Roddenby v Bunnings Group Limited
[2021] NSWPIC 213
•25 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Roddenby v Bunnings Group Limited [2021] NSWPIC 213 |
| APPLICANT: | Jennifer Jane Roddenby |
| RESPONDENT: | Bunnings Group Limited |
| MEMBER: | 25 June 2021 |
| DATE OF DECISION: | Philip Young |
| CATCHWORDS: | WORKERS COMPENSATION- Issue estoppel; Consent Orders in prior proceedings in 2019 regarding award for the respondent for costs of lower back surgery; applicant subsequently assessed for and claimed section 66 lump sum for WPI lower back injury after surgery; respondent relies on Consent Orders to submit applicant estopped from claiming WPI component consequent upon surgery; Held- Consent Orders not specific on reason for section 60 award for the respondent; estoppel discussed generally, difference in issues on sections 60 and 66; Tomlinson v Ramsey Food Processing Pty Limited and Etherton v ISS Property Services Pty Limited considered; applicant not estopped but liberty to respondent to apply if earlier notified matter regarding causation injury and surgery is pressed. |
| DETERMINATIONS MADE: | (a) proceeding with a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987, nor (b) asserting that the Medical Assessor determine the percentage of the applicant’s whole person impairment, if any, resulting from injury to his lower back with deemed date of injury 22 August 2017 without limitation of the referral to the Medical Assessor by exclusion of the effects of the 2018 surgery |
| ORDERS MADE: | (a) The matter is remitted to the President for referral to a Medical Assessor (Orthopaedic Surgeon) to determine the extent of the applicant’s whole person impairment, if any, which results from injury to the applicant’s lumbar spine deemed to have occurred on 22 August 2017. (b) The President’s delegate is requested to place before the Medical Assessor a copy of the Application and attachments, a copy of the Reply and attachments and a copy of these Reasons for Decision. (c) Liberty is granted to the respondent to apply in the event that the respondent seeks to argue whether surgery to the applicant’s lumbar spine in 2018 is as a result of an injury to the applicant on 22 August 2017 or aggravation (etc) of a disease suffered by the applicant with deemed date of injury 22 August 2017. |
STATEMENT OF REASONS
BACKGROUND
Jennifer Jane Roddenby (the applicant) is a 55-year-old lady who was employed by Bunnings Group Limited (the respondent) as a casual employee at its Maitland store. She alleges that on 22 August 2017 she suffered injury to her lower back whilst working in the garden centre, alternatively that the nature of her duties to that date aggravated, exacerbated, accelerated or deteriorated her underlying lumbar disease.
The applicant’s general duties included putting plants out on display and then later packing them away, pulling trolleys, watering, general cleaning and tidying, rotating pots from 9 cm up to mature trees in large pots, using pallet jacks to move pallets of fertiliser, compost, pots and the like.
The applicant asserts that this work involved a lot of lifting, bending, pulling and pushing. She brings a claim pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) alleging whole person impairment and seeking lump sum compensation.
The respondent’s case relies upon medical evidence to assert that the impairment of the applicant’s lumbar spine was not related to the applicant’s employment with the respondent. Additionally, the respondent relies on an alleged estoppel created by the entry of an award for the respondent in respect of the applicant’s claim for the cost of surgery in 2018.
ISSUES FOR DETERMINATION
The principal issue at this stage is the extent to which with the Consent Award the subject of a conciliation and arbitration conducted on 22 January 2019 creates an issue estoppel thereby preventing the applicant from proceeding with her section 66 claim.
PROCEDURE AND DOCUMENTS BEFORE THE COMMISSION
This matter came for conciliation and arbitration hearing in the Commission by telephone on 13 May 2021. Mr S McMahon of Counsel instructed by Mr W Dever (solicitor) appeared for and with the worker. Mr F Doak of Counsel instructed by Mr R Elder, solicitor, appeared for the respondent and Ms N Levere represented the self-insurer.
