Prisk v Department of Ageing, Disability and Home Care (No 2)
[2009] NSWWCCPD 13
•5 February 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Reported Decision: Prisk v Department of Ageing, Disability and Home Care (No 2) (2009) 7 DDCR 331 | |||||
| CITATION: | Prisk v Department of Ageing, Disability and Home Care (No 2) [2009] NSWWCCPD 13 | ||||
| APPELLANT: | Garry Stephen Prisk | ||||
| RESPONDENT: | Department of Ageing, Disability and Home Care | ||||
| INSURER: | Allianz Australia Insurance Limited | ||||
| FILE NUMBER: | A2-496/07 | ||||
| DATE OF ARBITRATOR’S DECISION: | 20 October 2008 | ||||
| DATE OF APPEAL DECISION: | 5 February 2009 | ||||
| SUBJECT MATTER OF DECISION: | Boilermaker’s deafness; claim for further hearing loss; section 17 Workers Compensation Act 1987; estoppel; effect of prior Medical Panel assessments under section 131 of the Workers Compensation Act 1987 and section 122 of the Workplace Injury Management and Workers Compensation Act 1998; effect of prior unsuccessful claim for the cost of hearing aids before the former Compensation Court of NSW | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | MRM Lawyers | |||
| Respondent: | McLean Lawyers | ||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determinations of 10 June 2008 and 20 October 2008 are revoked and the following orders made: “1. That the respondent employer pay the applicant worker, as lump sum compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’), the sum of $14,000.00 in respect of 11% whole person impairment as a result of his injury of further hearing loss deemed under section 17 of the 1987 Act to have happened on 7 June 2006. 2. That the respondent employer pay the applicant worker’s costs of the arbitration as agreed or assessed under Table 1 Item F of Part B of Schedule 6 of the Workers Compensation Regulation 2003. The matter is certified as complex and it is determined that each party is entitled to an additional allowance for costs of 30%. In respect of the costs of the Medical Appeal Panel, the Commission certifies that the parties’ legal representatives are entitled to party/party costs as agreed or assessed under Column 1(b), Item 3, Table 4, Part B, Schedule 6 of the Workers Compensation Regulation 2003 and orders the respondent employer to pay the applicant worker’s costs of that appeal as agreed or assessed. 3. The matter is remitted to the same Arbitrator to determine the applicant worker’s entitlement to compensation under section 67 of the 1987 Act.” | ||||
BACKGROUND
Mr Prisk was born in 1951 and is currently 56 years old. He completed an apprenticeship as a boilermaker with BHP in 1971 and worked with that company until 1972 when he left and worked as a labourer for Dunlop Tyres. He then worked briefly as a groundsman and then as a driveway attendant. He started work with the Department of Ageing, Disability and Homecare (‘the Department’) as a member of its ground staff in 1974 and, later, as a driver. He remained working with the Department, as at 10 June 2008. Over the years, his employment exposed him to noise from mowers, tractors, jackhammers, tar packing machines, whipper snippers, blowers, industrial vacuums, compressors and heavy vehicles. He also worked around industrial laundries, carpenters, fitters, mechanics and plumbers. He first noticed a problem with his hearing in or about 1995.
In proceedings commenced in the Compensation Court of NSW (‘the Compensation Court’) against the Stockton Centre in 1996, Mr Prisk claimed compensation for hearing loss (matter no. 9447 of 1996) (‘the first claim’). A Medical Panel dated 5 November 1996 and issued under section 131 (now repealed) of the Workers Compensation Act 1987 (‘the 1987 Act’) assessed him to have 6.7% binaural hearing loss due to boilermaker’s deafness, and a 19% hearing loss in his left ear and 22% hearing loss in his right ear of uncertain origin. He settled his claim for compensation under section 66 of the 1987 Act for $5,761.66 in respect of 6.7% binaural hearing loss in Terms of Settlement filed with the Court on 24 July 1997. The terms noted his “notional date of injury pursuant to s17” to be 12 October 1995, but made no note about the cause of any other hearing loss.
In proceedings commenced in the Court in 1997 against Stockton Centre (matter no. 20997 of 1997), Mr Prisk sought the cost of hearing aids. This claim was heard and determined by Curtis CCJ who made an award for the employer in a decision delivered on 11 November 1998. His Honour noted the evidence of Dr Finlay-Jones, a specialist qualified by Mr Prisk, that all of Mr Prisk’s hearing loss had been caused by exposure to industrial noise, but stated (at page 2) that the issue of causation had been concluded by the Medical Panel by reason of section 131(5) of the 1987 Act, which provided that “Any such certificate of a medical panel shall be conclusive evidence as to the matter certified.” As the evidence did not establish from which loss the need for the hearing aids arose, the worker failed. His Honour noted the binaural hearing loss of uncertain origin to be 19.7%.
In proceedings commenced in the Compensation Court in 2002 against the Department of Community Services (matter no. 13501 of 2002), Mr Prisk claimed compensation for a further hearing loss. A Medical Panel dated 19 November 2002 (issued under section 122 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)) assessed him to have, after adjustment for presbycusis, a binaural hearing loss of 7.6% due to boilermaker’s deafness, and a 21% hearing loss in his left ear and a 23% hearing loss in his right ear of uncertain origin. He settled this claim under section 66 of the 1987 Act for $585.00 in respect of 0.9% further binaural hearing loss in Terms of Settlement filed with the Court on 1 April 2003. The terms noted his “notional date of injury pursuant to s17” to be 21 December 2001, but made no note about the cause of any other hearing loss.
By letter dated 7 June 2006, Mr Prisk claimed compensation (‘the fourth claim’) from the Department in respect of “bilateral sensorineural loss of hearing having been caused by exposure to excessive levels of noise in the course of his employment”. He claimed $20,000 in respect of 15% “further WPI” under section 66 and $17,500 under section 67 of the 1987 Act.
By letter addressed to Mr Prisk on 4 December 2006, the Department’s workers’ compensation insurer, Allianz Australia Insurance Limited (‘Allianz’), denied the claim on the following grounds:
“1.That you have not sustained a further loss of hearing as a result of a disease of gradual process.
2.That you are estopped from claiming that the entirety of your hearing loss is an injury in the nature of a disease of gradual process caused by exposure to industrial noise.
3. We rely upon sections 4, 15 and 17 of the Workers Compensation Act 1987.
4.In reaching this decision we rely in particular upon the report of Dr John Walker dated 13 September 2006.
5.In reaching this decision we have relied upon information in our possession with respect to your prior claims for lump sum compensation for industrial deafness.
6.We do not have in our possession at the time of preparing this notice the documents in relation to proceedings in the former Compensation Court in matter number 9447 of 1996 or in matter number 20997 of 1997 or those documents in relation to your assessment by a Medical Panel on 19 November 2002 but we do rely upon all of these documents which should be in your possession.”
Mr Prisk filed an Application to Resolve a Dispute (‘the Application’) in the Commission on 30 January 2007, in which he claimed the same compensation set out in his letter of 7 June 2006. He described his injury as “industrial deafness” due to “noise exposure” with a date of injury of 7 June 2006.
A further notice from Allianz dated 8 February 2007 stated the reason for the decision to deny the claim to be “That you are estopped from claiming that the entirety of your hearing loss is an injury in the nature of a disease of gradual process caused by exposure to industrial noise.”
