at work as stated. Dr Collins expressed the opinion that her occupation was a substantial contributing factor to the injury.
The Appellant further relied upon two reports bearing date 19 November 2001 of Dr Susan E C Read, consultant physician rheumatologist. Dr Read noted the Appellant’s history and diagnostic investigations and conducted an examination of the Appellant. Dr Read expressed the view that the Appellant was “obviously incapacitated to a certain extent” by reason of the diagnosed osteoarthritis and the medial meniscal tear. Dr Read proceeded to state:
“It is quite possible that she sustained the medial meniscal tear when she fell at work and in fact it is probable that the injury accelerated the onset of osteoarthritis.”
The respective Insurers/Self-Insurers adduced a body of medical material before the Arbitrator which included a number of reports by Dr Nigel Marsh, occupational physician. In those reports dated 3 August 2001 and 4 December 2001, Dr Marsh expressed the view that the Appellant suffered osteoarthritis of the right knee and that that condition was “basically a constitutional problem and not work related”. Dr Marsh in his later report expressed the view that the fall suffered by the Appellant “would have been only a minor contributing factor to any causation or acceleration of degenerative change”.
The Arbitrator had before him three reports of Dr Ronald F Clark, orthopaedic surgeon, each dated 30 October 2002. Dr Clark expressed the opinion that the Appellant had evidence of progressive constitutional changes of osteoarthritis, particularly involving the medial and patellofemoral regions of her right knee. Dr Clark went on to state that in his view it was not possible to relate any of the present degenerative process to the fall the Appellant sustained in 1995.
A report of Dr Anthony Lowy, consultant physician in occupational medicine, dated 9 March 2004 was before the Arbitrator. Of relevance to the matters addressed by the Arbitrator in his Reasons it is to be noted that Dr Lowy recorded in his report:
“that by the time she was dismissed on 28 April 2003 she had 500 hours long service and 312 hours sick pay plus 50 hours rostered days which were owing to her; also Mrs Olic records that while she was dismissed on 6/5/02 [sic] she was paid until 27/12/02.”
Dr Lowy proceeded to state that the fall at work caused mild contusion of the knees and minor and brief (if any) exacerbation of constitutional bilateral knee osteoarthrosis. Dr Lowy considered that the Appellant was then totally and permanently physically and medically unfit for any work and that had been the case since her cessation of work in May of 2002. Dr Lowy was of the view that the condition of the Appellant’s knees was unrelated to the fall in 1995.
A report dated 6 May 2004 prepared by Mr David Verhagen, physiotherapist of the Vocational Capacity Centre, was before the Arbitrator. That report included details of a Functional Assessment which was conducted at that Centre and it was Mr Verhagen’s opinion that the results of the assessment indicated that the Appellant “would be capable of continuing to work in her pre-injury position as a Process Worker …”. Mr Verhagen expressed the further view that the Appellant “would also be capable of a range of alternative employment in the sedentary and semi-sedentary work categories on a fulltime basis.” Those occupations were addressed in a document dated 4 May 2004 signed by OJ Burchett, vocational psychologist.
The Arbitrator had before him two reports of Dr Peter J Burke, surgeon, dated 18 March 2004 and 16 November 2004. Dr Burke detailed the Appellant’s history and conducted an examination following which he expressed (at page 3 and 4 of his latter report) a complex of diagnoses. Dr Burke concluded that the Appellant suffered degenerative osteoarthritic change at the weight bearing joints, the right knee having undergone total knee replacement. Dr Burke proceeded to state that in his view there was no causal connection between the fall in 1995 and the present condition of either of the Appellant’s knees.
A report of Dr Stephen Potter, rheumatologist, dated 17 November 2004 was before the Arbitrator. Dr Potter included in his report a careful summary of all available medical correspondence. His diagnosis appears at page 4 of his report and includes the following:
“4.There was an injury claimed in the workplace 28/4/1995, which may have contributed to the right knee pathology.
However the dominant problem in both knees is bilateral medial compartment progressive degenerative change, a rather classic constitutional disorder.”
At page 8 of his report Dr Potter expresses the view that the injury described is unlikely to have made a major contribution to her condition as diagnosed and further that the nature of her work was not “the substantial contributing factor to the process”.
There was before the Commission a further report of Dr Potter dated again 17 November 2004. Dr Potter states in that second report:
“But the apportionment to the workplace to the event 20 [sic] April 1995 and nature of work until May 2002 is nil apportionment.”
That statement may be taken to indicate that the fall and the nature of the Appellant’s work in no way contributed to the conditions as diagnosed.