Time was taken in the conciliation stage in discussing the issues and attempting resolution of the matter. Regrettably, the matter was not capable of settlement. I was satisfied that I used my best endeavours to attempt to achieve resolution, to no avail. That being the case, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.
The following documents were before the Commission:
(a) Application to Resolve a Dispute lodged 26 March 2021 and attachments (Application), and
(b) Reply lodged 19 April 2021 and attachments (Reply).
SUBMISSIONS
The following written submissions were received.
(a) From the respondent’s counsel dated 31 May 2021.
(b) From the applicant’s counsel dated 2 June 2021.
Because the submissions were written I do not propose to set them out in detail. I do propose to make reference to them where they are relevant to this decision.
DISCUSSION AND REASONS
It appears to be common ground that following the report of lower back and buttock pain made to the respondent on 28 August 2017 the applicant was stood down from duty and informed that she would need a medical clearance before being allowed to return to work. The applicant’s general practitioner subsequently referred her to pain management consultant, Dr M Russo. The applicant attended Maitland Hospital for her back and leg pain in early October 2017 and then on 13 October 2017 the applicant’s general practitioner certified her unfit for work.
The applicant came under the care of Dr P Spittaler, neurosurgeon, who recommended lumbar spine surgery. In his report dated 21 December 2017 Dr Spittaler proposed to perform right L4/5 lateral recess nerve decompression.
The surgery including rhizolysis of the L5 nerve root occurred on 5 or 6 June 2018. The applicant reported ongoing symptoms in her lumbar spine and right leg following this surgery.
Support for the causal relationship between the applicant’s work and her development of a broad-based L4/5 protrusion due to aggravation of pre-existing right-sided lumbar spondylosis comes from Dr Edger. Dr Edger provided a report dated 22 June 2020[1].
Dr Edger found a total whole person impairment of 17% related entirely to the applicant’s injury in August 2017.[1] Application page 12
The respondent had the applicant examined by Associate Professor P Miniter. A/Prof Miniter provided a report dated 23 October 2020[2]. A/Prof Miniter took the view that the applicant had degenerative changes at L4/5 with L5 compression identified by a CT scan. A/Prof Miniter thought the applicant had a poor outcome from her surgery. He considered that it was possible that the applicant had aggravated this pre-existing pathology as a result of the workplace incident. He did not think, however, that the workplace was the main contributor to the applicant’s presentation. He came to the conclusion that the applicant’s whole person impairment was 15% but that a 100% deduction should be applied for pre-existing condition or abnormality.
[2] Reply page 7
The prior proceedings
In 2018 the applicant commenced proceedings in the (then) Workers Compensation Commission of New South Wales. Those proceedings are numbered 5446/18. The claim was for weekly compensation and medical expenses in respect of the same injury to the applicant’s lumbar spine on 22 August 2017.
In the prior proceedings the injury to the applicant’s lumbar spine was alleged to be due to “the tendencies, incidence [sic] and characteristics” of the applicant’s employment with the respondent, or alternatively the “aggravation (et cetera) of the applicant’s lumbar spine to which the applicant’s employment with the respondent was the main contributing factor”.
The respondent had given a section 74 notice on 1 February 2018[3] and again on 1 August 2018[4]. Those notices disputed injury, causation, incapacity and whether the medical expenses were reasonably necessary as a result of injury.
[3] Page 35 Reply
[4] Page 26 Reply
The applicant was examined by Dr T Best, orthopaedic surgeon, who provided a report dated 7 June 2018[5]. Dr Best’s conclusion is consistent with the conclusion of Dr Edger to the extent that he confirms acute impingement of the L5 nerve root because of aggravation of pre-existing chronic disc degeneration at L4/5.