The Department filed a Reply on 21 February 2007, in which it essentially repeated the issues identified in Allianz’s letter of 4 December 2006. At a teleconference on 14 March 2007, the Arbitrator noted the issues in dispute to be:
“a. whether Mr Prisk had suffered an injury of further hearing loss which is of such a nature as to be caused by a disease of gradual process;
b. whether as a result of the determinations of the Compensation Court of New South Wales on the Applicant’s prior claims for compensation under Section 66, Mr Prisk was estopped from asserting he has an injury of further hearing loss which is of such a nature to be caused by a disease of gradual process;
c. whether as a result of the findings of the Compensation Court of New South Wales on issues the Applicant raised in prior claims for compensation under Section 66, Mr Prisk was estopped from asserting he has an injury of further hearing loss which is of such a nature to be caused by a disease of gradual process.”
At an arbitration held on 28 March 2007, the Arbitrator determined that Mr Prisk suffered an injury on 7 June 2006, being a further hearing loss which was of such a nature as to be caused by a disease of gradual onset (T25.54, 28 March 2007 and Certificate of Determination dated 3 April 2007) and he referred the matter to the Registrar for referral to an Approved Medical Specialist (‘AMS’) for assessment of that loss. The medical dispute referred was “the nature and extent of the hearing loss suffered by a worker (s319 1998 Act)”.
The AMS (Dr Fernandes) assessed Mr Prisk’s hearing loss and issued a Medical Assessment Certificate (‘MAC’) on 7 June 2007 (‘the first MAC’). He assessed Mr Prisk to have a total binaural hearing loss of 29.2%, which converted to a whole person impairment of 15%. He then noted Mr Prisk’s previous claim for 7.6% binaural hearing loss, which was 26.03% of 29.2%. That is, Mr Prisk had previously been compensated for just over one quarter of his current loss. Dr Fernandes then calculated the “balance” of the whole person impairment to be 73.97%. Multiplying 15% by 73.97% gave 11.1%, which he rounded down to give an entitlement of 11% whole person impairment. The doctor left blank the columns headed “Total % BHI” and “Occupational % BHI”. The abbreviation “BHI” refers to “binaural hearing impairment” (see Workcover Guidelines for the Evaluation of Permanent Impairment, 24 October 2006, page 39).The reference to “BHL” is a reference to “binaural hearing loss”. The schedule to the MAC stated:
Notional
date of
injuryFrequency
HzLeft db
HL
Air BoneRight db HL
Air BoneTotal %
BHIOccupational
% BHI7/06/06 500 25 25 1000 35 30 1500 50 55 2000 50 50 3000 50 45 4000 50 40 Total % BHI: 29.2
Less Pre-existing non-related loss: 7.6
Less Presbyacusis [sic] correction: 0
Add % of severe tinnitus: 0
Adjusted total % BHI: *
Resultant total BHI of * % = 11* % whole person impairment (Table 9.1)
*Past Claims: 7.6 which is 26.03% of current BHL of 29.2%
Balance WPI: 73.97% of current WPI of 15% is 11.10
Rounded WPI is 11% whole person impairment
The Department appealed this assessment to a Medical Appeal Panel (‘the Appeal Panel’). By a decision delivered on 12 December 2007, the Appeal Panel confirmed the conclusions in the first MAC and expressly agreed with Dr Fernandes’ assessment of 11% whole person impairment and his method of calculation (Appeal Panel’s Statement of Reasons, 12 December 2007, at [31]).
At a further arbitration on 31 January 2008, counsel for the Department argued that Mr Prisk was bound by an estoppel arising from Curtis CCJ’s decision of 11 November 1998 to the effect that 19.7% of Mr Prisk’s binaural hearing loss was of uncertain origin and therefore unrelated to his employment. Though he did not determine the estoppel issue, the Arbitrator determined that the first MAC was not conclusively presumed to be correct because no medical dispute, as defined in sections 319(c) and 319(d) of the 1998 Act, had been referred to Dr Fernandes and his certification with respect to those matters was invalid.
Using the power in section 329(1) of the 1998 Act, the Arbitrator again referred the matter to Dr Fernandes for him to assess the degree of permanent impairment Mr Prisk suffered as a result of the injury on 7 June 2006 and whether any proportion of that permanent impairment was due to any previous injury or pre-existing condition or abnormality and the extent of that proportion. The Arbitrator also expressed the view, but did not make a formal finding, that Curtis CCJ had found that Mr Prisk suffered a binaural hearing loss of 19.7% of uncertain origin. As a result of this decision, the Commission issued the following Certificate of Determination on 1 February 2008:
“The determination of the Commission in this matter is as follows:
1.That the following matters be referred to AMS Dr Sylvester Fernandes for assessment:
a The degree of permanent impairment of the Applicant as a result of the injury of further hearing loss deemed to have happened on 7 June 2006.
b Whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion.”
After giving the issues further consideration, the Arbitrator convened a further teleconference on 6 February 2008. The parties were notified and were represented by their solicitors. Using the reconsideration power in section 350(3) of the 1998 Act, the Arbitrator made a formal finding that Curtis CCJ had found that Mr Prisk suffered a binaural hearing loss of 19.7% of uncertain origin and advised the parties that that fact would be communicated to the AMS (T3.12-22, 6 February 2008). Consistent with this decision, the Commission issued an Amended Certificate of Determination on 7 February 2008 in the following terms:
“The determination of the Commission in this matter is as follows:
1.That in his judgement [sic] dated 11 November 1998 in Compensation Court proceedings 20997 of 1997, his Honour Judge Curtis found that the Applicant had suffered a binaural hearing loss of 19.7% of uncertain origin.
2.That the following matters be referred to AMS Dr Sylvester Fernandes for assessment:
a.The degree of permanent impairment of the Applicant as a result of the injury of further hearing loss deemed to have happened on 7 June 2006;
b.Whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion.
3.That a copy of the referral to the AMS be provided to each party’s legal representative.”
On 14 April 2008, Dr Fernandes issued an Amended MAC, which reached the same conclusion as the first MAC, namely, that Mr Prisk had an 11% whole person impairment as a result of his further hearing loss injury deemed to have happened on 7 June 2006. In respect of the deduction (if any) for the proportion of the impairment due to previous injury or pre-existing condition or abnormality (see page four of the Amended MAC), Dr Fernandes answered “N/A”. Unlike the first MAC, the columns “Total % BHI” and “Occupational % BHI” were completed in the Amended MAC and, significantly, are identical. The schedule to the Amended MAC states:
Notional
date of
injuryFrequency
HzLeft db
HL
Air BoneRight db HL
Air BoneTotal %
BHIOccupational
% BHI7/06/06 500 25 25 1.4 1.4 1000 35 30 4.3 4.3 1500 50 50 9.7 9.7 2000 60 50 7.5 7.5 3000 50 45 4.2 4.2 4000 50 40 2.9 2.9 Total % BHI: 30.0
Less Pre-existing non-related loss: 0
Less Presbyacusis [sic] correction: 0.1
Add % of severe tinnitus: 0
Adjusted total % BHI: 29.9
Past Claims 7.6 which is 25.41% of current BHL of 29.9%
Balance WPI: 74.58% of current WPI of 15% is 11.18
Rounded WPI is 11% whole person impairment
At a further teleconference on 19 May 2008, the Arbitrator directed the parties to file written submissions on the matters in dispute. Essentially, the dispute revolved around the weight, if any, to be attached to the decision of Curtis CCJ and the previous Medical Panel certificates. Both parties filed written submissions by 27 May 2008.