A report of Dr E D Price, occupational health physician, dated 16 October 2002 was before the Arbitrator. Dr Price stated his diagnosis as that of “degenerative constitutional osteoarthritis of the right knee greater than the left knee…”. Dr Price proceeded to state:
“This patient’s condition is a constitutional condition and I felt it bore little relationship to her fall in 1995. Most of this patient’s employment was carried out in a sedentary position and her work duties would have not been a substantial contributing factor. Her work duties from 1 January 2002 have had no contribution to this condition whatsoever which was well established prior to 1 January 2002.”
It is to be noted that there was a further report from Dr Nigel Marsh (undated) which was annexed to the Reply to Application to Resolve a Dispute filed on behalf of the representatives of the Insurer of the Second Respondent. That report stated:
“In my opinion Ms Olic has a 25% loss of efficient use of the right leg at or above the knee. Of this, 6% may be attributed to the fall at work on 28 April 1995.”
Also attached to the aforementioned Reply were the clinical notes of Dr Leon.
Submissions on Appeal
The Appellant’s Application with respect to this Appeal is accompanied by ‘Submissions On Appeal’. Submission number 7 asserts that the Arbitrator had misconceived the task before him. The Appellant states that the task with which the Arbitrator was confronted was to determine the Appellant’s entitlements to weekly compensation and the payment of section 60 expenses. The Appellant challenges the manner in which the Arbitrator has carried out the task of adjudicating the dispute between the Appellant and the Respondents.
The Appellant proceeds in her Submissions to challenge the manner in which the Appellant’s rights were determined and for the purposes of those Submissions (submissions 8 to 14 inclusive) the Appellant accepts the correctness of the Arbitrator in addressing a “change of circumstance” as being relevant to a determination of her rights. It is submitted, with respect to the Appellant’s claim pursuant to section 60 of the 1987 Act, that the Arbitrator failed to give adequate reasons for his conclusion and erred with respect to his approach to this question, in particular treating as relevant identical considerations apposite to the question of entitlement to weekly compensation.
The Appellant, as noted above, provided Written Submissions at the hearing conducted on 21 September 2006. Those Submissions reiterated the assertions that the Arbitrator had “misconceived the task required of him”. The Appellant (at paragraph 10 of the Supplementary Submissions) makes the point that the Application before the Arbitrator was an application for compensation benefits and not an application for review under section 55 of the 1987 Act. The Appellant (at Submission 11) asserts that the Arbitrator was in error in conducting a “review” to determine if there had been a change in circumstances “since 23 [sic] February 2003”.
The Appellant, in her Supplementary Submissions, raises the issue of res judicata and issue estoppel. The Appellant summarises a number of authorities pertinent to “issue estoppel” and proceeds to argue that the making of the consent orders in 2003 did no more than determine the parties’ rights up to that date and further that the Appellant was not, thereafter, barred from bringing a claim in respect to those heads of claim.
The Appellant asserts that there was nothing unreasonable about the Appellant Worker’s conduct in not pursuing a claim for weekly compensation in 2003 and asserts that the principles enunciated in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (‘Anshun’) had no application to the present facts.
In opposing the Appellant’s Application each of the Insurers/Self-Insurers have filed with the Commission detailed submissions which essentially seek to uphold both the manner of adjudication adopted by the Arbitrator and his conclusions.
Each of the Insurers/Self-Insurers of the Respondents, through their representatives, delivered supplementary oral submissions at the hearing conducted on 21 September 2006. It was argued that the Appellant had acquiesced in the procedure adopted by the Arbitrator, in particular with respect to his approach in determining a question of “changed circumstance” since the making of the Consent Awards in 2003. It is further submitted that given the manner in which the Appellant conducted the Application before the Arbitrator, the Appellant is precluded from arguing on this appeal that the Arbitrator misdirected himself as to the manner of dealing with the dispute between the parties. It was argued that a party is not to be permitted to rely upon any matters that could and should properly have been raised at the hearing. Upon this basis, it was argued, the Appellant should not be entitled to rely upon the matters raised in the Supplementary Submissions handed up at the hearing. It was submitted that two of the authorities relied upon by the Appellant, namely Kaibau and De Witte, were each wrongly decided. Reliance was also placed upon the decision of Anshun and it was submitted that in the circumstances of the present case the principles there stated barred recovery by the Appellant of the benefits sought in her Application.
Submissions as to quantum of entitlement were made upon the basis that this appeal may succeed.
