Q v Z
[2015] NSWWCCPD 25
•16 April 2015
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| Status: Appeal to the Court of Appeal dismissed – Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 | ||
| CITATION: | Q v Z [2015] NSWWCCPD 25 | |
| APPELLANT: | Q | |
| RESPONDENT: | Z | |
| FILE NUMBER: | A1-3812/14 | |
| ARBITRATOR: | Mr G Egan | |
| DATE OF ARBITRATOR’S DECISION: | 26 November 2014 | |
| DATE OF APPEAL DECISION: | 16 April 2015 | |
| SUBJECT MATTER OF DECISION: | Consent finding made in previous proceedings between same parties; whether Arbitrator has jurisdiction to make a finding which implies that no whole person impairment exists; no estoppel where jurisdiction is absent; consideration of decision in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 | |
| PRESIDENTIAL MEMBER: | Acting President Kevin O'Grady | |
| HEARING: | On the papers | |
| ORDERS MADE ON APPEAL: | 1. The finding and award made by the Arbitrator which appear in [2] and [3] of the Certificate of Determination dated 26 November 2014 are revoked. 2. The following order of remitter is made in their place: “The matter is remitted to the Registrar for referral to an Approved Medical Specialist for the purpose of assessing any whole person impairment resulting from injury.” | |
INTRODUCTION
Q (the worker) alleged that she received injury arising out of or in the course of her employment as a teacher at a school which is conducted by Z (the respondent). It was the worker’s allegation that, by reason of bullying and harassment experienced by her, she suffered psychological injury which resulted in incapacity.
The worker made a claim for compensation benefits, which was rejected by the respondent. Proceedings were commenced by the worker in the Commission, seeking orders with respect to weekly compensation and medical expenses. The matter came before Arbitrator Ross Bell (the original Arbitrator) on 27 August 2013 at which time the parties reached agreement concerning the worker’s entitlement to compensation benefits. The original Arbitrator issued a Certificate of Determination – Consent Orders on that day which, relevantly, recorded the following matters:
“CONSENT FINDINGS
1. That … the applicant has fully recovered from the effects of any work related psychological injury or condition.
2. Upon receipt of above compensation the applicant has received all her workers compensation entitlements.
ORDERS BY CONSENT
1. Amend name of the respondent on all documents as per the Reply.
2. That the respondent to pay weekly compensation as follows:
a. … at $350 per week pursuant to (previous) s.40 (old Act);
b. … at $350 per week pursuant to s.37 (2012 Act),
agreed to total $35,000; otherwise and thereafter award in favour of the respondent in respect of all claims for weekly compensation.
3. That the respondent pay the applicant’s s.60 of the Workers Compensation Act 1987 expenses to a maximum of $27,879.01 upon production of accounts, receipts or Medicare Notice of Charge. Otherwise and thereafter, award in favour of the respondent in respect of all s.60 claims and expenses.
4. That the respondent pay the applicant’s costs as agreed or assessed.
5. I certify this matter as complex for the purposes of Schedule 6, Table 4, Item 4, of the Workers Compensation Regulation 2010; there is to be a 30 per cent increase to the costs applicable to both parties.
…”
In February 2014 the worker made a claim against the respondent in respect of lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). In March 2014 that claim was declined on behalf of the respondent by its insurer. Notice concerning the reasons for the insurer’s decision to reject the claim was given to the worker by the insurer at that time, as is required by the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The following statement, which is of particular relevance to matters raised on this appeal, appeared in that notice:
“In previous Workers Compensation Commission proceedings … instituted in respect of this injury, a Consent Finding was made that you had recovered from the effects of this injury… and you are now estopped (precluded) from denying that fact.”
The dispute between the parties was the subject of an Application filed with the Commission in July 2014. That Application sought orders with respect to medical, hospital and rehabilitation expenses, the quantum of which was not particularised in the Application. Lump sum compensation in respect of an alleged whole person impairment of 24 per cent as a result of psychological injury was claimed together with an unspecified amount in respect of pain and suffering.