After receipt of the parties’ written submissions, the Arbitrator determined the matter and the Commission issued a Certificate of Determination on 10 June 2008 in the following terms:
“The Commission determines:
1.That in a judgement [sic] dated 11 November 1998 in Compensation Court proceedings 20997 of 1997, his Honour Judge Curtis found that as at 5 November 1996, the Applicant had a binaural hearing loss of 6.7% due to boilermaker’s deafness and a binaural hearing loss of 19.7% of uncertain origin and the parties are bound by that finding in the current proceedings.
2.That under section 329(1) of the Workplace Injury Management and Workers’ Compensation Act 1998, this matter be referred again to AMS Dr Fernandes to assess the following medical dispute:
a.The degree of permanent impairment of the Applicant as a result of the injury of further hearing loss deemed to have happened on 7 June 2006;
b.Whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion.
3.That in Dr Fernandes’ assessment of the Applicant’s permanent impairment resulting from the injury of further hearing loss on 7 June 2006, Dr Fernandes be asked to deduct any proportion of permanent impairment resulting from;
a.the hearing loss specified in determination 1;
b.the hearing loss the Medical Panel certified on 5 November 1996 the Applicant to have being a binaural hearing loss of 6.7% due to boilermakers deafness and a loss of hearing of 19% in the left ear and 22% in the right ear due to some condition other than boilermaker’s deafness and of uncertain origin;
c.the hearing loss the Medical Panel certified on 18 November 2002 the Applicant to have being a binaural hearing loss of 7.6% due to boilermakers deafness and a loss of hearing of 21% in the left ear and 23% in the right ear due to some condition other than boilermaker’s deafness and of uncertain origin.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
The Arbitrator set out his reasoning in a detailed Statement of Reasons for Decision (‘Reasons’) dated 10 June 2008. His main findings were:
(a)that Mr Prisk suffered an injury on 7 June 2006 of further hearing loss which was of such a nature so as to be caused by a disease of gradual process (Reasons, paragraph 18);
(b)there was no dispute between the parties regarding the matters the Medical Panels had earlier certified, namely, that Mr Prisk had a 6.7% binaural hearing loss resulting from his employment and a 19% loss of hearing in his left ear and a 22% loss of hearing in his right ear of uncertain origin and that, as at 18 November 2002, he had a 7.6% binaural hearing loss resulting from his employment and a loss of hearing of 21% of his left ear and 23% of his right ear of uncertain origin (Reasons, paragraph 15);
(c)he discerned the issues to now be:
“a. whether any estoppel arises from the judgment of Curtis J. such that would prevent Mr Prisk from asserting an entitlement for compensation for 19.7% of his total binaural loss of hearing;
b. whether the certification on 5 November 1996 by the Medical Panel that Mr Prisk had a hearing loss of 22% in his right ear and 19% in his left ear that is not due to boilermaker’s deafness and is of uncertain origin is conclusive evidence of that matter in these proceedings;
c. whether the certification on 18 November 2002 by the Medical Panel that Mr Prisk had a hearing loss of uncertain origin in his left ear of 21% and 23% in his right ear is conclusive evidence OF that matter in these proceedings;
d. If yes to any of the above, do I have power to direct Dr Fernandes WHEN assessing the permanent impairment Mr Prisk has from his injury of further hearing loss deemed to have occurred on 7 June 2006, to deduct that part of Mr Prisk’s loss of hearing that is of uncertain origin;
e. if no to all the above, what compensation is to be awarded to Mr Prisk under sections 66 & 67 of the 1987 Act.” (Reasons, paragraph 35);
(d)he initially felt that his power and role was limited to resolving the dispute regarding whether Mr Prisk suffered an injury of further hearing loss and resolving the matters of fact about which the parties were in dispute. Having done that, he considered it was then the function of an AMS to determine what, if any, impairment resulted from the injury of further hearing loss (Reasons, paragraph 39) and that to hold that 19.7% of Mr Prisk’s total hearing loss was of uncertain origin would have usurped the exclusive function of the AMS relating to the assessment of permanent impairment (Reasons, paragraph 40);
(e)however, applying the decision of Humphreys v Plastek Closures Pty Ltd [2006] NSWWCCPD 98 (‘Humphreys’), if an estoppel relating to the impairment a worker has from an earlier injury does arise from a previous award of the Compensation Court or the Commission, then the Commission must ask the AMS to deduct the proportion that relates to the prior award (Reasons, paragraph 42);
(f)the decision of Humphreys was persuasive authority regarding how an AMS must deal with the certification of a Medical Panel under either section 122 of the 1998 Act or section 131 of the 1987 Act. If an estoppel is established with respect to whether there is a permanent impairment from a previous injury or prior condition or abnormality, then the parties cannot be considered to be in dispute about it and it cannot form part of the referral of the “medical dispute to the AMS” as a matter upon which the AMS is to make an assessment (Reasons, paragraph 44);
(g)an issue estoppel arises when a court, or tribunal, has determined between the parties issues of fact and it prevents the same parties in subsequent proceedings asserting differently from that which the court or tribunal has determined (Reasons, paragraph 46);
(h)Curtis CCJ determined that 6.7% of Mr Prisk’s hearing loss was from boilermaker’s deafness and 19.7% was of uncertain aetiology and could not have been from his employment. That finding was indispensable to the award made in favour of the Department. That issue having been determined, the parties are estopped from asserting to the contrary of Curtis CCJ’s finding with respect to Mr Prisk’s hearing loss (Reasons, paragraph 49);
(i)it was more likely than not that Mr Prisk was employed by the Department when he worked at the Stockton Centre or at Stockton Hospital and, therefore, the parties in the present proceedings are the same as the parties in the proceedings before Curtis CCJ (Reasons, paragraph 52);
(j)estoppels arose from the judgment of Curtis CCJ to the effect that as at 5 November 1996 Mr Prisk had a binaural hearing loss of 6.7% due to boilermakers deafness and a binaural hearing loss of 19.7% of uncertain aetiology. Based on Humphreys, that cannot form part of the referral of the medical dispute to the AMS. The AMS must be asked to make a deduction for the proportion of impairment resulting from the hearing loss that Curtis CCJ found Mr Prisk to have (Reasons, paragraph 53);
(k)he rejected Mr Prisk’s submission, based on JC Equipment Hire Pty Ltd v The Registrar of the Workers Compensation Commission of NSW [2008] NSWCA 43; (2008) 5 DDCR 403 (‘JC Equipment Hire’), that the Medical Panel certificates under section 131 of the 1987 Act and under section 122 of the 1998 Act did not operate in the present proceedings as conclusive evidence of the matters certified (Reasons, paragraph 55);
(l)there was nothing in section 122(6) of the 1998 Act limiting the conclusive effect of the certificate to any particular set of proceedings. The matters so certified by a Medical Panel will be conclusive evidence in any set of proceedings (Reasons, paragraph 56);
(m)the effect of section 122(6) of the 1998 Act is such that it must be concluded in the present proceedings that Mr Prisk had, as at 18 November 2002, a binaural hearing loss of 7.6% due to boilermaker’s deafness after a deduction for presbycusis and a loss of hearing due to some condition other than boilermaker’s deafness and uncertain origin of 21% of the left ear and 23% of the right ear (Reasons, paragraph 57), and
(n)a similar conclusion must be reached in respect of the certificate issued under section 131 of the 1987 Act (Reasons, paragraph 58).