[5] Page 19 Application
The matter came for conciliation and arbitration on 22 January 2019 before me in my then capacity as Arbitrator. Following discussions the parties resolved the proceedings by way of “Certificate of Determination-Consent Orders”. Paragraph 1 of those Consent Orders provided as follows: -
“1) Award for the respondent in relation to the claim for surgery and associated costs conducted by Dr M Edger on 6 June 2018”
The Consent Orders also made provision for certain payments of weekly compensation and the payment of some section 60 expenses (but not the cost of surgery) up to the sum of $10,000. There is no dispute that those other payments were made. As was submitted by the respondent, the Consent Order in paragraph 1 above occurred even though the 2018 proceedings did not make any claim for the cost of the 2018 surgery. The applicant does not cavil with the respondent’s contention that it is readily apparent that the Application was amended to include the claim for the costs of surgery[6].
[6] Respondent’s submissions page 2 at [12]
The present proceedings
The respondent submits that paragraph 1 of the Consent Orders creates an issue estoppel to prevent the applicant from seeking lump sum compensation under section 66 of the 1987 Act in respect of the applicant’s lumbar spine injury. The applicant submits that paragraph 1 does not extend as far as the respondent suggests and it is limited to the costs of the surgery performed on 6 June 2018.
The dispute notice forwarded by the respondent states that the applicant’s permanent impairment claim “… Is based on the effects of the surgery and as such is based on an intervening event which is not related to the surgery.”[7] That was clarified in the respondent’s submissions[8]. In those submissions it is said that “the effect of the estoppel relied on by the respondent is to prevent the applicant from relying on the effects of the surgery as a basis for the assessment of WPI in the present claim, or any part of it”. The respondent makes the point that Dr Edger in arriving at his assessment of total WPI of 17% included consideration of 4% for spinal surgery with residual symptoms and radiculopathy and an additional 1% for scarring. The respondent says that 5% should be arguably deducted from Dr Edger’s assessment.
[7] Respondent’s submissions page 3 at [15]
[8] ibid
Issue Estoppel
In Tomlinson[9] the High Court outlined the three forms of estoppel, namely “cause of action” estoppel, issue estoppel and “Anshun” estoppel. The decision of four judges included the following observations (omitting footnotes): -
“Estoppel in that form (issue estoppel) operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a ‘judicial determination directly involving an issue of fact or of law disposes once (sic-and) for all of the issue, so that it cannot afterwards be raised between the same parties…’”
[9] Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28
Nettle J in a separate judgment in Tomlinson came to the same result in that the appellant was not estopped. His Honour commented (omitting footnotes)[10]: -
“The elements of issue estoppel
1. In Kuligowski v Metrobus, this Court adopted Lord Guest's formulation of the elements of issue estoppel in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2). That was as follows:
"(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies."
[10] At [90]
It would seem clear in the present matter that the second two elements are satisfied. The parties are the same. The order brings finality in terms of the costs associated with surgery conducted by Dr Edger on 6 June 2018. But it is necessary to examine whether “the same question has been decided”.
Section 60 of the 1987 Act includes the following terms: -
“60 (1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2)…
(2A) the worker’s employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if:
(a)the treatment or service is given or provided without the prior approval of the insurer…
(b)the treatment or service is given or provided by a person who is not appropriately qualified…
(c)the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines…
(d)the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition…”
It is to be observed that the satisfaction of section 60 in terms of the issues includes not only a question as to whether the treatment is “as a result of an injury” but also whether the treatment is “reasonably necessary”, constitutes medical/related/hospital treatment, had received the prior approval of the insurer, or was given with the treatment provided in accordance with Workers Compensation Guidelines. Failure to satisfy any one of the inclusionary factors or failing to comply with the exclusionary factors could mean that section 60 was not satisfied by the applicant so that the appropriate award is in favour of the respondent.