Each of the Insurers/Self-Insurers’ representatives addressed the issue of “disease” in the context of the relevant provisions of the 1987 Act. The question of apportionment (Section 22 of the 1987 Act) was also addressed, as was the question of costs.
DISCUSSION AND FINDINGS
Review
The transcript of the proceedings conducted before the Arbitrator on 15 March 2005 records the Reasons given by the Arbitrator for his Determination and they appear at pages 36 to 38 inclusive of that transcript. The text appearing at those pages does not reveal with any certainty the basis in law upon which the Arbitrator approached the dispute between the parties. The Arbitrator’s opening remarks are recorded at page 36 of the transcript:
“ARBITRATOR: Yes, well thank you for that short break. I now intend to give my determination in this matter but since – and as we’ve dealt with it basically focusing on what we called a threshold issue as to whether the matter can proceed.
The applicant brings a claim for compensation due to incapacity said to be total for the period from 14 May 2003 [sic] up to the date that the statutes allow her to make a claim, which, because of her age, I understand would be to 6 July 2005.
The applicant bases her claim on the fact that her circumstances changed on 13 May 2003 in this material way. Prior to that date she was in the employment of the respondents and had been for, I’m told, some 30 years. She was in receipt of benefits. Such benefits have not been specifically identified or quantified but I am generally advised that they were in relation to benefits for sick leave and like matters.”
It can be seen that the Arbitrator purported to deal with the dispute before him by addressing what was described as “a threshold issue” that issue being, apparently, the question as to whether there had been a change in circumstances “on 13 May 2003”. The Arbitrator does not expressly state that he was treating the matter before him as a review of weekly payments as permitted by section 55 of the 1987 Act nor as to whether he treated the proceedings as a “reconsideration” as permitted by section 350 of the 1998 Act. I note that in both the written and oral submissions delivered in this appeal, the parties have each characterised the Arbitrator’s approach to the dispute as being a “review” as permitted by section 55 of the 1987 Act.
The Appellant in her Submissions on appeal states:
“7.In any event the Arbitrator has misconceived the task before him. His task was to determine the Appellant’s entitlements to weekly compensation and the payment of section 60 expenses. That task require [sic] a consideration of all of the evidence and findings in respect of all issues. There is no requirement that the Appellant first show a change in circumstances before there is a consideration of her current level of incapacity or her entitlement to the payment of treatment expenses. The matter must be considered as a whole. There is no indication that the Arbitrator has carried out that task.”
It is plain that, notwithstanding the Appellant’s election both at the hearing and in the initial Submissions to address the question of “change of circumstance”, the Appellant challenges the correctness of the Arbitrator’s treatment of the dispute as requiring a review or reconsideration.
As above noted at paragraph 10, the parties, at the teleconference conducted on 23 August 2006, were unable to inform the Commission as to whether the Arbitrator gave any direction or ruling in relation to the “threshold question”. It is further to be noted that nowhere in the transcript of proceedings conducted before the Arbitrator is there any record of such direction or ruling.
The Respondents, in the submissions both written and oral delivered by the Insurers/Self-Insurers, seek to support the Arbitrator’s reasoning and in particular his approach to the task before him as requiring “review”. The tenor of those submissions is such that an assumption is made that the Arbitrator was treating the matter as a “review” as permitted by section 55 of the 1987 Act.
The Respondents further submit that given the manner in which the Appellant conducted the Application before the Arbitrator and in particular her acquiescence in the approach adopted by the Arbitrator in treating the matter as being, in some way a “review”, she is precluded from raising on this appeal any complaint as to the procedure adopted on hearing.
It is recorded at page 2 of the transcript of the proceedings conducted on 15 March 2005:
“MS RYAN: Thanks, Mr Arbitrator. As I understand it, I am making submissions on a threshold issue.
ARBITRATOR: Yes.
MS RYAN: That being has there been a material change in the applicant’s circumstances since awards for weeklies were entered into with both the first and second respondents.
ARBITRATOR: Yes.”
I infer from the matters above recorded that it was the direction of the Arbitrator that determined the manner in which the Appellant’s Application was to be approached. The Arbitrator had conduct of the proceedings and it is clear that in the circumstances the parties, including the Appellant, were obliged to comply with the procedure as determined by the Arbitrator.