The matter came before Arbitrator Gerard Egan on 13 November 2014, at which time the Arbitrator noted that the respondent placed reliance upon the doctrine of estoppel as a defence to the claim in respect of lump sum compensation. It was also noted by the Arbitrator that before the Commission, there was a concurrent application made by the worker for reconsideration of the original Arbitrator’s orders and award. Whilst there is some confusion, and indeed disagreement, among the parties as to the nature of the procedure adopted by the Arbitrator, it is clear that the discrete question raised concerning the question of estoppel was, with the consent of the parties, dealt with as a preliminary matter by the Arbitrator. Exchanges between the Arbitrator and counsel, found in the transcript of proceedings (T), demonstrate that the future conduct of the reconsideration application was contingent upon the outcome of argument concerning the question of estoppel.
Following submissions, which were confined to the question as to whether the worker was estopped from proceeding with the present claim, the Arbitrator reserved his decision. A Certificate of Determination was issued by the Arbitrator, accompanied by a Statement of Reasons, on 26 November 2014. The following matters are recorded in that Certificate:
“The Commission determines:
1. The applicant is granted leave to amend the name of the respondent to [Z].
2. The applicant is estopped from bringing further claim in respect of psychological injury during the course of her employment with the respondent.
3. Award for the respondent in respect of the applicant’s claim for lump sum compensation.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
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 Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
Whilst the worker enumerates seven separate grounds of appeal in her submissions in support of this appeal, it is clear that the fundamental issues concern the question as to whether the Arbitrator erred in concluding that the worker is “estopped from bringing further claim in respect of psychological injury” and erred in entering an award for the respondent in respect of the worker’s claim for lump sum compensation (grounds I and II).
The remaining “grounds” are expressed as follows:
“III. The Arbitrator erred in law in following the decision of Senior Arbitrator Moore in Hasan [sic, Hassan] v Spotless Property Cleaning Services Pty Limited [2014] NSWWCCPD [sic, NSWWCC] 399.
IV. The Arbitrator erred at paragraph 49 of the Reasons for Decision to hold that a consent finding of ‘fully recovered’ thereby prevents as a matter of law a subsequent claim for lump sum compensation by reason of the principles of Issue Estoppel.
V. The Arbitrator erred in law in failing to find that the parties to the original settlement and consent award had impermissibly contracted out of the operation of the Workers Compensation Act and the Workplace Injury Management Act 1998 pursuant to s 234 of the latter Act.
VI. The Arbitrator erred in considering irrelevant matters as set out in paragraph 4 and 22 of the Reasons for Determination. Such matters being relevant to an Application for Reconsideration but not to the Application of the law of Estoppel.
VII. The Arbitrator erred in finding at paragraphs 7 and 9 that the matter proceeded on the basis of the allegation of estoppel only and that the parties agree that if the Applicant is estopped the matter should be dismissed and an order in favour of the Respondent entered but that if the Applicant is not estopped the Respondent seeks an opportunity to apply for a reconsideration of the early [sic, earlier] proceedings given the circumstances of the case.”
It may be seen that “grounds” III and IV will necessarily be addressed in this appeal when ground one is considered. The force and relevance of the balance of the “grounds” is discussed below.
THE NATURE OF THE PROCEEDINGS BEFORE THE ARBITRATOR
As noted above, the Arbitrator had before him an application seeking an order for lump sum compensation in respect of whole person impairment and pain and suffering. As earlier mentioned, there was in existence a concurrent application before the Commission made by the worker pursuant to s 350(3) of the 1998 Act seeking reconsideration of the original Arbitrator’s findings and orders.
There is no doubt, having regard to matters recorded in the transcript, that the parties consented to the Arbitrator’s proposal to address the question as to whether the original Arbitrator’s findings and orders gave rise to an estoppel preventing the worker from proceeding with the present claim. The Arbitrator (at T17) is recorded as stating:
“… what I am proposing to do is to deal with the estoppel argument. Mr Daley [counsel for the worker] is then going to decide whether to apply for either an adjournment or a discontinuance.”