In its submissions[11] the respondent contends: -
“In the present case, the respondent accepts that the 2019 Consent Order does not prevent the applicant from bringing a claim for lump sum permanent impairment compensation. That is so because the Award in favour of the respondent with respect to the cost of surgery did not determine the issue of injury in the respondent’s favour. Rather, what was necessarily determined conclusively in the respondent’s favour was that the surgery was not reasonably necessary as a result of the alleged injury. It is implicit within that finding that there is no causal relationship between the alleged injury and the surgery and its effects. It therefore follows that the applicant is not entitled to be compensated for the effects of the surgery by way of the assessment of lump sum permanent compensation. The estoppel operates to limit the applicant’s entitlement to WPI on that basis”.
[11] Respondent’s submissions page 7 at [24]
The first problem for the respondent with this submission is that the Consent Order in question makes no reference to the reason why the award for the respondent was made. As mentioned above, the issues for consideration of entitlement to payments under section 60 include inclusionary provisions as well as exclusionary provisions. Which particular provision or provisions were relevant in the resolution of that issue are unknown. For that reason, the particular Consent Order is support only for the proposition that the respondent does not pay the costs of the surgery. Contrary to the respondent’s submission, there was no determination in the respondent’s favour that the surgery was not reasonably necessary as a result of the alleged injury.
The second matter to discuss in terms of the respective issues is a consideration of the elements of section 66 of the 1987 Act. Section 66 includes the following terms: -
“66 (1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the workers employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act”
It will be observed that the issues relating to section 66 include injury, permanent impairment, causal nexus between permanent impairment and injury and quantum in percentage terms. A common element in both sections 60 and 66 is that the treatment and permanent impairment must be “as a result of an injury” (treatment) and “an injury that results in a degree of permanent impairment” (impairment) respectively. But the Consent Order is entirely silent on this issue (“as a result of an injury”) so that even if there is a common issue existing between sections 60 and 66, it has not been determined by the Consent Order.
In Etherton[12] his Honour President Judge Phillips considered an appeal from a decision of an Arbitrator who had held that an earlier Consent Order estopped the applicant from pursuing his claim for permanent impairment compensation. The order in question included: -
“Otherwise and thereafter there is an award for the respondent for section 60 expenses, including an award for the respondent for the claim for the cost of a right total knee replacement on the grounds that the right total knee replacement is not reasonably necessary as a result of the right knee injury on 15 April 2015”
Notwithstanding the specificity of this consent order in terms of its explanation of the grounds that the award for the respondent was made, his Honour approached the principles in accordance with an earlier decision of Roche DP in Bouchmouni[13]. It was determined that it was necessary to examine exactly what was “necessarily decided” by the earlier Consent Orders. President Phillips noted that Mr Etherton’s frank injury which allegedly occurred on 15 April 2015 was not referenced in the Consent Orders and therefore could not be the subject of an award in favour of the respondent which was referred to in Consent Order 3 relating to the nature and conditions of Mr Etherton’s employment.
[12] Etherton v ISS Property Services Pty Limited [2019] NSWWCCPD 53
[13] Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 at [33]-[47]
In Etherton his Honour noted that the Consent Orders did not determine one way or the other whether Mr Etherton on 15 April 2015 suffered a frank injury to his right knee and therefore the Arbitrator was in error to find an estoppel.
Consent Order 1 in the present matter deals only with the cost of medical and associated treatment in terms of the applicant surgery. There is no mention of the reason for this award and no concession by the applicant in terms of his rights to lump sum compensation pursuant to section 66 of the 1987 Act. I accept that the applicant could not have made any concession in respect of lump sum compensation in circumstances where the applicant’s right and entitlement had not yet been medically considered. In the result, I am comfortably satisfied that the applicant is not estopped from pursuing a section 66 claim and in particular nothing in the earlier Consent Orders affects referral of the annexures to the Application and Reply to a Medical Assessor for determination.
The finding is as follows: -
(a) The applicant is not estopped by the Consent Orders of 22 January 2019 from:
(i)proceeding with a claim for lump-sum compensation pursuant to section 66 of the 1987 Act, nor
(ii)asserting that the Medical Assessor determine the percentage of the applicant’s whole person impairment, if any, resulting from injury to his lower back with deemed date of injury 22 August 2017 without limitation of the referral to the Medical Assessor by exclusion of the effects of the 2018 surgery.