The thrust of the Appellant’s Submissions in relation to the procedure adopted by the Arbitrator is that, in treating the matter before him as requiring “review”, he misconceived the task required of him. It is put on behalf of the Appellant that the Arbitrator was dealing with an Application to Resolve a Dispute, that dispute concerning the Appellant’s entitlement to weekly compensation and medical expenses. The fact that the Appellant had in proceedings before the Compensation Court of NSW on 26 February 2003 consented to an award in favour of the Respondents with respect to her then claim for weekly payments and medical expenses required a determination by the Arbitrator of the question as to whether the Appellant was, in the present proceedings, estopped from bringing her claims. In so arguing the Appellant notes that there was no Application for Review as permitted by section 55 of the 1987 Act before the Arbitrator and that in treating the matter as such “review” he was in error.
The first question to be addressed is whether the Appellant, having regard to the manner in which she conducted her Application before the Arbitrator, is entitled to raise, on this appeal, objection to the Arbitrator’s approach to determining the dispute before him. It is the Respondents’ submission that the Appellant had “acquiesced” in the Arbitrator’s manner of dealing with the dispute at the hearing and, more particularly, failed to raise the objection at the arbitration hearing upon which she seeks now, on appeal, to rely. It is submitted by Mr Rickard, counsel for the First Respondent (in the interests of Allianz Australia Workers Compensation (NSW) Limited) that the Appellant is not permitted to raise the argument in question having regard to what was described as “that fundamental principle, that ordinarily a party will not be allowed to rely upon any matters that could and should properly have been raised at trial”. That argument, and subsequent submissions by Mr Rickard, were adopted by each of the representatives of the Insurers/Self-Insurers.
An argument was developed on behalf of the Respondents that there is, in proceedings in the Commission, a general restriction against raising points on appeal that were not taken at trial. Reference was made to practice before the Supreme Court of NSW Court of Appeal in particular with respect to those rules governing the granting of a new trial. Reference was made to a number of authorities which address the proper construction and application of rule 23 of part 51 of the Supreme Court Rules. Reliance was placed upon the English authorities of Hoecheong Products Co Ltd v Cargill Hong Kong Ltd [1995] 1 Lloyd’s REP 584 and Wilson v Liverpool City Council [1971] 1 All ER 628.
The Respondents’ submission as to the existence of a general prohibition in raising new points on appeal is correct. That general principle is founded upon public policy as stated in Ritchie’s Uniform Civil Procedure NSW (in commentary re part 51 rule 23 of the Supreme Court Rules):
“The public policy favouring the finality of litigation, and the broad principles requiring the just and efficient conduct of proceedings, limit the circumstances in which the parties may raise new matters, either at the conclusion of the hearing….or on an appeal. The general principle is that the parties ought to be bound by the way they conduct the proceedings, and consequently disallowed from raising new matters on an appeal.”
Notwithstanding the provisions of section 354 of the 1998 Act which provides that proceedings in the Commission are to be conducted with as little technicality and formality as possible I am of the view that proceedings before the Commission are subject to recognition of and adherence to such public policy.
Notwithstanding the existence of a prohibition against raising new points on appeal it is clear that there is no absolute bar. (See discussion by the High Court of Australia in Calin v The Greater Union Organisation Pty Limited [1991] 173 CLR 33.)
I am of the view that should the Appellant be prevented from raising the argument with respect to the Arbitrator’s suggested erroneous approach to the proceedings a substantial wrong or miscarriage may be occasioned. In those circumstances I conclude that the Appellant should be permitted to raise the argument on this appeal.
The Appellant and each of the Respondents’ representatives have, in their submissions in this appeal, characterised the approach adopted by the Arbitrator as being an exercise of the Commission’s power to “review” as provided by the provisions of section 55 of the 1987 Act. As noted above the Arbitrator has not in the course of his Reasons made any reference to the power to “review” and it should be noted that that provision has application in respect of “review” of “any weekly payment”. The Application before the Arbitrator included a claim by the Appellant pursuant to section 60 of the 1987 Act, that is in respect of medical and hospital expenses.
The next question for determination is whether the Arbitrator erred in the approach he adopted. Leaving aside the lack of precision in the language used by the Arbitrator and the resultant uncertainty as to precisely what power he purported to exercise, it must be noted that there was no application for review before him. As submitted on behalf of the Appellant (Written Submissions provided at the hearing, paragraph 11):
“The Applicant was not seeking a “review” of her weekly payments under section 55 of the 1987 Act. The Applicant sought an award of weekly compensation from 23 May 2003. The question of a “review” does not arise. The Arbitrator was in error in conducting a “review” to determine if there had been a change in circumstances since 23[sic] February 2003.”
As noted above, each of the representatives of the Respondents seek to support the approach adopted by the Arbitrator, however nowhere in those submissions, is there any meaningful analysis of the Arbitrator’s reasoning which would indicate with precision the Arbitrator’s approach, in law, to the dispute before him nor any analysis of relevant legislative provisions, in particular section 55 of the 1987 Act, that seeks to justify invocation by the Arbitrator of the power to review.