It is reasonably clear, having regard to the exchanges between counsel and the Arbitrator, that there was a deal of confusion as to what the appropriate procedure was to be following a determination of the question concerning estoppel. It was contended by the worker that, should she succeed on that issue, there should be a remitter to the Registrar for the purpose of referring the question of whole person impairment for assessment by an Approved Medical Specialist. That assertion was challenged by the respondent’s counsel, Mr Saul. It is important to note that the parties could not reach agreement as to the future conduct of the proceedings and nor did the Arbitrator, quite properly in my view, make any ruling with respect to that subject. Having regard to my conclusion concerning the merits of the appeal and the manner in which the respondent conducted the defence of the claim, it is appropriate that the matter be remitted to the Registrar in accordance with the order noted at [71] below.
THE ARBITRAL PROCEEDINGS
Having regard to the discrete nature of the question agitated before the Arbitrator, that is, whether or not an estoppel arises by reason of the consent findings earlier made, it is unnecessary to attempt a summary of the evidence. It is noted that the worker’s application was supported by medical evidence and that the evidence before the original Arbitrator had been tendered at the hearing before Arbitrator Egan. A ruling was made at the hearing excluding a late document, being a statement made by the worker, which had been prepared shortly before the date of hearing. The admission of that document was the subject of argument, and reasons for its exclusion were recorded by the Arbitrator.
Submissions before the Arbitrator
At the outset of proceedings, Mr Saul enumerated a number of authorities which he stated were relevant and upon which he relied. Those matters included the decisions in Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4; Peric v Lee & Ran t/as Pure & Delicious Healthy [2009] NSWWCCPD 47; 7 DDCR 215 (Peric); WorkCover (NSW) v Evans [2009] NSWWCCPD 95; 7 DDCR 231 (Evans); Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 33, and the decision of Senior Arbitrator Moore in Hassan v Spotless PropertyCleaning Services Pty Ltd [2014] NSWWCC 399 (Hassan).
It was argued by the respondent that the decision in Hassan was “on all fours” with the present case. The facts of Hassan concerned a claim in respect of weekly compensation and medical expenses which had been settled by agreement, following which orders were entered by the Arbitrator which included a consent finding being “that from 27 September 2013 [Mr Hassan] has fully recovered from the effects of the injury the subject of this claim”. In the course of argument, particular emphasis was placed on the Senior Arbitrator’s statement in Hassan found at [35] as follows:
“If a finding is made by an arbitrator that the effects of a work injury have ceased, that creates an issue estoppel that binds the parties. (Evans). ‘In such circumstances there could not be a finding, inconsistent with this, that there was a permanent impairment resulting from the work injury.’ (Evans).”
Following a summary of the reasoning of the Senior Arbitrator in Hassan, counsel for the respondent returned to the present facts and made reference to the terms of the consent findings noted at [2] above and stated as follows (at T38.14–23):
“So in summary we say that the whole basis upon that agreement, that settlement and those orders and the fact that it is all part of the certificate of determination being consent orders, headed Consent Findings and Orders By Consent, that they are binding and that you cannot go behind them or the worker can’t go behind them and that that then estops the worker from bringing any further claim beyond 14 August 2013 in respect of her injury which would then, of course, estop the current proceedings which should then be struck out.”
Counsel appearing for the worker, Mr Daley, placed reliance upon the provisions of s 234 of the 1998 Act which provides:
“234 No contracting out
This Act and the 1987 Act apply despite any contract to the contrary.”