The Arbitrator then set out (at paragraph 60 of his Reasons) the appropriate form of the referral to the AMS. The relevant part of that referral is reproduced at [21] below.
As a result of the Arbitrator’s orders of 10 June 2008, the matter was referred to Dr Fernandes for a third time. This referral included the same issues in dispute noted by the Arbitrator in his determination of 7 February 2008 (see [15] above) but also had attached to it the following statement of the Arbitrator’s determination:
“1.THAT AS AT 18 NOVEMBER 2002, THE APPLICANT HAD A BINAURAL HEARING LOSS OF 7.6% DUE TO BOILERMAKER’S DEAFNESS AFTER A DEDUCTION FOR PRESBYCUSIS AND A LOSS OF HEARING OF UNCERTAIN ORIGIN, BUT DUE TO SOME CONDITION OTHER THAN BOILERMAKER’S DEAFNESS, OF 21% OF THE LEFT EAR AND 23% OF THE RIGHT EAR.
2.THAT AS AT 5 NOVEMBER 1996 MR PRISK HAD A BINAURAL HEARING LOSS OF 6.7% FROM BOILERMAKERS [sic] DEAFNESS AND A LOSS OF HEARING OF 19% IN THE LEFT EAR AND 22% IN THE RIGHT EAR OF UNCERTAIN ORIGIN, BUT DUE TO SOME CONDITION OTHER THAN BOILERMAKER’S DEAFNESS.
3.THAT IN HIS JUDGEMENT [sic] DATED 11 NOVEMBER 1998 IN COMPENSATION COURT PROCEEDINGS 20997 OF 1997, HIS HONOUR JUDGE CURTIS FOUND THAT AS AT 5 NOVEMBER 1996 THE APPLICANT HAD A BINAURAL HEARING LOSS OF 6.7% DUE TO BOILERMAKER’S DEAFNESS AND A BINAURAL HEARING LOSS OF 19.7% OF UNCERTAIN ORIGIN AND THE PARTIES ARE BOUND BY THAT FINDING IN THE CURRENT PROCEEDINGS.
4.THAT A DEDUCTION FOR ANY PROPORTION OF PERMANENT IMPAIRMENT THAT THE APPLICANT HAS RESULTING FROM THE HEARING LOSS SPECIFIED IN DETERMINATIONS 1-3 IS TO BE MADE WHEN ASSESSING THE PERMANENT IMPAIRMENT THE APPLICANT HAS RESULTING FROM THE INJURY OF FURTHER HEARING LOSS ON 7 JUNE 2006.”
On 25 July 2008, Dr Fernandes issued a third MAC. In compliance with the Arbitrator’s decision of 10 June 2008, the AMS assessed Mr Prisk to have a 1% whole person impairment. The schedule to the third MAC states:
Notional
date of
injuryFrequency
HzLeft db
HL
Air BoneRight db HL
Air BoneTotal %
BHIOccupational
% BHI7/06/06 500 25 25 1.4 1.4 1000 35 30 4.3 4.3 1500 50 50 9.7 9.7 2000 60 50 7.5 7.5 3000 50 45 4.2 4.2 4000 50 40 2.9 2.9 Total % BHI: 30.0
Less Pre-existing non-related loss: 19.7
Less Presbyacusis [sic] correction: 0.1
Add % of severe tinnitus: 0
Adjusted total % BHI: 10.2
Past Claims 7.6 which is 74.50% of current BHL of 10.2%
Balance WPI: 25.50% of current WPI of 5% is 1.27
Rounded WPI is 1% whole person impairment
Consequent upon this MAC being issued, the Commission notified the parties that a further teleconference had been appointed for 14 August 2008. That teleconference did not proceed because, by an appeal filed on 1 August 2008, Mr Prisk sought leave to appeal the Arbitrator’s decision of 10 June 2008. On 26 September 2008, I refused leave to appeal because the appeal was filed out of time and, as the decision was an interlocutory order of a preliminary nature, there was no proper basis on which to extend time to appeal (see Prisk v Department of Ageing, Disability and Homecare [2008] NSWWCCPD 106).
The matter was remitted to the Arbitrator for final determination. With the consent of the parties, he determined the matter without a further conference or formal hearing and on 20 October 2008 the Commission issued a Certificate of Determination in the following terms:
“The Commission determines:
1.That the Respondent pay the applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987 $1,250.00 in respect of 1% permanent impairment assessed as a percentage of whole person impairment, attributable to the injury of further hearing loss deemed under s17 of the [1987] Act to have happened on 7 June 2006.
2.That the Respondent pay the Applicant’s costs as agreed or assessed.
I certify the matter as complex and the maximum payable in respect of the Applicant’s costs and the maximum payable in respect of the Respondent’s costs under Table 1 item F are to be increased by 30%.”
By an appeal filed on 12 November 2008, Mr Prisk seeks leave to appeal the Arbitrator’s determination of 20 October 2008. It is not disputed that this determination was based on the Arbitrator’s determination of 10 June 2008 and that the June determination was an “essential step in the procedure leading up to [the] final” determination (Crowley v Glissan (1905 2 CLR 402).
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements in section 352 of the 1998 Act.
There is no issue that the monetary thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
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 submission 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.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator:
(a)misdirected himself in holding an issue estoppel arose from the decision of Curtis CCJ in matter number 20997 of 1997;
(b)wrongly failed to have regard to Mr Prisk’s submissions that:
(i)by operation of section 17 of the 1987 Act a fresh cause of action accrues on each occasion on which there is a loss of hearing or further loss of hearing and a fresh notice of injury is served;
(ii)issue estoppels arose in relation to each of the previous causes of action arising in consequence of loss of hearing, or further loss of hearing, and service of a notice of injury, but;
(iii)the issue estoppels so arising related solely to the earlier losses, or further losses, followed by service of a notice of injury and hence to the earlier causes of action, and
(iv)the issue estoppels did not apply to Mr Prisk’s current claim.
(c)erred in failing to award Mr Prisk costs of the application and the costs of the Department’s unsuccessful appeal against the first MAC.