It was put, on behalf of the Respondents, that the Appellant, at the hearing, acquiesced in the approach adopted by the Arbitrator and was not, in those circumstances, entitled to complain in this appeal as to the procedure adopted. It was more particularly stated in written submissions submitted on behalf of the Insurer of the Second Respondent that:
“3.The Respondent submits that the transcript confirms that all parties, including the Arbitrator, were aware that the threshold issue that needed to be determined firstly, before the Arbitrator was able to conduct a review, was whether there had been a change in circumstances since the earlier award of 26 February 2003, sufficient to warrant that review.”
It is my view, as stated in paragraph 60 above, that the Appellant’s representative was, as she was bound, complying with the direction of the Arbitrator as to the conduct of the proceedings before him (see transcript page 2, lines 1-15). It cannot be said that the Appellant was seeking a review of any order made by consent in the earlier proceedings before the Compensation Court and I reject the Respondents’ argument that, in some way, the Appellant is barred from raising the point as to procedure by reason of her suggested “acquiescence” at the hearing.
I accept the Appellant’s arguments as to the Arbitrator’s misconception of his task and am of the view that in adopting that approach, ill defined as it was, he was in error.
Estoppel
It is now necessary to consider the effect of the earlier Consent Orders. I note that there is not before the Commission any evidence of an Award entered in the abovementioned proceedings before the Compensation Court in which the Consent Order and Short Minutes of Order were filed. That an Award followed the filing of those documents is not in dispute between the parties and indeed an assumption has been made by all parties that such an Award exists. I accept that assumption for the purposes of this appeal. That Award embodied the agreement among the parties that there be an Award for each Respondent with respect to the Appellant’s then claim for weekly payments and section 60 expenses in respect of an injury to her right leg. It is the Appellant’s argument that with respect to the present proceedings:
“14.The cause of action on which the Appellant Worker relies in the ARD was not affected by the settlement on 23 [sic] February 2003 because the settlement, without more, cannot eliminate future rights. An award after that date is not inconsistent with the terms of the settlement reached on that day or the orders made as a result of that settlement. The Commission determines rights at a particular point in time. Therefore, the application of the traditional principles of estoppel and res judicata need to be approached with some caution in the Commission: per Acting Deputy President Roche in Kaibau v Gillespie’s Produce and Packing Pty Ltd [2006] NSWWCCPD 168 (1 August 2006) (Kaibau).
15.In the present case the formal order made on 23 [sic] February 2003 did no more than determine the parties’ rights up to that date. There is nothing in the consent award that is inconsistent with an award being made in favour of the applicant after that date. There was no “sub-stratum of findings” by the Arbitrator upon which the consent order was based. A consent award for the respondent may be made for any one of several reasons; relevantly in this instance no economic loss, still being in employment or receiving payments. Res Judicata may prevent the applicant from claiming weekly compensation for the period up to 23 [sic] February 2003, but in the absence of a determination of any factual or legal issues by a competent tribunal it does not prevent a claim being made for compensation after that date.”
The question of “estoppel” arising from the terms of the earlier Award was raised in written submissions in this appeal by at least two of the representatives of the Respondents. It is my view that the parties have correctly identified the issue which required determination by the Arbitrator as being the question whether, by reason of the existence of the earlier Award, the Appellant was estopped from bringing an application in respect of the claims for weekly payments and section 60 expenses. The Arbitrator was in error in failing to address this question.
The questions with respect to estoppel and issue estoppel in circumstances concerning the existence of a prior Consent Award in workers compensation litigation has been the subject of analysis recently in the determination by Snell ADP in De Witte. I note and respectfully agree with that which was stated at paragraph 54:
“54.Applying the reasoning in Anderson, as I do, in my view the arbitrator has erred in the approach she has taken to the prior consent award. It did not involve any findings by the court, but rather enshrined in an award what was an agreement between the parties. Its legal effect on the latter proceedings did not go beyond whatever evidentiary force lay in the admissions of the parties, which were inherent in the terms and consent award. Accordingly it was not appropriate to approach the weekly claim, as the arbitrator did, on the basis the appellant had to demonstrate a change in circumstances since the date of the consent award, if she was to succeed.”