The way forward
A final consideration concerns how the claim now proceeds. In this regard, it seems tolerably clear from the insurer’s section 78 Notice of 2 December 2020 that a causation argument was advanced by the insurer which has not yet been determined within the ambit of the present submissions and reasons for decision. This section 78 Notice includes the following[14]: -
“To respond to your claim, you were assessed by A/Prof Paul Miniter, orthopaedic surgeon. In his report dated 23 October 2020, he provided a diagnosis of L4/5 degenerative segment with lateral recess stenosis on the right hand side. He believed the workplace incident caused aggravation of previous pathology. He did not consider your current presentation was related to work, and was due to longstanding pre-existing issues.
According to A/Prof Miniter, there were no features of your investigations nor your presentation to suggest that permanent injury to the back occurred due to the nature of your employment on 22 August 2017. With respect to impairment, he assessed 15% WPI for the lumbar spine incorporating a 2% WPI for the effects of ADLs and 3% WPI for radiculopathy. However, he derived at a final assessment of 0% WPI after a 100% deduction as he believed that your impairment was related to pre-existing issues.
GIO notes your claim was litigated in 2018 and was resolved in January 2019 by an award in favour of the insurer for the lower back surgery performed in June 2018 and weekly benefits after March 2018. Thus, by order of the Commission by consent, there is an estoppel that the surgery to your lower back is not related to your injury. By virtue of the surgery subsequent to the injury, there is a 'break in the chain of causation' between your current lower back condition and impairment, and any subsequent effect of that surgery on any impairment claim. The claim for impairment is based on the effects of the surgery, and as such is based on an intervening event which is not related to the injury.
GIO submits that the issue of estoppel and whether a causal break has occurred is a matter to be determined by an arbitrator before referral to AMS. Thus, GIO has determined that the degree of impairment resulting from your injury is not assessable due to the subsequent surgery, and that the issue of impairment should be determined by an award in favour of GIO. Further, in the alternative, GIO determines that the degree of impairment resulting from the injury is not greater than 10% WPI and you do not qualify for any compensation for permanent impairment”.
[14] Reply pp 3 ff
Apart from the reliance on the estoppel argument, the section 78 Notice does not assert that any other necessary ingredients of a section 66 claim have not been satisfied.
A/Prof Miniter’s conclusion is that the “workplace incident” aggravated the applicant’s pathology, but a 100% deduction was appropriate for “pre-existing issues”. A/Prof Miniter does not, as I interpret his report, say that the surgery was not reasonably necessary and in fact comments that it was “reasonably planned”[15]. The only outstanding issue, in the circumstances, is whether the need for the applicant’s surgery is “as a result of an injury” within the meaning of section 60 (surgery causation argument). That is not a matter which has been determined entirely by the estoppel arguments and it is therefore appropriate that whilst the matter should be remitted for referral to a Medical Assessor, the respondent should be granted liberty to apply should it wish to argue the surgery causation argument.
[15] Reply page 13
The appropriate orders are therefore as follows: -
(a) The matter is remitted to the President for referral to a Medical Assessor (Orthopaedic Surgeon) to determine the extent of the applicant’s whole person impairment, if any, which results from injury to the applicant’s lumbar spine deemed to have occurred on 22 August 2017.
(b) The President’s delegate is requested to place before the Medical Assessor a copy of the Application and attachments, a copy of the Reply and attachments and a copy of these Reasons for Decision.
(c) Liberty is granted to the respondent to apply in the event that the respondent seeks to argue whether surgery to the applicant’s lumbar spine in 2018 is as a result of an injury to the applicant on 22 August 2017 or aggravation (etc) of a disease suffered by the applicant with deemed date of injury 22 August 2017.
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