SUBMISSIONS
It is submitted on behalf of Mr Prisk that:
(a)there cannot be a cause of action estoppel because section 17 of the 1987 Act has the effect of creating a fresh cause of action each time there is a fresh deemed date of injury resulting in further impairment;
(b)the awards resulting from the Medical Panel certificates dealt only with causes of action arising before 19 November 2002. The present claim asserts a fresh cause of action with a deemed date of injury of 7 June 2006;
(c)Curtis CCJ’s judgment cannot be the subject of a cause of action estoppel because it dealt with the consequences of the Medical Panel certificate of 5 November 1996, which constituted a different cause of action from that on which Mr Prisk now relies;
(d)Curtis CCJ’s judgment does not found an issue estoppel because he did not make a relevant finding that binds the parties. Because the terms of the section 131 certificate were conclusive under section 131(5), there was no issue between the parties on which a finding had to be made;
(e)there cannot be an issue estoppel because the issue/s determined by the AMS differed from those before the Medical Panels, involved the application of different scales, and a different deemed date of injury;
(f)in J C Equipment Hire Tobias JA (Campbell and Bell JJA agreeing) stated (at [38]) that a MAC issued pursuant to an assessment under Part 7 of Chapter 7 of the 1998 Act is “only conclusively presumed to be correct in any proceedings before a court or the Commission with which the certificate is concerned” and is not conclusively presumed to be correct with respect to proceedings for work injury damages in the District Court;
(g)the Department’s appeal against the first MAC was dismissed by the Appeal Panel, which rejected the submission that the AMS failed to take into account “relevant considerations”;
(h)the evidentiary material relied on by the Medical Panels cannot be the subject of an issue estoppel (Blair v Curran (1939) 62 CLR 464 at 531-3 (‘Blair v Curran’));
(i)even if the estoppel argument were to succeed, it means no more than that on 5 November 1996 and 19 November 2002 there were operative factors relevant to an uncertain origin that contributed to Mr Prisk’s hearing loss. There is no evidence that those factors continued to be relevant when Mr Prisk suffered a further hearing loss with a deemed date of injury on 7 June 2006, and
(j)the Department should be ordered to pay Mr Prisk’s costs of its unsuccessful appeal to the Appeal Panel.
It is submitted on behalf of the Department:
(a)a review is not a rehearing of the matter and Mr Prisk has not provided any submissions identifying where the Arbitrator erred in his application of the law;
(b)Curtis CCJ noted at page one of his decision that “neither the applicant nor the respondent could resile from the certification of the medical board [sic] which was effected in the terms of settlement.” His Honour also noted (at page two) that the Medical Panel found that Mr Prisk suffered a sensory neural hearing loss of uncertain aetiology amounting to a binaural loss of 19.7% and (at page four) that he was unable to conclude that the injury (a 6.7% binaural hearing loss) resulted in Mr Prisk’s need for a hearing aid. Essentially, his Honour found that Mr Prisk suffered a 6.7% binaural hearing loss and that the balance of his deafness had been determined by the Medical Panel to be of other unknown causes;
(c)consent awards can create estoppels (Rail Services Australia v Dimovski [2004] NSWCA 267 (2004) 1 DDCR 648 (‘Dimovski’));
(d)a Medical Panel certificate determines the impairment the worker has and is conclusive as regards the aetiology of the disease (Smith v Norton (1996) 13 NSWCCR 277 (‘Smith’);
(e)relying on Blair v Curran (at 531), it is argued that there is a “decree or order being the terms of settlement between the parties as to the loss in accordance with the findings of the medical panel as stated by his Honour Judge Curtis and which his Honour considered bound the parties.” Therefore, the estoppel “covers those matters that his Honour used to establish his judgment.” His Honour clearly relied upon the Terms of Settlement and Medical Panel certificate as the legal justification for his conclusion;
(f)in determining whether an issue estoppel has been made out, the Commission is entitled to look at the record and the reasons for judgment (Egri and anor v DRG Australia Ltd (1988) 19 NSWLR 600 (‘Egri’) and Somodaj v Australian Iron & Steel Ltd (1963) 109 CLR 285);
(g)reliance is placed on the decision of Clarke JA in Egri (at 610F) where his Honour said:
“It is not a necessary condition of an estoppel arising from such a finding that it be made in the determination of an issue which is identical with the issue in the later proceedings. It is sufficient if the finding, of fact or law or mixed fact and law, is made in respect of an identical question notwithstanding that that question may fall to be decided in the course of the determination of issues which are not identical.”
(h)in the present matter, the same question must be answered as that determined by Curtis CCJ, that is, to what extent has Mr Prisk suffered hearing loss due to his employment. Though Curtis CCJ dealt with a claim for hearing aids and the Arbitrator dealt with a claim for further loss of hearing, both had to determine to what extent the hearing loss suffered resulted from the employment injury;
(i)the Arbitrator was bound to apply the decision of Humphreys;
(j)J C Equipment Hire does not assist Mr Prisk. Tobias JA (Campbell and Bell JJA agreeing) held (at [39]) that a MAC is “only conclusively presumed to be correct with respect to the proceedings for the purpose of which the certificate has been obtained, namely, for the purpose of a lump sum compensation claim”. In the present matter, both the Medical Panel certificates and the MACs were obtained for the purpose of claims for lump sum compensation. It follows that the Medical Panel certificates should be conclusively presumed to be correct;
(k)a cause of action is defined in Osborn’s Concise Law Dictionary (5th edition) as “The fact or a combination of factors which give rise to a right of action”;
(l)Mr Prisk’s argument that there is no estoppel because each section 17 claim creates a fresh cause of action is against any logic, commonsense or justice between the parties;
(m)one set of facts may support several causes of action (Williams v Milotin (1957) 97 CLR 465; 31 ALJR 820). In the present case there is only one employer and this means that all causes of action have the same factual basis. There has already been a finding by a Medical Panel, judicially accepted, that part of Mr Prisk’s hearing loss is of causes unknown but not related to his employment;
(n)having been employed by the Department since 1974, it would be perverse if Mr Prisk were not bound by the previous Medical Panel certificates, previous Terms of Settlement and previous judicial determinations. If Mr Prisk’s argument is correct it would be open to the Department to argue that Mr Prisk has not suffered an “injury” or that employment was not a substantial contributing factor despite previous consent terms, judgments of the Compensation Court and the fact that Mr Prisk is still working in “employment to the nature of which the injury was due – at the time when notice was given” (see section 17(1)(a)(i) of the 1987 Act). It would create a situation where a party dissatisfied with an outcome could re-lodge an application the next day with a new deemed date of injury and expect a more favourable outcome without regard to any prior determination;
(o)in Humphreys, the Deputy President determined that the mere fact of a change in assessment process does not defeat an estoppel where it otherwise properly arises;
(p)in the Application to Resolve a Dispute, Mr Prisk relies on the previous awards to say that the injury has already been the subject of a determination on liability. This has been done on acceptance that the parties are bound by previous findings, terms and Medical Panel certificates;
(q)estoppel applies to section 17 of the 1987 Act and it applies not only to the determination of Curtis CCJ but also to the Terms of Settlement entered between the parties giving effect to the Medical Panel certificates, and
(r)Mr Prisk has not shown that the Arbitrator erred in the exercise of his discretion in relation to costs of the unsuccessful appeal to the Appeal Panel. Mr Prisk is out of time to seek a review of that order and no explanation has been offered as to why he has not sought a review until now.