It was argued by the worker that, having regard to the terms of s 234 it was “not helpful to be citing general common law cases on terms of the construction of general common law judgments and awards…”. Counsel proceeded to argue that the decision of the Senior Arbitrator in Hassan “ought not be followed”. It was put that the Commission “is obliged to determine as at the date of the new hearing what [the worker’s] entitlements are without legal constraints flowing from the earlier award”. It was argued that the existence of earlier orders or findings were not relevant to “a question of estoppel. It’s a question of an assessment of the evidence at point A and the evidence at point B”.
Counsel for the worker placed reliance upon the decision of Roche DP in Grasa v Roads & Maritime Services [2013] NSWWCCPD 30 (Grasa). Particular reference was made in the course of argument to the statement made in that decision at [33]:
“Even if the consent orders provided support for the Arbitrator’s finding that Mr Grasa had recovered by 25 August 2011, which, for the reasons explained above, I do not accept, they do not support a finding that he was in the same condition on 12 September 2011. An issue estoppel (if there be one) only speaks at the date of the order made and only binds the parties as to the issues actually determined; it does not bind them on different issues, such as fitness at a later date (Dimovski at [57]).”
It was asserted in argument that no estoppel arises in the circumstances of the worker’s matter. It was put that “there is no estoppel in a changing situation such as a person’s physical condition and impairments that arise from the same incident…”. Reliance was again placed on the decision in Grasa.
Counsel addressed the state of the medical evidence and submitted that there was no doubt on that material, including the evidence of Dr Roberts, upon which the respondent relied, that the worker was totally unfit for work as a school teacher. The experts differed as to diagnosis and as to the question of nexus between the work conditions and the illness as diagnosed. It was argued that the state of the evidence would not support a finding of a full recovery. Such issue, it was argued, was of significance in the reasoning as expressed by the Commission in Grasa.
I note that the Arbitrator recorded (at [29(d)] of his Reasons) that counsel had argued that the Commission has no jurisdiction to determine lump sum compensation and that reliance was placed upon the decisions of Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34 (Caulfield) and that of the Court of Appeal in Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139 (Haroun). That argument does not appear to have been recorded in the transcript, which omission may be explained by the notations recorded on a number of occasions that matters were not transcribed by reason of the recording being “indistinct”.
In reply, counsel for the respondent argued that s 234 had no relevance to the present facts and it was further asserted that there was an “onus” upon the worker to “establish why this finding should be disturbed”. In exchanges between the Arbitrator and counsel thereafter, the Arbitrator indicated that he accepted “that the onus is on the respondent to establish the estoppel”.
The Arbitrator’s decision
The Arbitrator identified, at the outset of his Reasons (at [8(a)]), the issue in dispute as being:
“Whether [the worker] is estopped from bringing the claim for lump sum compensation by virtue of the consent findings in the earlier proceedings.”
The medical evidence which was before the Commission was briefly summarised by the Arbitrator. That evidence included material which had been before the original Arbitrator. Having regard to the manner in which the question of estoppel was treated as a preliminary issue for determination, the Arbitrator did not consider it appropriate to attempt a summary of the evidence as a whole. I note that the Arbitrator (at [21] of Reasons) made the statement, which appears to relate to the 2012 proceedings, that “…there were factual contests very much in issue concerning the reasonableness of the actions by the respondent for the purpose of s 11A”. The allegations of injury made in both the 2012 proceedings and the present proceedings were considered by the Arbitrator and a conclusion was reached that there was no “material difference in the injury relied upon in the earlier proceedings compared to the present proceedings…”.
The Arbitrator proceeded to summarise submissions put on behalf of each party following which, when expressing his findings and reasons, he accepted the respondent’s submission that the factual circumstances of the present matter were “indeed on all fours with those in Hassan” (at [31] of Reasons).
The Arbitrator proceeded to express agreement with the reasons stated by Senior Arbitrator Moore in Hassan. A finding was made that:
“… the language adopted in the consent finding is unequivocal… The finding is that [the worker] had ‘fully recovered’. The injuries are the same. There has been no suggestion that [the worker] has relapsed. There is no suggestion that the circumstances fundamental to the claim for lump sum compensation have changed.”