The questions raised with respect to issue estoppel and res judicata were, even more recently than De Witte, considered by Roche ADP in Kaibau. In that matter the Commission examined the force and effect of a Consent Award entered in earlier proceedings between the parties. The Determination contains a careful analysis of relevant authority (paragraphs 43 to 60). As was there stated (paragraph 56):
“… It is clear that a consent award can create an estoppel. However, the extent of that estoppel is quite limited. In my view it can go no further than creating an estoppel on the fact that the Appellant Worker had, as at 20 February 2003, a 13.5% loss of use of his right leg below the knee … … The Award for the Respondent Employer in respect of the claim for weekly compensation and section 60 expenses creates an estoppel that, as at 20 February 2003, the Appellant Worker had no right to weekly compensation or section 60 expenses up to that date. However, the Award does not bind the parties into the future.”
It was argued on behalf of the Respondents that each of the decisions in De Witte and Kaibau were wrongly decided. It is my view that the conclusions reached in each of those matters with respect to the question of estoppel are correct and I respectfully agree, having regard to the pertinent authority addressed in each of the aforementioned Determinations, that the existence of an earlier Consent Order, whilst it raises an estoppel, does not, as above quoted “bind the parties into the future.”
The Arbitrator’s error in approaching the Appellant’s Application as requiring a review and a determination as to whether there had been a change of circumstance since the entry of the Consent Award requires revocation of his decision and substitution with a new decision or alternatively that the matter be remitted for determination in accordance with the matters determined on this appeal. The NSW Court of Appeal in Chubb Security Australia Pty Limited v Trevarrow [2004] NSWCA 344 (unreported) has expressed the view that should an appeal be upheld, it is preferable, if possible, that the Presidential Member finally determine the matter (per Santow JA at paras 28 and 29).
Having regard to the circumstances of this case I am of the view that it is desirable, and in conformity with the legislature’s intent, that the errors identified in this appeal are corrected without the need to remit the matter for further consideration by an Arbitrator.
Re-determination
The Respondents in Replies filed to the Appellant’s original Application have denied “injury” as alleged. I am satisfied on the evidence firstly that the Appellant suffered injury to each of her knees when she fell in the course of her employment on 28 April 1995. The nature of that injury included the aggravation and exacerbation, as stated by Dr Waller, of “her tendency to develop osteoarthritis in the right knee”. I further accept the opinion of Dr Collins stated in his report of 6 November 2001 that the condition of her knees “is the direct result of the accident as described”. I also accept Dr Collin’s view that “her occupation has been a considerable contributing factor to her condition.” Dr Waller has had the advantage of his observations in the course of his treatment including the two surgical procedures and I prefer his views as to the question of aggravation and exacerbation of the Appellant’s osteoarthritic condition to that expressed by the medical witnesses whose reports have been adduced on behalf of the Respondents. I note that Dr Marsh in his report of 3 August 2001 stated:
“The reported fall would at most be only a minor contributing factor and her work duties as described would not have played a part in causation or acceleration of any degenerative changes. The osteoarthritis in her right knee is basically a constitutional problem and not work related.”
That statement by Dr Marsh does not negate the likelihood that the Appellant’s fall in 1995 played some role with respect to the progress of her condition of osteoarthritis. It must be noted that the provisions of section 9A of the 1987 Act were not in force and are not retrospectively applicable when determining questions arising from an injury proven to have occurred in 1995.
Given the history of persistent pain and discomfort suffered by the Appellant following the fall in 1995 and having regard to the views earlier stated of the Appellant’s treating surgeon and qualified medical witness I reject the view expressed by Dr Clark that:
“It is not possible to relate any of the present degenerative process to that alleged fall.”
It is my view that the Appellant’s occupation prior to her surgery in 2001 caused aggravation and exacerbation of her osteoarthritic condition and I have had regard to the view expressed by Dr Lowy in his report dated 9 March 2004 that the condition of the Appellant’s right knee has a “multi-factorial aetiology” which, in his view, included “nature and conditions of the entirety of Mrs Olic’s occupational life from 1970 until 2002”. Dr Price, in his report of 16 October 2002, did not entirely exclude the relevance of the Appellant’s fall in 1995 to her condition at the time of his examination. His statement was:
“This patient’s condition is a constitutional condition and I felt it bore little relationship to her fall in 1995.”
Of significance Dr Price expresses the view:
“Her duties were mainly sedentary at work and there is no contribution from her work duties from 1 January 2002 that an aggravation, acceleration, exacerbation or deterioration in a period of 5 months to this condition.”
I will address the question raised by Dr Price as to the role of the Appellant’s work hereunder.