Mr Prisk made the following submissions in response:
(a)Humphreys is not binding because the effect of section 17 is to create a fresh cause of action each time there is a fresh deemed date of injury resulting in further hearing loss. That issue did not arise in Humphreys where the claim was for impairment to the right knee, right shoulder, back, neck and sexual organs;
(b)the Medical Panel certificate dealt with by Curtis CCJ was issued in consequence of proceedings commenced in 1996. The cause of action there asserted was based on a deemed date of injury which by definition had to have occurred before the proceedings were commenced on 30 July 1996;
(c)a fresh cause of action is created each time a fresh deemed date of injury is found and in relation to the fresh cause of action the certificate is not conclusive evidence of the matter/s certified;
(d)Smith concerned a certificate obtained for the purpose of those proceedings. There is no dispute that for the purpose of those proceedings the certificate was conclusive. The certificate on which Curtis CCJ relied was obtained for the purpose of earlier proceedings, not for the purpose of the present claim;
(e)Curtis CCJ made no finding of hearing loss due to uncertain aetiology. As a matter of law, the Medical Panel certificate and the legislation mandated the conclusion expressed by his Honour, and
(f)an issue estoppel can arise with respect to successive section 17 claims, but not with respect to the conclusive effect of a certificate of a Medical Panel.
DISCUSSION AND FINDINGS
Review
The Department’s submissions as to the nature of a review are inconsistent with recent authority. The Court of Appeal considered the nature of a ‘review’ under section 352 of the 1998 Act in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358, where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
McColl JA approved this passage in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134]. To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]). Thus, on review, a Presidential member is not bound by an Arbitrator’s discretionary decision, but can reach his or her own conclusion.
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 (‘Chemler’) where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
…
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
The “well established line of authority” referred to by Spigelman CJ was considered in detail in Ranvet Pty Ltd v Vasilevski [2008] NSWWCCPD 81 at [32] to [55] inclusive.
The nature of a review was also considered in Cook v Midpart Pty Ltd t/as McDonalds Forster & anor [2008] NSWCA 151 and Tan v National Australia Bank Limited [2008] NSWCA 198.
I intend to apply the principles discussed in the above authorities. Essentially, I am required to conduct a “review on the merits” to decide whether the original decision is wrong or, to decide, “what is the true and correct view” (per Spigelman CJ in Chemler).
Determination by Curtis CCJ
Before the Arbitrator, Mr Prisk disputed that there was an identity of parties in the claims in the Compensation Court and the current claim before the Commission. The Arbitrator’s finding that there was an identity of parties (Reasons, paragraph 52) has not been challenged on appeal and I agree with it.
Mr Prisk concedes that Smith decided that a Medical Panel determines the level of impairment a worker has and is conclusive as to the aetiology of the disease. However, that decision concerned a certificate obtained for the purpose of the claim then before the Compensation Court, not subsequent proceedings arising from a different cause of action. Also, the Medical Panel certificate in that case did not suggest that the worker’s hearing loss was of “uncertain origin”, but certified that it resulted from otosclerosis. I do not believe that Smith advances the Department’s argument.
The issue in the present matter is quite different to the issue before Curtis CCJ. The issue before Curtis CCJ was whether Mr Prisk was entitled to recover the cost of hearing aids under section 60 of the 1987 Act. Though the Application for Determination in that matter is not in evidence, I infer that the injury relied on as the basis for that claim was the injury deemed to have occurred on 12 October 1995 (see Terms of Settlement filed on 24 July 1997 referred to at [2] above). The issue in the present matter is quite different; it is Mr Prisk’s entitlement to compensation in respect of a claim for a further loss of hearing deemed to have occurred on 7 June 2006. That is a new cause of action seeking different relief and different considerations apply to each claim. In the first, Mr Prisk had to establish that his hearing aids were “reasonably necessary” medical or related treatment “as a result of an injury” with the named respondent (section 60(1) of the 1987 Act). In determining that issue the judge observed that the Medical Panel certificate certified that on 5 November 1996 Mr Prisk had 6.7% binaural hearing loss due to boilermaker’s deafness and a 19% hearing loss in his left ear and 22% hearing loss in his right ear of “uncertain origin”. His Honour then noted the evidence of Dr Finlay-Jones that “a binaural hearing loss of 6.7% would be unlikely to warrant the expense of a hearing aid” (page two, point six). His Honour stated:
“The question for me pursuant to s60 is whether as a result of an injury being a 6.7 per cent binaural permanent diminution of hearing, it is reasonably necessary that the hearing aid be provided.”
His Honour also noted Dr Finlay-Jones’ evidence that all of Mr Prisk’s hearing loss had been caused by industrial noise and, because of that, he should be entitled to receive the hearing aids. Given Dr Finlay-Jones’ evidence, his Honour expressed some sympathy for Mr Prisk but stated that “the issue of causation has been concluded by the Medical Panel” and the Panel’s certificate was conclusive evidence of the matters certified.
His Honour considered the submission that the need for the hearing aids arose from the combined effect of both the workplace loss and the loss of unknown origin. He rejected that argument because Mr Prisk was unable to establish that his deafness of unknown origin predated his industrial deafness. His Honour concluded:
“If in the present case the plaintiff’s [sic, applicant’s] compensable loss preceded that loss which was not compensable the purpose and policy of the Workers Compensation Act would have been exhausted upon payment by the employer of the compensation pursuant to s66. If as a result of some later contingency the applicant’s loss was compounded to such an extent that he would have independently needed a hearing aid, then it seems to me that the purpose and policy of the Act does not require that the employer pay.
In the circumstances I am unable to conclude that the injury, being the hearing loss for which the employer is required to pay compensation, being an injury of 6.7 per cent binaural loss, in this case results in the need for the hearing aid, and there must be an award for the respondent.”
His Honour made no finding, formal or otherwise, as to the cause of Mr Prisk’s binaural hearing loss, but merely accepted as “conclusive evidence” the terms of the Medical Panel certificate that part of that loss was of “uncertain origin”. In those circumstances his Honour was unable to conclude that the need for the medical treatment (the hearing aids) had resulted from the injury.
That finding created an estoppel as to Mr Prisk’s entitlement to claim the cost of hearing aids as at the date of the decision. It created no other estoppel because, as Dixon J observed in Blair v Curran (at 532), “where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived.” Mr Prisk’s entitlement to recover the cost of hearing aids depended on a number of ultimate facts. He failed not because the judge found he had a pre-existing unrelated hearing loss (Curtis CCJ made no such finding), but because the judge was not satisfied that the need for the hearing aids resulted from the injury. In deciding the issue before him, Curtis CCJ did not determine an “identical question” (per Egri) to the question that is now before the Commission but determined, on the basis of the evidence before him, that Mr Prisk was not entitled to recover the cost of hearing aids.
The present claim concerns a separate cause of action, namely, a claim for compensation in respect of a further loss of hearing with a deemed date of injury of 7 June 2006. To succeed with this claim Mr Prisk had to establish that he was employed in employment to the nature of which the further loss was due at the time he gave notice of injury on 7 June 2006. The Arbitrator made that finding at the arbitration on 28 March 2007 (T25.49). Given that finding, the question of the nature and extent of Mr Prisk’s hearing loss resulting from that injury was a matter for the AMS, whose certification is “conclusively presumed to be correct” as to the degree of permanent impairment as a result of an injury (section 326(1)(a) of the 1998 Act). The AMS was correctly asked, when preparing his Amended MAC, to take into account the prior agreed binaural hearing loss of 7.6%, which he did. It follows that there was no further basis for a third referral to the AMS.