The submission put on behalf of the worker that s 234 of the 1998 Act prevents parties from contracting out of the Act and that an estoppel cannot arise in workers compensation circumstances were rejected by the Arbitrator. The Arbitrator concluded that:
“An estoppel can arise in the appropriate circumstances provided the determination is seen to bring finality to the proceedings in respect of the particular issues sought to be agitated later.”
The Arbitrator proceeded to consider the worker’s arguments advanced which placed reliance upon the decision in Grasa. The matter of Grasa was distinguished by the Arbitrator upon the facts and the conclusion was reached that the worker could “find no comfort in her reliance upon Grasa”. The Arbitrator further stated (at [41] of Reasons):
“… the finding that [the worker] has ‘fully recovered’ is, as interpreted by Senior Arbitrator Moore [in Hassan] perfectly clear. The adoption of such language must therefore apply to all forms of compensation arising from the relevant injury. It is difficult to imagine any rights to weekly payments, medical expenses or the existence of any impairment in circumstances where the applicant has ‘fully recovered’ from the effects of the injury. The medical evidence upon which [the worker] relied in the earlier proceedings … spoke as at December 2011, when the consent finding was entered almost two years later.”
The Arbitrator proceeded to summarise his findings and noted those authorities which had been taken into consideration. He stated that:
“I conclude that the Consent Order … creates a res judicata estoppel and as such [the worker] is prevented from bringing further claim for compensation arising out the [sic, of the] very same injury.”
A further finding was expressed by the Arbitrator as follows (at [49]):
“I also hold that the finding that [the worker] had ‘fully recovered’ completely resolves the issue of the effects of [the worker’s] injury. That is, there is no ongoing effect of any injury. Accordingly, I find that the consent finding creates an issue estoppel and prevents [the worker] from re-agitating that she has not ‘fully recovered’ as she has agreed.”
The Arbitrator proceeded to formally determine the matters recorded at [6] above.
SUBMISSIONS
As earlier noted, the Arbitrator placed significant reliance upon the reasoning of Senior Arbitrator Moore as found in Hassan when making his findings and determination. Hassan was the subject of an appeal which was determined by me on 6 March 2015, being a date following presentation of the parties’ submissions concerning this appeal: Hassan v Spotless Property Cleaning Services Pty Ltd [2015] NSWWCCPD 19 (Hassan No 2).
The appeal in Hassan No 2 was upheld and the Senior Arbitrator’s finding concerning estoppel and her determination in favour of the employer were revoked. In the circumstances, the parties in the present matter were granted leave to make supplementary submissions addressing the relevance, if any, of the decision in Hassan No 2. Those further submissions have been put on behalf of each party.
The worker’s submissions on appeal
The grounds III to VII relied upon by the worker are noted at [11] above. Grounds I and II are as follows:
“I. The Arbitrator erred in finding as a matter of law and fact that the Applicant is estopped from bringing a further claim in respect of psychological injury by reason of the terms of the previous settlement and consent award of the Commission: paragraphs 48 & 49; Certificate of Determination paragraph 2.
II. The Arbitrator erred thereby in making an award in favour of the Respondent in respect of the Applicant’s claim of a lump sum compensation: paragraphs 48 & 49; Certificate of Determination paragraph 3.”
Submissions put in support of the first three grounds of appeal place reliance upon the decisions of Grasa, Seaib v Hays Personnel Services (Aust) Pty Ltd [2008] NSWWCCPD 36; 6 DDCR 562 (Seaib) and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie). It is argued that the decision of the Senior Arbitrator in Hassan “cannot stand in the light of Jaffarie” and that the Arbitrator had erred in “following Hassan to found his award”.
As to the fourth ground of appeal, the worker argues that, even upon acceptance that the consent finding created an estoppel, such “would only speak as at the date of the order”. Reference is made to the decision of Grasa (at [33]) in support of this argument.