I prefer the views expressed by the Appellant’s medical witnesses to that of Dr Burke expressed in his report of 18 March 2004 with respect to the role of the fall in 1995 and that of the Appellant’s work duties in aggravation and exacerbation of her condition of osteoarthritis. Dr Burke did not record any detail of the work carried out by the Appellant and had the disadvantage of having to examine the Appellant many years after the subject fall and after her termination from employment.
I am not satisfied, on the evidence, that the Appellant sustained injury to her back and hips as alleged in her original Application. I have reached this conclusion having regard to the fact that the Appellant’s only reference to problems involving her back appears at paragraph 11 of her Statement which accompanied her original Application. There is no mention in the evidence of any problem with her hips which would persuade me that an injury to those parts of her anatomy had been sustained either in the fall or in the course of her duties with the Respondents.
The Appellant seeks an award of weekly benefits from 23 May 2003 to 6 July 2005, that latter date being the agreed date the Appellant’s entitlement to weekly benefits terminates having regard to the provisions of section 52 of the 1987 Act. For the reasons above stated I am of the opinion that the Appellant is not estopped from making such claim by reason of the existence of the Consent Award entered in 2003. There is medical opinion in evidence that the Appellant is totally incapacitated by reason of the condition of her right knee as well as views expressed (including that of her treating specialist Dr Waller) that she is capable of sedentary work. I note that the Arbitrator concluded on the evidence that at all relevant times the Appellant was totally incapacitated. With regard to that question I am in agreement with the Arbitrator and find that between 23 May 2003 and 6 July 2005 the Appellant was totally incapacitated for work as a result of injuries to both her knees.
It is my view that, having regard to the existence of the Consent Award made in 2003 with respect to section 60 expenses, the Appellant, absent any application for reconsideration or review as permitted by section 350(3) of the 1998 Act and section 55 of the 1987 Act, is estopped from prosecuting any claim in respect of section 60 expenses incurred prior to the date of entry of that Award, namely 26 February 2003. There is, in my opinion, no bar to the Appellant bringing a claim in respect of section 60 expenses incurred since that date. In the circumstances the Appellant is entitled to an Award in her favour in respect of section 60 expenses incurred since that last mentioned date.
My conclusion is that the Appellant’s incapacity and need for reasonable medical treatment has been occasioned by injury as described in 1995 when the Appellant fell and by reason of the nature and conditions of her employment thereafter and up to her cessation of work prior to surgery in 2001 causing aggravation and exacerbation of her osteoarthritic condition. The Appellant’s condition having been aggravated by a frank injury as well as the nature of her work over a period of time requires a consideration of the question of apportionment in terms of section 22 of the 1987.
Since the decision of the NSW Court of Appeal in Rail Services Australia v Dimovski and Anor [2004] NSWCA 267 (unreported) (‘Dimovski’) it is clear that, despite earlier conflicting authority, in circumstances where a finding that death, incapacity or loss results from more than one injury the Commission may invoke the provisions of section 22 of the 1987 Act and apportion liability even though one or more of the relevant injuries is one of aggravation of a disease in terms of section 4(b)(ii) of the 1987 Act. I have earlier found that the fall in 1995 caused an aggravation of the Appellant’s osteoarthritic condition. I expressly find that that fall constitutes a frank injury and constitutes a “personal injury” in terms of section 4(a) of the 1987 Act. In reaching this conclusion of fact I have had regard to the matters addressed by Hodgson JA at paragraph 68 in Dimovski:
“In my opinion, the decision in Mecha is to be preferred. Section 16 applies only if the injury ‘consists in’ the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease.”
When examining the role of the work performed by the Appellant in aggravation of her condition regard must be had to the legislative changes which followed passage of the WorkCover Legislation Amendment Act 1996 (‘Amendment Act of 1996’). The facts as found, namely that the work performed by the Appellant with both Respondents aggravated or exacerbated her condition constitute a finding of injury in terms of section 4(b)(ii) of the 1987 Act. In those circumstances the provisions of section 16 of the 1987 Act have application. The earlier mentioned Amendment Act of 1996 amended the terms of section 16(1)(b) to add the word “substantial” before the words “contributing factor to the aggravation, acceleration, exacerbation or deterioration”. That amendment took effect on 12 January 1997.
It is the Appellant’s case that upon her return to work on 27 June 2001 arrangements were made at her workplace providing relief for the Appellant when pain precluded her from performing her normal duties. In those circumstances I am of the opinion that the work performed (from the date of her return to work in June 2001 up until her cessation of work in May 2002) was not employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of her osteoarthritic condition in terms of section 16(1)(b) of the 1987 Act and that the Appellant received no injury during that period.