Curtis CCJ made no conclusive finding as to the cause of Mr Prisk’s hearing loss but merely applied the terms of a conclusive Medical Panel. That panel certified that part of Mr Prisk’s hearing loss as at 12 October 1996 was of “uncertain origin”. In the assessment of a claim for compensation arising from a further injury (in this case, a claim for further loss of hearing) the conclusive evidence from the AMS is that Mr Prisk’s hearing loss is not of uncertain origin, but is “occupational”. Dealing with that issue, the AMS noted that Dr Walker, the Department’s specialist, who stated in his report of 13 September 2006 that the majority of Mr Prisk’s hearing loss was due to an “underlying genetic condition”, gave no reasons for suspecting a genetic hearing loss and that he (Dr Walker) had incorrectly used the 1975 scale (see the Amended MAC of 14 April 2008, page four).
Having regard to the conclusive evidence of the Amended MAC, what was uncertain at the time of Curtis CCJ’s decision has now been certified as certain in a document that is conclusively presumed to be correct under the terms of the 1998 Act.
Further, or in the alternative, on the basis of the authorities discussed at [55] to [60] below, there is no estoppel in a changing situation. Therefore, even if Curtis CCJ had made a formal finding of the kind urged by the Department as to the cause of Mr Prisk’s hearing loss as at the date of his decision, that finding would not stop the Commission, when dealing with a different cause of action at a later date, from making a different finding on the basis of additional evidence that is conclusively presumed to be correct.
The Terms of Settlement
I accept that terms of settlement can give rise to res judicata estoppels in certain circumstances (Dimovski). I do not, however, accept the Department’s submission that the prior settlements in the present matter give rise to an issue estoppel as to the cause of Mr Prisk’s hearing loss. In Seaibv Hayes Personnel Services (Aust) Pty Ltd [2008] NSWWCCPD 36 (‘Seaib’) Acting Deputy President Snell reviewed the authorities and summarised (at [77]) the relevant principles in respect of the legal consequences of prior settlements effected by consent awards/orders:
“(i) A consent award can create res judicata estoppels, and also will involve admissions of facts inherent to the award, for example the occurrence of injury, or the existence of economic incapacity resulting from injury, at a certain point in time (Dimovski).
(ii) When an issue is the subject of res judicata estoppel, it is not justiciable in a further action; it is not open to consideration de novo (Almario).
(iii) A res judicata estoppel, created by a consent award for an employer, on a weekly claim, or claim for section 60 expenses, operates up to the date it is made. It does not eliminate future rights (Almario, Kaibau, Coggins).
(iv) A consent award does not oblige the Commission, in subsequent proceedings, to take the factual position described in the consent award as a starting point in the fact finding process. The Commission should determine the facts as at the date of further hearing, “without legal constraints flowing from the earlier award” (Dimovski, De Witte, Kaibau).
(v) When engaging in this fresh fact finding process, it is appropriate to have regard to admissions flowing from the earlier consent award, and the presumption of continuance. However such matters are only part of the evidence, to be considered with other evidence, lay and medical (Dimovski, Coggins).
(vi)A consent award does not create an issue estoppel (Anderson).
(vii)Where a worker executes Admissions and Agreed Facts as part of a settlement, these speak as at the time they were made. They are evidentiary of the facts stated, but not conclusive (Almario).
(viii) It is necessary to analyse and interpret admissions and agreed facts with care, in deciding what evidentiary force they have (Smylie).
(ix)Section 60 is an indemnity provision (New South Wales Sugar Milling Co-op Ltd v Manning (1998) 44 NSWLR 442). Admissions that a worker has no entitlement to such expenses “thereafter”, or “over and above” an agreed sum, should be read in this light (Smylie).
(x) Agreed Facts which purport to impose a blanket bar upon the recovery of further compensation, for example a worker “is not entitled to any further weekly payment or compensation”, or “has no entitlement to compensation against the Respondent”, must be read subject to section 234 of the 1998 Act, which prevents contracting out of the 1987 and 1998 Acts.
(xi) The parties cannot use a series of consent awards to achieve de facto commutation, without appropriate approvals (Nelson v Flood & Co Ltd [1934] 8 WCR 227, Almario).”
Whilst I am in general agreement with the above summary, the question of whether a consent award/order can give rise to an issue estoppel (point (vi) above) has been considered in several relevant authorities. Those authorities suggest that, in certain circumstances, issue estoppels can arise from consent awards/orders, though the nature and extent of such an estoppel will depend on the facts and circumstances of each case and has not been finally determined (The Doctrine of Res Judicata by Spencer Bower, Turner and Handley (‘Spencer Bower’), third edition, 1996, at [38]).
There is no issue estoppel in a changing situation (Spencer Bower, at p102 and Hamersley Iron Pty Ltd v The National Competition Council [2008] FCA 598 at [114] to [116]), and a later claim for hearing loss compensation as a result of a further injury is one example of such a situation. This point is succinctly illustrated in Spencer Bower (at [185]):
“An agreement to pay compensation registered under the Workmen’s Compensation Acts estopped the employer from disputing liability for the accident; but not from contending that the worker’s death did not result from it.”
The authorities cited in Spencer Bower are Cleverley v Gas Light and Coke Co (1907) 24 TLR 93 and O’Donel v Commissioner for Road Transport (1938) 59 CLR 744 (‘O’Donel’). The authority of O’Donel is of particular significance and was considered and applied by Handley JA in Dimovski.
In Dimovski, the parties settled a claim by consent for 25% loss of use of a leg and an award was entered in those terms. In later proceedings the worker sought an additional payment under section 66 of the 1987 Act as a result of an alleged increase in the loss of use of the same leg due to further injuries. The trial judge held that the worker had sustained further injuries that had a permanent effect on the leg but she did not increase the award of 25%.
On appeal it was argued that the earlier consent award created estoppels, which meant that if the later injuries had a permanent effect then there had to be an increase in the percentage loss of use awarded. Justice Handley set out the principles at [9] to [12]:
“9 Mr King submitted that the Judge erred in law in failing to give effect to the estoppel created by the consent award by finding that although the worker had suffered further injuries to his left leg his current loss of use was still only 25%. A consent judgment can create res judicata estoppels: Spencer Bower, Turner & Handley ‘Res Judicata’ 1996 pp 21-2. The estoppels flowing from the consent award bound the second respondent as a party and the appellant as a privy in interest, as the second respondent’s statutory successor: Spencer Bower & Ors (above) pp 119-22.
10 The argument based on issue estoppel involved two propositions. The first was that the consent award conclusively determined that as at 16 October 1996 the worker had a permanent impairment of his left leg at or above the knee of 25% which was the result of an injury or injuries sustained in the employment of the second respondent. This is correct. The second was that he suffered two further injuries to his left leg in the employment of the appellant, one from the nature and conditions of his work, and the other the frank injury on 25 May 1998. This was also correct.
11 If these further injuries caused other than temporary aggravations of the worker’s condition they must have increased the impairment in his left leg. The Judge did not find that they only caused temporary aggravations, but nevertheless found no increased impairment. Accordingly it was submitted that she had disregarded the estoppel. Mr King relied strongly on her statement that the consent award was ‘possibly not reflective of an accurate assessment’.