The fifth ground of appeal is founded upon s 234 of the 1998 Act, the terms of which appear at [20] above. It is put that the “agreement and subsequent finding” as found in the award entered by the original Arbitrator “constitute an impermissible attempt to contract out of [the worker’s] rights under workers compensation legislation”.
It is emphasised in argument that the medical evidence before the Commission at the time of the earlier award could not support a finding that the worker had “fully recovered”. It is argued that “that being so … the parties’ agreement to that effect must constitute an impermissible contracting out of [the worker’s] entitlements under the Act in breach of section 234”.
As to the sixth and seventh grounds, it is unnecessary, for the reasons appearing below, to consider the matters raised in support of those contentions of error.
The worker’s supplementary submissions
Reference is made by the worker to the decision in Hassan No 2 and it is put that that decision addressed issues which are “identical” to those raised in the present appeal. It is argued that the reasoning in that decision “disposes of [the present] appeal” given that there “are no logical grounds upon which [Hassan No 2] can be distinguished [from the present matter]”.
It is argued that the decision of Hassan No 2 was correctly decided and was “consistent with the development of legal authority in the last several years”. Reliance is placed upon the decision in Jaffarie.
Further argument is advanced which asserts that the “consent finding” made by the original Arbitrator was not “an essential finding for the determination of anything other than the claim that was [then] before the Commission. No s 66 claim was before the Commission”.
The respondent’s submissions on appeal
The respondent’s submissions between [6] and [12] merely assert the correctness of the Arbitrator’s reasoning and of that found in the decision of Hassan upon which the Arbitrator placed reliance.
It is submitted that, on the authorities, there is no dispute that the Commission “has jurisdiction to enter the consent finding that is the subject of this appeal”. The facts of the present matter, it is argued, may be distinguished from those in Haroun.
It is accepted by the respondent that the Commission has “no jurisdiction to determine the ‘degree’ of permanent impairment that results from an injury; this being in the exclusive province of an AMS (WCA s 65(3) and WIM s 326(1)(a))”. It is argued that a finding of “recovery” is very different to a finding “about the degree of permanent impairment”.
The decision of Jaffarie, a matter which concerned a claim for both weekly compensation and lump sum compensation, may, it is argued, be distinguished from the present matter, given that, unlike the circumstances in Jaffarie, there was no lump sum compensation claimed before the original Arbitrator. It is further argued that the evidence establishes that the worker “fully understood the effect of the prior settlement” and accepted payment of the money amounts specified. It is put that the worker is thus “now estopped from bringing any further or new claim, be it for weekly compensation, medical expenses or lump sum compensation on the basis that [she] has already been found in previous proceedings to have fully recovered from her injury and thus has no basis to make such a claim”.
An alternative argument to the matters summarised above was advanced, being that Jaffarie “is wrongly decided” and that the decisions in Peric, Waretini and Evans “all remain good law”.
The Arbitrator’s decision is, it is argued, “on all fours” with the decisions in Peric, Waretini and Evans. Those authorities “should be applied in this appeal”.
It is argued that the reasoning in Jaffarie, which concerned a consideration of s 65(3) of the 1987 Act, which in that matter was found to affect the Commission’s jurisdiction concerning the making of an award for permanent impairment is wrong and that the decisions in Peric, Waretini and Evans should “be preferred”. It seems to be argued that the decision in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 (Bindah) does not have the consequence that the Commission does not have the jurisdiction to make a “finding of recovery in respect of a claim for lump sum compensation”.