In summary my findings as to injury are that the Appellant, on 28 April 1995 suffered personal injury when she fell in the course of her employment being injury to both knees and that, thereafter, the Appellant suffered injury by reason of the nature and conditions of her employment with each of the Respondents being aggravation and exacerbation of an osteoarthritic condition of her right knee. The last mentioned injury is one to which the provisions of section 16 of the 1987 Act apply. The Appellant ceased work and underwent surgery on 25 May 2001 however there is no evidence as to the date on which she ceased work prior to undergoing that procedure. I infer that the Appellant ceased work some days prior to that procedure and in the circumstances I find the deemed date of injury being the aggravation and exacerbation of the Appellant’s knee condition, is 20 May 2001 in terms of section 16(a)(i) of the 1987 Act.
Given that the Appellant’s incapacity results from both a frank injury and aggravation of a disease within the meaning of section 16 of the 1987 Act, it remains to be determined whether and if so in what manner apportionment is to be made with respect to liability pursuant to the Award to be entered hereafter. I have, as required by the authorities, already determined that the Appellant is entitled to weekly payments in respect of total incapacity and reimbursement of her medical expenses.
Having regard to the evidence as to the onset of pain and discomfort and the persistence of symptoms from the date of the Appellant’s fall in 1995 I conclude that the First Respondent should bear 80% of the liability to pay compensation and the remaining 20% to be paid by the Second Respondent. It is not entirely coincidental that those proportions reflect, approximately, the agreement as to contribution noted in the earlier proceedings.
It was argued in the course of this appeal that the failure of the Appellant to raise the argument with respect to estoppel at the hearing before the Arbitrator should have costs consequences to the disadvantage of the Appellant. I have already noted that it is my view that the conduct of the Appellant’s case before the Arbitrator was the result of the approach adopted by the Arbitrator and in the circumstances the Appellant was precluded from approaching the matter other than as directed. In those circumstances I reject the argument in support of there being no order as to costs in the Appellant’s favour in this appeal.
It is to be noted that Mr Saul of Counsel who appeared on behalf of the Second Respondent as Self-Insurer (that is from 1 January 2002 and thereafter) sought before the Arbitrator an order for costs as against the Appellant which application failed. Whilst there is no appeal in respect of that order of the Arbitrator, Mr Saul, on behalf of his client sought an order for costs in his client’s favour in this Appeal as against “the unsuccessful party or parties”. The application was supported by argument which addressed the fact that the Second Respondent as Self-Insurer was not privy to the original Application before the Compensation Court when proceedings were commenced, as well as the evidence as to the nature of work performed during the period of risk of the Self-Insurer. It was stated that the Self Insurer should never have been joined in the proceedings. It is my view that prudence required the Appellant to join those parties privy to the Application including Mr Saul’s client having regard to the tenor of the Appellant’s medical case. In the circumstances the application is refused.
It is clear from the evidence that the Appellant received weekly benefits from the First Respondent immediately following the subject fall and was subsequently paid certain benefits which remain unidentified during periods of absence from work by reason of her incapacity. There being no evidence with respect to this matter, the under mentioned Award in favour of the Appellant is to be entered pursuant to section 37 of the 1987 Act given that I infer from the totality of the evidence that she has been paid weekly benefits in respect of at least 26 weeks of incapacity prior to the commencement date of the Award.
DECISION
Paragraphs 1, 2 and 3 of the Arbitrator’s decision dated 18 March 2005 are revoked, paragraph 4 is confirmed and the following orders are made:
1.Award in favour of the Applicant (Stosija Olic) pursuant to section 37 of the Workers Compensation Act 1987 as follows:
(i)$310.90 per week from 23 May 2003 to 30 September 2003,
(ii)$317.20 per week from 1 October 2003 to 31 March 2004,
(iii)$323.00 per week from 1 April 2004 to 30 September 2004,
(iv)$328.90 per week from 1 October 2004 to 31 March 2005,
(v)$334.10 per week from 1 April 2005 to 6 July 2005.
2.Award in favour of the Applicant pursuant to section 60 of the Workers Compensation Act 1987.
3.The Respondents pay the Applicant’s costs of this Application as agreed or assessed.
4. Liability to pay the compensation pursuant to the aforementioned Award is to be borne by the First Respondent as to 80% and by the Second Respondent as to 20% such apportionment is made pursuant to the provisions of section 22 of the 1987 Act.
COSTS
The Respondents are to pay the Appellant’s costs of this appeal.
Kevin O’Grady
Acting Deputy President
19 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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