12 These submissions must be rejected because they are contrary to the principles established in O’Donel v Commissioner for Road Transport (1938) 59 CLR 744. A decision that a worker’s total blindness between 14 September 1934 and 15 February 1935 arose from an injury in the course of his employment was held not to issue estop the employer from contending that his blindness after 15 February 1935 arose from other causes. Evatt J said at 763:
‘The argument involves and is based upon the fallacy that where an issue between A and B related to a state of things which is capable of subsequent alteration, the conclusive determination in A’s favour of that state of things as at one date plus conclusive proof that up to a later day there has been no alteration of such state of things establishes in A’s favour as against B an estoppel as to the state of things existing at the later day ... this method, thought logically sound, is not permitted by law ... The unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be’.”
Dealing specifically with the consent awards, his Honour said (at [14]):
“The consent award involved admissions by the parties and these, coupled with the presumption of continuance, were of some weight. However there was much other evidence, lay and expert, relating to the worker’s impairment at the later date and the weight to be given to the admissions and the presumption of continuance was a question of fact for the Judge.” (emphasis added)
In the same case Hodgson JA said (at [57]):
“The inconsistency point was supported by submissions concerning issue estoppel. However, although an issue estoppel binds the parties as to the issues actually determined, they are not bound in relation to any different issue, not even where the combination of the original issue and extremely strong evidence would support a finding on the second issue: see O’Donel v. The Commissioner for Road Transport and Tramways (NSW) (1938) 59 CLR 747 at 763.”
Applying the principles in O’Donel and Dimovski to the present matter it is clear that there is “much other evidence” relating to the cause of Mr Prisk’s hearing loss at a later date. That “other evidence” includes the evidence of the AMS, which is conclusively presumed to be correct. It therefore follows that, in circumstances where the injury is a further loss under section 17 of the 1987 Act and it is established, as it has been in the present matter, that the worker was employed in employment to the nature of which the injury was due at the time when notice of injury was given (7 June 2006), the worker is entitled to have that claim assessed by an AMS. Subject to a deduction for the hearing loss for which Mr Prisk has already been compensated, he is entitled to have his compensation assessed in terms of a validly issued MAC. The Amended MAC was validly issued and the Arbitrator erred in requesting a third MAC, which is therefore of no effect.
Mr Prisk also gains some support from J C Equipment Hire. That case held that a MAC “is only conclusively presumed to be correct with respect to the proceedings for the purpose of which the certificate has been obtained” (at [39]). The Court’s reasoning seems to me to apply, by analogy, to the weight to be given to the Medical Panel certificates. Those certificates were obtained for the purpose of proceedings claiming for lump sum compensation in respect of injuries in 1996 and 2001. In the present claim, the MACs were obtained for the purpose of different proceedings for lump sum compensation in respect of a different injury, namely, an injury in the nature of a further loss of hearing deemed to have occurred on 7 June 2006.
The decision of Humphreys is clearly distinguishable from the present claim in that it did not concern a claim for further hearing loss and the Arbitrator was not bound to apply it.
I accept Mr Prisk’s argument that his current claim is a separate cause of action. The Department’s submission that only one employer is involved is not to the point. The separate causes of action do not have the same factual basis, as the Department argues, but involve different periods of employment during which the nature of Mr Prisk’s duties changed. Mr Prisk was cross-examined about that fact and about whether his more recent employment was sufficiently noisy to have been employment to the nature of which the injury was due (T11 to T14, 28 March 2007). The Arbitrator made a finding against the Department on that issue and that finding has not been challenged.
I do not accept the Department’s submission that it would be “perverse” if the previous Medical Panels, the Terms of Settlement and the decision of Curtis CCJ did not bind Mr Prisk. The Terms of Settlement do bind Mr Prisk in that he cannot recover compensation in respect of the 7.6% binaural hearing loss for which he has already been compensated. It is correct, however, that the Department was entitled to argue, as it did argue before the Arbitrator, that Mr Prisk had not sustained any further injury. That argument, rejected by the Arbitrator, was put on the ground that Mr Prisk’s employment at the time of the notice of injury was not employment to the nature of which the injury was due.
I do not accept that a party who is dissatisfied with the outcome from an AMS referral would be entitled to re-lodge an application the “next day”, as claimed by the Department. Any claim for compensation on the basis of a further loss of hearing must satisfy the requirements of section 17 of the 1987 Act. An application issued without appropriate evidence in support of the relief being claimed would be liable to be dismissed as vexatious or frivolous (see section 354(7A) of the 1998 Act).
I do not accept that Mr Prisk has relied on the previous awards to say that liability has already been accepted, as the Department has submitted. Even if that were the suggestion in the Application, the case was conducted on the basis that Mr Prisk had to establish that he sustained a further loss of hearing and he succeeded in establishing that fact.
Costs of the Appeal to the Medical Appeal Panel
The Department failed with its appeal to the Medical Appeal Panel under section 327 of the 1998 Act and it has advanced no reason as to why Mr Prisk is not entitled to his costs of that unsuccessful appeal. Costs orders following section 327 appeals are generally made by the Registrar, or her delegate. However, if further issues remain in dispute, as was the case in the present matter, the matter is referred to an arbitrator who has the power to determine by whom, to whom and to what extent costs are to be paid (section 341(2) of the 1998 Act).
The Arbitrator made a costs order in Mr Prisk’s favour in the Certificate of Determination issued on 20 October 2008. However, the Arbitrator made no express reference to the costs of the Appeal Panel proceedings. In my view, the Arbitrator’s costs order includes costs of the section 327 appeal in any event and there is nothing in his Reasons to indicate he was minded to refuse such an order. However, for the avoidance of doubt the Arbitrator’s costs order should be amended to reflect the outcome of the section 327 appeal. As the appeal is otherwise properly before me, it is appropriate that I make that amendment.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in Chemler at [28]), I am of the view that the Arbitrator erred in making orders in the terms set out in his determination of 20 October 2008 and, save as otherwise expressly noted in this decision, erred in his Reasons and conclusions in his determination of 10 June 2008.
In light of my conclusion Mr Prisk is entitled to compensation under section 67 of the 1987 Act. As the Department has made no submissions on the appropriate quantum of that compensation, the matter must be remitted for determination of that part of the claim.
DECISION
The Arbitrator’s determinations of 10 June 2008 and 20 October 2008 are revoked and the following orders made:
“1.That the respondent employer pay the applicant worker, as lump sum compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’), the sum of $14,000.00 in respect of 11% whole person impairment as a result of his injury of further hearing loss deemed under section 17 of the 1987 Act to have happened on 7 June 2006.
2.That the respondent employer pay the applicant worker’s costs of the arbitration as agreed or assessed under Table 1 Item F of Part B of Schedule 6 of the Workers Compensation Regulation 2003. The matter is certified as complex and it is determined that each party is entitled to an additional allowance for costs of 30%. In respect of the costs of the Medical Appeal Panel, the Commission certifies that the parties’ legal representatives are entitled to party/party costs as agreed or assessed under Column 1(b), Item 3, Table 4, Part B, Schedule 6 of the Workers Compensation Regulation 2003 and orders the respondent employer to pay the applicant worker’s costs of that appeal as agreed or assessed.
3.The matter is remitted to the same Arbitrator to determine the applicant worker’s entitlement to compensation under section 67 of the 1987 Act.”
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal.
Bill Roche
Deputy President
5 February 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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