It is argued that “the embargo in s 65(3) is only concerned about the ‘degree’ of permanent impairment” (emphasis in original). The purpose of the section is to prevent an Arbitrator from determining the extent of whole person impairment where there is conflicting evidence. The section does not extend, it is argued, to prevent a finding that a worker has “recovered” from the effects of an injury. It is argued at [24d.(v) and e.] that:
“d. …
(v)A finding by the WCC that a worker has ‘fully recovered from the effects of an injury’ however, must mean that a worker is no longer incapacitated, requires no further medical treatment and has no permanent impairment/WPI that is capable of being assessed by an AMS.
e. In this last example (v), s 65(3) has no work to do as there is no dispute about the ‘degree’ of permanent impairment. In such a case, the worker’s condition at the point of recovery has returned to its state as it existed just prior to injury and as if the injury had never occurred.” (emphasis in original)
The argument is further developed and it is put that the decision in Jaffarie is wrong given that “a finding of recovery is a different concept to 0% WPI and s 65(3) is thus not relevant”.
Reference is made to the provisions of s 321(4)(a) of the 1998 Act and it seems to be argued that a determination of “recovery” is a finding as to liability and is one that is to be made before referral to an AMS for determination of any disputed whole person impairment.
The respondent’s supplementary submissions
The respondent submits that, for the reasons outlined in earlier submissions, the matter of Hassan No 2 was wrongly decided.
The “subject matter” of the estoppel in the present case, it is argued, is “that [the worker] has recovered from the effect of the work injury”.
It is argued that any claim brought by the worker following the making by the Commission of the consent finding of “recovery”, which finding was, it is argued, made within jurisdiction, must, regardless of what compensation is claimed, fail by reason of estoppel. It is put that there is “no dispute that remains capable of determination, either by the Commission or an AMS”.
It is also argued that the consent finding was “essential for the determination of the dispute between the parties…”.
DISCUSSION AND FINDINGS
The finding which the worker challenges on this appeal is to be found at [49] of the Arbitrator’s Reasons which is noted at [34] above.
The respondent identifies the issue in respect of which it is asserted the worker is estopped from denying as follows (at [3] of supplementary submissions):
“… the respondent submits that the subject matter of the estoppel (the issue that has been finalised between the parties) is that the worker has recovered from the effects of the work injury. This is the issue that has been determined by way of the earlier Consent Finding.”
The respondent emphasises in submissions that the Arbitrator had “jurisdiction” to make the consent finding. That assertion, which is founded upon the decisions of Peric, Evans and Waretini, must, in my opinion, be rejected.
The respondent, when asserting the existence of jurisdiction in the Commission to make the consent finding, has failed to acknowledge two matters of relevance. The first is that the consent finding purports to impliedly determine that there is no whole person impairment, and, secondly, that no medical dispute as to whole person impairment exists.
As described by Campbell J in Greater Western Area Health Service vAustin [2014] NSWSC 604, the resolution of disputes in the area of workers compensation is a “bifurcated procedure”. The statutory scheme which establishes that procedure was subsequently considered by Emmett JA in Bindah in the following terms (at [111] and [112]):
“It is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the Compensation Act. The Commission must also determine whether there are any disentitling provisions, such that compensation is not payable in respect of that injury. It is also the function of the Commission to determine by whom any compensation is payable. Jurisdiction is conferred on the Commission by s 105 of the Management Act. However, that jurisdiction is subject to the restriction contained in s 65(3) of the Compensation Act, which precludes the Commission from awarding permanent impairment compensation if there is a dispute about the degree of impairment, unless the degree of impairment has been assessed by an approved medical specialist. The fact that a medical dispute includes a dispute as to the degree of permanent impairment of a worker as a result of an injury is consistent with the entitling provision of s 66 of the Compensation Act in conferring an entitlement to receive compensation if the worker receives an injury that results in permanent impairment. The degree of permanent impairment that results from an injury is to be assessed as provided in Pt 7 of Ch 7.
The reference in s 65(3) of the Compensation Act to a dispute about the permanent impairment of an injured worker includes a dispute about the degree of permanent impairment that results from an injury, since that is the only type of relevant assessment that can be made under Pt 7 of Ch 7 of the Management Act. The Commission cannot award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist. It follows that the determination of the degree of permanent impairment that results from an injury is a matter wholly within the jurisdiction of the approved medical specialist or, on appeal, the Appeal Panel. It is not a matter for determination by an arbitrator. Thus, it would not have been open for the arbitrator who made the consent Determination to determine, even by consent, that any degree of permanent impairment resulted from an exacerbation of the pre-existing cataract condition. That is a matter wholly within the jurisdiction of an approved medical specialist or an Appeal Panel.” (emphasis in original)
I am of the opinion that, having regard to the procedure summarised by Emmett JA set out above, it is not open for an Arbitrator, even by consent, to make a finding which by inference determines that no whole person impairment resulted from the injury suffered by the worker. As was stated by Handley AJA in Haroun (at [19] and [20]):
“The scheme of the two Acts is to ensure that the degree of permanent impairment that results from an injury, and any contribution to the worker’s total impairment that is due to an earlier injury or pre-existing condition are assessed under and in accordance with Part 7 of the 1998 Act and not otherwise.
If there is a medical dispute of a kind defined in s 326(1) [sic, s 319] of the 1998 Act, an Arbitrator has no jurisdiction to decide it, but ‘may refer it for assessment’ by an AMS: s 321(1). That section confers a power which an Arbitrator is bound to exercise in a proper case in aid of the private rights of the parties: Julius v Lord Bishop of Oxford (1885) App Cas 214, 235, 243, 244.”
It follows that the Arbitrator’s finding noted at [34] above concerning the force and effect of the original Arbitrator’s consent finding was made in error. The determination that the consent finding “creates an issue estoppel” was also made in error. The Arbitrator’s finding and the award entered in favour of the respondent must be revoked. Appropriate orders appear below.
Having regard to my conclusion stated immediately above, it is not necessary to consider the further ground relied upon by the worker concerning s 234 of the 1998 Act. However it is appropriate to record my view that the worker’s submission that there was no evidence before the original Arbitrator of “recovery” by the worker from the effects of the injury should be accepted. Contrary to the submissions put by the respondent’s counsel recorded at T31, the evidence of Dr Roberts relied upon by the respondent did not support a conclusion that the worker had “recovered from the effects of any injury”. Dr Roberts was of the view that the worker was suffering from a serious mental illness, but that such was not work related. In the circumstances it is the case that an attempt to reach an agreement which purported to provide for the worker’s relinquishment of her rights is, in my opinion, defeated by operation of s 234 as argued by the worker: Ashenden v Stewarts and Lloyds (Australia) Limited [1972] 2 NSWLR 484 per Jacobs JA at 489 and Taylor AJA at 492 (where s 45 of the former Workers Compensation Act 1926 was considered by the Court).
The worker’s complaints found in the sixth and seventh grounds concern suggested misapprehension and relevant error on the part of the Arbitrator concerning the proper procedure to be followed given the existence of a reconsideration application which had been filed on behalf of the worker with the Commission. Those complaints need not be addressed given my conclusion as to the outcome of the appeal. However, a question is raised as to the appropriate order concerning the future conduct of the proceedings.
Having regard to matters stated at the hearing before the Arbitrator by counsel appearing on behalf of the worker, it may safely be assumed that the worker will discontinue the reconsideration application which has been instituted. The s 74 notice relied upon by the respondent has raised estoppel as the only defence to the claim. Whilst it is not entirely clear, it appears that the respondent elected to proceed with the argument concerning estoppel in the absence of any application for leave to raise an un-notified matter by way of defence pursuant to s 289A of the 1998 Act (T25). The outcome of the appeal has defeated the estoppel defence. In the circumstances the matter should be remitted forthwith to the Registrar for referral to an AMS for assessment.
DECISION
The following orders are made:
1.The finding and award made by the Arbitrator which appear in [2] and [3] of the Certificate of Determination dated 26 November 2014 are revoked.
2.The following order of remitter is made in their place:
“The matter is remitted to the Registrar for referral to an Approved Medical Specialist for the purpose of assessing any whole person impairment resulting from injury.”
Kevin O'Grady
Acting President
16 April 2015
I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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